The Sun.
London, England, 1829-01-06 00:00:00

duced, which it may never be possible to coun-
teract or disprove. But while hardships pos-
hibly may occur in rare cases, the advantage de-
rived on the whole, from a full expiscation
of the character and history of witnesses, must
far outweigh any occasional inconvenience to
individuals. _ _ .

Further, however, no danger or practical in-
convenience has ever been felt in the more ex-
tlnded practice of England, from the interroga-
tion of witnesses as to their life and conversa-
tion. On the contrary, it would not be difficult
to show that the old Scots practice was more
severe and unfair to the witness. •For when a
party was obliged in Scotland to state a strong'
and exaggerated objection to admissibility, in
order, by that disguise, to convey an objection
to his credit, to the Jury, he unavoidably in-
jured the character of the witness more openly
anti outrageously, because the object could not
he obtained in any other way than by that
clumsy expedient. Of this, an excellent ex-
ample may he seen by looking into the case of
Lord Fife's Trustees, so late as 1816, reported
in the Ist volume of Mr. Murray's " Reports,"
p. 131—where a witness (Mr. Forteath Wil-
liamson) was so abused, that he afterwards
brought an action of damages against the litigant
who injured hitt. Stich an injury, however,
may often he prevented or mitigated if the wit-
ness can be directly asked explanations as to his
own transactions, without any introductory com-

ment or accusation.
It was argued on Wednesday evening, that
the practice of England on this—matter was in-
applicable to Scotland, because the English pri-
soner gets no list of witnesses. This, however,
was an unfortunate reference, as in the most se-
rious class of cases in England (those of trea-
son), the prisoner does get a list of witnesses,—
but the reader has only to look into the State
Trials to perceive that the line of examination
now objected to, was never prevented, even in
cases where the most specific lists are given to the
prisoner in England.
But if the right to expiscate the history of a
witness depended on the delivery cf a list of wit-
nesses, a curious result would follow in Scot-
land. The prisoner gets such lists, but the
Crown gets none. Hence the crown might take
up the history of a prisoner's witness, while the
prisoner could not commence such an attack on
a witness for the prosecution. But such a prac-
tie° could never be sanctioned in law. We ra-
ther think that in the long run it will be found
indispensa!slv necessary to hold this expiscation,
as competent to both parties, whereby the prose-
cutor will be enabled its, expose the desperate and
unprincipled characters often brought forward as.
witnesses in exculpation.
Finally, when it is said that witnesses may be
deeply injured and vilified by a hostile party
against whom they are called, the ulterior pro-
ceedings in the case of Forteath Williamson
afford the answer. If any party wantonly and
unnecessarily attempt thus to gratify malice to-
wards a witness, the remedy of an action of
damages is open to him. It seems equally in-
expedient and impossible for the law to afford
any farther protection to witnesses.
We may also take this opportunity of mention-
ing, that another most important point in evis
dence had very nearly arisen in the above trial,
which it is perhaps fortunate was not urged to
decision, when the Cost was fatigued and
exhausted. The Counsel for the prisoner at one
time pointed at asking the accomplice, " If he
had never given a different rweount of the cir-
cumstances deponed to, than that which he had
then given ?" This question (which the prose-
cutor skewed an anxiety to resist,) was not after-
wards pressed. The importance, however, of
such an investigation as a test of a witness's
credit and accuracy, is too obvious to be ques-
tioned. We are aware of the common grounds
on which this enquiry has sometimes been ob-
jected to ;--such as, that the extra judicial state-
ment of a witness not on oath cannot set aside
his testimony upon oath,—that profligate parties
might take such means to disqualify themselves,
and so forth ; all which is decisive to shew, that
the witness should not be altogether rejected on
this ground. But if a witness is a person of
such a character, as to tell one story last week to
parties anxiously interrogating him to sift the
truth—and another when brought before the
Jury,—is it necessary or fitting that this should
be concealed from the Jury ? It is all true that
the.opposite statements of the witness may be
explained, and sometimes cleared up in such a
way as to add to the weight of his testimony.
But taking the question as a general one, is it
consistent with justice or common sense, that a
witness capable of giving different accounts of
the very same transaction, should stand before
the Jury clothed with the same credit as the
most respectable member of the community ?
As to the danger and inconvenience said to
result from such an investigation, we believe that
it will be found as visionary as the apprehensions
on the other point ahleady considered, and the
long practice of England is sufficient to demon-
strate this. We trust, therefore, when the ques-
tion now indicated coiees to be discussed, the
Court will meet it fairly and dispassionately, and
not suffer it hastily to be over-ruled, The forms
of our own Criminal Trial are so excellent, that
we readily excuse the jealousy of any appeal
to English practice ; but the rules of evidence
and the competency of interrogatories- to wit-
nesses, are juris gentiurn ; they belong not to
the forms, but to the very substance of the law in
the investigation of truth ; and therefore on such
points we should regret to find the Court averse
to receive as authorities, either the law of Eng-
land or of any other country, where law is culti-
vated as a science.
It may appear unusual to occupy so much
space with the discussion ofa question, which at
first sight seems a mere professional point. But
as every question in the criminal law is of deep
importance to the liberty and security of the
people, we think that the public attention should
be directed to such questions in a constitutional
point of view, so as the public may be led to
take an interest in subjects which thus so highly
concern them.
At present we shall close our remarks, by di-
recting the attention of our readers to the law of
England on the points which have now been ad-
verted to, as it well deserves consideration in the
discussion of every question upon evidence, not
absolutely settled either ley inveterate usage, or
by decisions, of weight during the best times of
the law. Mr. Phillips, a writer of the hi hest
authority, says—" There are several ways of
im-
peaching the credit of a witness—l. The party
against whom a witness is called may disprove
the facts stated by him, or may examine other
witnesses as to his general character ; but they
will not 6e allowed to speak to particular facts or
parts of his conduct ; for though every man is
supposed to be capable of supporting tisz one, it
is not likely that he should be prepared to answer
the othet without notice, and even if he should
happen to be prepared to defend himself, such