LORD BROUGHAMhad a question to put to his noble Friend on the woolsack relative to a very important matter. He thought their Lordships had a right to complain—his noble and learned Friend on the woolsack had a right to complain—his noble and learned Friend the Lord Chief Justice had a right to complain—and, lastly, he himself had a right to complain—of the treatment which had been given elsewhere to a most important Bill which had been sent down by their Lordships' House to the other House of Parliament. It would be in the recollection of their Lordships 245 that at a very early period of the Session—namely, in November last—he had laid upon their Lordships' table a Bill in reference to the law of evidence and procedure, to which they were pleased to give a second reading upon the 10th of March. It was then found that there was no difference of opinion whatever between his noble and learned Friend on the woolsack and himself, or between his noble and learned Friend the Lord Chief Justice and himself, relative to one portion of that Bill—a portion of very great importance—he meant the supplement to the Act of 1851, enabling parties to be examined as witnesses in the cause in all the courts, and, on the other hand, compelling them to be examined, as the case might be. And on the great benefits derived from that Act, it was needless for him to enlarge, because testimony had been unanimously and cheerfully borne as to them by all the Judges who had assisted in administering the law under it. But there was one most important omission in that Act—that which regarded the evidence of husband and wife. His noble and learned Friend on the woolsack and he differed on that subject two years ago, when the Act passed; but he (Lord Brougham) then yielded his opinions upon the point at issue, and in consequence the Act was passed with that very important defect. However, his noble and learned Friend, with his wonted candour, admitted that he had since changed his opinions upon the subject, and that be was now clearly in favour of the Bill for supplying the defects in the Act of 1851. Accordingly, that part of the Bill had acquired the entire concurrence of his noble and learned Friend, as well as that of his noble and learned Friend the Lord Chief Justice. But finding that they did not agree upon other points, and particularly as to the requirement of deeds and documents, he (Lord Brougham) thought that it would be expedient to divide the Bill into two portions, and to pass forthwith the part upon which no difference of opinion whatever existed, especially considering that as the Act of 1851 had passed, it had become of essential importance for the administration of the law. Accordingly, the alteration of the law with respect to the evidence of husband and wife formed the sole subject of one of these Bills, which had passed through their Lordships' House. The other Bill, which related to procedure, had yet to receive their Lordships' sanction. But when did the other Bill pass 246 their Lordships' House? Why, upon the 5th or 6th of June; and at that time he Lord Brougham) was assured that there could ensue no difficulty whatever to prevent its receiving the sanction of the other House; and that, consequently, it would immediately pass into law. Yet, what had happened? Why, the Bill had slept ever mince, although they had now arrived at the 15th of July. And what was the consequence? That the circuits had begun—that all the circuits were being holden, or would be holden during the next six weeks, without the great and necessary benefit of that change in the law. But there was still another consequence to which he begged to call their Lordships' attention. When he said that there was no doubt whatever of its receiving the assent of the other House, he had every reason to form much an expectation, because he found that on the 19th April a Bill received the Royal assent extending to Scotland the provisions of the very Bill which he had the honour of obtaining their Lordships' assent to for England. The provision which he wished to see established in the law of England was at this moment the law of Scotland, and the courts there were acting under it. So that here they had not only he inconvenience of delay—all the inconvenience of administering the Act of 1851, with its own peculiar anomalies—but there was the further anomaly that they had one law for Scotland, and another law for England, and that the Scotch courts were now examining husbands and wives under precisely the same powers and precisely the same qualification and guards that were to be found in the Bill which their Lordships had sent down upon the 6th of June, to be consigned to its long rest for a period if seven weeks in the other House. He really thought that if any one had a right to complain of the remissness shown in the furthering the passing of the Bill, it was his noble and learned Friend opposite (Lord Campbell), and he, therefore, hoped that some explanation would be rendered on the subject. He would only say, in conclusion, that if, when he consented to the division of his Bill, he had had the least suspicion of what was to have occurred, that he would have undoubtedly, no matter at what inconvenience, have pressed the passing of the Bill as a whole. Without, then, attempting to affix the blame in any particular quarter, he must be allowed to express his regret at the delay which had taken place.
The LORD CHANCELLORsaid, he could assure his noble and learned Friend that he could not regret more than he did the delay which had taken place in reference to the, passing of that very useful measure which had passed their Lordships House some seven weeks ago. Of course, as their Lordships were well aware, it was not in the power of any Member of their Lordships' House to control the proceedings of the other House of Parliament—
The LORD CHANCELLORCertainly, nor of any individual Member of the other House; but he would state, by way of explanation, in what way the matter stood, and he would show to his noble and learned Friend (Lord Brougham) that no disrespect whatever had been intended towards him. As his noble and learned Friend had truly stated, he (Lord Brougham) introduced a Bill for the improvement of evidence and procedure in November last. Their Lordships, however, were all aware that the Commission appointed to inquire into the state of the common law courts made a very useful report, suggesting matters which led to the first Act for the amendment of the common law, which received the Royal Assent last Session; and the Commissioners were engaged during the last winter, up to an advanced period in the spring, in further investigating the proper course as to evidence and procedure. In that state of things he had expressed to his noble and learned Friend a wish that he should not press his Bill in reference to this same subject until it was seen a little more clearly what the Commissioners were about to suggest. But as it appeared to him (the Lord Chancellor) that the Bill of his noble and learned Friend could be divided into two portions, and that that portion which contained that most valuable, useful, and short amendment of the law, to the effect that the husbands and wives might henceforth give evidence in cases where one or both were concerned, might be separated from the other portion of the Bill. It struck him that there could be no difficulty in passing such a measure, as he understood that both in their Lordships' House, as well as elsewhere, the measure was one which was regarded with an almost unanimous concurrence of opinion. Concurring in that view his noble and learned Friend took the course be suggested, and that portion of the Bill which related to the admissibility 248 of the evidence of husband and wife, was formed into one Bill, was assented to by their Lordships, and sent down to the other House, and would, it was expected, have very shortly received the Royal Assent. It appeared, however, that the Common Law Commissioners having been engaged in a very laborious inquiry, had made a very elaborate report on the 30th of April, all the recommendations of which report they proceeded to embody in a Bill; and in that Bill they had incorporated, almost totidem verbis, the enactment of his noble and learned Friend, in regard to the evidence of husband and wife. When the Bill they had thus framed first met his eye—which it did yesterday, when a draught was placed in his hands—he communicated a copy immediately to his noble and learned Friends (Lords Brougham and Campbell) and other law Lords; and he at once came to the conclusion that it would be discreditable to any Government to pretend to introduce honestly such a measure without having a great deal more time to examine into it than they could have had. Perhaps he might here mention to their Lordships, that he was in the habit of receiving anonymous letters, telling him that he was obstructing the progress of law reform. He trusted, however, that he should be able to receive such imputations unmoved, or he should not be worthy the place he had the honour to hold. His intention was to devote himself with all his energy to mastering every part of that Bill, and he felt quite sure that when they had the leisure to do so that he would be aided by his noble and learned Friends with regard to it. As with regard to the former Bill, not alone in Committee of their Lordships' House, but night after night at their own private residences they would go through its clauses one by One in a way perfectly impossible in Parliamentary Committees; and the result of that process, as applied to the former Bill, had been that though it consisted of more than 200 clauses, there was never an Act which had worked so smoothly. This was all he could say at present. However, he could mention that he had seen his learned Friend the Attorney General in reference to the Bill of his noble and learned Friend, and he had promised him to use his best endeavours to pass it through the House of Commons. He believed the Bill had very few defects; and he trusted therefore that before very long it would become the law of the land; and, he would say at the same time, that he very much regretted that his. 249 attention had not been earlier awakened to the delay which had occurred.
LORD CAMPBELLsaid, the urgency of the Bill was very great, and there was a universal desire in the profession and among the public that the existing defect with regard to the evidence of husband and wife should be remedied, He could bear the testimony of his own experience, that on several occasions the want of the Bill had been most severely felt; truth had been excluded, and there had been a danger of justice being perverted. He hoped this defect might be immediately supplied; and, that being done, he hoped that for the present Session of Parliament, as far as evidence and proceedure were concerned, they should rest satisfied. A great deal had been done already, and he thought that his noble and learned Friend on the woolsack deserved the thanks of the public for having given the subject so much attention. If there were any obloquy as to delay in the work of law reform, founded on the second report of the Common Law Commissioners, he (Lord Campbell) was most ready to take his share of that obloquy, for he thought it inexpedient to push forward immaturely any measure on the subject. In the next Session of Parliament the reform of the ecclesiastical courts would be under consideration, and he hoped that we were now in a most beneficial and praiseworthy state of progress towards amending the whole of the law of England. Let them proceed steadily and perseveringly in this great work, but let them proceed also cautiously; and this in the end would give more satisfaction than the introduction of measures which were immature and crude.
LORD BROUGHAMremarked, that the Bill which extended the Act of 1851 to Scotland, with regard to evidence, had been passed through all its stages without one single word of opposition to any one of its provisions.