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

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
the witness from prosecution, but not from disgrace and
degradation. He had spoken to their lordships of cases
in which a contrariety of decisions was manifest. Take
the case of rape. He remembered a case in which
Baron Wolfe had laid down that no question could be
put to the prosecutor in such a case as to former incon-
tinency, even with the prisoner at the bar, who, from
Ithe evidence, was put in jeopardy of his life ; and one
of the reasons given by the learned judge for that
decision was, that the offence might he committed
by the prisoner, even although he had had in-
timacy on former occasions with the prosecutor.
But this 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 one case than in the other.
Nevertheless that case had been brought before all
the judges, and with the exception of three or four of
them, who were absent, they had been unanimously of
opinion that the rule laid down by Baron Wolfe was
right, and that the question could not be put. So with
respect to seduction, in which case it had been held by
some judges that a question as to the previous inconti-
nency of the person seduced, even with that very person
against whom the action was brought, or at all event's
with others, was collateral, and could not be put. But
they had lived to see the day when that rule was entirely
done away with ; for in the year 1835 Lord Chief Jus-
tice Tindal had allowed the question.to be put, and the
only doubt that arose in his mind was, whether a con-
tradiction to the evidence of the witness could be given
without first cross-examining her as to previous inconti-
nency (as we understood). In that case the witness was
recalled and cross-examined. Evidence was then given,
and that decided the case. So that it appeared that what
had been the law in 1812, when a decision to the for-
mer effect was given, had ceased to be law in 1835. But
he believed he might say with confidence that the law
was not very certain and clear either way. Lord Ellen-
borough had laid down twice, in 1803, that a man could
not be asked whether he lad been committed for felony
who was called as a witness in a civil suit. But in 1818,
on a witness being asked, " Were you ever in such a gaol
for theft ?" and the witness refusing to answer the ques-
tion, on the principle that he had a right to protect him-
self from self-crimination, Lord Ellenborough said, "If
you do not answer the question, I will send you there"
—whereupon- the question was answered. He (Lord
Brougham) believed that he had said enough to satisfy
their lordships that the state of the law on this subject
was such as to require some settlement by declaration.
Now, it was said, that though a man was protected by
the provisions of the bill from prosecution, so that his own
depositions should not be given in evidence against him
in any other case, yet that he was not protected from this
most important risk, namely, that the particulars which
he might tell might furnish persons with a clue for obtain-
taing evidence against him, and enable them to put him
upon his trial, and to convict him. And upon this point;
also, there was no little discrepancy in the decisions as to
how far the witness himself was to judge, and how far
the court was to be allowed to judge, and whether it was
enough that the witness should say, "I think the ques-
tion will tend to my conviction." How far that was
enough, or how far it was necessary for him to satisfy
the court that he had reasonable and well-grounded ap-
prehension, was a matter of considerable doubt, and oc-
casioned material difference of opinion. But he (Lord
Brougham) believed that he might venture to state most
confidently that the strongest cases were the most re-
cent, and placed the rule of law in the greatest possible
relief of absurdity and injustice. Many years ago it had
been decided in the Court of Common Pleas, by Lord
Mansfield. An objection being taken that a witness had
only said, "I think I should feel myself in danger if I
were to answer that question," and it being affirmed
that that was not enough, and that the court must see
in what manner the witness was to be in so great risk—
in that case Lord Mansfield said—" It is enough if the
witness swears that he thinks that he should be in dan-
ger ;" and the court being moved against this ruling had
confirmed it, and that was the leading case upon this
subject. Well, but then came a decision in some court
which amounted to this. The judges said, without
entering into particulars, without stating at all how he
was to be in danger, it was quite sufficient if a witness
swore in answer to any question, "My answer to that
will expose me to prosecution." And in some instances
magistrates had gone so far as to warn witnesses not to
answer questions if they believed that they would tend
to criminate themselves. A witness had only to say
"1 think such and such a question will tend to crimi-
nate myself'," in order to deprive parties of the benefit of
his testimony, while at the same time you could not by
possibility convict the witness of perjury, because he had
only used the words, " I think.' It was said that it
was hard upon a witness to compel him to answer;
that you placed him on the horns of a dilemma, and
called on him either to commit perjury or to con-
fess something to his own disadvantage. But there was
another party whom under the present system you ac-
tually gore on one.horn, and that was the party against
whom the witness was brought. You were unwilling to
allow a knave to be exposed, but instead of the knave you
were ready to sacrifice justice. Excluding the possibility of
the witness's evidence being employed against himself,
what harm would there be in giving the benefit to any
prosecutor of what he might disclose of the facts, or of
collateral matter ? The only harm would be this, that
public benefit would arise from the guilty man being suc-
cessfully prosecuted, that he would not escape, and that
an innocent party would not be damnified by the evi-
dence ; the only harm would be, that justice would be
promoted by the truth being discovered through a full
investigation of the case. The course which the Legis-
lature had taken upon this subject had been very remark-
able, and showed a consciousness that the principle was
unsound. In various instances you had endeavoured to
get rid of the rule of law by indemnifying parties against
prosecution; in one or two cases you had even compelled
witnesses to answer, not trusting to the inducement held
out by indemnity. There had been a case, he believed,
some five or six years ago, of an offence against the
combination laws, in which witnesses bad not been al-
lowed the benefit of protection, but were compelled to
answer, and were indemnified from prosecution. In the
case, also, of an election inquiry at St. Alban's, when a
commission had sat there, witnesses had been compelled
to answer the questions put to them. And in a bill
which had come up to their lordships from the other
house, which provided that an election commission
should be appointed in any case upon an address to the
Crown, in that case parties were compellable to answer,
and were only to be indemnified in case the commission ,
certified that they had made a fair and true disclosure.
He would venture to say that there was no one chapter
of the law which fell more within the following words,
uttered by Lord Denman before he was raised to the
bench—" The wilful blindness, or rather the perverse
preference of darkness to light, the self-imposed tram-
mels by which justice often seems to take a pride in
securing her own delay or defeat, the multiplied faci-
lities for evasion, the thousand premiums held forth
to encourage deceit and fraud, are disgraceful to civi-
lised life:" He (Lord Brougham) now came to ano-
ther part of the bill, which he hoped would meet with
less objection now than it had encountered on a
former occasion when he had proposed it. He believed
that we might safely follow the example of the County
Courts, and make some beneficial change in the pre-
sent law of procedure. When he (Lord Brougham) had
originally introduced measures in 1830, '3l, and '33,
which ended in the establishment, in 1846-7, of courts
of local jurisdiction, there were one or two very material
improvements in the law which had since arisen from
the practice of those local courts which he had not intro-
duced into those measures, and, amongst others, one
which he had only omitted from his great unwillingness
to encounter more obstacles than were necessary in ef-
fecting that important change in the law. But clearly
a more complete abolition of written pleadings ought to
have formed a part of that measure. Equally clear was
it that a more general power of paying money into court
ought to have been given, and not limited to certain
actions, but extended to all. He certainly had been
afraid that that was a change too great to be suddenly
introduced, and he had, therefore, in the bill of 1830,
'3l, and '33, limited the payment of money into court,
as it was still limited under the bill of 1847, to some few
cases of tort, indeed, but generally speaking to cases of
debt and contract. It was quite clear that there ought
to have been no exception whatever, and that in all cases
parties ought to have the option of endeavouring to stay
proceedings by paying money into court. In the case
of debts of small amount, say from 40s. to 51., the law
would not tell the party who was sure of a verdict being
given against him to pay the money into court, but com-
pelled him to go to trial ; alter which, instead of 51., he
had to pay perhaps 1501. The bill now before their
lordships made the payment of money into court possible
in all cases. With respect to trial by jury, he would
say that no person entertained more reverence or more ,
deep and lasting affection for that great institution than
he did ; but still was it not worth considering whether
it was necessary that a jury should be empanelled to
try a cause whether the parties desired it or not ?
What had been the result of the experience 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 Courts Acts, in all cases between 51. and 501.,
whether of tort or contract, parties had the option of a
jury, and unless both parties agreed to take the opinion
of the judge and to have him to try their cause,
a jury there must be, as a matter of course. And yet of
the 40,000 causes, between the value of 51. and 501.,
which had been tried in one year, in each of which either
party must have had a jury if he had been so minded,
what proportion had been by consent tried by the jury ?
Why, about 24 per cent. ; so that in every 100 cases
there had been from 97 to 98 in which both parties had
preferred a judge to the jury. He had framed a clause
in this bill giving this option in all cases of tort as well
as of contract. Some thought that the option ought to
be confined to cases of contract, but he did not quite
agree to that, and he thought it a fit subject to be con-
sidered in committee. The change which he proposed
would effect a saving of expense to the parties. The
expenses at present in special jury causes were about
30/. That, however, was only :money paid out of pocket,
but there was another expense to the parties, to the
court, to the public, and to the juries, to be considered.
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the bench, but also of the practitioners at the bar. But
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a judge that now took place before a jury, he
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whether precisely the, same procedure would take place
should hesitate before giving his answer. (Hear, hear.)
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an affirmative answer to the question, Would, or would
Generally speaking, he should not be prepared to give
recollection
not, some addresses take place before the judge which
now took place before the jury ? He would even take