HL Deb 22 February 1853 vol 124 cc394-7

LORD BROUGHAM moved the Second Reading of the Law of Evidence (Scotland) Bill, the object of which was to extend to Scotland that which for a year and a half past had been the law of England upon this most important subject. Last Session the Lord Advocate brought in a Bill, which was passed, for improving the law of evidence in Scotland, by extending to that part of the kingdom that which had for some few years been the law in England, with regard to the admissibility of witnesses formerly excluded from giving evidence—a measure which had been most justly termed "Lord Denman's Act;" but it was not then thought expedient to extend to Scotland one part of the law of England, namely, his (Lord Brougham's) Act of 1851, making parties to the suit competent and compellable to give evidence—certainly a very great change, but a most beneficial one, in the law of England. He had been glad to hear from his noble and learned Friend opposite (Lord Campbell), that, though the great majority of the Judges were originally against that measure, yet the experience of the working of the Act had entirely altered their opinion, and, with a candour which did them infinite honour, but which to those who knew them could be matter of no surprise, they had since avowed their change of opinion, and without hesitation declared themselves in favour of the new law. That most respectable body, the Faculty of Advocates in Edinburgh, of whom as his brethren he (Lord Brougham) would speak with more than the ordinary respect and esteem which their high character commanded, had grave doubts originally, and more than doubts, of the expediency of this change of the law; but upon further consideration—he believed he might say even before the experience of its good working—they were strongly inclined to come round to the opinion in its favour; and they had now passed resolutions approving of its extension to Scotland, only suggesting one or two qualifications which he had fortunately happened to anticipate before the resolutions reached him, communicated by his hon, and learned Friend the Lord Advocate, whose Act of last year extended to Scotland Lord Denman's Act of 1843. The Bill was now framed entirely in accordance with the opinion of that body, and had met by anticipation with their cordial assent. It Would be, however, necessary to make one or two verbal alterations in the Bill.


expressed his sincere satisfaction that this Bill was to pass with the approbation of the Faculty of Advocates, especially when it was considered how nice and exacting the Roman civil law was in all matters relating to evidence. They need not be at all ashamed of having had serious doubts upon the subject, because it had been unprecedented in the history of jurisprudence that parties could be allowed to give evidence for themselves. But he had reason to believe that they were now perfectly satisfied, and rejoiced that the noble and learned Lord was introducing a Bill with the qualifications adapted to the law of Scotland.


said, his noble and learned Friend, in introducing this Bill to assimilate the law of the two countries, had, however, gone beyond the actual existing law of England, because he had introduced into this Bill, as he naturally would, a clause respecting the case of husband and wife, with reference to which a Bill had already been read a first time in their Lordships' House, and he hoped it would soon become the law of the land. It was but due to his noble and learned Friend, to say that such a provision was introduced into his Bill of 1851. He had in that Bill a clause extending the law of evidence to husband and wife, and he (the Lord Chancellor) was then opposed to it; but he must confess that he had since had reason to change his opinion, and he now approved of such a clause; but the husband and wife would not be compelled to disclose what passed in confidence between themselves.


thought that this was sufficiently guarded against by the provision in the present Act, which prevented the parties to a suit being called as witnesses in cases of adultery, breach of promise of marriage, and divorce.


, in reference to the subject last mentioned by his noble and learned Friend, believed he might state that the Commissioners had signed a report, which would be speedily laid before Her Majesty, and, no doubt, communicated to the House; and he trusted that the system recommended in that report would meet the approbation of the House—namely, that the House should renounce the practice of passing an Act of Parliament in each case; that there should be a regular judicial tribunal appointed to take cognisance of these cases, consisting of a Vice-Chancellor, an Ecclesiastical Judge, and a Common Law Judge', and that the proceedings should take place judicially where the petition came from the husband on the ground of the wife's adultery; but that in the extraordinary case of the wife seeking a dis- solution of the marriage for the husband's misconduct, that should he matter for legislation, because it would be impossible that any code could be laid down by which a court of justice could be regulated in deciding cases involving such variety of circumstances.

Bill read 2a.

House adjourned to Thursday next.

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