§ Order for Committee read.
§ House in Committee; Mr. Bernal in the Chair.
§ Clause 1.
The ATTORNEY GENERALsaid, that the first and second clauses of this Bill contained an alteration in the Law of Evidence of such vast importance, as connected with the administration of justice in this country, that he felt it his duty to make a few observations on the clauses before asking the Committee to agree to them. The Committee were doubtless aware that, as the law of England now stood, in some of the most important proceedings in our courts of justice, the parties to the suit were not competent to give evidence. Public attention had been directed to this subject, and the present Bill, after undergoing very mature consideration before the other House of Parliament, and receiving the sanction of the great legal authorities who had seats in that House, now came down to the House of Commons for its consideration and adoption. It appeared to him, after careful deliberation, that the advantages likely to arise from this alteration, preponderated so vastly over the objections to the measure, that he, for one, gave it his most cordial support. There could be no doubt that it 839 would occur to any one, on the first view of the subject, that, unless some great disadvantage was likely to ensue from such a course of proceeding, they should at once have recourse to the parties in the suit, as the parties who could give the best and most accurate information on the subject-matter of the trial. In the great majority of the transactions which became the subjects of inquiry before the courts of justice, the parties in the suit were the only persons who could give information on many points connected with the inquiry; and in almost every case they were the parties who could furnish the best information. They all knew that, in the common transactions of life, where parties were called upon to arbitrate between individuals having a difference, the first step would be to hear what the parties who were principally interested, and who were the only parties who were really privy to the transaction in all its parts, had to say on the subject in dispute. So with regard to courts of justice. Everybody at all familiar with the practice of the courts of justice, and even those who were not, could readily understand how it was that justice was constantly frustrated by the impossibility of proving the facts necessary to be established for the due administration of justice, in consequence of their being within the exclusive knowledge of one or other of the parties to the suit. Nay, to such an extent did this go, that it frequently happened that the plaintiff was nonsuited, or failed in getting a verdict in his favour, simply because he was not in a condition to prove some fact that lay within his own knowledge; and the consequence was that a man who had a just claim was unable to enforce it, and instead of being the creditor whose suit was successful, he was often converted into the debtor of a man who owed him money, simply by reason of his being unable to adduce the evidence which would secure him a verdict, and thereby being made liable to all the costs of an unsuccessful attempt to substantiate a just claim. No one, therefore, could hesitate to admit that, in endeavouring to elicit the truth, they ought to hear the evidence of the parties best informed on the subject. The question was, would they admit the persons who were most familiar with the subject of the inquiry, who were the best competent to give information regarding it, and who in many instances were the only parties who could give that information. He knew it might 840 be said that by admitting the parties to a suit to give evidence in their own favour, they would open the door to perjury. Those who contended for the exclusion of this evidence, would maintain that the present Bill would have a twofold mischievous effect; because, in the first place, by admitting false testimony it would tend to mislead the tribunal which had to decide the case; and, secondly, it would induce persons to commit the crime of perjury. It must undoubtedly be admitted that when interested parties were allowed to give evidence, the tendency to falsehood was increased, first, on the part of persons who were not affected by those considerations which operated upon men of religion, morality, and honour; and also by that bias which insensibly acted upon the minds even of the most upright and honourable persons, from the natural tendency of parties to see things in a favourable view for themselves. So strongly was this felt, that by the ancient law of England, even persons who had only a secondary or indirect interest in the issue, were excluded from giving testimony. The law had, however, been altered, under the auspices of that able and venerable Judge who had so long filled the chief seat of the Queen's Bench, but who had unfortunately been compelled, by age and infirmity, to retire; and none of the baneful effects which had been anticipated were found to result. On the other hand, there were various secondary checks which operated with a contrary tendency—first, as respected the virtuous portion of mankind. The very fact that a man was called upon to depose in his own cause, would lead him to weigh most cautiously every word he uttered, and to view the facts in a light rather unfavourable than otherwise to his own interest. Again, a man who was not under the influence of the same sanctions to just and upright conduct, coming forward to give evidence in his own favour in a public court of justice, and having the strongest motives to misrepresent the facts to his own advantage, would be conscious how narrowly and closely his evidence would be scrutinised, and, therefore, would speak with the utmost caution. It must not be forgotten that they could not exclude perjured testimony now. The experience of all courts of justice showed that innumerable instances occurred where testimony was given with a perfect consciousness in the parties that they were speaking falsely. Those who did so were 841 frequently the friends, relatives, or servants, of the chief parties to the suit, in whose favour they gave testimony; they became partisans and mixed themselves up in the cause. But the tribunals which had to weigh the value of testimony was not so much upon its guard in the case of individuals whose bias was not apparent, as it would be in the case of an individual who came forward openly to give evidence in his own favour. Again, if a man was so wicked that he would not be deterred by the- sanction of an oath from speaking falsely, what was to prevent him from obtaining, under the present system, perjured testimony, and suborning others to swear falsely? A man giving testimony in his own suit was under strong corrective sanctions, and spoke under all the checking which arose from the knowledge of the Judge and jury as to the position in which he stood. But he might remind the Committee that, as the law now stood, in a great number of instances we admitted the testimony of parties to causes. In all criminal prosecutions, where the motives operating on a man's mind were sometimes quite as strong as in any civil case, the parties were admitted to give evidence, and no inconvenience was found to result. In proceedings in the Courts of Equity, also, the defendant was put to his answer upon oath. He admitted that proceeding was, perhaps, of no very great value, because the defendant gave his answer upon oath to written interrogatories, which he answered at his leisure, leaving it to his lawyer to frame the answers property. Again, in all proceedings in the Courts of Common Law, with the exception of trials before juries, questions which arose were determined upon affidavits, and the Courts had invariably the affidavits of the parties interested in the cause. Indeed, not only were the affidavits of the parties admitted, but the omission of the affidavit of either party would be immediately matter of observation by the opposing counsel and by the Court. It was said, that the effect of the change would be to put an intelligent person on one side, and a dull or ignorant man on the other, on an unequal footing; but that inequality already existed from the nature of circumstances. But that that inequality had any great influence in the administration of justice, he did not believe; for the simple and ignorant man, who came into a court to speak the truth, was as readily believed, to say the least, as the astute and cunning 842 one, who possessed cleverness, which might enable him to throw a veil over it. He thought, therefore, that a vast additional amount of light and information would be thrown on the administration of justice by this Bill, and that there was no well-founded objection against it. He might state that those distinguished ornaments of the legal profession, Lords Denman, Brougham, Campbell, and Cranworth, were in favour of the alteration proposed by this Bill, and he hoped it would receive the assent of that House. They were not without experience to guide them in deciding the question, for the admission of parties to suits to give evidence had been in actual practice for several years under the system of administration of justice in County Courts. The whole body of County Court Judges, with, he believed, only one exception, were unanimously in favour of the plan involved in this measure, because they found it simplified the administration of justice, and enabled justice to be done in many instances in which otherwise it could not be obtained. The evils likely to result from the change contemplated by this Bill, had, he thought, been greatly exaggerated, and he was perfectly satisfied it would be found to work well.
§ Clause agreed to; as was also Clause 2.
§ On Clause 3, which prevents the wife being examined on behalf of the husband, or the husband on behalf of the wife,
§ MR. HENLEYsaid, he was inclined to think that the balance of advantage and disadvantage was in favour of admitting the evidence of the interested parties in a suit; and as the principle had already been acted upon in the County Courts, he did not see how they could rationally or consistently refuse to extend it to all civil actions whatsoever. He wished to know why, after the principle of the admissibility of parties to give evidence had been so broadly laid down by the hon. and learned Attorney General, they were to agree to the provisions of this Clause, which formed a decided exception? The effect would be to exclude a shopkeeper's wife, who might have sold goods in a shop to a customer, from giving evidence for her husband relative to the transaction.
The ATTORNEY GENERALsaid, he never used any argument on a subject so important as that of the administration of justice, which he thought ill-founded, and therefore he must at once frankly say that he could not defend this exception. He 843 knew of no good reason for it; but he understood there was a strong opinion in the other House in favour of excluding the wife from giving evidence, and he feared if they altered this Clause it might be fatal to the Bill.
§ MR. CROWDERquite concurred in the view so clearly expressed by the hon. and learned Attorney General, that parties to a suit should be admitted to give evidence, and he thought also that the hon. Member for Oxfordshire (Mr. Henley) was quite right in objecting to the exception made by this Clause, and that husband and wife should be admitted to give evidence for each other. By the 83rd section of the County Courts Act, husband and wife were allowed to give evidence in each other's cause; and if they passed the Clause as it now stood, the law in the superior courts would be different from that in the County Courts. He should propose, therefore, to strike out the words, "or shall in any proceeding, civil or criminal, render any husband competent or compellable to give evidence for or against his wife, or any wife competent or compellable to give evidence for or against her husband," and to insert a proviso, "that husbands or wives shall be competent to give evidence either vivâ voce or by the practice of the Court for each other, but that nothing shall render any wife or husband competent or compellable to give evidence against her husband or wife respectively, except on cross-examination after an examination in chief." The exclusion of the wife's evidence against the husband, rested on policy, for the sake of averting domestic broils, and he thought it desirable to leave the law in this respect as it now stood.
§ MR. J. EVANSthought if any amendment in that House would peril this invaluable Bill, they should abstain from making any; but he did not see, if a proper amendment in the Bill were made, why it should be rejected in the other House. He thought, however, there were the most material objections to the Amendment of the hon. Member for Liskeard (Mr. Crowder), which went to the repeal of part of a Clause in the County Courts Act, which had had the most beneficial effects; whereas they ought rather to assimilate the law in the superior Courts to that in the County Courts. If they allowed the wife to give evidence for her husband, it was right also that her evidence against him should be admitted.
§ SIR GEORGE STRICKLANDthought 844 they should by all means put in the Bill what they thought right, even if they ran the risk of losing it in another place. It was a measure so much in accordance with the wants and wishes of the people, that if not carried this Session, it certainly would be in the next.
THE ATTORNEY GENERALwas decidedly of opinion that, if the principle of admitting the wife's evidence were to be recognised at all in civil cases, it must be recognised as well against the husband as in his favour. He would not oppose any modification in the Clause having for its object the admission of the wife's evidence either for or against the husband in civil cases; but an ancient prejudice made it desirable that they should not attempt to introduce the principle of allowing the wife to give testimony against her husband in criminal cases. He was far from saying that such an exemption was defensible upon any high moral principle; but so strong a prejudice existed in its favour, that any alteration of the law in this respect would most probably cause the loss of the Bill.
§ MR. WAKLEYbelieved that the better plan would be to omit the Clause altogether. He had no doubt the other House would give way in deference to their opinion.
§ MR. HENLEYthought that the object which was sought to be secured by the Amendment of the hon. Member for Liskeard (Mr. Crowder), would be obtained in a more direct and satisfactory manner by making a verbal alteration in the third clause. He would suggest the omission of the words "civil or criminal," and the insertion of the word "criminal" before "proceeding," thus restricting the operation of the clause to civil cases only.
The ATTORNEY GENERALthought the suggestion of the hon. Member for Oxfordshire a most valuable one, and one that entirely met the sense of the Committee. He would then not introduce any alteration in the law of evidence as regarded criminal cases. The law proceeded in all its departments on the identity of husband and wife. Now, they did not compel the husband to give evidence against himself, and therefore neither should the wife be compelled to give evidence against her husband.
§ Clause, as amended, agreed to; as was also Clause 4.
§ On Clause 5, providing that a party intending to give evidence on his own behalf 845 should give fourteen days' notice to the other side, and that if he intended to call the opposite party he should serve the summons upon him four days before the trial,
§ MR. J. EVANSsaid, it would be found productive of great practical inconvenience and injustice to require a party intending to give evidence on his own behalf to give notice.
The ATTORNEY GENERALsaid, that he had communicated with a learned Gentleman who took a great interest in this Bill, and who was peculiarly competent to speak with respect to it, and he understood from him that this clause was inserted because it was thought that it might possibly happen that where a party came forward to give evidence in his own favour, he might, if he knew that his adversary was absent, make a false statement as to what passed between them, which no one but his opponent could contradict. The object of the clause was, therefore, to give a party the means of being present at the trial if his adversary intended to be examined, and at the same time to relieve him from the inconvenience of doing so if he did not.
§ MR. STANFORDsaid, he should support the clause, because a case had occurred in which a decision had been given against him in the County Court, in consequence of his not being aware that the plaintiff intended to give evidence; for had he known that, he should have attended, and could then have contradicted certain statements which he had made.
§ MR. HENLEYsaid, that the argument of the hon. Member would go so far as to require that notice should be given of all witnesses intended to be called. He (Mr. Henley) objected to this clause, because if it were adopted its principle must be extended to other cases, and he could not see why a man could not make a good defence without knowing the names of the witnesses who would be brought against him.
The ATTORNEY GENERALsaid, that he thought it would be very inconvenient to compel both parties to be present on every occasion in order to watch what their adversary might say if he were called. At the same time he quite felt the force of what had fallen from the hon. Member for Oxfordshire (Mr. Henley). He thought that the latter part of the clause was of no use, for he could not see why the opposite party should have either four days or four hours' notice that he was required to at- 846 tend and be examined; it was sufficient if he received sufficient notice (whatever that might be in the particular case) to enable him to come to the court. He therefore proposed to omit the words "four days," in the latter part of the clause. It would be quite enough if he were subpoenaed in time like an ordinary witness.
§ MR. CROWDERobjected to the introduction of a principle different from that which was at present applied to the practice in County Courts.
The ATTORNEY GENERALthought that they should not follow the practice of the County Courts slavishly. He would introduce a proviso exempting County Courts from the operation of the clause.
§ MR. J. EVANSsaid, that he considered the clause so objectionable that he should divide the Committee upon it.
§ Motion made, and Question put, "That the Clause, as amended, stand part of the Bill."
§ The Committee divided:—Ayes 37; Noes 29: Majority 8.
§ Clause agreed to; as was also Clause 6.
§ On Clause 7, authorising Common Law Courts to compel inspection of documents whenever Equity would grant discovery,
§ MR. MULLINGSobjected that this would enable a party who brought an action for ejectment, and found a few days before going to trial that his title was defective, to compel his adversary to give him an opportunity of completing it from an inspection of the deeds which he might have in his possession.
The SOLICITOR GENERALsaid, that this was not so, for the power proposed to be given by this clause was confined to cases in which a party might at present obtain an inspection by filing a bill of discovery before a Court of Equity; and the effect of the clause was therefore merely to substitute for that very expensive process a cheap and simple mode of attaining the same object. In the case put by his hon. Friend, of an action for ejectment, the Court of Chancery would not compel the defendant to show his title-deeds to a stranger, or to any one whom it did not consider to have some hold upon his conscience; and the Common Law Judge would be guided by the same principle. No doubt he would be obliged to decide the point upon equitable principles; but Courts of Law were already obliged ill many cases to take cognisance of the principles of equity. And indeed he regarded this clause with peculiar favour on that 847 very account; and was very glad to see a clause of a similar character in the Bankruptcy Bill, which would soon come before that House, and by which the Courts of Law were enabled to proceed by injunction in certain cases. He believed that these were steps to the establishment of an important principle, that where any Court of Law had jurisdiction over the subject-matter of dispute, it should exercise also all the ancillary jurisdiction which was at present exercised by a Court of Equity.
§ MR. MULLINGSsaid, that there was nothing in the Clause to point out the evidence which it was requisite should be before the Judge.
The ATTORNEY GENERALsaid, that the Court would only compel a party to allow an inspection of documents upon a statement of sufficient facts to justify it. The Court would compel him to say what deed he wanted, and to give such a description of it as showed that he knew something about it. What was desired was to get rid of expense, and to have a short simple summary mode of proceeding, instead of the dilatory and expensive bill of discovery. He joined with his hon. and learned Friend the Solicitor General, in hailing this as the commencement of a new era in our system of judicial proceeding; he hoped that we were now getting the fine edge of the wedge in, and that it would end in that fusion of law and equity, short of which he was convinced that the public would not be satisfied.
§ MR. HENLEYhad no objection to this Clause so far as it did not exceed the operation of a bill of discovery, but he objected to that portion of which compelled a man to give a copy previously of any document which he was compellable to bring into court under a subpœna duces tecum; such a summons would compel a man to bring any deed into Court.
The ATTORNEY GENERALsaid, that he should have no objection to strike out the words "to take examined copies," so as to meet the objection of the hon. Member.
§ MR. STUART WORTLEYsaid, there were many cases in which it was desirable that a previous inspection should be allowed of documents which a party was compellable to bring into Court under a subpœna duces tecum, because at present the opposite party who had obtained the summons, frequently found that the document when produced in court defeated them on some 848 technical point. He thought that it was desirable to pass this Clause, which was one means of breaking down the barrier between the two classes of courts, and thus preventing the glaring injustice of a man being driven "from pillar to post," going into a Court of Law and being told his remedy was in equity, and going into a Court of Equity, and being told his remedy was at law.
The ATTORNEY GENERALsaid, he was willing to leave out so much of the clause as related to documents produced under a subpœna duces tecum.
§ Clause, as amended, agreed to; as was also Clause 8.
§ On Clause 9, declaring apothecaries' certificates admissible in evidence without proof of seal,
§ MR. WAKLEYsaid, he thought that the same provision should be applied to the diplomas of the Royal Colleges of Surgeons and Physicians.
The ATTORNEY GENERALagreed very much with his hon. Friend the Member for Finsbury. He believed that the Bill as it came down from the other House would have a most beneficial effect, and he therefore accepted it; but he begged it might not be thought that all the amendments requisite in the law of evidence were provided for by it. That subject would soon come under the consideration of the Commissioners for the Amendment of the Common Law, who intended to make a searching inquiry into it; and he hoped that they would be able to suggest many improvements and ameliorations in that branch of the law. Something of the kind suggested by his hon. Friend (Mr. Wakley) would, he had no doubt, be considered by them.
§ MR. CROWDERcould not see why the provision suggested by the hon. Member for Finsbury could not be inserted in the present Bill.
§ Clause agreed to; as were the remaining Clauses.
§ MR. STUART WORTLEYthen proposed the addition of a Clause to allow the production in evidence of a certificate of the substance of a record in all cases in which it was now necessary to produce the record itself in order to prove the acquittal or conviction of a prisoner. This course was at present followed in some cases under Sir Robert Peel's Act; but there were others (such as actions for malicious prosecution or false imprisonment) in which it was still necessary to produce the record 849 itself, a step which was attended with great expense.
The ATTORNEY GENERALsaid, that he considered the Clause of the right hon. and learned Gentleman contained a most valuable provision.
§ MR. STUART WORTLEYsaid, that he must not he taken entirely to approve of the measure. He had considerable hesitation with respect to allowing the introduction of the evidence of the parties interested; but he could not understand why, if admissible at all, it should not be admissible in criminal as well as civil cases. One of the hardest cases with which he was acquainted, was when a poor man charged with crime, or a particular crime, said that he was at home all night, and yet was not allowed to call his wife to prove the fact.
§ Clause agreed to.
§ House resumed; Bill reported.