The Sun.
London, England, 1820-09-02 00:00:00

t AA
nd b
asto-
Ara a
On 011
p
etch of
alt v°

at. bc
ceded
bad
In id
iat
bee"'

lid k

COnSil
lips
Li tiler
ill°
101°
f the•

je,fort
ouusel

j;rite

jowl!
,poieJ
RdaviC

ne";
ininea

it was

1i

fo
119 a ,_

Pe best
g ot,
be 11'4
tf/
i.og I
ove t
-iø (1190"
sr Pa e 4
.011°
it•
thate
te

ily
bo ' 1-
cO-
- 11
VII'
0/tiot
45.
0 sc {ritieoS,
Oa
,2•11 a 1
ea' Ao
,tiovt

In his handwriting. rx it were denied then it
tnight be Proved by other parties, and thus the
credit of the_ witness might be altogether de-.,
treYed: He Wish6d the question new raised to
le referred to the Judges.' -The. questioo to be
!nlnitted 'for their consideration. was, whether.
is the Courts, br.flow—during a cross-examination,
letter cook' be put in and read; and 'a witness
asked
if he had written- words to that effect,
Nvithout first showing The letter to the witness,
mnd asking if that letter, or the superscription,
the haridwritin,g of the. Witness.
fora DoNoucnnoat: said., if the witness ad-
Ziltted the letter, the cross-examinatiou would
regular; but he objected to the same use
-41iiiade of this.unproved letter, as would have
,'4" glade of it, if it had been regularly proved.
e C'.aunsel for the defence acting thus, endea-
-1.0
Ilt"
u to discredit the witness by anticipation ;
s° 'far as the examination on this unproved
—ter went, he must contend:that the,person under
‘'xaniitiation -was an uncontradicted witness.'lNt R 'Alat had taken place would, hoWever, go'forth
b'iserediting her testimony, because it Would
ullderStood that the paper had been proved.
was it. only sorry that the'cross-exainit►ation•on
t 1,41(.1 been suffered to go -on so long, and wished
ttli• lave the dpinions of the Judges on the ques-
'ell that had been raised:
Earl of LifinEnDALE said a few words as
rithe form of the-question proposed.
4he Earl of LivEfteocm.wished to ask another
4~tlf_a.line or two of any letter be read-
sl; wi'tnes's, and .acknowledged to •be his hand-
cei'dingf whether that. would be a good and stalltil -
t admissions of the hand-Writing, and whe-
t, ez'ilFion such acknowledgment-, it' was compe-
ti;:e4 to examine the witness to the contents of
whole paper. He threw this out as a point,
41
lid' he thought worthy the consideration Of the
earlied Judges.
in 'III fitEn'EDALE 'spoke a.thort time, but was
aittdible.below the bar.
ttna"l74 ERSKINE, was Of opinion,, that if only a
Part of, the letter were shown to the witness
tt,in 4,,c4"oWledged, the witness could be exa-
t• to that part. and O.:that part only.'
had ;',._l4:BAlrll'6ll.T observed, that if these letters
lira, been .written by the Witnessythey had been
,tra
„ , nslated into English, andthenre-translated
erench by the'lnterpreter ; so that it Was
coPPobable. that 'she could speak clearly to ,the
"tents Without first seeing the letters.
lion'''Loun..CifaxcELLOß then read the oues-
-411.). and the Learned Judges retired for about
eel). minutes, When they returned, and
Tie •
sp LORD CHIEF JUSTICE said, that with re-
N,eret to the first question, the Learned Judges
43-e litfauimously of opinion that it should be-
14.13 `"red in the .negative'. The
.reason on which
etxt t4tisio.n was founded was shortly this. The
ii,oltents of any .paper
.coald be proved by. that
-ti rer 4,10ne: .If, isolated. parts of it were read,
re,Th?-; 'night produce different effects, than when
4-, :‘ 'With and explained by the whole. The
th.-„ts e°nra .question which had, been submitted to
-I;earned Judoes 'mist be divided into two
Par
0„ '—gtrstiv, if a paper were produced in
tiljzti end. a witness acknowledged to one or
Pupa-writing.
"es/ whether that would go to prove the
i‘iv,riCing. of the paper; to which they unani-
lir:s 3- reply the affirmative. Secondly, 11%,,' be-
adwission,,it would be competent
lj upon the whole contents of the paper.
ury.t.his Part the Judges are unanimous in d.ecid-
in ,the negative.
ope:PO LIVERPOOL SLlZtgested, that it vas now
\vilkter the consideration of their . Lordships,
those"er the evidence should not be received, and
lit
,c,3 Parts expungedY which had .been elicited
ntradiction to the foregoing decisions. -
DONOUGIIMORE expressed a hope that the
bI thil which the Judges had just given would
irrev, means of preventing the recurrence of the
,
th,niarity which: it appeared by that opinion,
Counsel had fallen into. He thought,. how-
r
tecs: that so long as that opinion remained on
Nviiied) they should not suffer the irregularity
hts:',' had taken'place to stand on their Journals
hsoeulti It would be unjust to ,one party that
001114 ; go forth .to the • public. He had no
11,4 s a tacit the object of the Learned' Counsel,
naotiY of fair one,. to discredit thecould testi-
' bat it saf all important • witness* if they ;
tvide_
ce was their Lordships' duty to prevent any
kike !I which was improperly obtained from
thesetulg the credit or character of a witness. On
the ,‘ grsmlads he should move that the whole of
tai r"s-exaniination of the witness, .froin'a cer-
-- Point, be discharged.nOx L
idnrd
st • 413.4En0w..., thought that they could
rlke
.out of their minutes.what Counsel had
Jet.°ll,ll, without -bearing ,Counsel on the sub-
-11(± sho 4,f the Noble Lord persisted in his motion,
1141 move, that Counsel.be heard.
Earl- 1)0NO u agreed with the Noble
`.ors GIIMOTIL ~
!0,,e thus, to the propriety of hearing Counsel be-
' ‘villt,2Y filially' decided on the subject. Ile was
LA 15 tf2. his motion until'after Counsel
-e(m. heard. - - -
to E N tlmught it would be dangerous
ext,4)glii.ze the principle 'of., striking out to the
lou9t,;cPreposed. If they began at all, they
4.144' -hack to the ve‘ry
.coninfericeinent, of the
tte ; and, indeed, it was impossible to fore-
ner.. .
i,l this amputating; brsiness: would', end,
%t."stio.:',l)..rohability till they had ctitaWay every
b9u,,,ii.°` the proceedingsi At the- same. ime he
t the Counsel had a right to be heard.'
t L
Olirs ANSDOWN thought, 'that - adopting the
14°re.; `Proposed by the Noble Earl (DonOuglia.
1)1.1gt, 1/°11,1(1 he doingshatwhich was most i•e'•
44`,.`a11t to
s ti the interests of . justice. it would
wept •• le whole of the cross)examination to be'
"nY•
'e
• viIIANCELLOR said, that the quesh
r whether this portion of Abe, evidence
tilos„u.e struck out or not,. was no doubt.one of
`.,'lnportan t description.
urin
11,Properit, wik,NN,ILLE thought that it rested-more
IN Parts tu Cfminsel to object to and point out
it might;be -desirable to expunge.
ihetlttg..lmithiitch
did not belong to their Lordships
case to •
strike out any thing but what was

pointed out by Counsel, question by question,

and article by article.
The Earl of CARNARVON said a few words in
a low tone of voice,,which were inaudible lieiow

the bar.
Earl of DoNounnmoitE said, it appeared that
he stood alope'ou the question—one simple Lord
among many. If, however, their Lordships Were
willing to allow that to remain on their Minutes
'which-the Judges had decided was no evidence

at all, he could have nothing to say,
His Lordship's motion was withdrawn.—Coun-
sel having been called in.
The 'Lour) CHANCELLOR informed theth that
the House directed that they .should not cross-
examine the witness as to any fact which had not
previously appeared in evidence. Hp was also di-
reCted to inform them'that no questions could be
Put as to the contents pf'a letter which had not
been shewn; nor could they allow. any question
•to be. asked respecting it without sheaving the
whole. But if only a part were shewn, as only
one- or two lines, the littless could not be asked
•as to.that part upleSs the whole were shewn to
her, and she admitted it to be hers.
The Cross-examination was then resumed.—
The following questions were successively put
to the witness, and all received answers in the
affirmative :

Is that letter your hand-writin.,' ?—the next sheet,—the
next,—even to the end,—and the address also,—and the date
and place ?-rYes.
The Counsel was now proceeding to examine
the witness upon the contents of the above letters.
The ATTORNEY-GENERAL said, his Learned

Friend had admitted that he was about to exa-
mine as to the contents of the
„letters, which he
submitted was ina' proper.
The LORD CHANCELLOR said, that one of the
first principles of law was, that if the contents of
a letter were proved, those contents were evi-
dence of themselves. It did not appear, there-
fore, that there was any occasion to pursue the
coarse the Learned Counsel was about to pursue.

Mr. WILLIAMS addressed their Lordships at

some length in defence of the line he was pursu-
ing. He trusted to their Lordships' indulgence
to he allowed to explain, as far as he understood
the nature of his Lehrned Friend's strange ob-
jection. If he understood the matter right, there
never was a more important question, as it affect-

ed the interests .of justice throughout the whole
country, before their Lordships or ank,,other tri-
bunal in the kingdom. And however he might
be inclined to submit to the authority of the
Learned Lord on the Woolsack, he should feel
ashamed of himself, if he did not on the present
occasion, fearlessly and openly state what he
conscientiously thought on: the subject. It
*as the common practice to adduce written au-
thority, if any there were, for an objection on a
point of practice ; but, as his Learned Friend had
not quoted any authority, in the absence of his
statement, he must conclude, that there was none
to quote. He • must, therefore, remind their
Lordships of what was the rule recognized in all
Courts of Law on this point. And he could fear-
lessly state, that.on no rule whatever were writ-
ten documents admitted as evidence, except on
the party interested .being able to spew that such
documents contained a contradiction of what the
witness in another manner stated. No letter
could be taken as evidence, nor what was said to
any person in any one place, except in compari-
son and contradiction of what was said in• an-
other place, or to another person. He could
state plainly to their Lordships what was the law
on this point, such as he had himself practised,
known, and suffered. it. How could the contra-
diction be made out, unless by sheaving that the
witness denied what she had written. The•wit-
ness must, in' fact, not only be proved to have
written the letter, but to have denied what
she or he had so written. Of the import-
ance of this point, he would be excused in
saying a child might judge a and it was as fresh in
his recollection as though it had happened only
the other , day, that a question of this kind arose
before a Judge, who, he might say, with Out
fear of offending, was exceeded by none in the
khowledge of the Law of Ettg,land. He remem-
bered perfectly that he had a witness called
against him to prove a certain fact, in Contradic-
tion of which fact he possessed a letter, written
by the said witness. The examination and cross-
examination were allowed to pass without ques-
tioning this witness as to the contents of the fet-
ter, and when after this he produced the letter
as evidence against the witness, Mr. Scarlett ob-
jected to the produc,tion, saying, with a taunt
which he acutely. felt, that he had alloWed the
only time that he could have made' the instru-
ment evidence to pass, and must therefore suffer
for the act of folly which he had so. imprudently
and illegally.comKiitted. lie 'did stiffer in con-
Sequence, for,Mr. Baron WoOd ruled against him..
It was the same in all cases ; if you let a Witness
escape from the box before you make him cert.,
tradict himself, in what you have written or pa-
role testimony to establish' against him, that tes-
timo'ny will not serve a tittle in,point of evidence.
By the same' unerring absolute analogy it' was in
the present case, if they alloWed that woman to.
escape without contradicting these-letters, then
With a hundred-fold ;weight Might it be said,
you haVe, allowed the only thing' which could
make them evidence pass by, and you must thank
your own folly if you receive a' verdict against
you., • With the help of what little share ofcom-
mdn sense he possesSed,- he vowed- to God he
could see no reason for the objeCtion whfch had
been raised.
Mr. BROUGHAM followed' on the same side.—
Had it not been 'for'the 'extraordinary objection
which bad, been made,' he should' not even have
troubled their Lordships with the few words it
was .hisintention to deliver. To whatever deci-
sion their Lordships should come on *this- subject,,
he trusted-they would bear in mind' that the rule
now to be laid down would affec the whole pro-
ceedings-in such matters', ' not only in the High
COurfOf Parliament,'but iu gradual descent down
to the most humble tribunal. The rule Of evidence,
such as it had been stated by his Learned Friend
before him) he tools to be clear; and laid down as

uniform, and was such, -he was sure, as 'not
to .sanction the rule contended for by the
Learned Gentleman on the other sides One dis-
tinct and, principal feature of it was that nothing
could be received as :evidence against a man
which he had not himself in gOllle way or other
contradicted; In the case of a written Instru-
ment, therefore,• it was obvious this could, not be
done, without putting questions to the witness
as to the contents of that document. And the
reason of this rule was obvious, for a party would
not be fairly dealt by who was not warned that
an examination was, to take, place, for the pur-
pose of contradicting his evidence. if, without
giving any. sort of notice, Counsel could -• be al-
lowed to take. a letter out-of his pocket,' whose
contents should be totally different from What any
witness had before stated, it w0u,14 be certainly
giving a. very unsafe and unjust latitude ; for,

had the witness had due notice of what was about
to be brought forward, be' might have been able
to relieve himself froth the opprobrium of incon-
sistency or contradiction on his character, by
making some explanation which he alone could
make. Being placed on his guard, with respect to
something lie may have forgotten, by stating some
trifling circumstance, he may be able to remove
this staiti upon his character. The whole
of the common sense of the matter he conceited
to be with his Learned Friend and hiMself. If

the rule were other than it was, it was plain to
see that one consequence would be that it would
be competent in all cases to bring every letter
that a man ever wrote against him, without one
single, question being asked to lead his Mina to
any one point they were intended to prove. If
their Lordships decided for such a rule, they
would only impose new shackles on them ; then
sending them forth with this additional fetter
round their necks to sink them in 'every Court of
Justice in the kingdom, their bodies would he
the property of their Lordships, their reason re-
mained unconuinced.
The ATTORNEY-GENERAL contended that all
authority was in favour of his Objectiori in this
case. lie could not understand what more his
Learned Friends could want, than that these let-
ters should be allowed to be read as evidence.
This they had already got ; for as soon as they
were put into the hands of.the witness she ad-
mitted they were hers. They bad taken good
care to do what Mr. Williams had omitted in the
case before Mr: Baron Wood. The letter ought
to be produced. His Learned Friends could not
enter upon the contents of it in the way they
were attempting. They could only shew whether
the witness bad spoken that which was true or
untrue by producing the letter. They must
bring forward evidence- of contradiction. The
course pursued by his Learned Friend was irre-
gular. Papers must be introduced at the proper

•
time. • .. ,
Lord ERSKINE said, when the case of the ac-
cused came after the case. of the accuser the prac
tice.had been to take care the rules for the pro-

tection of tire subject were not broken down.—

The witness•hatla right to hear the letter read,
and the Noble and Learned Lord did not see
how-the house could withhold that right. After
the letter had been. read the witness might be
asked how she reconciled the matter she had
stated, and that she had written ?
The LORD CHANCELLOR then submitted to the
Learned Judges the, point of. law, stating the
situation of the witness, and asking at what stage
of a similar proceeding in the Courts below, should
the letter be read by Counsel ?
The Judges decided that Counsel had no right
to put questions to the witness respecting parts of
the letter,- unless the letter itself was read. In
delivering that opinion the Judges did not lay
down any new rules of evidence ; but they
founded their opinion, on the strict rule of evi-
dence long sanctioned by the law, namely, that
the contents .of a written instrument must be
proved by reading it. . .

The LORD GIANCELLOR observed, that' if
Counsel, in cross-examining, suggested that he
wished to have the letter read in order to pro-
pofind other questions, he might hav-e the letter
read, subject to all the consequences of making
it evidence.

Counsel were called to the bar ;' and •
The LORD CHANCET:LOR said, he was directed
to inform them, that the witness could not be
examined whether'she did or not in a letter make
certain statements,' but thO letter must first be
read, to manifest whether she had written the
parts to which Counsel referred. in cross-exa-
mination the HouSe would Suffer such letter to
be read, subject to all the 'consequence& of having
it made part of the evidence.
Mr. BROUGHAM took the liberty, of handing-to
the . Lord Chancellor. a case, 11th State Trials,
page 140, in wliich Counsel for the prosecution
cross-examined from a letter not read in. Court.
The witness was again put to the bar.
Further: Examination qf Madame DumclNT.
17.itYlooint
gh:rv?eiciitclayouieu hate been from home about thirteen
months Yes:
away in July twelve months,
Were yon, ever in England before this tune?-.Nn. ,
• Who came with yof?-My sister and two friends, Mr.
paget and Mr, Croft.:
You came to England at the same time ?—Yes.
From ?—From Switzerland:
. Yon have been at Vienna ?—I have not been there since I'
was there with.hcr.Boyal
were you examined at Milan ?—:-Yes.
'vv as Vihriacarti one Of the Connie) there?—Yes.
Was Mr. Pawl there ?—Vilanacarfi anti three ethers were
',regent.
Were there any more ?—I do not know.
',yes Mr.• Bowel there ?----Yes.
Wag Colonel Brown there?—:-Yes, he was there.
Were you examined Foote than once ?—1 was examined
once.
Where ?—At •
Anv where else?—Only at Milan.
How long ago ?—ln the month of January or•Febrnarv.
where did you go from to be examined ?--L1 went from
Switzerland.
• Yon had been at your owa home ?—Yes..
Not in service ?—1 lived at home.
•
I-lace von finally agreed what yon are 'to have for giving
evidence') "L•Tbey have premised .me .rlgthing -for giving.
evidence.
you Caine away
lrony::eyetylotyjui.6.nimal toal etndttk,h, er:y:sontairany
or tplf'aix)n-pßtelelbtee before
rricge.
io6fr my r•ogag•c•
•
giving eVidence ?--I exriet 'nothing at all
• • r ,
this coming to
f rN coQeibeiltl'hYti eoraren.pdreferment?—l expect nti benefit for coming
here.

Litt& not believe, on your oath, that you are to receive
anylooney or bore& for corning to England ?—I expect no
advantage for coming here, only that they should pay my ex-
petters, and no more.,
is pat alt yuu believe you are to get ?—I expect nothing
further. '

And you' believe you shall Imre nailing' more do not
shall have any thit,g more.
I think you told 1.13 youltad never.been in,service since you
iclt the Princess of Wales have been in 'no other service.

Here Counsel pr4osed•to read the letters.
The Earl of LIVERPOOL suggested that the
letters be read first in rrehch, and then trans-
lated. . . • _

• The SOLICITOR-GENERAL observed, that ,it
was to'be understood Counsel,. in reading the
letters, brought themselves within the rule laid
down. The letters were not to be read ,unless
questions were to be put.
..
Mr, WILLIAMS said, he did not mean to assign
over any interest he might have in the letters. rt
was not assignable property.
The SOLICITOR-GENER 1L expressed a hopti
that there was no intention to get the letters
read, and afterwardS evade the rule laid down,
by a plea of not understanding it.
The Lorin CiiiiNctr.Lon. observed, that no
Counsel would think
,of putting question 3 for
evasion.' Perhaps it would he as well to tau.:
time to consider and read the letters to-morrow.
They might Also then determine what they
would do to prevent any evasion.
The Earl of DONOUGHMORE expressed a strong-
desire to prevent any precedent or rule of a dart-
gerous tendency from being ad'opted. •
The LORD CIIANcELLOR intimated' that the,
rule_ called upon the Counsel to state to the
House his' belief that it was exyertient, for the
purposes of cross-examination, the House Should
permit the letters to lAq read.
The Earl of DONOUGHIMORE.-Counsel might
mean to bring himself within the verge .of the
rule„ but the document could not be 'read unless
under a bona fide statement that the reading -w-2,s

necessary. Counsel did not state that it was ne-
cessary, but that he would -bring himself Within
the rule of their Ludships. He might ask, what
was, the meaning of that reserve ?
The LORD CHANCELLOR observed, that it was
open to their. Lordships to adopt any further rule
which the subject might require.
Mr. BROUGHAM said, as it was,near the licur
their Lordships had fixed for adjournment, he
',wished to postpone the reading of the letters till
to-morrow morning: ,
This suggestion met with the approbation of
the House, and an .adjOurnment immediately
ensued.