HL Deb 06 June 1853 vol 127 cc1196-9

LORD BROUGHAM moved the Third Reading of the Law of Evidence Amendment Bill. He had, as their Lordships might recollect, omitted the provisions which were not so universally agreed to as those now retained, reserving the omitted ones for another Bill which had been read a second time. They were, he trusted, likely to be finally adopted, for, with one exception—the provision respecting self-crimination—all of them had received the support of the Common Law Commissioners, whose second Report now lay upon their Lordships' table. Those provisions, in his opinion, were calculated to effect a great improvement in the law both of Evidence and Procedure. It was not to be denied that they effected a very considerable change in the law; and it was most satisfactory to find that the learned Commissioners had arrived at the opinion which they pronounced in favour of them. This they had done without any communication with him. He had described them in the letter addressed to Lord Denman last August, and which was subsequently published. The Commissioners were probably about the same time prosecuting those inquiries which had led to their most able report; a report which it was impossible too highly to commend both for its sound practical sense, its cogent reasoning, and its enlarged, but moderate and rational views, He had reason to expect that the Bill founded upon this report would not be long delayed, as his noble and learned Friend on the woolsack had announced that it was in preparation. He ventured to hope that in framing its provisions the learned Commissioners would take into their consideration those of the Bill to which their Lordships had given a second reading, Not because he had the least partiality to his own draft—for he had drawn the Bill last autumn in the country, at a distance from his professional brethren—but because he had submitted that draft to some of the ablest and most experienced among them; and the Bill, as presented to the House, was the result of their labours, on which he set great store after his own, to which he attached very little importance. It would be wholly unworthy of the Commissioners to reject the provisions framed, from the mere desire to have a draft differently framed. When the substance of all the proposed enactments was the same, nothing should have prevented him from urging their Lordships to pass the Bill already advanced to its last stages, but the desire to see its provisions adopted by the Commissioners in their more comprehensive measure. With this view he had separated the original Bill into two; and the clauses for completing the great measure of 1851, allowing parties to be both competent and compellable to give evidence, were the only ones retained in the Bill to which he now asked their Lordships to give a third reading—clauses, namely, respecting the examination of husband and wife, already passed in the Scotch Evidence Act.


said, he was deeply indebted to his noble and learned Friend for his efforts to put the law upon the subject of evidence upon the only rational foundation on which it could be based, namely, that all persons capable of giving useful information should be capable of being examined. He was willing to admit that he had been one of those who were opposed to the provisions of a measure similar to the present two or three years ago; but his doubts were now settled, and he was convinced, from seeing the way in which the existing law had, worked, that they were without foundation, particularly as the husband and wife now stood in the same relation, as to evidence, as attorney and client. Whatever passed between attorney and client was professional confidence, and whatever passed between husband and wife was domestic confidence, and protected in the same way as professional confidence. He therefore approved of the Bill, and thought the public were greatly indebted to his noble and learned Friend for it.


entirely approved of the present measure, and said he was glad to see that his noble and learned Friend did not expect to carry his other measure for the abolition of trial by jury in civil cases. The trial by jury in civil cases had an admirable effect. It was conducive of good to the litigants and to the public; yet his noble and learned Friend proposed that it should be substantially abolished, because he proposed to abolish it in all cases without exception, unless the parties expressly and positively required it. Now, he was convinced it was infinitely better to try cases by a Judge and a jury, than by a Judge without a jury, When we talked of trial by jury, we must always consider that it meant trial by a Judge and a jury. In the great majority of cases the jury were always willing to take the view of the case which the Judge recommended; still juries were a most important, necessary, and useful check upon the Judge; and, according to his experience, where the Judge and jury had differed, it had generally happened that the jury were right, and the Judge wrong.


said, his noble and learned Friend might just as accurately have described the Bill to which he referred as a measure for abolishing trial by Judges as for abolishing trial by jury— which God forbid! He did not think he had ever heard, even from the ingenuity of his noble and learned Friend—and that was saying a great deal—so great a misrepresentation of the case as that which he had now heard; for, instead of being a Bill for abolishing trial by jury, it was rather a Bill to perpetuate all that was good in trial by jury. However, when the measure came down to their Lordships, recommended by the learning and weight of the Commissioners who were now considering the subject, he was not without a hope that it would receive the concurrence even of his noble and learned Friend.

Bill read 3a.

An Amendment made; Bill passed, and sent to the Commons.

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