LEAVE. FIRST READING. (Hansard, 14 February 1865)

§ SIR FITZROY KELLY
, in moving for leave to introduce a Bill for the further amendment of the law of evidence and practice in certain courts of justice, said, that the expectations which had been held out in Royal Speeches, and other speeches of almost equally high authority, of large measures of law reform, had not been realized to the satisfaction of the community. Those, therefore, who, like himself, were unencouraged, and unsupported by the Government, must content themselves with attempting those reforms of which the obvious or urgent necessity afforded a reasonable hope of passing them through Parliament. Among the questions which had recently forced themselves upon public attention was that of the admissibility of parties as witnesses in courts of justice. The history of that question was somewhat remarkable. From the earliest times, upon the trial of any case, civil or criminal, everyone who was interested to the extent of a single shilling in the matter in issue was disqualified as a witness, and scarcely a day passed unmarked by a failure of justice on that account. Lord Denman was the first to bring forward a measure upon the subject, and an Act was passed some thirty years ago which put an end to all disqualifications upon the ground of interest, but until 1851 the law was in this strange condition, that, whereas, beyond all question, the parties to a suit were those among mankind who of all others were best, and in some cases exclusively, acquainted with the real facts of the case, and with the best means of bringing out the whole truth, they were disqualified as witnesses. In 1851, however, through the persevering efforts of Lord Brougham, an Act was passed—not without much opposition from high authorities on the Bench and at the Bar, and from statesmen in either House of Parliament, and not without grave doubts being expressed as to the possible consequences of the measure—rendering parties in civil suits, with some exceptions, admissible as witnesses. That Act was universally allowed to have operated most beneficially in leading to the discovery of truth and in bringing out the real merits of every case to which the Act applied, to a degree, indeed, which the warmest supporters of the measure had scarcely ventured to anticipate. That Act contained certain exceptions, and among 258 them one relating to cases of adultery. To that exception the Bill which he proposed to lay on the table was in the first instance intended to apply. As the question of the competence of witnesses in cases of adultery had attained importance mainly, if not solely, since the establishment of the Divorce Court, he had thought it his duty, before asking the House to assent to any measure on the subject, to communicate with his right hon. Friend Sir. J. P. Wilde, who so ably presided over that court, and to inquire from him what was the practical effect on the administration of justice of the existing state of the law. Sir J. Wilde had done him the honour of replying to the question in a letter which he would proceed to read to the House. The learned Judge said— Dear Sir Fitzroy,—You ask me how the present law of evidence works in the Divorce Court: I answer that it works a great anomaly, and a still greater injustice;—an anomaly, for the parties to the suit are admissible witnesses in some suits, even on the question of adultery, while in others they are excluded, not only on the question of adultery, but on all others, such as cruelty, condonation, desertion, amp;c.; and this for no reason but that the form of the suit differs;—a great injustice, for as the law now stands, the sayings, writings, and acts of the accused are all given in evidence against him, and he is obliged to stand by and hear them without the power of one word to explain them away. I do not hesitate to say that this is a grievous hardship to the individual, and a great impediment to the discovery of truth. I will only add that these evils would be efficiently cured by a law which should lender the parties admissible in all cases, but compellable on the question of adultery in none. And I can see no evil likely to attend such a law, except the inevitable lengthening of trials thereby, as has happened in the common law courts.—"Yours very truly, JAMES WILDE. To that objection he need not refer, because no one in the House would contend that the mere occasional lengthening of suits should oppose any obstacle to the pure administration of justice. The anomalies to which the learned Judge had referred were of such a singular character that he hoped Parliament would assist him in abolishing them. In the case of a suit for a divorce by reason of adultery, the parties were incompetent as witnesses; and if there were a suit for cruelty or desertion, or for any other cause of complaint by a wife against her husband, coupled with a complaint of adultery, the parties upon both sides were, until the law was partially amended, excluded from giving evidence, even upon questions 259 unconnected with adultery, which might arise in the course of the suit. Now, it was never intended by the Act of Parliament to make them incompetent in such cases. On the other hand, this singular result had followed from the present state of the law. If a wife instituted a suit against her husband for cruelty or desertion—but without including adultery as a subject of complaint—or a suit for restitution of conjugal rights, or of nullity of marriage, and then the husband set up a case of adultery on the part of the wife, the husband and wife might come into the witness-box and give their evidence; and not only were they both competent witnesses on the questions of cruelty or condonation, but also upon the question of adultery itself. The husband and wife might thus charge each other with adultery, and give evidence against the charge or in support of the charge, just as if there had been no exception in the Act of Parliament. He would not detain the House by alluding in detail to the serious mischief resulting from the present state of the law, but would merely observe that, by one of the clauses of the Bill, it was proposed to render parties in a case of adultery, as well as in other cases arising in the Court of Divorce, competent witnesses, if they thought fit to tender themselves; but in no case was it proposed to make it compulsory upon them to come forward in that character. This clause had the approval of the learned Judge, and would completely effect the improvement suggested. While upon the subject of the Divorce Court, he would mention another clause of the Bill to which he might call attention. By one of those oversights or that kind of inattention to the effect of one statute upon another, from which we should never be free until a Minister of Justice or some Board of competent jurisdiction was appointed to watch the progress of legislation, although in a suit for adultery and some others any party had the power to insist on the trial of the case before a jury, yet in a suit of legitimacy, involving position in society and perhaps the title to estates of immense value, and in suits of nationality, of scarcely less importance, it was left in uncertainty and doubt whether the Judge was bound to grant a trial by jury or not. A clause in the Bill, to which he hoped the House would assent, expressly gave to either party in any of these cases the right to a trial 260 by jury. The Bill likewise proposed to make parties admissible as witnesses in criminal cases. He was quite aware that grave doubts were felt by many persons upon this question; but he hoped the House, even if it should be indisposed hereafter to agree to the proposition in its fullest extent, would at least sanction the change in cases of misdemeanor, where it was frequently at the option of the party prosecuting either to sue in a civil action or to indict upon a criminal charge. In such cases long experience in criminal courts showed that the complainant often preferred to proceed by way of a criminal prosecution in order to exclude the testimony of witnesses by including them as parties in the indictment whose evidence, if given, would clear the accused from the charge made against him. Looking to that power, which was often exercised for evil purposes, and in a manner fatal to justice, he hoped the House would at least lend its sanction to the proposal in that moderate form. He did not, of course, propose in any part of this Bill to violate the old and approved maxim that no man should be compelled to criminate himself, but merely to give to the defendant the power, if he thought fit to avail himself of it, of tendering his evidence, subject, of course, to cross-examination and all its consequences. There were one or two other clauses in the Bill which he should not discuss at present. One of these was to enable counsel in criminal prosecutions to sum up the evidence on one side and on the other, in the same way that could now be done in civil cases; another was to enable either the prosecutor or the accused in criminal cases at the Central Criminal Court or at the Assizes, under the authority and with the approval of a court of common law or a Judge, to try a case, though a criminal case, by a special jury. These were the principal clauses of the Bill. He would not anticipate objections that might be made, but any improvement that might be suggested by any hon. Member he would gladly entertain. The hon. and learned Member then moved for leave to bring in a "Bill for the further Amendment of the Law of Evidence, and the Practice in certain Courts of Justice."

THE SOLICITOR GENERAL
said, that any proposition for the amendment of the law coming before the House on the authority of his hon. and learned Friend (Sir Fitzroy Kelly) was deserving of favourable 261 consideration, and, therefore, the Government would offer no opposition to the introduction of the Bill; but, inasmuch as there were very important questions raised by the Bill, it must be fully discussed on a future stage, and the House would see that it was convenient to postpone the discussion to that stage. He quite concurred in the eulogium pronounced by his hon. and learned Friend on the working of the Act of 1851, and could add his testimony to that of the hon. and learned Gentleman as to the beneficial results that had followed from allowing the parties in civil actions to be examined on oath. When that Act was passed, one or two exceptions were made to the general rule, and his hon. and learned Friend now proposed to repeal those exceptions. But those exceptions were not made without consideration, and it was a grave question whether they should be repealed. No doubt, as far as proceedings in the Divorce Court were concerned, there was an anomaly which it might be desirable to correct, but when his hon. and learned Friend proposed to allow the accused party, in a case of misdemeanor, to be examined, that was a proposition on which he did not feel called upon to give an opinion at present, and to which he thought the House ought not to accede until the matter had received very careful consideration.

§ MR. HADFIELD
said, the principle ought to be extended to criminal cases. If, for instance, Mr. Bewicke had been allowed to give evidence, he would most likely have broken down the case, and all the painful consequences that followed would have been prevented.

§ MR. SCULLY
said, that he had always thought it was an outrageous injustice to a person charged with crime that he should be the only person whose mouth was closed, though he was generally the person who knew most of the circumstances of the case. He had witnessed a great number of trials in Ireland, and he did not recollect a single instance in which the ends of justice would not have been furthered if the party accused had been allowed to give evidence. He remembered the time when the parties to proceedings were not allowed to give evidence in Chancery or in common law; but now in nine cases out of ten their evidence instead of being excluded was the chief testimony.