HC Deb 01 March 1865 vol 177 cc939-45

Order for Second Reading read.


, in moving that the Bill be now read a second time, said, he understood it was not the intention of the Government to offer any opposition to the second reading, and he thought it would be more convenient to postpone the consideration of the measure till the House went into Committee. He would not therefore detain the House more than a few minutes. The Bill contained eight clauses, which were intended to carry into effect seven distinct measures of amendment in the law. With respect to five of those measures, and possibly six, he thought he might venture to say that no difference of opinion existed, and when the time should come to consider the entire Bill in Committee—although, undoubtedly, explanation would be necessary, and some discussion might be thought appropriate—he did not imagine that any opposition would be raised to any one of those five, or possibly six, clauses. One clause, however—the third—stood upon a different footing. By this clause it was proposed to render admissible as witnesses the parties accused in all criminal cases. With regard to this clause he would not be dealing fairly with the House if he did not at once state that, although he rejoiced to say this clause had the approbation of more than one of Her Majesty's Judges, whose high authority was entitled to every consideration, yet he was quite aware that in the profession of the law, as well as in that House, a very great difference of opinion might be expected to be expressed and enforced by the votes of Members of the House when the clause came to be considered in Committee. He would only further say that in asking that the Bill be now read a second time without opposition, and he hoped without discussion—inasmuch as it would be necessary to discuss every clause in Committee—he should not assume that Her Majesty's Government, or any individual Member of the House, by assenting to the second reading, implied any approbation of any particular clause in the Bill. A Bill had been brought in by his hon. and learned Friend the Member for the county Cork (Mr. Scully) which sought, in somewhat different language, to effect the same object as the third clause in this Bill. He (Sir FitzRoy Kelly) conceived that it would be somewhat inconvenient to discuss, upon the two separate Bills, at two different periods of time, exactly the same measure of legislation, and such was the case with his hon. Friend's Bill and the third clause of his own. He, therefore, appealed to his hon. and learned Friend to postpone the second reading of his Bill.

Moved, "That the Bill be now read a second time."—(Sir FitzRoy Kelly.)


said, he felt no indisposition to yield to the wish of his hon. and learned Friend, though for himself he thought it would be more convenient to discuss the principle of the Bill upon the second reading. The point, however, was comparatively unimportant, for his own Bill merely embodied in one clause the proposals which were spread over three or four clauses of the present measure. He understood that it was the intention of Her Majesty's Government that his own Bill, that of the hon. and learned Gentleman, and a third Bill, having the same object, should be discussed together. It was rather anomalous, certainly, to find Lord Derby's Attorney General in the foremost rank of law reformers, while the Law Officers of a Liberal Government opposed his efforts. The anomaly, however, formed only part of that still greater contradiction under which Conservative Liberals sat on the Opposition side of the House, and Liberal Conservatives filled the Ministerial Benches. The state of things was not one which commanded his approval; these political "crosses" and admixtures of Conservative Southdowns with the Liberal Cotswolds never could lead to good results. To outward appearance everything was smooth; but for all that the black hoof peeped out occasionally, and he thought Her Majesty's Ministers would become more sincere and earnest reformers if they were compelled for a time to occupy the Opposition Benches. He gave the hon. and learned Member opposite credit for being a sincere legal reformer; and he hoped the Attorney General would likewise become as earnest in this respect as the noble and learned Lord on the Woolsack, for otherwise his official position would enable him to hinder useful changes. Among all men, and especially lawyers, there was a tendency to cling to familiar ideas which, from constant daily habit, became stereotyped in their very nature. At one time he, too, held such stereotyped opinions, but when he became a legal reformer the first thing he did was to tear up by the roots all those legal notions imbibed in a long course of years. In compliance with the appeal made to him he should postpone his Bill to the same day as that selected by the hon. and learned Member.


said, the House desired to approach all subjects such as the present without anything like party spirit; it was, therefore, with regret he heard the insinuation of the hon. and learned Gentleman, that law reform was made a matter of competition between one side of the House and the other. The practical tendency of any change that might be introduced, and whether the administration of justice would be improved or impeded thereby, were the grounds to which the House ought properly to direct its attention, and he could not see what that had to do with political differences between one side of the House and the other. He gave every credit to his hon. and learned Friend for the sincerity of his desire to amend the law, and he was confident that on these and other occasions the true course was to do justice to each other's views and intentions. The present Bill consisted of eight clauses, nearly all of which dealt with different subjects. Without anticipating the discussion upon the Bill, he might say that if the measure were confined to the first two and the eighth clauses, there might be very little difference of opinion in relation to them; but as to every one of the others, he felt very considerable doubt. The third clause especially, enabling the accused parties in criminal cases to become witnesses in their own behalf, of course subject to the usual right of cross-examination, seemed to him repugnant to the spirit of our whole legislation. He thought that if adopted, instead of working in the interests of justice, it would go far to introduce a system of moral torture like that prevailing in some parts of the Continent; and he doubted very much whether innocent persons would be likely to gain so much as his hon. and learned Friend hoped, while the system might very possibly operate in favour of the guilty. It was his duty to state that the present views of the Government were opposed to the application; and of course the views of the Government on such a matter were the views of the noble and learned Lord his immediate superior, which were entitled to so much weight. It was very desirable, on a matter of such grave importance, that the opinions of all who were most conversant with the working of the laws in England and Ireland should be obtained; and if it should turn out that before the day mentioned by his hon. and learned Friend the Government were unable to obtain the necessary information from the Judges and others whom it was their duty to consult, he felt sure his hon. and learned Friend would not oppose any reasonable proposition of adjournment. He also deemed it expedient that the discussion, when it took place, should not be upon a Wednesday, on which day the attendance of Members was usually limited, but should take its place with the ordinary business of the House, at a time when professional men were released from their engagements, and when the question, though a legal one, might be submitted for the opinion of the House at large.


wished to receive from the hon. and learned Gentleman the Member for Suffolk (Sir FitzRoy Kelly) some assurance that the Bill would not act retrospectively, inasmuch as anxiety was felt on the point by the parties in such cases as that of "Shedden v. Patrick," now awaiting a hearing before the House of Lords, who in the event of a new trial might have the whole proceedings gone over again, but under a different state of the law, should the Bill pass.


said, he hoped the Attorney General would reconsider his decision with regard to the third clause. There were many cases to which the principle of that clause might be extended with advantage. Take, for instance, a case of libel. If a prosecutor proceeded by action, the defendant could give evi- dence, but if he proceeded by indictment, the defendant's mouth would be closed. Why should a person indicted for libel not be allowed to give evidence as well as if he were a defendant in an action for libel? There were many cases in which, without interfering with the old established views of the profession, alterations might be beneficially made. At present it frequently happened that a man was convicted because he was not allowed to give evidence on his own behalf, or have the evidence of his wife taken. He would suggest that there would be inconvenience in taking the Committee so early as that day three weeks, inasmuch as the assizes would not be all over until after Easter.


said, he regretted the union of so many subjects in one Bill. Some of the provisions were so objectionable in principle that he thought the discussion upon it ought to have been taken on the second reading, and the Bill sent to the Committee with the approval of the House or thrown out altogether. Hon. Members would, for instance, recollect that in the case of actions for breach of promise the exception which it was sought by the Bill to dispense with was made deliberately when the change in the law of evidence was adopted. He might perhaps be allowed to observe with regard to such actions that he never knew one of which he could not say that, in his opinion, it would have been better that it had not been brought on for trial; but if they were to have breach of promise trials at all it was evident that they would be greatly multiplied if the plaintiffs themselves were allowed to give evidence of the promise. Then with regard to another class of cases, the result of the proposed change would, he thought, be that that class of actions which were now brought nominally by fathers on behalf of daughters would be converted into actions for breach of promise, and he, therefore, maintained it was right that those actions should stand on a different footing from other causes. He had as great a desire as the hon. and learned Gentleman himself that the courts should on all occasions arrive at a just conclusion; and, therefore, he might be permitted to say the law of evidence as it stood led, in almost every instance, to a just conclusion, and that it was wiser to submit to such slight evils as it might occasion, rather than invite greater. When it was borne in mind how an accused person was protected from the moment when he was taken into custody—how he was warned when taken before a magistrate not to say anything to criminate himself—how on the trial everything connected with his past life was excluded, and any allusion to any previous conviction shut out, so that he might be tried on the particular merits of the case itself, it would be at once seen how sweeping was the alteration proposed. Under its operation the defendant would be liable to be examined, and then cross-examined, as to his whole career by the opposing counsel, who would not think he had discharged his duty unless he put a pressure upon him, which, in many cases, a man would not be able to resist; so that while a person with a nimble tongue might be able to go through the ordeal without suffering any damage, another not gifted with the same expertness of speech might—although innocent—be convicted simply because he did not happen to be able to give a ready answer. He thought that such a system would be worse than the interrogation in France, when that was done by the Judge himself—though the Judges in some instances, he feared, forgot their judicial capacity. They ought to be sure that there was something very objectionable in the present state before they adopted such an alteration; but he confessed he had not heard any grievance alleged which could render it necessary for them to have recourse to so great a change in our judicial system. It was, however, said in support of the change that the parties to an action in civil cases were allowed to give evidence, and that that mode of procedure was attended with advantage. But in such cases each of the parties concerned, it should be recollected, had a deep interest in the result; while the prosecutor in a criminal case would for the most part give a good deal to be out of it, caring little in many instances whether the accused person was convicted or not; again, in the case of the most heinous criminal offences the prisoner would often be left to tell his story without contradiction, the only person whose evidence could have convicted him having been entirely removed from the scene. Then, again, if a man were prepared to give evidence, and his counsel should think it inexpedient that he should do so, it was obvious that the retort on the other side would be that the allegations made against him could not be contradicted, although of course there might be many reasons independent of a man's being guilty which might lead him not to wish to come forward as a witness. On the whole, to render prisoners competent though not compellable to give evidence on their own behalf would, in his opinion, so far from being an improvement, tend to prejudice the course of justice. Such an alteration in the existing law, if proposed at all, was one which he thought ought to be introduced to the House with all the influence and authority of the Government, who alone could obtain such an attendance as would secure for it more attention than it was likely to receive in the hands of a private Member. For his own part he believed the proposed alteration was by no means called for, and that it would operate more or less in violation of the principles of justice.


then fixed the 22nd instant for going into Committee on the Bill, expressing a hope that in the meantime the Attorney General would be enabled to appoint some other day for its coming on, when there would be a chance of having its provisions discussed in a full House. In answer to the hon. Member for Greenock (Mr. Dunlop), he begged to say that it was by no means his intention that the Bill should act retrospectively.


reminded the hon. and learned Gentleman that his Act of 1858 had—though he felt assured contrary to his intention—a retrospective action, He was afraid the Shedden case, which had already been attended with great expense, might, under the operation of the Bill as it stood, should a new trial be allowed, be tried again in the Probate Court under entirely new conditions.

Motion agreed to.

Bill read 2o, and committed for Wednesday 22nd March.