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

IMPERIAL PARLIAMEN T.

HOUSE OF LORDS-(YESTERDAY.)

The LORD CHANCELLOR took his seat on the Woolsack
at five o'clock. -
The Duke of ARGYLL presented petitions from dif-
ferent parts of Scotland, against the opening of the
Crystal Palace on Sundays, and against the Maynooth
grant.
The Earl of BEAUGHAMP presented petitions from
places in Worcestershire, against the, admission of Jews
into Parliament.
The Earl of SHAFTESBURY presented a great
number of petitions to the same effect.
The Duke of MONTROSE presented petitions from
different parts of Scotland, praying for the inspection of
nunneries, and against the Maynooth grant.
The BM* of EGLINTON presented a petition to the
same effect ; the noble lord also moved for copies of all
papers and correspondence respecting the reinstatement
in the Irish magistracy of Mr. Kirwan.
Earl FITZWILLIAM presented petitions from Cam-
bridge, praying for inquiry into the corrupt practices
prevalent there at the last election.
The Designs Act Extension Bill was read a first time.
LAW OF EVIDENCE AND PROCEDURE BILL.
Lord BROUGHAM moved the second reading of this
bill. The bill contained many details, which would be
much better discussed in committee than on the present
occasion ; but he wished to make a few observations
upon three or four of its leading features. The act of
1851 made the parties to a suit competent and compel-
lable to be examined, with the important exception of
the case of husband and wife, and at the time this excep-
tion was made, the proximate possibility of removing it,
and putting the husband and wife upon the same footing
as all other parties, was certainly contemplated. Now,
one of the objects of the present bill was to repeal that
exception with but one modification, and to enable the
husband to bring forward his wife as a witness ; for ex-
ample, where she was the shopwoman in cases of small
debts, and where the exclusion of' her evidence would de-
prive the husband of the benefits of the law ; but not al-
lowing her to be cross-examined when thus produced,
nor allowing her to be called when there was an adverse
party, nor allowing her to be examined in either of those
instances upon matters communicated to her by her hus-
band during couverture, and likewise preventing the
husband from being compelled to disclose anything com-
municated to him by his wife during couverture. He
next came to those parts of the existing law upon which,
owing to its obscurity and the conflicting decisions that
had been given with regard to it, declaratory and posi-
tive enactments were necessary. The law at present
prevented a witness from being called upon compulsorily
to answer any question the answer to which might tend
to criminate himself. Now, apart from the anomalies
and uncertainties in the practice and application of this
principle of law, he was about to contend that the prin-
ciple itself was untenable. The object of a witness
being produced in court was to obtain from his testimony
a knowledge of the truth, and thus to further the ends of
justice ; and how did the objection to his giving his evi-
dence arise ? If the question put to bim was irrelevant, it
was objectionable on a totally different ground, and there-
fore no controversy arose as to the protection of the wit-
ness. But, suppose the question was admitted to be rele-
vant, and further, that his answer, be it in the negative or
in the affirmative, was not only most material, but so
important that the truth could not be got at without it,
and the cause could not be well tried, even in that case
the law exempted him from answering such a question ;
and why ! Because the witness said that the answer he
might give might peradventure criminate himself. It was
not necessary that the question should be one his answer
to which would absolutely and undoubtedly criminate
him, in order to enable him to claim the protection of
the court ; if he only undertook to swear that he thought
his answer might tend to criminate him, he could claim
to be exempted from answering, and the cause of truth
must be sacrificed. But, assuming that he swore de
facto that it would criminate him, and assuming that
even the court was of opinion that it would criminate
him, then he (Lord Brougham) asked, was that a good
reason why the witness should not be compelled to
answer ? It might he granted, be an exceedingly good
reason why he should be protected from his answer being
used in a prosecution against him ; and no doubt it
would be very hard to force him to answer a question,
and then upon his own deposition to indict him, and
convict him out of his own mouth. The principle that
he (Lord Brougham) laid down was, that the witness
should be protected from the effect of his deposition as
regarded a future trial, but that he should be compelled
to give his answer in order that it might be evidence in
the cause. At present they put totally out of view the
interest of the parties to the cause, and confined them-
selves entirely to the protection of the witness. The
parties to the cause were innocent persons—there was
no charge against them—no suspicion—but they could
not have their cause tried, because a man upon whom,
on his own showing suspicion rested chose to say that
he would not give his evidence. For that reason the
parties were to be deprived of justice. A man might
be in jeopardy for his property or hi§ life, ay, and even
that which many held dearer than life, his reputation,
might be in jeopardy on the trial ; and the witness who
was put into the box to swear away his estate, or his
life, or his character, might only the day before have com-
mitted the most atrocious crimes, and which, if he were
compelled to name, would make his evidence impossible to
be received, or even listened to for an instant by the
court and the jury ; and yet the man who was on his
trial for his reputation, or his property, or his life, was
not suffered by the humanity and the even-handed jus-
tice of the law to ask the question whether the witness
was a miscreant, utterly incredible upon his oath, or a
man perfectly honest, honourable, and worthy of belief.
Knaves, no doubt, would not choose to give evidence
voluntarily, if they knew they would expose themselves
to the risk of being detected ; and yet the evidence of a
man who had committed some offence might be very
valuable in a case in which he had no personal interest ;
and it might be very fit that such a man should be ex-
amined for the benefit of the cause and for the ends of
justice. And let the man be ever so untrustworthy, the
greater his untrustworthiness the stronger became the
argument, because if such a witness were compelled to
give an answer that would expose -his own character, it
might be the means of destroying his evidence, and
thereby of saving the property, or the reputation, or
the life of the person who was on his trial. But it was
said that the law abhorred the trial of collateral issues,
and no doubt it was inconvenient, that when they were
trying the general issue an incidental issue should arise ;
but there was even a worse and more inconvenient thing,
and that was the giving of judgment without trying col-
lateral issues. To all intents and purposes it was decid-
ing without hearing particulars, if they heard part, one
half, of an untrustworthy witness's evidence, and ex-
cluded the other half, which would have gone at once to
discredit the whole of his testimony. He would now
turn to the contrariety of decision, the variety of autho-
rity, and the uncertainty of the law which prevailed at
present both as to the extent of the principle which he
was combating, the mode of its application, and the prac-
tice under it. He should begin with the last head, the
practice under it. Upon the question whether, on
examining a witness, and the answer being given
by him without reluctance, evidence might be given
to rebut it, there had been decisions both ways.
Upon the question whether, . under certain circum-
stances, any question could be put at all, such as ques-
tions of rape and seduction, there were also decisions
both ways. Upon the question how far a witness, hav-
ing begun to answer, had a right afterwards to say, " I
have gone so far ; I shall stop short and answer no
more, there were also decisions both ways. For in-
stance, in one very remarkable case, where a witness
having said, after answering three or four questions "I
won't answer any more, for I begin to think than HI do
it will have a tendency to criminate myself," it was held
by two most learned chief justices, Lord Wynford and
Lord Tenterden, in several cases, that the witness was
bound to go on—that he ought to have taken his objec-
tion at the outset—that having once begun to answer, he
could not stop. Not so did Lord Eldon hold, but quite
the contrary, and in the strongest possible terms. Lord
Eldon said the witness might stop where he pleased,
that they could not carry his examination further than
he chose voluntarily to go, and he (Lord Brougham) took
leave to say that he humbly thought Lord Eldon was
right ; and his noble and learned friend Lord Denman
even went further, and held that the examination, having
gone so far, ought to have stopped at first ; and the con-
sequence was that the man proved himself guilty of for-
gery, and was tried and coavioted. His noble and
learned friends were well aware of the means by which a
skilful counsel got round a witness, and made him an-
swer a few questions ; at last the witness discovered to
what his evidence was tending, and said, " Oh, I won't
answer any more,, having been honestly and bond fide
ignorant, up to that moment, that what he had been
asked had
therefore,theleastiftietnwdeenrecygtooodl:ismustown
b ien c u l
carriedpati o nt
0.
The rule,
witness ought not
voluntarily chose
ti(ollneaarn,dhleiamrits)
oBfutthint
rule,was
the point to which
tobe
asked E kion
thnadgncabrreyiendnditw;
haantdhan
notself,mtheraetl
uncertainty, which
was admitted by all the most emi-
nentan w far the rule extended.
but likewise with rseggarrpedattodit.shnerepsuabnsntay nocfe
doefntishiennrsu,leanitd-
text-writers, as to ho
no clear and decided case in
.pom
that it was impos-
sibleflicting decisions had been given, that
The uncertainty
With regard to the substarce o.f
t,thaendrulsen,
mthaenrye
nwnans.
to lay down any rule at a
protected from answering questions
was no more nor less than this—how
to implicate him in the confession of any .
offence, or to
hwichfardiad mnoatntwenads
to degrade and disgrace him. Ma
expose him to risk of prosecution, bunt whleiachrnoendly,
judgeswent
in his (Lord Brougham's) day had held it to be quite
clear that the rule extended so far as to include cases of
this kind. Others there were, both in his own time and
at the present moment, who were equally clearly of
opinion that the rule did not extend so far ; and if he
(Lord Brougham) were to ventrre an opinion of his own
on the subject, he should say that the rule did not ex-
tend so far, and for this reason, 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, pro-
secution had become impossible, or to cases where the
ythaesretowtaht: application
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 those 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 own 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 ap-
prehension, in favour of the measure which he was
bringing under their lordships' notice, because he had
now a right to place his foot on this basis, that the law