LAW OF EVIDENCE.

HL Deb 08 March 1842 vol 61 cc208-17

Lord Denman

rose to move the second reading of a bill which he had laid on the Table of the House, and which involved matter of very great importance as regarded the administration of justice, on a subject in which those persons who had the best right to form a judgment, had been strongly impressed with the propriety of introducing the change which he ventured to propose. Lord Mansfield, and many other learned judges since his time, had felt the inconvenience of the law which prevented the admission of witnesses on the ground of being interested, holding the doctrine that all persons, whether interested or not, should be allowed to give their evidence, and that the jury should estimate its value. From a sense of the evil of exclusion, judges had been led to evade the operation of the existing law, and doubts were thus raised, and difficulties created, which increased litigation to an incredible extent. He believed, that there was hardly a book of reports which did not contain cases of the kind, in which the expenses of the suitors must have been enormous, independent of the delay. Nice questions perpetually arise in the course of a trial, on which the opinion of the court above must be taken; the action is thus rendered more expensive, the final decision is indefinitely delayed, and the consequent embarrassment of justice both to the immediate parties, and to others who must wait till former cases are disposed of, is a serious public calamity. He thought, that he need hardly say more in recommendation of this part of the measure, as he was authorised to say, that it received the direct sanction of several of his learned brethren on the bench, and he had heard no objections stated to it by any of them. With regard to the second purpose of the bill, the doubts were greater. Their Lordships were aware, that persons convicted of certain crimes, had their lips closed in a court of justice to the end of their days, if their evidence was objected to in a formal manner. This class of persons included those convicted of felonies and certain misdemeanours, and, however necessary the evidence of such persons might be for the ends of justice, they could not disclose what they knew. He would venture to say, that not a single court of Assizes would be held during the present month, in which some case would not occur, where a witness would be put into the witness-box covered with crime, and who admitted, that he had been a party to the commission of the greatest enormities, and whose appearance there might prove him the worst of all offenders, —namely, the betrayer of his associates, their tempter to commit the crime which he came forward to denounce; and yet upon the faith of such a man might the liberty and life of the accused depend. In such a case, the mere commission of the crime did not exclude the criminal from the witness-box: on the contrary, it was the sole reason for placing him there. Nor did his confession of former crimes of even deeper dye exclude him; no, not his confession that he had been tried, convicted, and punished for such crimes; but he might be at once put to silence by the prisoner's attorney producing the record of any former conviction. But the law is whimsical in this matter: for if the convict should have obtained a pardon, (which may be done without much difficulty) the effect of the conviction is removed, and he becomes again an admissible witness. It is plain, therefore, that according to the present law, the competency does not depend on the only thing that could with the least show of reason affect it,—the guilt of the party; and that whether he is to be received or not depends on chance, or probably on the pecuniary means of those who have an interest in the admission or rejection of his testimony. He submitted, that this was a state of things which should not be; but that there should be certainty in the state of the law. He proposed that the testimony of convicts should not be excluded; but that it should be left to the jury for their consideration. But there is one class, where exclusion is defended on some plausible ground, and there appears to be a peculiar propriety in resorting to it. He meant the class of persons previously convicted of perjury. It might be thought, that after a person had been convicted of giving false testimony in a court of justice, he should be incapacitated from ever giving evidence again. In this case, also, the law is equally anomalous as with respect to other crimes, for unless the record of the conviction for perjury can be produced in court, his evidence could not be rejected. But ought even this man to be rejected, when the record is produced? The punishment of excluding him did not fall on himself, but on innocent parties. He might be in the possession of the most important facts, the knowledge of which was essential to the elucidation of truth, to the conviction of guilt, and to the acquittal of innocence. He may be desirous to suppress the truth which he knows, but the party to whom it is favorable, and the public, have the deepest interest in the disclosure. Therefore, the evidence of such persons should not be disallowed and altogether repudiated; but should be laid before the jury, who would take the attending circumstances of the case into consideration— the probable motives of the witness—his conduct since his former conviction—the probability of his statement—the confirmation or contradiction to be derived from others. It was supposed, that the incapacity arising from a previous conviction was seldom, if ever, enforced. But the non-execution of a bad law is never a good reason against its repeal; as long as it exists it may become operative, and that in cases where all mankind are scandalized by its injustice and inexpediency, this law is not obsolete, though its application is rare, for a case in the Court of Queen's Bench only in the last term, exemplified in a remarkable manner that the rule may be enforced, and may lead to striking injustice. A gentleman called upon an attorney, to account for some large sums of money which had passed through his hands in the course of several years. The attorney had had the management of this gentleman's affairs, and he was called upon to answer the affidavit of his client. The attorney accordingly put in an affidavit, accompanied with the affidavit of a person who had acted as that gentleman's steward, with whom his account of these disbursements appeared to have been regularly kept, and the latter admitted that he had received such money, and had duly accounted for it. The client who had brought the attorney criminally before the court, to answer for this supposed malversation, then produced a record of conviction for perjury of the person whom he himself had employed as his steward, and the attorney was thus deprived of his testimony. He thought be had shown that the law was incapable of uniform application, and that in a vast variety of instances, it could not be applied at all; yet no one sought to remedy this imperfection. This appeared, then, a fair test of the general opinion being against the present law. The alteration of the law in these two particular cases of disqualification formed the chief object of his proposed bill; but he had also introduced two points of minor importance; but still, as he thought deserving attention and requiring amendment. Several Baptists had, from time to time, urged upon their Lordships the propriety of being admitted to the same privileges as Quakers and Moravians, and, objecting to an oath, to be permitted to take an affirmation. The whole of the Baptists did not entertain these scruples, but many did. He believed many of their Lordships had felt an objection to a wider measure, though Parliament would, doubtless, make ample concession to the scruples of particular sects. The last clause of his bill was to remove a doubt which had arisen whether, in legal proceedings, it was necessary to distinguish, in describing the acts of the grand jury and the petty jury, that some took the oath and others affirmed. In drawing up the record, a multiplicity of words would be thrown away, if this were required, on the doubt raised, whether the proceedings were well set out, and justice might be defeated by the opinion adopted on a matter purely technical. He proposed, therefore, to dispense with this necessity; if they did not pursue one form or another. These were the provisions of his bill, and he now moved that it be read a second time.

The Lord Chancellor

did not rise to oppose the second reading of this bill; on the contrary, he was very much disposed to support it. As far as he had been able to obtain the opinion of Westminster-hall, they corresponded to a considerable extent with those of his noble and learned Friend. It was proper that the bill should be read a second time and go into committee; at the same time, as the responsibility of such a measure must rest with the Government, he hoped that his noble Friend would not go into committee till after they should, upon a measure of such importance, have been able to obtain all the experience which Westminster-hall could afford. He agreed with his noble Friend, that ever since the time of Lord Mansfield, the better opinion had been that the witness should be heard, and that the jury or the tribunal should decide upon the full case, taking his credit into consideration. It was impossible to take the existing law into consideration without discovering its many absurdities. Persons convicted of a felony were not permitted to give evidence, because it was thought that this was a punishment justly inflicted upon them for their crime, whereas, in point of fact, the punishment did not fall upon the party who had committed the crime, but upon the party needing his evidence. Again, mark the distinction now drawn by the law—a person convicted of stealing to an amount which constituted petty larceny, might be received as an evidence, but one convicted of stealing to an amount to constitute grand larceny could not be admitted; so that whether a party was to be admitted, or was not to be admitted to give evidence, depended upon whether he had stolen to the amount of 12d. or of 14d. What could be more absurd than this? Again, a man might be convicted of manslaughter; he might have carelessly driven over a child, yet he was not competent to be heard as a witness. Did the fact that he had been guilty of carelessness impeach the value of his testimony? But what happened afterwards? If he had gone through his punishment, he became a witness; was he more worthy of credit after he had undergone his punishment than before? He recollected the case of Lord Warwick: a question arose whether a party had been burnt in the hand; if he had been burnt in the hand, his evidence would have been received, otherwise not. What could be more absurd than this distinction? It was said, that the evidence was rejected because the party was not entitled to credit, and, therefore, ought not to be a witness. He denied that this was the principle of the law. An accomplice was called to give evidence, and the judge told the jury that he could not be safely relied upon, unless he were supported by testimony as to some material fact. Why should not this principle be more extensively applied? So much as to the part of the bill with respect to crime, next as to disqualification on account of interest. It often happened that whether a witness were disqualified on account of interest was a question of the nicest kind. If he were directly interested to the amount of 1s. he could not be heard; but, if he were interested to however large an amount, and his interest Were not certain, although probably it was so near that it amounted almost to a certainty, he could give evidence. Let him take an instance. An old man might have a very large estate; he might have an only child with whom he lived on the best terms, and if he died it was almost certain that the estate would come to the son.' In this case, if the father instituted a suit in any court of law, the son, who might have the estate, worth 20,000l. or 30,000l. a-year, was competent as a witness, yet if he had been directly interested to the amount of 1s. he could not be examined. Again, a dozen persons might subscribe the same policy of insurance; and on an action brought against any one of them, all the other subscribers to the policy, all whose interests were obviously involved in the decision were competent as witnesses. His noble and learned Friends would remember the case of Brent v. Baker, where a dozen persons subscribed the same policy of assurance. The action was brought against one of the subscribers, and yet the others were admitted as witnesses. Look, again, at the administration of the law as to the parties certainly interested. How many questions were decided by the court upon motion? Yet, upon motion the law had no objection to the parties interested in the suit giving evidence; and again, in the courts of equity, all the interested parties were allowed to make affidavits, and they were heard. How could they reconcile this with the incompetency of the same persons to give evidence when the question came to be tried before a jury? It was for these reasons that he was strongly inclined to support the principle of his noble and learned Friend's measure. Whether it should extend to parties convicted of perjury, or whether it should receive alteration in many material points, he would not then decide. All the provisions of the bill might be taken into consideration when Westminster-hall should again be filled, the judges would then be present to tell how it would operate; but he had already conversed with some judges of the highest rank, who entirely concurred in the principle of the bill of his noble and learned Friend.

Lord Brougham

hoped, that their Lord ships would give this bill a second reading. He thought, that his noble and learned Friend on the Woolsack had rather understated than exaggerated the anomalies of the existing law. He might have put the case of an old man, who was bedridden and imbecile, or a lunatic, having made a will in favour of his son, or having an only son who must by descent come into possession of his property, in a few days or weeks. The son may swear to put him in possession of 50,000l. a year, to which he is himself upon the eve of succeeding, whereas if he were interested to the amount of 1s., or had a remainder, however remote, vested in him, he could not give evidence; in the one case he could have no bias, except the shilling interest, and in the other he was biased to the extent of thousands. It gave him great satisfaction, that the bill then before their Lordships had so good a prospect of passing after certain modifications in committee, of becoming the law of the land. Fourteen years since he had proposed these changes among others, in another House of Parliament, and supported them by the same arguments as he had that night heard. The success of this bill gave him encouragement to hope that other changes which he then proposed, and which stood upon as immoveable a foundation as those now taken up, would hereafter become the law of the land. To give one instance, in matters heard upon affidavit, not only were persons interested, but the parties to the suit were allowed to swear, and he thought that in all cases we should allow the parties to be examined.

Lord Wynford

(who, upon the motion of Lord Bexley, was heard sitting) agreed in all that had been said by the noble and learned Lords. He had long wished that such an alteration as was now proposed should be made. The only part of the bill to which he objected was that which pre vented the plaintiff and defendant from being examined. They allowed them to give evidence if they came by affidavit. Why should not the first provision be struck out? and if it were struck out, he would entirely concur in that clause. The noble and learned Lord had alluded to an old heir apparent. [Lord Brougham: To the heir apparent of an old and intestable man.] The heir apparent might be examined but the remainder man, however remote, even to the fifteenth degree, might not. With respect to the clause for the relief of Anabaptists, he was not aware that any congregations objected to take the oath. He confessed, that whether they should agree to this exemption was a matter that deserved much consideration, for he could not but observe what was passing in the courts of justice. Parties were constantly getting up and stating their religious objections to taking an oath: in many cases they appeared to be receivers of stolen goods, who very likely objected, not to the oath, but the conviction of good friends of theirs. He confessed, that he did not think that relief should be given to individuals, but if the minister of the congregation would sate that his congregation entertained religious scruples to taking an oath, he might consent to the proposal.

Lord Campbell

entirely approved of the principle of the bill of his noble and learned Friend near him, and, with all deference to the noble and learned Lord opposite (Lord Wynford), he thought, that his noble Friend had pursued the right line, of debarring parties to the suit from giving evidence. Experience had taught him the evils of examining the parties. As an arbitrator he had sometimes examined the parties, but never without repenting that he had so done, because persons swearing for themselves too often forgot what was right and wrong, their passions were inflamed, and they stated that which would best serve themselves. What if a man of bad character were allowed to be a witness against any woman he might choose to accuse, and she were put into the box, and it should go to the jury as to which should be believed J It was the same objection as applied to the French system of examining prisoners; the astute and sharp man, though guilty, might manage his answers so as to get off; whereas, if an innocent man were interrogated, he might be so much confounded with his situation, that he would not be able to explain things that told against him. Courts of equity might call upon parties to answer against themselves by a bill of discovery, and it might be deserving of consideration whether they should give a similar power in open court. The bill, as it stood, however, would prevent justice from being defeated by frivolous and vexatious objections. No questions were more perplexing to the judge at nisi prius than to determine whether a witness was disqualified on the score of interest and he had known verdicts which satisfied every one set aside because a witness had been examined whose evidence, was not material, or because a witness had been rejected whose evidence would not have been material if it had been given. Great delay and vexation had arisen from this source, which would be wholly removed if they said that no witness should be any longer disqualified on the ground of interest. Under the present law the father might be witness for the son, the son for the father, the sister for the brother, and the brother for the sister. What they had to guard against was bias, and the question of interest was only raised to enable them to judge what the bias was. By the ancient law of Scotland no one within the prohibited degrees of relationship for marriage could be a witness, but this had been found so inconvenient, that two Sessions since the law was altered. With regard to the latter part of the bill, he only regretted, that his noble and learned Friend had not gone further. He saw no harm in admitting all persons who objected to an oath to give evidence on making an affirmation; as to the instance cited by the noble and learned Lord opposite, of a receiver of stolen goods objecting to give evidence against a thief, a change in the law would prevent such a person from assisting the thief by refusing to be sworn, because it would oblige him to give evidence, though not upon oath.

Lord Denman

was rejoiced at the reception given to his proposal; his anxious wish was to go into a full consideration of every part, and he would name any time that would be most convenient, or resign it to abler hands, if his noble and learned Friend, the Lord Chancellor wished the measure to be carried through by the Government. He was not prepared to go the length of saying, that parties to a suit should be witnesses, but there might be instances where, not in open court, though perhaps by interrogatories administered with proper care, a great deal of truth might be elicited from the parties. As to the clause relating to Baptists, he would withdraw it and introduce it in a separate bill.

The Lord Chancellor

always thought it was the best thing to bring in one bill for one object at a time, otherwise all parties disliking particular parts might join together to throw out the whole bill.

Bill read a second time, to be committed after the recess.

Adjourned.