LAW OF EVIDENCE AND PROCEDURE BILL.

HL Deb 10 March 1853 vol 124 cc1363-82

Order of the Day for the Second Reading read.

LORD BROUGHAM

, in moving that this Bill be read a Second Time, said that its object was to amend in some important particulars, and to declare in others, the law of evidence and the law of procedure. As there were many details in the Bill, which were much more suitable for discussion in Committee than on the second reading, he should purposely avoid even touching upon them, and should confine himself to making a few observations on three or four of the leading features of the measure, which might be easily severed from the details. The first of those features related to the Act of 1851, making the parties to a suit competent and compellable to be examined as witnesses. There was one important exception made in that Act—namely, the case of husband and wife; and at the time they made that exception they contemplated the proximate possibility, if he might so speak, of repealing the exception, and of putting the husband and wife on the same footing with all other parties (with one modification, and with one alone), enabling the husband to bring forward the wife as his witness in cases where her evidence became necessary—where she was what the civil law called proœosita negotiis—where, for instance, she was the shopwoman, and where the exclusion of her evidence would, in fact, be depriving the husband of the whole benefit of the action, but not allowing her to be examined or cross-examined upon matters communicated to her by her husband during coverture; and also placing the husband on the same footing, so that if the husband were called as a witness, he should not be compelled to disclose what had been communicated to him by the wife during the marriage. This enactment of the present Bill as to husband and wife was an important alteration, and would complete the useful measure of 1851 upon this branch of the law of evidence. A similar enactment had already been sanctioned by their Lordships during the present Session in a Bill which he had brought in with respect to the law of evidence in Scotland; and he confidently trusted that the alteration would meet with unanimous acquiescence and approval at the hands of the Legislature. There were several other provisions in the measure which he should do no more than merely allude to, amending in some particulars, and declaring in others, the law of evidence where it was now defective, or where it was obscure or uncertain, or on which a contrariety of decisions had been given. These he should defer for discussion in Committee. But he now came to one most important point which did not at all fall within the description of a detail, like those to which allusion had just been made. He meant that important principle, as it had been called—sinning, as in his humble judgment it did, against all principle—which prevented a witness being called upon compulsorily to answer any question the answer to which might tend to criminate himself. He was about to maintain that that principle was ill-grounded, and that, independent of the anomalies, the obscurities, and uncertainties which had been introduced into the administration of the law under it by the practice and the decisions of the Courts—independent altogether of those uncertainties and anomalies, the principle itself was untenable. When a witness was produced in Court, for what purpose was he produced? For the purpose of investigating the truth in the trial of the issue between the parties, or in the trial of the guilt or innocence of the parties. It was for the sake of truth, to further the ends of justice, and to obtain from his testimony a knowledge of the truth, that the witness was called. Well, then, how did the objection to his giving this evidence arise? A question was put to him; it was believed to be relevant to the matter in issue:—if it were not, it was objectionable on a totally different ground, namely, on the ground of its being irrelevant; and then no question could arise as to the protection of the witness. But, admitting the question to be relevant—admitting it to be important—admitting the answer to the question, whether given affirmatively or negatively, to be material to enlighten the Court which had to try the question on its merits—admitting that the truth was to be got at by the answer given to that question—he had a right to go further, and to assume that the truth could not be got at without an answer being given to that question: the law said, even in this extreme case, that the witness was exempted from answering; and why? Because he said that the answer he might give might, peradventure, criminate himself. Their Lordships would bear in mind that, according to the existing law, it was not necessary that the question should be one, the answer to which would absolutely and undoubtedly criminate the witness, in order to entitle him to claim the protection of the Court; but if he only undertook to swear that his answer would tend to criminate him, nay, if he merely said that he thought it might tend to criminate him, that was enough—he was protected, the truth could not be got at, and the cause of justice was sacrificed. But even if this were not the law, and if the witness were not protected from answering unless he could swear distinctly that the answer would certainly criminate him, and unless the Court were also of opinion that the answer would criminate him; if the law was even thus limited, which it was not, he (Lord Brougham) would still venture to ask whether any good reason existed why the witness should not be compelled to answer? The witness was sworn to toll the truth, and the whole truth. How, then, could he be justified in merely telling the half of it? It might be an exceedingly good reason why he should be protected from his answer being used in any subsequent prosecution against himself; and no doubt, if there was no modification of the law in that respect, it would he very hard to compel him to answer a question, and then upon his deposition to indict him, and thus to convict him out of his own mouth. The proposition, however, as contained in the Bill, was not that his deposition should be competent evidence against himself if he was compelled to answer; but that he should be protected from the effect of such deposition in his own trial, though compelled to give it, that it might be evidence in the cause. The witness's answer to the question might affect other parties as well as himself. The interest of the parties to the cause was entirely put out of view by the present law; they could not have their cause tried, because a man cm whom, by his own showing, suspicion rested, chose to say he would not give evidence. For this most impotent reason the parties were to be deprived of justice. A man might be on his trial—his property, his liberty, his life, might be in jeopardy,—ay, and that which many men valued far more than life, his reputation, might be at stake; and the witness who was put into the box to swear away his estate, or his liberty, or his life, or his character, might have committed the most atrocious crimes, and which, if he were compelled to name them, would make his evidence impossible to be credited, or even listened to for an instant by the Court or Jury; and yet the man who was on his trial for his property, his liberty, his life, his character, was not suffered by the law, by the humanity and even handed justice of the law, to ask a question to ascertain whether the witness were a miscreant, utterly incredible, or a person perfectly honest, honourable, trustworthy, and worthy of belief. And why? To protect the witness from punishment? No; for the Bill then before the House did that effectually. Was it to protect him from disgrace? Assuredly not; for the very fact of his applying for such protection showed that he was utterly undeserving of it. On what ground, then, did the rule of exemption rest? Why, it was contended that a man ought not to be forced to give answers that might criminate himself, for fear that he should be induced by such compulsion to commit perjury. No doubt, knaves would not volunteer to give evidence if they knew that by so doing they would expose themselves to the risk of detection; but this was no reason why they should not be compelled to testify. Every person who was interested in the cause had a motive commensurate with his interest to win that cause either by fair or by foul means, either by stating the truth or by uttering falsehoods; yet no one now thought of excluding the testimony of interested witnesses, or even of the parties themselves, because, forsooth, the admission of such testimony might occasion some increase of the crime of perjury. He did not deny that a man who had committed an offence might be exposed to a strong temptation to utter what was not true, if he were asked questions respecting that offence; but he submitted that the possibility of the witness adding perjury to his other crimes ought not to be urged as a sensible argument for excusing him from giving evidence which might be most material in the cause. It was said that the evidence of such witnesses was not of much value; but the evidence of a man who had committed an offence might be very valuable in a cause in which he had no personal interest; and it might be very fit to examine him for the benefit of the cause and for the ends of justice. At all events, if he were ever so untrustworthy—and the more so the better for the argument—the stronger the reason for not excluding that cross-examination, the tendency and inevitable effect of which must be to destroy his evidence by exposing his real character, and thereby to save the property, or the life, or the reputation of the person who was on his trial. Then, again, it was said that the law abhorred the trial of collateral issues. No doubt it was inconvenient that, in trying one main issue, another incidental issue should arise; but there was a worse and more inconvenient thing than even trying a collateral issue—and that was the giving judgment without its being tried; and if they discarded a witness's evidence upon a material point because he might state something which would tell against his credibility, it would be giving judgment without fully hearing the cause. The state of the law, to such of their Lordships as did not belong to the profession, would appear extraordinary; and, if he mentioned particulars, it would be with the view of inducing their Lordships to send the Bill before a Committee, by showing the absolute necessity for legislation, by showing how far discrepancies, conflicting decisions, variety of authorities, and uncertainty of the law on the subject, prevailed, both with reference to the extent of the principle which he was combating, the mode of its application, and the practice under it. He should begin with the last head, the practice under it. Whether, on examining a witness, and the answer being given by him without reluctance, evidence might be given to rebut it, was a point on which the rulings of different Judges were diametrically opposed. Whether, on certain subjects—as rape and seduction—any question could be put at all, was not clear, decisions having been given on both sides. On the question, how far a witness, having begun an answer, had a right afterwards to stop short, and say, "I have gone so far, I shall now answer no more," there were also decisions both ways. For example, in one very remarkable case, where a witness hav- ing said, after answering three or four questions, that he would not answer more because he began to think that if he did so it would have a tendency to criminate himself, it was held by a most conscientious Judge, Lord Wynford, that the witness was bound to go on—that he ought to have taken his objection at the outset—that having once begun to answer he could not stop. The same point was ruled in the same way by that admirable Judge Lord Tenterden on another occasion, and by his noble and learned Friend Lord Den-man in a third case. Not so, however, thought Lord Eldon. He held a contrary opinion, which he expressed in the strongest possible terms:—"The witness might stop where he pleased; they could not carry him further than he chose voluntarily to go." He (Lord Brougham) took leave to say that he humbly thought Lord Eldon was right, and that the three Chief Justices were quite wrong, according to the nature of the principle. If the rule meant anything at all, the witness had a right to be protected when a counsel skilfully got his folds round him, before strangling him with questions which were to bring matters to a point, as learned gentlemen were wont to do with more or less address and ingenuity. At last the witness discovered his position, and said he would not answer any more questions, having been honestly ignorant until that moment that what he had been asked before, had had the least tendency towards his own inculpation. Therefore, if the rule were to obtain at all, it ought to obtain to the full extent to which it was laid down by Lord Eldon; and you could not, by the rule so laid down, compel a witness to go one hair's breadth beyond what he voluntarily went. But it was not merely as to the application and limits of the rule, but likewise with regard to the substance of the rule itself, that there was great discrepancy in the decisions, and an uncertainty which was admitted to exist by all the most eminent text writers—Mr. Phillipps, his learned Friend Mr. Pitt Taylor, and the late lamented Mr. Starkie. The question was, how far the rule extended—how far a witness, within the general scope of the rule was protected from answering questions which did not tend to implicate him in the confession of any offence, which did not expose him to the risk of any indictment, but which only went to disgrace and degrade him. Many learned Judges in his (Lord Brougham's) day had held it clear that the rule extended far as to include cases of this kind; others held it equally clear that the rule did not extend so far; and, if he might venture to express his opinion where such men differed, he should say the rule did not extend so far. The reason why he thought Be was, that at all times it had been held, except in one or two cases, that protection did not extend to cases where, from lapse of time, prosecution had become impossible, or to cases where the taint had been removed by a free pardon. But if that were so—if you might question a man about what he had done in either of these cases, since he could not be put in jeopardy by his answers, it was quite clear that you allowed him to be examined on matters which tended to his disgrace and degradation. And he (Lord Brougham) drew from this, which he took, on the whole, to be the law, a very strong argument, in his apprehension, in favour of the measure which he was bringing under their Lordships' notice, because he had now a right to place his foot upon this basis, that the law aimed only at protecting a man from prosecution, and not at protecting his character from injury—that it was not to save a witness from disgrace and degradation that you did not compel him to answer, but only to shelter him from prosecution. Now this Bill protected a witness from prosecution only, and not from injury to his character, not from disgrace and degradation; so that the existing law was substantially the same on this point with what he (Lord Brougham) proposed, except that he made it clear, definite, and certain. He had spoken to their Lordships of cases in which a contrariety of decisions was manifest. Take the cases of rape and seduction. The rule which had been at one time laid down with reference to what questions might be put to a witness in cases of rape and seduction, had been since superseded. He remembered a case of a prosecution for rape before Mr. Baron Wood, who refused to permit a question to be put to the prosecutrix as to her former incontinency even with the prisoner at the bar, whom her evidence was putting in jeopardy of his life, because such a question tended to her disgrace and degradation—because the offence might have been committed against a person, of however bad character she might have been, and because the prisoner might have been guilty of the crime charged even although he had had intimacy on former occasions with the prosecutrix. But that was totally to forget that the question at issue was as to the probability of the evidence being true, and that it was infinitely more likely that the evidence should be true in the one case than in the other. Nevertheless that case was brought before the Judges, and all who were present were of opinion that the ruling of Mr. Baron Wood was right. So with respect to actions for seduction, it had been held by several Judges that questions could not be put to the person seduced as to her incontinency, as they were collateral to the issue. The decision of Mr. Baron Wood was in 1812; but, in 1835, Lord Chief Justice Tindal allowed a prosecutrix to be cross-examined upon a similar point. Her evidence was given, and was contradicted, and that decided the case. The law was not clear, but the strong inclination was in favour of the latter class of decisions. With respect to the question of how far a man should be protected, generally speaking, Lord Ellenborough held twice in 1803 that a man could not be asked whether he had been committed for felony when he was called as a witness in a civil suit. But in 1818, the last year of his illustrious life, a witness having been asked whether he had ever been in a certain gaol for theft, and having refused to answer, his Lordship said—"If you do not answer, I will send you there," and the question was then answered. He (Lord Brougham) thought he had said: enough to satisfy their Lordships that the law required settlement by declaration. It might be said, that though a man was protected from prosecution by the provision that his own deposition should not be given in evidence in any other case, yet he was not protected from this most important risk, that the particulars he might state would furnish a clue to the discovery of evidence against him, and enable the person who got the clue to put him on his trial and convict him. And upon this point, also, there was no little discrepancy in the decisions as to what the law at present really was. No doubt the rule went to the extent that the witness might refuse to answer the direct question, "Are you guilty or not of such an act?" but any other collateral questions which went to the matter in issue might form links in a chain of evidence against him; and then the point arose, who was to decide upon the tendency of these questions? How far was the witness himself to judge of the tendency? How far was the Court allowed to judge? Was it enough that the witness should say he thought a question would tend to put him in jeopardy? How far must he satisfy the Court that he had a reasonable and well-grounded apprehension? The cases on this subject materially differed from each other; hut he was entitled to state most confidently that the strongest cases were the most recent, and they placed the rule of law under the greatest possible relief—if he might so speak—of absurdity and injustice. It was many years ago decided by no less an authority than the great Lord Hardwicke, that "these objections to answering should be held to very Strict rules;" but subsequently to this decision, which in his (Lord Brougham's) judgment was founded in sound sense, the learned Chief Justice of the Common Pleas, Sir James Mansfield, held that a witness might refuse to answer, if he thought that the answer would endanger him. It was supposed that that was not enough, but that the Court must judge whether there was such danger or not; but Sir James Mansfield said it was enough if a witness swore that he thought he would be in danger if he answered that question. The Court of Common Pleas, being moved against that ruling, agreed with the opinion expressed by the learned Chief Justice, and that was the leading case on the subject. More lately—indeed, only a few months back—came a decision of the same Court—the Court of Common Pleas—that, without entering into any particulars—without satisfying themselves how the witness could be in danger, it was quite sufficient if he swore as to any question—"My answer will, in my opinion, expose me to prosecution;" and the Judges added, that, strictly speaking, before the witness answered any question whatever, however innocent, he might be warned by the Court—"Mind, you need not answer it if you think it will (not criminate hut) tend to criminate you"—not desiring him not to answer, though even that had been done by magistrates sometimes, from a mistaken view of their duty—but, in the other case, it was telling the witness—"Mind, you need not answer the question unless you please," because the witness had only to say (upon his oath, no doubt) that he thought he might criminate himself; and he would then be enabled to deprive parties of the benefit of his testimony, while at the same time he would himself be quite safe from punishment for perjury, because he only used the safe words, "I think," or "I believe." It was said, indeed, as he had before observed, that it would be hard to compel the witness to answer—that you would place him between the horns of a dilemma, either to commit perjury or to confess something to his own disadvantage; but there was another party whom the rule did not place between the horns of a dilemma, but gored with one horn, and that was the party against whom the witness was produced. He suffered because you would not allow a knave to be exposed, and to the interest and protection of a knave you sacrificed him, and you sacrificed justice. Excluding the possibility of the witness's deposition being read against himself, what harm could there be in allowing an intended prosecutor to take advantage of any collateral fact that might be elicited? Only this, that a guilty man would not escape, but be successfully prosecuted, and an innocent party would not be damnified by his false evidence; and justice would be promoted both in the cause and after the cause by the truth being discovered. The course which the Legislature had taken upon this subject had been very remarkable, and showed a consciousness that the principle was unsound; for in various instances they had endeavoured to get rid of the rule of law by indemnifying parties against prosecution; while in others they had even compelled witnesses to answer, not trusting to the inducement held out by an indemnity. There was the case, five or six years ago, of an offence against the combination laws, the offence being punishable by imprisonment; a party suspected to have been guilty, being called as a witness, was not allowed the benefit of protection, but by virtue of an Act of Parliament was compelled to answer, and was indemnified from prosecution. In the case of the St. Albans' election, when a Commission sat at St. Albans to inquire into bribery and corruption, the witnesses were compelled to answer the questions put to them, being indemnified. In the Bill that came up last year to their Lordships from the other House of Parliament for appointing a Commission, in any such case if both. Houses addressed the Crown, parties were to be compelled to answer all questions, and were only to be indemnified if the Court certified that they had made a true and fair disclosure. In the bankrupt law, too, this protection had never been recognised, but the bankrupt was bound to answer questions, though his answer might tend to show that he had been guilty of fraudulent concealment. But it was bad to stop short with a particular case, if the principle was a good general principle; and it was mischievous to wait till a case arose, and then to change the law with reference to that case. No chapter of the law more than that upon which he had been dwelling fell within the words of Lord Denman—words that were uttered by him not upon the bench certainly, but before he was raised to the bench: "The wilful blindness, or rather the perverse preference of darkness to light, the self-imposed trammels by which justice often seems to take a pride in securing her own delay or defeat, the multiplied facilities for evasion, the thousand premiums held forth to encourage deceit and falsehood, are disgraceful to civilised life." He (Lord Brougham) now came to another provision of the present Bill, to which be trusted he should find less objection than upon former occasions when he had proposed it. He believed, that, wise by the experience of the County Courts, we should profit by that experience to make a great improvement in respect to procedure. When he originally—twenty years ago, in 1830, 1831, and 1833—proposed the measures for improving the administration of justice which ended in 1846 in the establishment of a local judicature, there were one or two very material improvements in the law which he did not introduce into the procedure of the superior courts, though they had since been adopted in the practice of those local courts; and, amongst others, one which he had only omitted from an unwillingness to encounter more obstacles than it was absolutely necessary to encounter in carrying that important change. A more complete abolition of written pleadings ought to have formed part of the mea sure of 1833; but he was apprehensive at that time that it would be too great a change to be suddenly introduced. For the same reason, instead of proposing a power to pay money into court in all actions in the superior courts, so that in all cases a defendant might have the opportunity of endeavouring to stay proceedings, he limited it to cases of debt and contract, and some few cases of tort. This provision ought not to have been limited to certain actions, but should have been extended to all. He had thought that that was a change too great to be suddenly introduced, and be had therefore, in the Act of 1833, limited the payment of money into court to some few cases of tort; but, generally speaking, to cases of debt and contract. It was quite clear that there ought to have been no exception whatever; hut that in all cases defendants ought to have the option of endeavouring to stay proceedings by paying money into court. The result was, that a practitioner might find himself quite sure of a verdict for 5l., which the law would not allow the defendant to pay into court; and so this latter was either obliged to go to trial, in which case he would have to pay, it might be, 150l. for costs, or he was forced to yield to the extortionate demands of his opponent, who had him entirely in his power. By the County Court Act of 1846 this grievous evil was remedied, so far as the local judicature was concerned; hut in the courts at Westminster, the oppressive rule still existed in all its force. He (Lord Brougham) was desirous of putting a stop to this abuse, and the Bill now before their Lordships effected that object, by providing that money might be paid into court in all cases. The point to which he wished now to call attention, was also the result of the experience of the County Courts; he alluded to trial by jury. No person would speak with more profound reverence than he—he would say with more deep and lasting affection—for that great institution; but still it was worth while considering whether it was absolutely necessary that a jury should be empanelled in every case, whether the parties desired it or not. What had been the expepence of the County Courts? Of the thousands of causes tried in those courts every year, what proportion were tried by juries? Their Lordships were aware that by the County Court Acts in all cases between 5l. and 50l., whether in tort or in contract, the parties had the option of trying the case before a jury; and unless both agreed that it should be tried by the Judge alone, there must be a jury as a matter of course. And yet, of the 40,000 cases between 5l. and 50l., which had been tried in one year, in each of which either party might have had a jury if so minded, what proportion had been tried by the jury? Only about 2½ per cent; in from 97 to 98 cases out of every 100, both parties preferred to have their case tried by a Judge, and not by a jury. He proposed in this Bill that in all the courts the parties should have the same option. He had so framed the Bill as to give the option in all cases of tort as well as of contract. Some might think that it should be confined to cases of contract; he did not quite agree with that; he thought it was fit to be considered in Committee; but it appeared to him perfectly unnecessary, and at the same time highly inexpedient, that we should persist in making it compulsory upon the parties to have the opinion of a jury, together with that of the Judge, in every case, for a great or a little sum, in trespass, tort, or contract, though the parties might both agree in saying that they had much rather take the opinion of the Judge alone. It might be asked what expense would thus be saved? In a special jury case, 30l upon the average. But that was only the expense in hard money out of pocket; there was another expense to be considered, with reference to the parties, the court, the public, and the jury. He would be understood to speak with the most profound respect for trial by jury, and with the greatest affection for that noble institution; with equally profound respect, and with equally warm affection, he would be understood to speak of those who administered it—not merely the Judges upon the bench, but the practitioners at the bar. But yet he must declare, that if asked to say from his recollection of the profession—he would not say from his own personal experience, but from his observation—whether precisely the same procedure would take place before a Judge that now took place before a jury, he should be bound to hesitate before giving an affirmative answer. His noble and learned Friend (Lord Lyndhurst) seemed to insinuate by his looks that he (Lord Brougham) was taking the benefit of the rule against which he had been arguing; but he did not consider that he was declining to answer under the privilege of avoiding self-crimination, when he said that, generally speaking, he was not prepared to give an affirmative answer to the question—would or would not the same addresses be made to the Judge as now to the jury? Without seeking shelter from the existing rule of law respecting self-crimination, were he asked whether the same topics would be used, the same efforts made, the same time consumed, in the hope of swaying the Judge and affecting the evidence—he must decline giving any answer, or at once answer in the negative, and take upon himself to say that he had no doubt whatever that those addresses would be very considerably different in many material re- spects. In the first place—which went to the question of expense of time, and other expense too—they would be very considerably shortened. [Lord LYNDHURST made some remark.] His noble and learned Friend reminded him of cases in their experience in which such addresses were not shortened to the degree that one would wish; but he (Lord Brougham) had no doubt whatever that in many instances not only the addresses would be very sensibly shortened, and be of a widely different description, but the examination and cross-examination of the witnesses would also be very considerably reduced in length. He and his noble and learned Friend could not but recollect what a sensible (he would not say very great, but what a sensible) proportion of a cross-examination was owing to the jury being present. If only the Judge had been there, the thing would have been over after a certain number of questions; nothing that could be done to the witness after that would have the least effect upon the Judge. But the counsel hoped a great effect would be produced upon the jury by a further examination—by endeavouring to impeach the witness, by what used sometimes to be called scolding him, by laughing at him, by making him seem to contradict himself, and by attacking him in various ways, all of which would be perfectly useless, and would not be the way to the Judge's heart or the Judge's head, in reference to weighing the testimony, of the witness, or to deciding upon the merits of the cause; but which the counsel might have good reason to expect would have some very considerable effect upon the jury, when they were the umpires. But a saving of time was both profitable to the cause and to the public—to the cause, by preventing confusion, and false issues—to the public, by shortening business. It is profitable to the parties, too, who pay directly for the prolixity of counsel, and often have to try their causes at an inconvenient distance, that jurors may not be detained from their other avocations, not rarely have advocates put upon them for the faculty of bewildering juries, and almost always pay for exhibitions which before a Judge would not help the cause. He (Lord Brougham) had no doubt (criminal procedure continuing under a jury) that the great bulk of, cases of tort would also continue under a jury, whether the option was extended to those cases or not, and that the great bulk of cases of a more important kind than others, and of a more delicate nature, which had better be tried by twelve men than by one, would so continue to be tried, notwithstanding the option he was asking the House to give. There were some questions peculiarly adapted to a jury, and less adapted for the Judge; in the assessment of damages—unliquidated damages—a single mind was not half so likely to come to a satisfactory conclusion as twelve minds of different structure, different habits, and different ways of thinking. In all such cases there would be a jury, notwithstanding the option. As to the case of conflicting evidence, he was inclined to think, though he knew there was a great difference of opinion upon it, that a jury would find their way better than a Judge. But, looking to a very large proportion—he would not say ninety-seven in the hundred—of the cases now brought into court, and of peremptory necessity to be tried by a jury, his opinion was decidedly in favour of the option being-given to the parties. He would add, that this Bill contained also a very important provision with respect to the payment of costs by the Crown in cases where the Crown was, as it were, a suitor, another valuable provision with respect to the removal of criminal trials from one county to another, and several clauses for facilitating the proof of handwriting by means of comparison. He had now gone through the principal points to which the Bill referred, and he begged to move that the Bill be read 2^a.

The LORD CHANCELLOR

said, that not only was he not at all dissatisfied with a considerable portion of the Bill, but he was sure their Lordships would feel that they and the country were very much indebted to his noble and learned Friend for the perseverance and zeal with which he was carrying into more complete effect and operation the great measure which he introduced two years ago on the subject of the law of evidence, for enabling courts of justice to examine parties themselves in all matters in which they were interested. He was satisfied that this task should have been reserved for his noble and learned Friend, who had introduced that great change in the law—a change which was regarded with jealousy by many, and with apprehension by still more. The operation of that law had, however, been eminently successful, as was shown by the concurrent testimony of Judges, legal practitioners, and all the parties interested in the subject. There was one exception made in his noble and learned Friend's former Act, namely, that the husband might not examine the wife, nor the wife the husband; and he (the Lord Chancellor) admitted he was one of those who had thought that that was a useful exception. He believed that his noble and learned Friend was not anxious to make such an exception if he could have carried the Bill, as he wished to do, without it; but he consented to do so, thinking it would be better to reserve any change on that subject until it was ascertained whether the measure had in other respects answered its purpose. The Act had answered the purpose with which it was introduced; and he (the Lord Chancellor) thought the time had come when his noble and learned Friend would confer a benefit on society by making the change proposed by the present Bill—namely, to put an end to the distinction respecting the examination of husband and wife. His noble and learned Friend had introduced a clause which never occurred to his (the Lord Chancellor's mind) but which met very many of the difficulties which he (the Lord Chancellor), in common with others, had felt on the subject—namely, a clause which provided that, notwithstanding the authority given to the wife to examine the husband, and vice versâ, no husband or wife should be compellable to disclose anything which had been communicated in what was called "domestic confidence." This was only a similar exception to that for which the law furnished a precedent with regard to solicitors, who were not allowed to disclose what they knew from the professional confidence of their clients, the exception of his noble and learned Friend would be exceedingly useful. The next topic upon which his noble and learned Friend bad touched was, that provision in the law of evidence which exempted a party under examination from the obligation of answering any questions that might tend to criminate himself. He entirely concurred in the feeling which had prompted his noble and learned Friend to endeavour to devise some mode of getting rid of that difficulty; for, in common, he was sure, with all who had been in the habit of attending courts of justice, or of taking part in the proceedings in such courts, he (the Lord Chancellor) had continually been shocked by the certainty that injustice was done, and truth was excluded, because a witness said, "I cannot answer that question, for it will tend to criminate me." Even supposing that principle to be retained, whether it might not properly be one of the provisions of the Bill to restrict it in some manner, was a matter upon which he would give no opinion at present. He felt hound to say, however, that until Parliament was prepared to alter the law a great deal more, until Parliament was prepared to say that it should be part of their system to interrogate prisoners upon charges, he did not think the clause proposed by his noble and learned Friend could by possibility become the law of the land. If it was the law that a person charged with picking a pocket had a right to say, "You are not to ask me any questions; I will answer nothing; prove the charge if you can;" would it not be a strange anomaly if they evaded that law by calling the accused person as a witness in some other proceeding? He (the Lord Chancellor) was perfectly ready to concur with his noble and learned Friend in any reasonable inquiry as to whether the law ought to be altered—whether the rule of law, Nemo tenetur seipsum inculpare, was or was not a correct principle; but he thought it would be impossible to consent to a clause enabling them to call upon a person to answer, as a witness, questions which, if a direct charge were made against him, he could not be called upon to answer. Suppose his (the Lord Chancellor's) pocket was picked in a crowd, and that he had a strong suspicion of a man near him; if he charged that man with the offence, the law said, "You have no right to interrogate him upon the subject." Now, this Bill did not propose that power should be given to interrogate a person so accused; but it said, "If you choose to call such a person as a witness in any other proceeding, then interrogate him as you please." They would thus, in fact, get rid of that principle of law which prevented them from doing directly what this Bill would enable them to do indirectly. In order to guard against this result, his noble and learned Friend had introduced a proviso which enacts that though the witness was to be bound to answer questions, his statements should never be given in evidence against him. That would, however, be a mere illusory protection. Take the case he had put of his pocket being picked. He had seen the man near him in the crowd, and that was all he knew. Well, he might bring that man up as a witness on some occasion or other, and say to him, "I suspect you picked my pocket of my watch the other day. Did you do so?" The witness might now reply, "I decline to answer the question;" but if this Bill were passed he would be told, "you are bound to answer, and you shall answer." "Well," he might say, "I confess I did." "What did you do with it?" "I locked it up in my lodgings, and there it is now." Now, although this statement could not be given in evidence against the witness, a policeman might be sent to-his lodgings, and there the watch might be found. The man had been near him in the crowd; the watch would be found at his lodgings; and the person would thus have been compelled to convict himself. Although he (the Lord Chancellor) felt, with his noble and learned Friend, that this was a matter which ought to be looked into, and although he regretted the discreditable scenes which were sometimes witnessed in courts of justice, he regarded with very considerable apprehension any system which would create a sort of rival dexterity among different Judges as to-examining a prisoner and entrapping him into some admission that would implicate him. This was a mode of proceeding which every one who had attended foreign courts of justice must frequently have observed; but he thought it was a system more unpleasant to witness than the occasional escape from justice of persons accused under our system. To that part of the Bill of his noble and learned Friend, then, he could not give his concurrence. Another point referred to by his noble and learned Friend was the expediency of allowing parties who had actions pending in the courts of common law to have them tried by a Judge, and not by a jury. He (the Lord Chancellor) had stated on a former occasion that he thought that was a question which deserved most serious-attention; but he did not think it was very happily or appropriately introduced into this Bill, the more so as the subject had been one of those inquired into by the Common Law Commissioners, who were about to make a second report. The matter had, he believed, been most anxiously investigated by that Commission, who had prepared an elaborate report, stating the pros and cons, and, he understood, leaning to the views of his noble and learned Friend. It seemed to him that that report would he the fittest foundation for legislation on the subject. He might put a great number of cases in which a Judge could decide questions quite as well, perhaps better, than a jury; but, on the other hand, he did not know that there might not be very great difficulty if they began to remodel the mode of trial of fact in those courts. And for this reason, they must not regard this as a mere question as to how the particular issue might best be tried, but they must look upon it as a whole. The question was, supposing 1,000 or 2,000 cases to be tried in the course of a year, whether they would obtain better decisions generally by only putting juries to try a few selected cases, instead of familiarising them with the mode of dealing with such questions by letting them try the whole? He could not but feel considerable apprehension that, if they merely had juries in a few difficult cases, they would not find that the minds of the jurymen were so well adapted for such investigations as they would be if they were continually employed during the whole of an assize, trying sometimes easy and sometimes difficult cases. With regard to the question of expense, he thought his noble and learned Friend in error. He had also referred to special jury cases, Now, with regard to great mercantile questions and contracts, the parties, he believed, liked generally to have a jury, and the Judge would, in many such cases, be very much at sea without the assistance of a jury. [Lord BROUGHAM: In London.] Yes, in London, Liverpool, Bristol, York, and other places, where questions of that kind arose, be thought they could hardly be withdrawn from the consideration of juries. The real expense, he conceived, arose, not with respect to trying the cases, hut in the tax upon the jurors who were summoned to spend a week or a fortnight in an assize town; and the expense would he the same whether they were sitting in the waiting-box or walking about the town, although it was true that arrangements might be made to save a portion of their time if his noble and learned Friend's proposal should be adopted. He did not mean to say that his noble and learned Friend might make out a case establishing the proposition which he had been urging. He (the Lord Chancellor) thought it was a question deserving most serious attention, and he would look with the greatest anxiety to the facts and reasonings contained in the report on this very important subject. There were some alterations suggested in the Bill, which he believed would be of great advantage, and would have his entire concurrence; and, if he opposed other portions of the measure, it would be only because he thought that what his noble and learned Friend proposed, with the best motives, instead of promoting the objects he had in view, would have a contrary effect. On the points on which they differed, he trusted his noble and learned Friend would give him credit for sincere and disinterested motives.

LORD BROUGHAM

said, he was glad to hear that the Commissioners had made such progress in their labours; and still more glad to hear that there was a possibility of their taking the same view which lie took of the propriety of giving to suitors the privilege of having their case tried by a Judge instead of a jury. He thought it very likely that, in Committee, he might be disposed to divide this measure into two Bills, one of which would deal with those points about which there could he no difference of opinion between him and his noble and learned Friend, while the other would embrace those matters on which they were not agreed. He should decline to refer the measure to a Select Committee, because he believed it would be found that the members of the Committee were already overloaded with business; and moreover, if he consented to divide the Bill into two, such reference would be quite unnecessary.

On Question, agreed to; Bill read 2^a accordingly, and committed to a Committee of the whole House.