The Sun.
London, England, 1853-05-09 00:00:00

SECOND REPORT OF THE COMMON LAW
COMMISSION.

The second report of the commissioners appointed to
inquire into the process, practice, and system of plead-
ing in the superior courts of common law has now been
issued. The following is an analysis of the recommen-
dations of the commissioners.

The trials of questions of fact, and the important sub-
ject of the evidence receivab!e on such trials, form the
principalisubject of this report.
TRIAL BY JURY.—The report commences with an ela-
borate review of the arguments for and against the con-
tinuation of trial by jury. On this point the commis-
sioners state that whilst they feel that there are cases in
which a jury may be advantageously dispensed with, as
for instance in matters of undisputed fact, and where
the question turns upon the legal effect of evidence, they
do not consider themselves warranted, except in cases
of mere account, to recommend that trial by jury
should be dispensed with, which on the whole works
well, and enjoys the confidence of the public. They
propose, therefore, to continue trial by jury as the rule,
but to make it competent to the parties, if both consent,
to dispense with it, and leave the decision of issues of
fact to the judge. With regard to cases of mere ac-
count, arbitration is proposed to officers of the court,
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low as 201. rating at present, should be raised, and that
on every trial there should be an admixture of jurymen
of the class from which special juries are taken, who
may bring a superior intelligence to the decision of cases,
without the additional expense attendant under the pre-
sent system on having a special jury. They do not pro-
pose to abolish the right to a special jury, as at present
appointed.
UNANIMITY OF THE JURY.—The report of the Com-
mon Law Commissioners of 1831 is recited in extenso
upon this point. This question is now resolved into two
distinct questions. 1. Whether unanimity should be
required. 2. Whether an attempt should be made, as
at present, to coerce it. On the former point the re-
port states that a verdict of the majority would fail to
give satisfaction, and the consciousness that a portion of
his judges were in his favour would only increase the
dissatisfaction of the defeated, lead to renewed litiga-
tion, and every divided verdict might be urged, and not
unreasonably entertained, as a ground for a new trial.
The strongest argument in favour of requiring unanimity
is, that it ensures a full and complete discussion ; and
the minority, instead of yielding too readily, as they
would ifresponsibility were removed by simply dissenting,
now naturally resist conclusions from which they differ.
The commissioners, therefore, recommend that the present
rule, requiring unanimity in the jury, should be main-
tained. With regard to the latter point, the coercing of
a verdict, they unhesitatingly recommend that it should
be done away with, and that the jury should be supplied
during their deliberations with every accommodation and
necessary refreshment. Unanimity at present is often
not that of conviction, but of exhausted powers, and the
judge is compelled to receive such a verdict as unani-
mous. Further, that the period of deliberation should
not exceed twelve hours, and that then, unless the jury
require further time, they should be discharged, leaving
it open to the parties to summon a fresh jury, and try
the cause again.
PROCEEDINGS AT THE TRIAL.—The commissioners
think that an alteration should be introduced in the pre-
sent practice, which allows the party proving the affir-
mative to state the case, and finally to have a reply
on the whole, thus giving him a_ great advantage,
which is reversed when the second party does not call
for evidence. The inconvenience and injustice of
this system have become more grievous by the parties
to the suit being admissible as witnesses, and the injus-
tice of leaving them exposed, first to a severe cross-
examination, and then to hostile observations, with-
but gilding their counsel an opportunity for vindication,
has been sensibly felt. They therefore recommend " that
the counsel for the second party should have the oppor-
tunity of addressing the jury twice; first, on opening his
case, and again at the close of his evidence ; and that the
counsel who begins, in the event of his opponent not an-
nouncing his intention to adduce evidence, should, in
like manner, have the opportunity of addressing the jury
a second time at the close of his case."
POWER OF ADJOURNMENT.—Cases often arise where
one party is taken by surprise, ' when a document or wit-
ness becomes unexpectedly necessary, and a miscarriage
of justice occurs unless time is afforded. The commis-
sioners' rigorous inflexibility on this point may be modi-
fied with advantage. They therefore propose that "a
discretionary power should be exercised by the judge at
the trial, where the circumstances are such that the court
would afterwards grant a new trial, or where he may
otherwise deem it right, for the purposes of justice (in
like manner as was anciently done for the purpose of a
view), to order an adjournment of the trial, subject to
such conditions as to costs and otherwise as he may think
fit."

LAW OF EVIDENCE—ORAL TESTIMONY.—The report
enters at great length into the defects of the old English
law of evidence under the system of rigorously excluding
witnesses, supposed to have any interest in the case, and
traces with great satisfaction the results which had fol-
lowed from the gradual and enlightened extension of
these rules. After taking into careful consideration the
arguments which have been urged for and against the
admissibility of husband and wife, the commissioners
state that the conclusion which they have arrived at is
—" That husband and wife should be competent and
compellable to give evidence for and against one another
on matters of fact, as to which either could now be ex-
amined as a party in the cause ; but that all communi-
cations between them should be held to be priviliged.
It should be added that husband and wife are already
witnesses for or against each other, under the late
statute, when they are jointly parties as plaintiffs or
defendants."

EXAMINATION ON OATH.—The commissioners think it
cannot be doubted that a transition from the use of
judicial oaths to simple declarations would at least at the
outset, encourage false testimony, by removing the bar-
riers to falsehood, and tend materially to lessen the con-
fidence of the public in the administration of justice.
But while, for these reasons, we should be averse to the
abolition of judicial oaths in cases where an oath is likely
to produce truth in a witness, it may admit of a ques-
tion whether the religious sanction should be made in-
dispensable in cases where that sanction is admitted to
have no existence.

AFFIRMATION.—In the case of exception in favour of
certain sects, who object on religious grounds to the
taking of oaths, the commissioners are of opinion, that
" it may safely be left to the judge to ascertain whether
the objection professed by the witness be sincere or not,
and that if the judge be so satisfied, the witness should
be admitted to affirm instead of taking the oath."
WHETHER A PARTY SHOULD BE ALLOWED TO DIS-
CREDIT HIS OWN WITNESS.—" It occasionally happens
that a witness called by a party in a cause, under a be-
lief that lie will prove a certain fact, turns round upon
the party calling him, and proves directly the reverse.
The party is, of course, not precluded from proving by
other testimony what the witness has negatived ; but
ought he to be allowed to discredit the witness, either
by impeaching his character, or by showing that he has
made previous statements at variance with the evidence
he has given in the witness box ? The decisions are con-
flicting-- the weight of authority tends to establish the
negative, while the weight of reason and argument ap-
pears to be decidedly in favour of the affirmative." It
is therefore recommended that "a party should, under
the circumstances referred to, be permitted not only as
at present to contradict the testimony of the witness by
other evidence, but also to prove that such witness has
made opposite statements. But a party having presented
a witness to the jury as worthy of credit, ought not to
be allowed to impeach his character by general evi-
dence."

PROOF OF CONFLICTING STATEMENT ON CROSS-EXA-
MINATION.-If these statements are verbal, and the wit-
ness having been cross-examined so as to afford oppor-
tunity of explanation, there is no doubt evidence may be
adduced to prove the alleged statements. But if the
witness neither admits it nor denies, doubts have been
raised whether evidence of the statement is admissible.
The commissioners incline to the ruling of Baron Parke.
"The proof of the statement imputed to the witness,
which he says he does not remember to have made, is
not admissible as a contradictory statement, for, until
further inquiry be made, there is no apparent contradic-
tion ; but still, it seems, the evidence should be ad-
mitted."

RULE IN THE QUEEN'S CASE.—A more difficult ques-
tion arises when the contradictory statement alleged is
contained in a letter or other writing :—" The arguments
against the rule as established appear to prevail ; and it
is recommended that a witness should be open to cross-
examination as to previous written statements he may
have made, without the writing being first put in . .
with this limitation, that if it is intended to contradict
the witness by the writing, his attention should, before
doing so, be called to those parts which are to be used
for that purpose ..... In order to prevent any abuse
of the facility thus given, it should be competent to the
judge, if he deem right, to require the writing to be pro-
duced for his inspection, and to be dealt with by him as
he thinks fit."
IMPEACHMENT OF CHARACTER.—On a balance of the
opposing considerations, it is recommended that the ex-
isting law should be maintained, except that where the
question relates to the conviction of the witness of perjury
or any other form of crimen falsi, or the witness either
denies the fact or refuses to answer, the conviction should
be allowed to proceed.
ATTESTING WITNESS.—" When the genuineness of the
document is not really in dispute, it is clear that the
parties ought not to be limited to any particular witness
to prove the execution. When the genuineness is in dis-
pute, the party producing it will be sure to call the
attesting witness, as the absence of the latter would tend
to throw the greatest discredit on the instrument. We
therefore recommend that, except in cases where the evi-
dence of attestation is requisite to the validity of the
instrument, an attesting witness need not be called."
SPECIAL VERDICT AND SPECIAL CASE.—The commis-
sioners see no sufficient reason why the proceeding by
special case should not be placed on the same footing as
by special verdict, except where the parties agree to be
bound by the decision of the court of first instance, and
they recommend that it shall be provided that error
shall be in a proceeding on a special case, as on that of a
special verdict, unless the special case contains an agree-
ment to the contrary.
BILLS OF EXCEPTION AND NEW TRIALS.—The follow-
ing are the suggestions of the commissioners on these
points :—" That whenever a motion is made for a new
trial, or to enter a verdict or nonsuit, and a rule to show
cause is granted, the grounds upon which such rule shall
have been granted shall be stated in the rule. That on
all such motions, when the rule is refused, the party ap-
plying may appeal. That whenever such rule nisi is dis-
charged or made absolute, the party decided against may
appeal. That the appeal shall be on a case to be stated