EVIDENCE AND PROCEDURE BILL—LAW OF EVIDENCE AND PROCEDURE BILL. (Hansard, 26 May 1853)

The LORD CHANCELLOR
said, he wished to say a few words in explanation of the circumstances under which this Bill came before their Lordships. The Bill was originally introduced as part of a larger measure introduced by the noble and learned Lord (Lord Brougham). His noble and learned Friend, upon his suggestion, assented to divide his Bill into two, placing in one Bill the exceptional matter, and in the other the perfectly un-exceptional clauses—such as extending the examination of a wife as a witness as well as the party, and other provisions affecting the law of evidence. The whole Bill was then referred to the Committee, and was divided by them, as had been agreed by his noble and learned Friend. The exceptional part was laid on the table as a new measure, was read a first time, and now came before their Lordships for a second reading. Since the division of the Bill, the Common Law Commissioners had made a most able and most elaborate report with respect to procedure at common law, and that report extended to the whole matter of the second Bill as to evidence and as to procedure. Under his direction those Commissioners were preparing a Bill, which he hoped in a very short time to lay upon the table of their Lordships' House, having for its object the carrying into execution many of the Resolutions they had agreed to in their Report, though not slavishly following out the whole of those Resolutions, Under these circumstances, whilst he was aware it was rather hard, he must ask his noble and learned Friend to divide the second Bill again, reserving those clauses which would complete what he might call Lord Brougham's Code of Evidence, and postponing those which were similar to the 556 recommendations of the Commissioners, to avoid the difficulty and inconvenience of having two Bills passed in the same Session with respect to procedure.

LORD BROUGHAM
said, his noble and learned Friend had stated very accurately, and with his usual clearness, the course which had been followed with respect to these Bills, with this exception—that the very valuable Report of the Commissioners was presented previous to, and not after, the original Bill was divided into two parts. He divided the Bill in consequence of that Report, because he found that part of it was not approved of by the learned Commissioners, though not disapproved by them; whilst the other part was entirely approved by the Commissioners. Their Report was decidedly in favour of that part, and he therefore thought he had better retain it, leaving the other to further consideration. What his noble and learned Friend had just stated afforded the most ample justification to him for dividing the Bill a second time. As his noble and learned Friend had observed, it would be most inconvenient to have two measures in the same Session on the same subject, and they had every reason to expect that the one brought in by Her Majesty's Government would probably not only be a better devised measure, but have a better chance of being carried through Parliament. The first four sections of that part of the original Bill which was sanctioned by the Report of the Commissioners, related to the law of evidence, and was intended to make perfect the legislation of 1851, by permitting the examination of the wife, with the single restriction of confidential communications. Those four clauses formed, in fact, one complete measure. It was already the law of Scotland, in consequence of his (Lord Brougham's) Bill passed a month ago. He should ask their Lordships, more for form than anything else, to give a second reading to the other part of the original Bill, which embodied the more debateable matter. Before it was formed into a separate Bill by the division, it was read a second time; but it became necessary to strike it out of the original Bill, and to introduce it as a fresh measure. It was then read a first time, and now stood for a second readings It was his intention, when the Bill was divided into two, to proceed with one portion, and to allow the other to stand over Accordingly, he should not proceed further with that Bill this Session; but he hoped 557 the second Bill, when reduced to the four clauses which would complete the Act of 1851, would receive the immediate assent of Parliament. The rest of the second Bill would be formed into a third Bill, and would stand over until he saw if his noble and learned Friend carried into effect the purpose he had announced to-night, by bringing in the Bill which the learned Commissioners were now preparing. He had little doubt that Bill would contain all those clauses which he now postponed, because, with one exception, the Report had adopted these clauses; and he had the strongest hope it would receive the concurrence of their Lordships, and of the other House of Parliament. But he must express his hope that the Commissioners, in preparing their Bill, would not needlessly alter the power of the clauses in his Bill, of which they bad approved in their Report. Those clauses had been first prepared by him last autumn; but, coming to town, he had submitted them to persons of great skill as draughtsmen, and particularly be bad the advantage of Mr. Pitt Taylor's assistance, than whom no one was better skilled in the law of evidence. The clauses, therefore, had undergone very full consideration, and he trusted the learned Commissioners who had come to their favourable conclusions without any Communication with himself, and, he supposed, before they had seen his Bill, would not make any material change in the form of it without some reasons showing such change to be necessary. He would now move that the first Bill be read a second time, having no intention to proceed further with it; and that the Report on the second Bill be received. The second Bill would be recommitted to-morrow, and he would then move that it be an instruction to the Committee to divide that Bill into two, so as to reserve only the first four clauses.

LORD CAMPBELL
protested against the first Bill being read a second time, because it tended to abolish the principle of trial by jury in civil cases, but approved of the four clauses of the second Bill.

LORD BROUGHAM
protested against the protest of the noble and learned Lord, because the Bill, instead of abolishing, would maintain all that was most valuable of the principle of trial by jury in civil causes.