The Sun.
London, England, 1853-03-11 00:00:00

upon himself to say that he had no doubt whatever that
these addresses would be very considerably different in
many material respects. In the first place, which went to
the question of the expense of time, they would be very
considerably shortened, and not only would the addresses
be shortened, but they would be of a different descrip-
tion from what they were at present, and the examination
of witnesses, too, would be altered. His learned friends
near him would remember well what a sensible portion
of the cross-examination of witnesses was owing to the jury.
(Hear.) Whateverlessened the expense of time to the court
also lessened the expense to the country, and to the suitor.
who, in one way or another, paid for all these costly
proceedings. He (Lord Brougham) had no doubt what-
ever that criminal procedure continuing under a jury,
and the great bulk of cases of tort continuing under a
jury, whether they extended the option to these cases or
not—there would still remain a great bulk of cases of a
certain kind of mote importance than others -which had
better go before a jury of twelve men than a single
judge. There were some questions peculiarly adapted
for a jury, and less for a judge, such, for instance, as
the assessment of damages ; a single mind brought to
consider the amount of damages was not half so compe-
tent to come to a satisfactory conclusion as twelve minds
of different structures, different habits, and different
ways of feeling. As to cases of conflicting evidence also,
he was inclined to think that twelve men would be likely
to arrive at a more satisfactory conclusion than one man
but upon this subject there were great differences of
opinion. But, in a very large proportion of cases now
brought into court, his opinion was decidedly in favour
of an option being given to the parties. This bill further
contained a very important provision with respect to
the payment of costs by the Crown, in cases where the
Crown was, as it were, the suitor, and also in cases
where there was a removal of the trial from one county
to another. The noble and learned lord concluded by
moving the second reading of the bill.
The LORD CHANCELLOR said, that with a con-
siderable portion of the bill not only was he not dissatis-
fied, but he felt that the country was much indebted to
his noble and learned friend for the perseverance and
zeal with which he was carrying into more complete and
effective operation the great measure which he intro-
duced two years ago on the subject of the law of evi-
dence. This task had been reserved for his noble and
learned friend who introduced that great change in the
law, which was looked at with jealousy by many, and
with apprehension by still more, enabling courts of jus.
tice to examine the parties themselves in all matters in
which they were interested. That that alteration in the
law had been most eminently successful, they had the
concurrent testimony of all the judges, all the practi-
tioners, and all the parties interested in the subject.
There was one exception in the measure, relating to hus-
band and wife, and he (the Lord Chancellor) was one of
those who thought it a useful exception, although he
believed his noble and learned friend would not have made
any such exception if he could have carried the bill as he
wished to do. (Hear, hear.) It was thought better to
reserve that change for a future occasion, if the measure
answered the purpose for which it was intended. Tha

measure had answered its purpose, and he thought the
time had now come when his noble and learned friend
was conferring an additional benefit on society by the
change proposed in the opening part of the bill—namely
the putting an end to the distinction respecting the ex-
amination of husband and wife. His noble friend had
introduced a clause which never occurred to his (the Lord
Chancellor's) mind, but which met many of the difficul-
ties which he and others had felt on the subject—namely,
a clause that, notwithstanding the authority given by
the wife to examine the husband, and vice versa, no hus-
band should be compellable to answer anything which
had been told to him, and which he knew only in domes-
tic confidence, and that the wife should be privileged in
a similar manner. This was an exception for which the
law furnished a precedent in the ordinary case in which a
solicitor was not bound to disclose any matters known to
him in professional confidence from his client. The ex-
ception introduced by his noble and learned would
be exceedingly useful. (Hear, hear.) The next point
in the bill of his noble and learned friend related
to that provision of the law of evidence which exempted
a party under examination from the obligation of saying
anything that which might tend to criminate himself.
He entirely concurred in the feeling which had prompted
his noble and learned friend to devise a mode of getting
rid of that difficulty ; for, in common with all who had
taken part in.the administration of justice, he had con-
tinually been shocked by the knowledge that injustice
was done, that truth was excluded, by a wit-
ness saying "I cannot, answer that question,
it will tend to criminate me." Even supposing that
principle to be retained, whether it might not pro-
perly-be one of the provisions of a bill to restrict it in
some manner, was a matter on which he would give no
opinion ; but he felt bound to say that until Parliament
was prepared to alter the law a great deal more—until
Parliament was prepared to say it should be lawful and
part of our system to interrogate parties on charges, he
did not think the clause now introduced by his noble
and learned friend could possibly become the law of the
land. If the law was, that a person charged with pick-
ing his pocket had the right to say, " I shall answer
nothing—prove it if you can," would it not be a ♦ery
strange anomaly to get out of that law by calling that
same person as a witness in another proceeding ? Sup-
pose he had strong reason to suspect a person of having
picked his pocket of his watch, and that person was
brought up on suspicion, the law said, "You have no
right to interrogate him on the subject." Now, he was
ready to concur with his noble and learned friend in any
reasonable inquiry whether the law was correct in that
principle—whether the maxim, "neino tenetur seipsum
inculpare," was or was not a correct principle. But as
his noble and learned friend's bill did not profess to alter
that, as a general question he thought it would be im-
possible to introduce a clause authorising the interroga-
tion of a witness on a matter with which he was directly
charged. In the case which he had just put, his noble
and learned friend's bill did not propose to interrogate
the person, and say that if he declined to answer that
would naturally be strong presumptive evidence of his
guilt. But his noble and learned friend said, "If you
can call him in any other proceeding you may make him
answer as you please." Now this would be getting rid
of that principle of law which prevented the getting di-
rectly what was to be attempted indirectly, and his
noble and learned friend had introduced a clause with
the difficulty which he experienced in altering that
general principle of the law ; for although a witness was
to be bound to answer, there was a proviso that his
answer should not be given in evidence against him.
That would be a mere illusory protection. He would
take the case which he had already supposed. If a man
was brought up as witness on some other occasion, it
might be said, " I suspect you picked my pocket the
other day ; did you do so ?" At present he might de-
cline to answer the question ; but, under the new bill,
he would be bound to answer. He might then be asked,
" What did you do with the watch ?" and if he answered,
`• I locked it up in my box," and a policeman should
find it there, the man would be compelled to convict him-
self. In this respect he thought the present bill would
introduce a greater anomaly than it was intended to
remedy, but he considered it a matter which ought to be
looked into. He should view with considerable appre-
hension any system which would create a sort of rival
dexterity among the judges to entrap a witness with the
greatest shrewdness and accuracy—a course of proceed-
ing witnessed in some foreign courts of justice, but which
was much more unpleasant to contemplate than the
occasional escapes from justice under our system. This
was the reason why he could not give his concurrence to
that part of the bill. With regard to the expediency of
allowing parties to have their actions tried by,a judge,
and not by a jury, he thought that was a question de-
serving the most serious attention. He did not think it
very happily or properly introduced into a bill to im-
prove the law of evidence, the more so as it had formed
the subject of an inquiry, the result of which would
shortly be presented to their lordships in the shape of a
report. The commissioners had agreed to a most ela-
borate report on the procedure in the courts of common
law, rather leaning, he believed, to the views ofhis noble
and learned friend ; and it seemed to him that the con-
sideration of that report would be the most fitting time
for the discussion of the subject. He agreed with his
noble and learned friend that there were many cases
which a judge would decide much better than a jury.
But, on the other hand, there might be very great diffi-
culty in beginning to remodel the trial of facts in these
courts. And for this reason. This must not be looked
to as a mere question as to how the particular issues
might be tried, but whether a better decision generally
would be come to if a few cases were selected for juries,
instead of allowing them to become familiar with such
matters. He could not but feel an apprehension that
cases would not be so well decided under such circum-
stances as they would be if juries were continually em-
ployed. With regard to the question of expense, he
thought his noble and learned friend in error. His noble
and learned friend had referred to special jury cases.
Now, it was most probable that such cases would be
tried in the same manner as heretofore ; for in mercan-
tile cases the judge would often be completely at sea
without the assistance of a jury. That being so,

_
juries must be summoned to the assizes, and the ex-
pense really consisted, not in carrying the case be-
fore the jury, but in the jury having to pass a week
or more in the assize town : for the expense must be
incurred whether the jurors were engaged in trying
the case or in walking about. He thought this a question
deserving of consideration, and should look with great
anxiety to the details. His hon. and learned friend had
suggested some other useful alterations, but there were
other matters in which he did not fully concur with his
noble and learned friend. As he had before said, there
sel f . (Hea r , h e ,Ito- thhnr intoee.
was a great deal in the bill which met with his concur-
rence, and on those points on which he differed from his
noble and learned friend he trusted that full credit would
be given to him for sincere and disinterested motives.
(Hear, hear.)
Lord BROUGHAM rejoiced to hear what his noble
and learned friend had stated with respect to the report
of the commissioners. He thought the result would be
that in the progress of the bill in committee, he should
be disposed to divide it into two parts, and to pass those
portions respecting which there was no difference of
opinion between
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THE EASTER HOLIDAYS,
The Earl of ABERDEEN gave notice of his inten-
tion to move the adjournment of the house for the