§ The Lord Chancellor, having moved the second reading of the Law of Evidence (Scotland) Bill, stated that the object of the bill was to do away with the present rule in the Scottish courts of excluding all persons from being examined as witnesses in cases, where the parties concerned came within certain degrees of consanguinity. Such a rule must operate to the frustration of justice in many instances, where the transactions under inquiry had taken place in the bosom of a family, and within the cognizance of near relatives only. He could not conceive that any opposition would be offered to so rational a measure. What would their Lordships think, if any noble Lord were to propose to alter the law of England, so as to exclude persons from giving evidence in cases in which their relatives were concerned? Such a proposition would be 779 considered absurd. This measure came before their Lordships, sanctioned by many eminent persons, and he thought their Lordships would have no difficulty in agreeing to the second reading of the bill.
The Earl of Haddingtonobserved, that the case supposed by the noble and learned Lord, of a proposition to alter the law of England, so as to make it the same as that of Scotland at present with regard to the subject of this bill, might appear absurd to the noble and learned Lord; but he thought it was a case which could scarcely apply to the question before the House, inasmuch as the law of England had been long established, had worked well, and it would be very difficult to convince the country that any advantage was to be gained by the change. It would be equally difficult to prove to the people of Scotland, that they would be benefitted by an alteration of the law in this respect. The administration of justice in that country had proceeded satisfactorily; and it might not be hard to show that, in some cases, the ends of justice might be thwarted, unless the principle of exclusion, proposed to be done away with by this bill, were allowed to operate. But, without going into that debateable point, it would be sufficient for him to state to their Lordships, that the whole Faculty of Advocates, and he believed the majority of the Scotch judges, were against the change. Therefore let their Lordships pause before they agreed to the second reading of this bill: let the whole subject be thoroughly investigated, and let the bill be postponed for another session. He called on their Lordships to give due weight to the opinions held by the whole bar of Scotland on this subject, especially as several of the judges had given their opinions against part of the change which was now proposed. He begged, therefore, to move that the bill be read a second time that day six months.
Lord Broughamsupported the bill. The report which had been made by the committee of the Faculty of Advocates recommended the chief alterations that would be made by this bill, and only objected to some minor points. The change respecting examination in initialibus was not objected to; and the only objection made to the clause as to keeping witnesses out of court, was that the law was already similar to what the bill proposed. With respect to the opposition which the legal profession gave the bill, he would remind 780 their Lordships, that some of the most beneficial changes lately made in the law of England had been strongly objected to by the profession. He had no hesitation in saying, that the late changes in the law of real property were as beneficial as any that had been made since the time of Edward 1st, yet no measures could have received less support from the profession than those which effected those changes.
§ Lord Denmansaid, that to expunge the first clause would involve a denial of the truth, and a distinct refusal of evidence. Was this a proper state of legislation in a civilized country? Were they to take the recommendation of the Faculty of Advocates, contrary to the distinct advice of a committee appointed by that very body of advocates? Were they about to place on the shoulders of a judge the unpleasant responsibility of deciding whether, after five or six witnesses were examined, there was a penuria of evidence, and whether a seventh witness was to be brought forward, labouring under an admitted incompetency? If the existing practice were to be continued, there might be no possibility of adducing proof of a man's innocence, though perfectly well known to one or two of his relations, because their evidence was inadmissible. He would give his vote cordially in favour of the bill.
§ The Lord Chancellorreplied, and instanced a recent case, where four boys had been put on their trial for theft, and the case failed in consequence of the uncle of one of them being the only witness against them. Was it not requisite that a remedy should be provided for so monstrous an anomaly?
§ Bill read a second time.