The Master of the Rollssaid, that from what had passed upon a former occasion, he had reason to expect that such objections as he had stated to it, would have been obviated; and even though he had found it to be so intended, he knew that, having declared his opinion that the bill was quite unnecessary, he was not bound 769 to contribute any thing towards the perfection of it. However, finding also that the house was called upon to declare the provisions of this bill, according to the opinions of the twelve judges, he thought it right that the provisions should be made as much as possible to correspond with those opinions, as they were delivered. The judges by no means laid it down as an universal proposition, that witnesses were bound to answer all questions, to criminate themselves. They all admitted that there were exceptions, and therefore he did not think the legislature should interfere, so as to establish a rule, which does away all exceptions. He did not know that they had stated any particular cases of exception, and he could only conceive them to have meant, that a man was not bound, in courts of law, to answer questions against which he would be protected in a court of equity. What he wished, therefore, was, to leave the discretion of the judges in a court of law, the same as it would be if no such bill existed, and authorise them to afford the same protection to witnesses, as would be allowed them in a court of equity. For this purpose he moved a proviso, "that nothing in this act contained should preclude a witness from objecting to such questions as he would not be called upon to answer in a court of equity; nor preclude the judge from deciding on the validity of such objections."
§ The Solicitor-General (Mr. Romilly)said, that he had so high a respect for the opinion of his right hon. friend, that it was with great unwillingness he felt himself obliged to dissent from him on the present occasion. The great objection he had to this proviso was, his conviction, that the rules of evidence at common law could not be reversed, or remedied, by the authority of any court of equity, neither were they, in fact, determined even by the statutes. No judge, in a court of common law, would allow a witness to state, as an objection to a question, that he would not be compellable to answer it in a court of equity. He saw not the least necessity whatever for this proviso, which might occasion the bill to be thrown out in another house. This bill would not oblige a judge to compel a plaintiff to prove that the debt he sued for was an unjust one, nor would a court of equity compel a man to disclose a forfeiture of his estate by a breach of contract; but the same rules were not applicable to courts so distinct. At Nisi 770 Prius, the judge must, of necessity, take upon him to decide on a sudden, what, in a court of equity, might turn out to be a matter of great nicety, and requiring mature deliberation. Upon these, and various other grounds, he opposed the proviso, as being totally unnecessary.
The Attorney-Generalsaid, he gave his right hon. friend, who spoke last, full credit for having the very best intentions; but, though the bill originated in another house, which was itself the supreme court of judicature in the kingdom, and, of course, attracted the attention of the highest and most distinguished law authorities in the country, he could not help feeling, that it was capable of being predicated of the bill, that, in its present shape, it did not declare what was, in fact, the opinion of the twelve judges, who all admitted that there were exceptions to the general rule. He was, therefore, in favour of the proviso; for, as the law would stand according to the present bill, the judge would have no discretion, but be obliged to compel a witness to disclose every thing. A man, for instance, may hold an estate by a defective title, of which he had no notice when he gave a valuable consideration for it, but by this bill, the judge could leave him no alternative, but compel him to disclose, upon oath, that defect, which would, at once, reduce himself and his family, perhaps, from affluence to a workhouse. The laws of evidence, in courts of justice, were not the same now as at the time of the Crusades to the Holy Land, from which period, he believed, they took their date; for, during the space of 30 years that lord Mansfield presided in the court of king's bench, he established a variety of rules which were not in use before, and subsequent chief justices had followed the same precedent. Upon full consideration, he was satisfied, that if the bill were not qualified in the manner now proposed, the judge could do nothing in such cases; and bound, by a declaratory law, could not even listen to any just objections relating to the effect which evidence may have in any civil suits to be afterwards instituted.
The Master of the Rollssaid, that his learned friend (Mr. Romilly) certainly possessed, in a very eminent degree, the faculty of expressing himself with great accuracy, as well as fluency; but notwithstanding these advantages, he must confess, that with all the attention in his power to give to his observations, he could not 771 comprehend whether he gave it as his opinion, that after this bill should pass into a law, the judge would have the same discretionary power in these cases, as he possessed at present. If that were the true construction of the bill, he should not persist a moment longer, nor have any objection to withdraw his motion, which would be rendered unnecessary, if the judge were not bound to decide according to this law. If the house should think proper to do so, he should feel no reluctance to referring this bill, in its present form, to the twelve judges, and call upon them to say, whether it were declaratory of their opinions? For his own part, he could not find the rule so much insisted on, in any of the books of law, except in cases where it had a reference to the proceedings of a court of equity; neither did he know of any authority on which the judges could have been induced to ground their exception, except that of a single case, to be found in the Reports of lord chief justice Parker. The case he alluded to was that of M'Queen v. Newman, in which it was held, that a witness was not bound to answer any questions, against which he would be protected in a court of equity. Lord Mansfield, through a long course of years maintained the same doctrine; but his successor, lord Kenyon, denied even the existence of the rule. The same judge, however, in a case of an arbitration, which afterwards failed, decided on the trial of the cause in court, that the party was not bound to disclose any compromise he might have offered to make, under the circumstances of the arbitration. But however these decisions might occasionally have varied, of this he was positively certain, and ready at any time to maintain, that according to the genius and principles of the old law of England, a witness was no more compellable to confess a debt than he was to confess a felony. Were it otherwise, the consequence must be, that in a civil suit, a man might be obliged to disclose a former transaction, in which he was guilty of perjury, the effect of which might be to ruin him in his circumstances; in many cases, even to affect his life. In treating of this subject, in his Commentaries, Blackstone observed, that the law was different on both sides of Westminsterhall for that the court of chancery decided one way, and the court of king's bench another; but he continued to say, that he felt himself at a loss to determine this how this variance could be reconciled to the 772 common sense of mankind. He was, however, very far from being disposed to agree to this observation of Mr. justice Blackstone; for, to carry it to its full extent, it would tend to destroy all distinction between courts of law and courts of equity. The apprehension entertained heretofore upon this subject was, that the courts of law might one day carry the rule as far as a court of equity; but the effect of the bill would be, to make them go much farther. As far as he was informed on the subject, no law yet made, ever imposed on a defendant the necessity of proving that his demand was not a just one; otherwise a man who had no evidence by which he could enforce a claim, might prove it by the oath of the plaintiff himself, give a full disclosure, and afterwards subject him to the penalties of perjury, for not giving evidence against himself; a principle which be believed was not to be found in the judicial or municipal proceedings of any country. So far was it otherwise with us, that in all cases or felony, the judges were in the habit of cautioning witnesses against making admissions, or giving any evidence which might eventually subject themselves to punishment. By the old law of England, until the reign of king William, when it was abrogated, a man, even in actions of trespass, was liable to amercement, for not obeyihg the king's writ; but no attempt was ever made, even in former times, to exact from any defendant a confession of that disobedience which would subject him to a penalty. The general rules of evidence, in common law, were not governed by statutes, nor by any analogy with the proceedings of the courts of equity; for down to the statute of Henry VIII. no such thing as a court of chancery was ever known to the laws of England. Another bad consequence would, in his opinion, result from the law, as it was now proposed, which was, that for the purpose of enforcing it, the courts of law must, before their decisions upon such points, be acquainted with the practice of the court of chancery, which every one conversant with it must know, was only to be learned in that court itself: thus they made the rules of common law courts conformable to those of another court, which was not recognised, or even known, in law, at the time that these rules were established. For all these reasons, he considered the objections offered, to be invalid, unless it should be proved that the proviso itself was unnecessary.
§ The Solicitor-General ,in reply to what was asked by his right hon. and learned friend, in one part of his speech, was happy in being able to declare to him his decided opinion, that after this bill should pass into a law, the judges would be as much, at liberty to protect a witness from any disclosure, by omission of the conditions of forfeiture, or any defect of title to estates, as they would be, if there were no such law in existence. He would not presume to state, that the ingenuity of some gentlemen might not devise a case, but his imagination was incapable of forming to himself any, in which a witness, if questioned as to any defect of his title, might not answer, under the sanction and protection of the court, "I do not think myself obliged, and therefore will not answer any question, the effect of which may be to deprive me of my estate." In considering the opinions as delivered by the twelve judges, he did not find that there was any one of them who stated, that the rules of evidence in courts of law were to be governed by any reference whatever to those of equity, but that they all maintained a contrary doctrine. As to the necessity of this declaratory bill, he said it arose from the uncertainty which prevailed upon the subject, from the sentiments expressed by some of the judges; and he considered that necessity to be increased by the authority of his right hon. and learned friend (the master of the rolls), who seemed to concur in the opinions of the minority. It was some satisfaction, however, to reflect, that, to the 8 judges, whose opinion was in favour of the obligation on witnesses to answer such questions as might afterwards subject them to civil process, were to be added the authorities also of the present and late lord chancellor: so that of the persons who must be considered as best qualified to decide, there were 10 who maintained, that witnesses could not protect themselves from answering such questions, against only 4 who seemed to hold a different opinion.
§ Mr. Percevalsaid, he thought it would be much better if the bill had not been brought in, and very much to be desired that it should not pass. It was a great pity the other house did not put the question to the learned judges, in order to know precisely, what the exceptions were to which they alluded in their several opinions. Instead of this, as he had been informed, a similar proviso to that now un- 774 der the consideration of the house, was introduced in the lords; and after considerable argument, negatived; and then they send it down to this house, and put them into the dilemma in which they now found themselves. It was evident, that the attorney and solicitor-general were directly at variance on the point, and therefore be thought the bill ought not to proceed, especially as it was, in his opinion, altogether unnecessary. Certain he was, that it would be better the proviso should stand, than that the bill should pass without it, as it was the only mode that could, with propriety, be adopted, to get rid of the objection.
Mr. Secretary Foxsaid, it had been his particular wish to hear the opinions of the learned gentlemen of authority, before he rose to say any thing on the subject, and in having done so with the utmost attention, he could not but say, that he differed entirely with the learned gent. who spoke last, who had certainly delivered his sentiments with great force and perspicuity. He was, for his own part, after every consideration he had been able to give the subject, decidedly in favour of the bill; but he agreed entirely with his learned friend near him (the solicitor-general), that it ought not to pass with the proviso. He thought, at the same time, that what this bill declared, was not the precise opinion of the majority of the judges; but what had been said in the course of the present debate completely convinced him, that the bill ought to pass; for when there was so great a difference in opinion among men of such high authority as the judges, and also among gentlemen so learned in both the theory and practice, as the right hon. gent. (the master of the rolls), as well as the other learned gentlemen who had delivered their opinions on the subject, he thought it was high time the law should be made clear, and no doubt left remaining on the subject. He observed, that great stress had been laid on the words used by the learned judges in delivering their opinions; namely, that in speaking to the point in question, they say, "generally," or, "generally speaking," a man is compellable to answer; though he may, by so doing, render himself liable to a civil suit. But he could not suppose they meant otherwise, by the words "generally speaking," than that he was compellable to answer, leaving it to be determined by the judges, whether this civil suit were of that nature as ought to bring him within any of the exceptions to 775 which they had many of them referred, but which, unfortunately, had not been explained. The question, however, now was, whether the doubt which prevailed should be removed, and he thought it could not be done too soon. The opinion of the right hon. and learned gent. (the master of the rolls), seemed to him to be, in a great degree, warped, by adverting to the practice of the court in which he so very ably presided, but which, it was to be recollected, was a court of equity, the rules of which were very different from those of the common law. The right hon. gent.'s argument went to impugn the opinions of the majority of the judges; but, highly as he thought of the right hon. gent.'s abilities, he did not think he should be justified in allowing himself to set it up against the opinions of the majority of the judges, who had, by their superior knowledge and abilities in the profession and practice of the law, raised themselves to the first stations of authority in it, and gave those opinions in the most serious and solemn manner, on a most important occasion. For his own part, he was clearly of opinion, that the majority of the judges were right in the decision they had come to; but he did not mention his own sentiments, as of the value of a feather, in aid or support of what had been delivered by them. Then, said the right hon. gent. (Mr. Fox), comes the question, whether the courts of law are to be sent to enquire into the merits of the subject, from the court of chancery? He was, he owned, very much surprised, that any such doctrine could have been held, or even conceived. It was well known, the courts of law were much more ancient than that of equity; and had rules by which they were governed, before the court of equity was ever known in this country; and he believed lord Holt, or any of the great and learned judges who presided in the courts of law, both before and after him, would have been startled at being told, they were to apply to a court of equity for rules, by which they were to proceed in the courts of law. But the right hon. and learned gent. had said, he did not send you to a court of equity, he only travelled with you there; but he did not see, for his own part, what the court of equity could possibly, in point of fairness, have to do with the question at all. He had looked over the papers containing the opinions of the judges, and he believed there was not in any of them the smallest allusion made to 776 a court of equity. He had no doubt but the learned judges had formed their opinions on the general principles of the common law of England, and not with the smallest analogy or reference to a court of equity. He thought, therefore, no man would wish for this proviso, if the bill could pass without it. He had not had the advantage of hearing the opinion of the judges delivered, but he should be glad to know, if their opinion were asked, as to this proviso, if any one of them, even of those who were in the minority, would be in favour of this proviso? He believed not; on the contrary, he was almost certain they would be against it to a man, as tending to infringe on the line and rule of their own conduct, and to subject them to the guidance of the rules of another court, very different from their own, both in point of principle and practice. It had been mentioned by some hon. member, that this proviso had been introduced into the house of lords, and partly adopted by them, but that it had afterwards been rejected; this to him appeared very extraordinary, that the house of lords, immediately after they had received the opinions of the judges, and while they were warm in their recollection of them, should adopt this proviso, and should afterwards, without any particular reason being assigned for it, proceed in so contradictory a way, as to reject it. If this argument proved any thing, it was that the lords were clearly of opinion, that the proviso ought not to be part of the bill, because it militated against the opinion of the majority of the judges, which ought also to weigh materially with that house. If the case of a purchaser for a valuable consideration, without notice, be allowed, it might perhaps be better to insert the proviso; but it did not appear to him from all he had heard on the subject, that it ought to be, and, the right hon. and learned gent. had not stated any other exception. The house would, however, call to mind, that when the judges delivered their opinions in the house of lords, they were serious. They did not conceive it to be a light or trivial point, and when they said "generally," they meant, he was well satisfied, "solely." He hoped, therefore, the house of commons would consider whether the proviso was necessary; and if they should be of opinion that it was so, he, for one, would much rather the bill should notpass at all
§ Mr. Jervissaid, that when he came to the house, he was rather under an impres- 777 sion on his mind, that the bill required some modification; but from the arguments he had heard, and particularly those which had just been delivered with so much force and eloquence, by the right hon. gent., he had entirely altered his opinion; and upon more minutely looking into the words of the proviso, he thought it contained no more than the opinion of the majority of the judges: as such he should certainly vote against it.
§ Sir V. Gibbssaid, that he thought the arguments of the right hon. secretary of state were extremely forcible, and they had completely convinced him that the bill would be far better without the proviso. Nothing could be more clear to him, than that the judges of the common law should not be obliged to refer for rules to a court of equity, for, as had been most ably enforced, the common law existed long before a court of equity was ever known or heard of. The court of equity was originally instituted for the purpose of softening the rigour and. severity of the common law, the courts of which had always been governed by their own rules. The court of equity had unquestionably taken rules from the courts of common law, because it was indispensably necessary to them, but it had always been the reverse in the courts of common law, the judges of which had uniformly been governed by their own rules. Another reason which induced him to disapprove of the proviso, was, that the bill declared what the opinion of the majority of the judges was, and they, in delivering those opinions, had not, in any one instance, referred to the rules of equity. He thought that, from the expression "generally speaking," the judges did not lay down the rule universally; but, as the house were now about to declare the law, they should be extremely careful not to do so, contrary to the opinion of the majority of the judges.—The question was then put, and the proviso. negatived.