inquiry and other documents at the War Office. The Secretary for War attended at nisi prius and objected to the production of the papers as prejudicial to the public service, and BRAMWELL, B., declined to compel their production, basing his refusal solely on the ground of the statement made in court by the Secretary for War. This ruling was considered by the Court of Exchequer on an application for a new trial, with the result that POLLOCK, C. B., and WILDE, B., agreed with BRAMWELL, B., Martin, B., dissenting. POLLOCK, C. B., says, in giving the judgment of

22

the Court: "It is manifest that the question must be [*515] determined either by the presiding Judge or by * the responsible servant of the Crown in whose custody the paper is. It appears to the majority of the Court (i. e., POLLOCK, C. B., and BRAMWELL and WILDE, BB.) that the question must be determined not by the Judge, but by the head of the department having the custody of the paper; and if he is in attendance, and states that in his opinion the production of the document would be injurious to the public service, we think the Judge ought not to compel the production of it. My brother MARTIN is of opinion. that, whenever the Judge is satisfied that the document may be made public without prejudice to the public service, the Judge ought to compel the production, notwithstanding the reluctance of the heads of the department." As regards the question thus raised, I desire to say, while disclaiming all intention of dictating to the Judge who may try this case, that I do not feel the difficulty which appears to have weighed with the majority of the Court, and that, should the head of a department take such an objection before me at nisi prius, I should consider myself entitled to examine privately the documents to the production of which he objected, and to endeavour, by this means and that of questions addressed to him, to ascertain whether the fear of injury to the public service was his real motive in objecting. It is clear, however, that this decision has no bearing on the present case. The judgment refers not to a summons for discovery, at which the head of the department does not and need not attend, either personally or by deputy, and as regards which neither he nor any one on his behalf is under any obligation to make an affidavit, but to a proceeding at nisi prius at which the head of the department has both appeared and objected.

I think, however, that there is authority for refusing production

No. 5. Hennessy v. Wright, 21 Q. B. D. 515, 516.

In

of these copies at this stage of the case, apart from any intervention of the Colonial Secretary. In Anderson v. Hamilton, 2 Brod. & Bing. 156, n., Lord ELLENBOROUGH at nisi prius refused to admit in evidence a correspondence between the Colonial Secretary and the governor of a colony, although the Colonial Secretary was present and raised no objection. In Home v. Bentinck, 2 Brod. & Bing. 130, DALLAS, C. J., treats this as the right course for the presiding Judge to adopt under such circumstances. neither of the cases in * which the East India Company [* 516] was concerned, neither in Smith v. East India Company, 1 Phill. 50, nor in Rajah of Coorg v. East India Company, 25 L. J. Ch. 345, where the production of similar documents was refused, in the one case by Lord LYNDHURST, in the other case by KNIGHT BRUCE, L. J., was there any affidavit on behalf of the Board of Control. In The Bellerophon, 44 L. J. Adm. 5, where the point arose with reference to a report made to the Lords of the Admiralty by a captain in the navy, an affidavit was made on behalf of the Lords of the Admiralty, but I do not gather that the existence of this affidavit was the ground of the refusal of the Court to order the production of the report. In McElveney v. Connellan, 17 Ir. C. L. R. 55, where the question was as to the liability to production of a report made by the Inspector-General of Prisons in Ireland to the Lord Lieutenant, the point was raised both on a summons for discovery and at the trial, and the Judges of the Irish Court held that on both occasions production was properly refused on the ground of the public interest. At the trial the Attorney-General for Ireland appeared and objected on behalf of the Lord Lieutenant, but on the summons discovery was refused though there was not any affidavit by or on behalf of the Lord Lieutenant before the Court. For these reasons I am of opinion that discovery of these documents ought not to be granted at this stage of the case. I say nothing as to what course should be taken at the trial. The order must, therefore, be refused.

WILLS, J. The plaintiff in this case sues the defendant for libel, the substance of the libel being that the plaintiff, as Governor of the Mauritius, "edited" reports of speeches by various members of the council of Mauritius, which he sent home to the Secretary of State as the speeches spoken by the persons to whom they were attributed. The defendant justifies. The plaintiff was called upon for an affidavit of documents. He sets out and offers

to produce for inspection copies of what I may call the incriminated dispatches and speeches, but besides them he admits the possession of (inter alia) a bundle of papers numbered 1 to 8, and

sufficiently identified, which he says are "copies of [*517] *various dispatches, reports, and other communications which passed either between the Colonial Secretary and himself in his capacity as Governor of the Mauritius, or between the Royal Commissioner appointed by Her Majesty in 1886 to inquire into the affairs of the Mauritius and himself as governor of the colony, or between the said Commissioner and the Colonial Secretary. He adds," that the attention of the Colonial Secretary has been directed to the nature and dates of the documents, and that the Colonial Secretary has directed him not to produce or disclose them, and to object to their production on the ground of the interest of the state and of the public service."

"

The plaintiff objects on these grounds to their production, and the question is whether, under these circumstances, an order ought to be made for their inspection.

Had the Secretary of State himself made affidavit that in his opinion, the production of the documents would be injurious to the public service, the question would, I think, in the absence of special circumstances, have been completely governed by author. ity see Beatson v. Skene, 5 H. & N. 838, 29 L. J. Ex. 430; The Bellerophon, 44 L. J. Adm. 5; Smith v. East India Co., 1 Phill. 50; Rajah of Coorg v. East India Co., 8 De G. M. & G. 182. The case was before us a short time ago upon an application for a further affidavit of documents, and we then pointed out that the objection had in many reported cases been taken in this fashion, and in this way the plaintiff's attention was pointedly called to the fact that such materials would leave the Court in no doubt as to the proper action to take. The plaintiff, however, is not furnished with any such materials. Whether he is unable or unwilling to avail himself of the suggestion I do not know. It is argued on his behalf that he has complied with what is necessary in this respect by the portion of his affidavit which says that he is directed by the Secretary of State not to produce the documents. I am of opinion, however, that if the case be one in which the Court ought to require the assurance of the Secretary of State that production would be prejudicial to the public interests, the plaintiff's affidavit falls far short of what is necessary. The state

ment that the attention of the Secretary of State has

* been directed to the nature and dates of the documents [* 518] is far too vague. If this kind of assurance be necessary

at all, I think it ought to appear that the Secretary of State has seen and considered the documents, and has formed a real judgment as to the propriety of their being produced, something going much beyond the fact that his attention has been called, presumably by the plaintiff himself, "to their nature and dates." In such a case there should, in my opinion, be a statement on oath, either by the Secretary of State himself, or by some person duly commissioned by him to make on his behalf such a statement, that the matter has been considered by the Secretary of State, and that he assures the Court in one of these ways that the production would in his opinion be prejudicial to the public service. 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. But, in my judgment, if the Secretary of State's assurance be necessary in order to protect the documents from inspection, a mere statement, such as is contained in the plaintiff's affidavit, is quite insufficient, a proposition for which, I think, that Kain v. Farrer, 37 L. T. (N. S.) 469, is an authority, and I think that under such circumstances the assurance should be given in some fashion Less open to exception than by the affidavit of one of the parties to the action in which discovery is sought. I do not mean to lay down as a matter of law that such a method of proving the objection of the head of the department can in no case and under no circumstances be accepted. Artificial rules upon matters of evidence are better avoided as far as is possible. I only wish to say that to me, in the present case, which presents no exceptional circumstances to justify it, this method of establishing the fact relied upon is not such as I should be prepared to act upon.

The question therefore arises whether, in the absence of objection by the responsible minister of the Crown, it is the duty of the Judge on an application for discovery to prevent the disclosure of the contents of such documents as those now in question, viz., dispatches on matters connected with the public service passing between the governor of a colony and the Secretary of State. A document of this character is undoubt- [* 519] edly in the nature of a state paper. Prima facie, and if

it is what it professes to be, it is called into existence simply for the service of the state, and it may be expected to relate not to mere matters of business and routine, but to matters of government and policy, and to be in its nature private and confidential. There are, undoubtedly, many matters in respect of which it is the duty of the Judge, quite apart from objection taken, to prevent disclosures of a class which it would be undesirable in the public interests to permit. If a police officer, for example, were asked in court from what source he got his information in respect of an offence, it would, I apprehend, as a general rule, be the duty of the Judge to direct him not to answer the question, since the mere possibility of having such information disclosed would operate as a powerful check upon persons disposed to give information in respect of such matters.

In my opinion the present case is covered by authority. In Anderson v. Hamilton, 2 Brod. & Bing. 156, n., in an action against the Governor of Heligoland for false imprisonment, a correspondence between Lord Liverpool and the defendant was produced by the Under Secretary of State. He made no objection on behalf of the Government to the production of the letters; but, notwithstanding that fact, and whilst calling attention to it, Lord ELLENBOROUGH declined to allow "secrets of state to be taken out of the hands of Her Majesty's confidential servants." This was in the year 1816. In Home v. Bentinck, 2 Brod. & Bing. 130, an action was brought against an officer who had been directed by the Commander-in-Chief to hold an inquiry touching the conduct of the plaintiff, an officer in the army, for alleged libels contained in the report of that inquiry. The case was tried in 1819 before. ABBOTT, C. J. The report was produced by Sir H. Torrens, the military secretary to the Commander-in-Chief, and no objection was raised by him or on behalf of the Commander-in-Chief to its production, but, upon objection by the defendant's counsel, the CHIEF JUSTICE rejected it on the ground now under discussion. A bill of exceptions was tendered and the case was argued before the Court of Exchequer Chamber. The question was not [* 520] whether the defendant was entitled to * protection from the consequences of publishing a libel on the ground that it was a privileged communication, but whether the judge was right in excluding it altogether at the trial. "The question," said DALLAS, C. J., in delivering the judgment of the Court, "is