WITNESSES INDEMNITY BILL—OPINION OF THE JUDGES.

HL Deb 28 February 1806 vol 6 cc234-9

Pursuant to an order of the house, the learned Judges again attended this day, for the purpose of delivering their opinions seriatim on the questions arising out of the discussion on this bill, and which had been previously referred to them; the principle of these, and on which a difference of opinion among the law lords was last night stated to obtain, was, in effect, whether a witness, according to law, was bound to answer questions relative to the matter in issue, the answers to which do not tend to accuse himself, but may establish, or tend to establish, that he owes a debt recoverable by a civil suit?

Mr, Baron Sutton

as the junior judge, first rose to deliver his opinion. The learned baron, in the course of his argument, referred to a variety of legal considerations, cases, and decisions; on his view of which he grounded his opinions, These, considering the point as a general rule of law, liable, however, to various and numerous exceptions, dependent on circumstances, &c. were, that such witness was bound to answer. In the course of his illustrations he referred to a case, which he seemed to put hypothetically, viz. that of a prisoner on trial for his life, on a charge of forgery, and a most important witness to be brought forward to answer the question, whether such name or signature were his hand-writing or not? would it, in such a case, be allowed to him to object, on the ground, that tie answer might render him liable to a civil debt?

Mr. Baron Graham,

after stating the difficulties in which the question was involved, declared that, in his opinion, the general rule of law was, that a witness was bound to answer every question touching the issue to be tried, with the exception only of such questions as would expose him to a criminal prosecution, or to a penalty or forfeiture. In the courts of equity it was the daily practice to force parties to answer the natters alleged against them, whatever pecuniary loss such answer., might subject them to. The justice and the reason of this rule applied equally to the courts of law, although it was not the custom there to examine the parties, as it was in chancery, where their customs were derived from the civil, instead of the common law. Although, in the courts of law, a party could not be made a witness, yet those persons, who were brought forward as witnesses, were equally bound to declare the whole truth, as the parties would be in a court of equity. If it were not so, the most monstrous obstructions would be thrown in the way of justice; those persons who were the best qualified .to give important evidence, might generally shelter themselves under that plea. It was, however, every day seen, that pawn-brokers were brought in evidence upon the prosecution of thieves, and stable-keepers on the trials of horse-stealers; and in neither of these cases; would it be permitted, for the pawn-broker, or the stable-keeper, to refuse giving testimony, on the ground of their answers obliging them to restore those things which they had so improperly received. if this were the law, whatever inconveniences might result from it, witnesses would perpetually claim this privilege, either from fear, or through favour. The point had not as yet been settled by any solemn decision, after a full argument; but, from all the lights that he could derive, and from the monstrous inconvenience that would result from the contrary supposition, he declared his opinion, as to the first question, that a witness is bound to answer all such answers as do not expose him, either to criminal prosecution, penalty or forfeiture; and as to the second question, that the same rule applies to the witnesses on a trial, or a suit, where his majesty is either plaintiff or prosecutor.

Mr. Justice Chambre

was of the same opinion. In the courts of equity, not only a person might be compelled to answer questions which would severely affect their pecuniary interests, but bills of discovery were filed, for the express purpose of obtaining an answer upon oath, which answer might be read as evidence in the courts of law. The rule had been laid down by lord Mansfield, which had been generally considered as the true one, that in all cases where a witness could be forced to answer by a court of equity, in order that his answer might be read as evidence in a court of law, in, all such cases, a court of law should compel him to answer at the trial. The only cases where a party could refuse to answer in a court of equity, were, when such answer would expose him to either criminal prosecution or to penalty or forfeiture. This was what he conceived the rule also at common law, and that it most unquestionably ought to be the rule, for he thought there could be no reason assigned why a man should conceive himself privileged to conceal the truth, or to refuse to do justice between A. and B. on the ground that if he did so, C. might have an action against him; which would be to say in other words, "the public must not call upon me to give evidence, or do justice between A. and B. because such evidence night prevent me from acting unjustly by C. or D. to whom I should wish to act unjustly, and from whom I should wish to withhold a just debt."As to the authorities upon the point, there were on one side a great variety of opinions, expressed at Nisi Prius, and on the other, the rule so laid down by lord Mansfield, and which he now considered to be the law with respect to evidence. There had been also a case in the court of exchequer, where an. attachment was ordered against a witness, for refusing to answer on these grounds. When he considered the practice of the courts of equity, and the manner in which this practice had been adopted in the courts of law, and also when he considered the great obstruction which would be thrown in the way of justice, if the contrary practice should prevail, he should give his decided opinion, that a witness was bound to answer questions, which did not expose him to criminal prosecution, penalty, or forfeiture, even although his pecuniary interests might suffer by such answer.

Mr. Justice Le Blanc

agreed most decidedly with the opinions which had been delivered by the judges who preceded him. He considered that it would be subversive of justice, and a thing not to be endured, if agents, brokers, or persons who managed insurances, were to decline being examined on the ground of their being themselves made liable to a civil action. Although he professed the highest respect for the authority of those judges who held the rule to be the other way, yet it must be recollected that the point had never been seriously argued before, or probably those great and learned judges might have altered their opinions. He had always held that witnesses could be compelled to answer questions, even although their answers might expose them to civil actions, and the more he considered the practice of the courts, and the reason on which it was founded, the more he was confirmed in that opinion. He, therefore, agreed with his learned brethren in the answers they had given-to the questions that had been submitted to their opinion.

Mr. Justice Grose

differed in opinion from the learned Judges who had preceded him. He conceived, that, by the mild laws of this country, no man was bound to criminate himself; or to give evidence against his own pecuniary interest, and perhaps to his utter ruin. It was allowed, that neither in a court of equity, or at law, was a man bound to answer what might expose him to a penalty or forfeiture. He could not see the reason why a man should be excused from answering questions which might expose hint to the penalty of five pounds for killing a hare, and yet should be obliged to answer questions which might expose him to ten thousand pounds in damages, or to lie in jail all his life, it he should be unable to pay those damages. This difference, it appeared, was more grounded upon practice than upon any principle. The practice, however, of the courts of equity differed most materially from that of the courts of law. In the courts of equity, although the parties were liable to be compelled to answer upon oath, yet they had time for due deliberation and legal advice, and besides the answers could not afterwards be misrepresented. It was very different, however, in a court of law, when a question rapidly put by an ingenious lawyer, and answered without consideration, might expose the witness to ruin. If this answer could be given against him as evidence in another trial, it would be given in without the witness having any opportunity to explain his answer. There were many other differences between the rules of evidence in the court of equity, and those of common law. In the former, an infant could not be compelled to answer, in the latter he could. He did not consider that the principle laid down by lord Mansfield was entitled to more weight, than the opinions of so many great and eminent Judges, who had determined the other way. His opinion was, therefore, contrary to the opinion expressed by his brother judges.

Mr. Justice Lawrence

said, that he had always, until this question was agitated, considered that the rule of law was, that a witness was excused from answering such questions as involved his pecuniary rest, and, so thinking, he had concurred with other Judges in refusing a new trial moved for on that very ground. The fact was that, till the present question was started, there had been no solemn argument upon the subject, and he had never turned his mind particularly to it; but upon the present occasion, having felt it his duty to consider the subject with the utmost attention he could give to it, he had changed his opinion as to the rule of law, and was now inclined to consider that it was different from what he had formerly supposed. Whichever way the general rule lay, that rule had many exceptions;" and, although he could see many inconveniences resulting from the affirmative, as well as from the negative of the question which had been put to the Judges, yet he thought the mischiefs resulting from the negative of it considerably predominated. He therefore now considered, that the general rule of law was, that a witness was bound to answer questions, although he might become liable to a civil action in consequence of his answers.

Mr. Justice Rooke

coincided with his learned brother (Mr. Justice Grose) in his opinion, that a witness was not bound to answer questions which might materially affect his pecuniary interest. He did not apprehend such evil consequences from this rule, as those who held an opinion contrary to his. Prosecutors and plaintiffs seldom came into court so badly provided with testimony, as to rely entirely on what they were to pick up by cross-exami nation from an unwilling witness. Neither did he think that they would decline answering on a pretence of their pecuniary interest being endangered, if, upon examination, it appeared that their interest was very minute. He thought a much greater danger would result from allowing a hasty answer, unexplained, and perhaps incorrectly taken down, to be read as conclusive evidence at a trial. There was a case determined against this doctrine, but he thought it was an extreme hard case. It was that of lord Keith, who, by an answer he gave in an insurance cause, where he was called as a witness, subjected himself to an action, in which 10,000l. damages were given against him. No court of equity could have compelled him to state every irregularity he might lave committed when commander in chief of a fleet, and yet a hasty answer at Nisi Prius was given as evidence against him. He considered that evils of this kind were worse than would follow from the rule being the other way. As to the courts of equity, whatever analogies might be drawn, he did not consider that judges of the common law were bound to go into the court of chancery to find out what rules of evidence were received there. In the whole of his practice at the bar, and of his experience on the bench, he considered that witnesses might object to being examined on matters that would expose them to civil actions. He thought that no third person had a right to extort from a witness what debts he owed, what slanders he might have spoken, or what trespasses he might have committed, which would expose him to actions. If that were the rule, it would change the whole practice of the law, as dishonest practitioners would bring actions against one person, merely to extort evidence against another. He, therefore, was of opinion, that a witness was not bound to answer questions which would prejudice his pecuniary interests, and expose him to civil actions.—After Mr. Justice Rooke had finished, the further hearing of the Judges was postponed till to-morrow.