The Ayes and the Noes on the Amendment of Mr. Disraeli to the House going ... ... The Ayes and the Noes on Amendment to Adjourn the Debate on St. Albans ... ... The Ayes and the Noes on the Amendment of Lord John Russell to the Motion ... ... The Ayes and the Noes on Mr. Newdegate's Amendment to the Second Read- ing of the Oath of Abjuration (Jews) Bill The Ayes and the Noes on Mr. Hume's Amendment in Committee on the Pro- The Ayes and the Noes on the Motion of Lord Naas, "That the House resolve itself into Committee to Consider the Present Mode of Levying the Duties on Home-made Spirits in Bond" The Ayes and the Noes on the Amendment of Mr. Chaplin to the Order of the Day for the House to be put into Committee on the Audit of Railway Accounts The Ayes and the Noes on the Amendment of Mr. Urquhart to the House going ... The Ayes and the Noes on the Amendment of Sir G. Grey to the Motion of Mr. The Ayes and the Noes on the House going into Committee on the Ecclesiastical The Ayes and the Noes on the Question in Committee, "That the Preamble of The Ayes and the Noes on Mr. Fox's Motion for the Promotion of Education... 1298 The Ayes and the Noes on Mr. T. L. Hodge's Motion for a Reduction of the Duty HANSARD'S FOURTH SESSION OF THE FIFTEENTH PARLIAMENT OF THE UNITED KINGDOM OF GREAT BRITAIN AND IRELAND, APPOINTED TO MEET 21 SEPTEMBER, 1847, AND FROM THENCE THIRD VOLUME OF THE SESSION. OR Ding read. LORD BROUGHAM:* The Bill to which I propose your Lordships should give a second reading, consists of two branches-the amendment of the practice of the courts respecting evidence in some important particulars-and the admission of the parties to suits in all but a very few excepted cases to be themselves examined as witnesses. It is nearly the same as the Bill which I presented two Sessions ago, but which, from accidental circumstances, was not proceeded with. I hope and trust with the concurrence of the Legislature; but at present I purpose confining my statement to the most important portion of the measure, the making parties com-. Whatever may have been the notion at one time prevailing, though without any sanction from judicial decision, that parties are excluded as witnesses merely as parties, and independent of their interest in the event of the cause, it has, in a well-known case about twenty years ago been autho- ritatively laid down that their interest alone makes them inadmissible. Court of Common Pleas in Worrall v. Jones (7 Bingham) had this point fully argued before them. My noble and learned Friend (the Lord Chancellor) maintained the proposition with the ability and fulness of information which he brought to all causes that had the inestimable benefit of his advocacy, showing by numerous in- stances that a party having no interest is B interested; but that their credit alone shall be affected by this consideration? Instead of arguing the advantages of examining those who best know the whole case, or dwelling on any of the other obvious reasons for their admissibility, I shall begin by meeting the arguments that are urged against it; and I go at once to that which forms the main ground of the objection, the apprehension that a door may be opened to perjury; that the amount of perjury committed in causes and the Court, after taking time to consider, pronounced that to be the law by the mouth of the late lamented Chief Justice (Tindal). It was, indeed, long the belief in Westminster Hall, that Lord Mansfield and Mr. Justice Buller had severally declared their inability to see any reason why eitheir party might not, if he chose to risk it, call his adversary as his witness; and certainly an unreported case (Cox v. Whalley) cited in the argument on Rex v. Woburn (10 East, 398), gives some countenance to the ru-may be increased-for we must at once mour as regards Lord Mansfield, by the analogy to which he refers of bills of discovery. However, we may now take it to be settled law that the exclusion of the testimony of parties rests entirely upon their interest; and consequently, that where there is no interest, they are not excluded. I presume to think it is quite as clear a consequence of the decision, that when in all cases interest has ceased to work an exclusion, no objection to the competence of parties can remain; and clearly so thought the Legislature in 1842; because when Lord Denman's most beneficial Act passed, there was introduced the exception which it is the object of the present Bill to repeal that exception of parties, clearly showing that but for its positive enactment they must have been admissible under the general provisions which prevented any witness from being made incompetent by reason of any interest whatever in the cause. There has rarely been a greater benefit conferred upon the law, or a greater relief granted to those who administer it, than this statute, which we owe entirely to Lord Denman, sweeping away the most absurd and shadowy distinctions, preventing the daily failure of justice through the most groundless and inconsistent technicalities, alike saving the suitor from unexpected defeat, and the Judge from inextricable embarrassENG. The whole of the new law is comprised in a sentence-No kind of interest, however direct, however ample, in the cause he is called to support by his testimony shall ever form the least objection to hearing all he has to say upon the subject of that cause: such interest shall only be considered in weighing his credit, not in determining his competence. Then is it not a corollary to the proposition, rather is it not one case of the proposition, that parties shall not be prevented from deposing, how deeply soever they may be Lord Brougham throw aside the suggestion that the evidence of parties is of little value, this being only a topic for consideration in weighing their testimony, not a reason against admitting it. And, first, I will grapple with the argument wholly independent of the experience afforded by the new system of local judicature-and as if we were dealing with the case on principle, before any experiment had been actually tried. First, then, let me ask those who dread the perjury of parties, if they who would forswear themselves are incapable of suborning others to swear? The objectors really speak as if subornation were unknown, and parties could only falsely swear in their own person. But there are many reasons why suborning should be more rife than perjury. Men will set on others to swear falsely who may shrink from perjuring themselves. The men who might be incapable of swearing falsely for themselves from sordid motives, will often, to save or serve a friend, an employer, an associate, a confederate, I won't say swear falsely, but colour their statement of facts, suppress a part, exaggerate the rest, give a leaning to their story on one side, all of which forms the bulk of the falsehood too often observed in courts of justice, because all of it is far less easily counteracted and detected than downright perjury, of which, however, it has all the moral guilt. But then observe how much more powerful is the check of public reprobation, acting against the party who is seen to come forth in the face of day with a false story, from sordid motives, for his own gain, than against the witness swearing for a friend, a master, or an ally. It is very far from being practically true, that the great bulk of perjury is owing to direct interest operating on the mind of the witness. Zeal, favour and affection, hatred and spite, partisanship, perverted notions of obligation, notions yet more perverted of duty towards an employer, or kindness towards a con | (for it may be said that other witnesses being also exposed to the same process, this argument is common to both kinds of proceeding)-but the party is also exposed to the deposition of his adversary, who will assuredly contradict him if he falsely swears; and this is a risk which the suborned witness does not run-a chance of detection which that witness escapes. The examination of both the parties necessarily must be on every part of the case, and on their compared and contrasted testimony the Court can well decide. nexion, or honour towards an associate these mainly work upon men's minds, and form the armoury from which the suborner fits forth his agents-and against those agents thus provided the public reprobation operates far less potently than against the party who avows himself moved by self-interest alone, and who swears in the presence of a most suspicious audience, disposed severely to condemn, as well as scrupulously to sift. Nor will it suffice to say, that one party may be disposed to favour himself, and not the other, and that you give an advantage to the knave. Is it meant to be contended that the subornation must always be on both sides? On the contrary, there may be nothing like a conflict of subornation, nothing like a ri-us; it permits us; and it permits us prevalry of conspiracy. It may be all on one side, nay, it most probably will be all on one side; because the chances are much greater that one only shall be able to find fit agents for his purpose, than that both should have an equal facility of this kind, and that one only should avail himself of it, even if it were equally open to both. Let me next remind your Lordships how much easier of detection the party's false tale is than the witness's. He must go more fully into all the particulars; he knows the whole matter, and on the whole matter he must have his testimony sifted. The longer and the more minute a story is, the more exposed is it to detection if groundless-the more materials does it furnish for detection by cross-examination, by comparison of its parts, by contrast with other evidence. Your ordinary witness swears to a part, and he is craftily instructed on that part alone: he confines himself to it, and care is taken that he shall come upon no ground where another witness or other evidence may meet him. Again, the exclusion of the parties as witnesses, makes it necessary to examine a number of other persons. The chances of perjury are increased with the number of witnesses. The total amount of perjury must bear a proportion to the number of witnesses examined; and I have shown in what manner persons are too often and too easily found to give a testimony substantially untrue. Furthermore, those who consider that parties have only to throw away all conscientious scruples, and then they may prove their case by forswearing themselves, forget that those parties not only are exposed to the searching process of examination by their adversary and by the Court But, next, let me ask if our apprehension of perjury prevents us from allowing parties to swear in their own case, as the law now stands? It in no wise prevents cisely in those cases, and in that manner, the most exposed to the risk of false swearing--the least fenced against it-the most scantily furnished with means either of preventing it or detecting it. First of all, as my noble and learned Friends the Chancellor, the Chief Justice, and the Vice-Chancellor well know, affidavits form the evidence on which the great bulk of all our proceedings in courts of justice rest, I mean proceedings in which the Judges and not juries are not to decide. Next, these affidavits may be made just as well by the parties to the suit as by strangers; and in fact by far the greater portion of them are the depositions of the parties. Whether at law or in equity, then, the staple of the evidence upon which the Courts have to act, is the depositions upon oath, in writing, and chiefly the depositions of parties. Now these depositions are given without any check whatever upon the parties, any guard whatever against falsehood, except what is afforded by their own consciences. The affidavit is prepared in secret; it is sworn in private. It is prepared by professional skill, and carefully framed to prove the case of him who is to swear it. Let us hope that when he sees laid before him the precise statement which his professional adviser informs him will best serve his purpose, he may be deterred by the fear of committing perjury, and reject the hope of gaining his cause. Let us trust that the adviser has in all cases first asked his client what the facts are; but even then he is not bound to state all the facts whether they make for or against. Yet one thing is certain, namely, that the righteous course may or may not be taken; that all is transacted in secret; |