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
the 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
others,
whom,
wasaction
some judges that a question as to the previous inconti-
nency of the person seduced, even with that very person
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ate p
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they had lived to see the day when that rule was entirely
againstwit h
hers the
collateral,
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 had 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
roost 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
"I 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 lie 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 had 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 disclosui-e.
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 ; after which, instead of 51,, he
had to pay perhaps 150/. 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 50/.,
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 23/4 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
301. 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.
He would be understood to speak with profound respect
and with warm affection of those who administered the
institution of trial by jury, not merely of the judges on
the bench, but also of the practitioners at the bar. But
lie was bound to say that if he were asked from his
recollection and experience of the profession, to say
whether precisely the same procedure would take place
a judge that now took place before a jury, he
before
should hesitate before giving his answer. (Hear, hear.)
Generally speaking,
he should not be prepared to give
an affirmative answer to the question, Would, or would
not, some addresses take place before the judge which
nov took place before the jury ? He would even take

upon hinaself to say` that he had no doubt whatever that
those 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 more 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 waf 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. That
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 diffioul-
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 very
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—whe:;her the maxim, "nemo tenetur seipsum
inculpare," was or was not a correct principle. But as
Ins 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 pemon, 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,
C. 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 of his noble
and learned friend ; and it seemed to him that the con-
sideration of that report would be the most fitting time
forithe 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 Bach 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
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 thouht 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 his noble and learned friend and him-
self. (Hear, hear.)
The bill was then read a second time.
Lord BROUGHAM said he must decline referring
the bill to a select committee, which was already over-
whelmed with other matters. Besides, if he consented
to divide the bill into two parts such reference would be
quite unnecessary.
THE MUTINY BILLS.

On the motion of the Earl of ABERDEEN, the
Mutiny Bill and the Marine Mutiny Bill were read a
second time.

THE EASTER HOLIDAYS.
The Earl of ABERDEEN gave notice of his inten-
tion to move the adjournment of the house for the