CHAPTER IX. EVIDENCE. The Sovereign as a Witness. THERE is no record of the appearance of the Sovereign as a witness. Lord Campbell (Lives of the Chancellors, II. 511) opines that he, if so pleased, might be examined as a witness in any case, civil or criminal, but must be sworn, although there would be no temporal sanction to the oath, citing 2 Roll. Abr. 686. But it is not easy to see on what principle the Court could compel the Sovereign to be sworn as the condition of giving evidence, any more than it could compel him to come and give evidence. There would, of course, be no temporal sanction to the oath, as the Sovereign could not commit or be charged with perjury. The passage cited from Rolle runs: "Semble que le roy ne poet estre un testimonie en un cause per son letters desouth son signett manuell." But, in fact, in Lord Abignye v. Lord Clifton, Hob. 213, the King by his letters under his sign manual certified to the Lord Chancellor the manner and substance of a promise made by the King, which was in question in the action," which certificate was allowed upon the hearing for a proof without exception for so much." So in Sir Henry Lea and Henry Lea's Case (1613), Godb. 198, we find: "Upon a certificate made by the King's Majestie, that he had made such a promise unto him, the Court of Requests made the said decree, which certificate was mentioned in the body of the said decree." Compare Mark Steward's Case (1579), 9 Rep. 99 b, 102 a, b. On the other hand, in Omichund v. Barker (1745), Willes, 538, 550, Willes, C.J., said: "Even the certificate of the King under his sign manual of a matter of fact (except in one old case in Chancery, Hob. 213) has been always refused." See also the Berkeley Peerage Case (1891), Times News., June 27. These contradictory authorities would at most exclude a written certificate of the King, and this does not seem logical in view of the fact that a sign manual of the King's intention to pardon has been received in evidence in criminal cases (R. v. Miller (1771), 1 Leach, 74; R. v. Gully (1773), 1 Leach, 98), and that the certificates of Secretaries of State are received in evidence for certain purposes (see below, p. 593). Anyhow, there is nothing in the authorities to show that the Court ought not to accept the personal evidence of the Sovereign, not under oath, in the witness box. The matter was discussed in the Earl of Bristol's Case (1626), Lord Campbell's Lives of the Chancellors, II. 510, where the Earl, who had been impeached, wished to call the King as a witness to communications which had passed between them before the King's accession. Coventry, L.K., gave it as his opinion that the Sovereign cannot be examined in any judicial proceeding under an oath or without an oath, as he is the fountain of justice, and, since no wrong may be imputed to him, the evidence would be without temporal sanction. It is difficult to follow the Lord Keeper's logic. The judges were consulted (i.) whether in case of treason or felony the King's testimony was to be admitted or not; (ii.) "whether words spoken to the Prince, who is after King, makes any alteration in this case," but they were informed by the King, through the AttorneyGeneral, that, "not being able to discern the consequence which might happen to the prejudice of his Crown from these general questions, his pleasure was that they should forbear to give an answer thereto." Lord Campbell, loc. cit., further states that there was an intention. of calling the Prince Regent as a witness in the Berkeley Peerage Case (1811), and that the general opinion was that he might have been examined, but not without being sworn. He, however, was not at the time the Sovereign. In the Berkeley Peerage Case (1891), Times News. June 27, a letter of the Prince Regent was rejected as being the letter of a dead private person, and the House of Lords did not decide the question whether the statement of the Sovereign could be taken with or without oath. Certificates of Secretaries of State on behalf of the Crown. In Mighell v. Sultan of Johore, [1894] 1 Q. B. 149; 63 L. J. Q. B. 593, the status of the defendant being in question, the judge communicated with the Colonial Office and received a reply, purporting to be written on behalf of the Secretary of State, and stating that the defendant was the sovereign of an independent state. Of this Lord Esher, M.R., said: "I think the letter has the same effect, for the present purpose, as a communication from the Queen .. When once there is the authoritative certificate of the Queen, through her Minister of State, as to the status of another sovereign, that, in the Courts of this country, is decisive. Therefore this letter is conclusive that the defendant is an independent sovereign." The judgment of Kay, L.J., contains a passage to the same effect. So in Taylor v. Barclay (1828), 2 Sim. 213; 7 L. J. (O. S.) Ch. 65, the Court applied to the Foreign Office and obtained information C.P. Q Q that the "Federal Republic of Central America" was not a sovereign and independent State recognised by England, as alleged in the bill. The widespread inquiries made by Sir R. Phillimore in The Charkieh (1873), L. R. 4 A. & E. 59; 42 L. J. Adm. 17, in addition to information given to him by the Foreign Office, by which he decided that the Khedive of Egypt was not entitled to the privilege of a sovereign prince, were disapproved by Lord Esher, M.R., in Mighell V. Sultan of Johore, ubi sup. In Carr v. Fracis Times & Co., [1902] A. C. 176; 71 L. J. K. B. 361, a Foreign Office certificate was obtained by the defendant as to the status of the Sultan of Muscat, and in Fracis Times & Co. v. Mead (1902), not reported, as to the status of the Sheikh of Bahrein. In The Jassy, [1906] P. 270; 75 L. J. P. 93, the Foreign Office verified and forwarded to the registrar, for the information of the Court, a certificate from a foreign Government to the effect that a vessel was a public vessel of that Government. The same principle was applied to the boundaries of foreign states in Foster v. Globe Venture Syndicate, Ltd., [1900] 1 Ch. 811; 69 L. J. Ch. 365, where Farwell, J., held that the Court took judicial cognisance thereof, and, if in doubt, would apply to the Secretary of State for Foreign Affairs, whose reply would be conclusive. The certificate of the Secretary of State for India, that a person was authorised to administer oaths in India, was accepted as evidence in Ireland, in Ferguson v. Benyon (1867), Ir. R. 1 Eq. 475; 16 W. R. 71. Under the Foreign Jurisdiction Act, 1890 (53 & 54 Vict. c. 90), s. 4, if in any proceedings a question arises as to the existence or extent of any jurisdiction of the Crown in a foreign country, a Secretary of State shall, on the application of the Court, send to the Court, within a reasonable time, his decision on the question, and his decision is final for the purpose of the proceedings. The Court is to send questions framed so as properly to raise the question, and sufficient answers are to be returned by the Secretary of State, which are to be conclusive evidence of the matters therein contained. Suggestions, not on Oath, by the Attorney-General. In Doe d. Legh v. Roe (1841), 8 M. & W. 579; 11 L. J. Ex. 57, the Attorney-General filed affidavits in support of an application for a rule to show cause why the proceedings should not be stayed in an action of ejectment, on the ground that the property, which it was sought to recover, was Crown property. Lord Abinger, C.B., is said to have stated (at p. 583, n.) that he was much disposed to think that no affidavit was necessary in support of such an application, but that it was sufficient that it was made by the Attorney-General appearing on behalf of the Crown. So in A.-G. v. Hallett (1846), 15 M. & W. 97; 15 L. J. Ex. 246, the Attorney-General applied without affidavit to move a cause into the Exchequer. In an application for a mandamus to examine witnesses on an information by the Attorney-General, the rule was granted without affidavit on the statement of the Attorney-General that it was necessary that the writ should issue (R. v. Douglas (1842), 2 Dowl. (N. S.) 416). In an application for a trial at bar, a suggestion ore tenus by the Attorney-General that the Crown is interested is sufficient (Rowe v. Brenton (1828), 3 Man. & R. 133; Paddock v. Forrester (1840), 1 Man. & G. 583; 9 L. J. C. P. 342), see the discussion above, p. 588; as it is also in an application to remove a cause to the Revenue side of the King's Bench Division (Adams v. Fremantle (1848), 2 Ex. 453; 17 L. J. Ex. 312), see above, p. 585. It was said by Wills, J., in Hennessy v. Wright (1888), 21 Q. B. D. 509; 57 L. J. Q. B. 530, that, where a claim is made to privilege for official documents, "a statement in Court on his behalf by the Attorney-General has sometimes been accepted as equivalent to the oath of the Secretary of State, a point upon which I express no opinion." (See further as to this below, p. 604.) It would seem that statements ore tenus, such as those referred to, should only be accepted by the Court from the Attorney-General himself or the Solicitor-General, unless the accuracy of the suggestion appeared on the face of the proceedings. (See what is said above, p. 589.) Judicial Notice of the Prerogative of the Crown, In Elderton's Case (1703), 2 Ld. Raym. 978, 980, Hale, C.J., speaking of the Court of King's Bench, said: "We are indeed bound to take notice of everything that belongs to the Queen's privilege." The question there was the privilege claimed in respect of a royal residence, into which the Court would naturally not enquire with unseemly nicety (Winter v. Miles (1809), 10 East, 578), except in such exceptional cases as that of Hampton Court Palace (R. v. Ponsonby (1842), 3 Q. B. 14; 11 L. J. M. C. 65; A.-G. v. Dakin (1870), L. R. 4 H. L. 338; 39 L. J. Ex. 113). These were all cases arising out of execution or distress, from which land or goods in the possession of the King are exempt (Bro. Abr. Distresse, pl. 27, 47, 77; Wicks & Dennis' Case (1589), 1 Leon. 190). There is a full discussion of the matter in Gibbons v. Moran (1838), 6 Ir. Law Rec. (N. S.) 141; Craw. & D. Abr. C. 197. Goods of the Crown on land of a subject are similarly privileged (Secretary of State for War v. Wynne, [1905] 2 K. B. 845; 75 L. J. K. B. 25). On the other hand, it was said in Attorney-General to the Prince of Wales v. Crossman (1866), 4 H. & C. 568, 575; 35 L. J. Ex. 215: "We are agreed that it is for the officers of the Crown to make out clearly the prerogative in any case where they claim to be on a different footing from the subject as regards procedure in any litigation. This was in effect laid down in the case before referred to, namely, A.-G. v. Lord Churchill (1841), 8 M. & W. 171; 10 L. J. Ex. 314." Lord Ellenborough, C.J., refused to take judicial notice of a Royal proclamation, the "Gazette" not being produced, in Van Omeron v. Dowick (1809), 2 Camp. 42. In Whaley v. Carlisle (1866), 17 Ir. C. L. R. 792, the Court thought it could take judicial notice of the fact that a certain person was Foreign Secretary in 1803. Government Officials as Witnesses. The Home Secretary was called as a witness by the plaintiff in Irwin v. Grey (1862), 3 F. & F. 635, he being himself the defendant, and questioned as to the advice which he had given to the Queen with regard to granting the fiat to a petition of right. The question was answered, but the Court on a motion for a new trial said that the advice which he had given ought not to have been divulged. (Compare Marbury v. Madison (1803), 1 Cranch (U. S.), 137, 144.) Subpoenas have been frequently served on Board of Trade and other officials, particularly in actions arising out of accidents, where such officials have held inquiries. The matter has been discussed in Scotland in the reported case of Gibson v. Caledonian Rail. Co. (1896), 33 S. L. R. 638, an action for personal injuries, where the pursuer proposed to call a Board of Trade inspector, and to examine him as to a report which he had made on the accident. Counsel for the Board of Trade appeared and objected, and the presiding judge said: "No unfailing rule can be laid down, but I think it is desirable, in the larger interests of the public, that the officers of a public Department like the Board of Trade should be able to keep themselves entirely free from even the suspicion of partisanship, and preserve as far as possible their semi-judicial character. I can imagine cases where it might be necessary to examine them owing to there being a difficulty in getting the same kind of evidence from others, but unless strong reason were shown for it I should always (speaking for myself) be adverse to the |