and that question, as proposed by the House, contains these words," the witness being re-examined, had stated what induced him to mention to C. D. what he had so told him;" by which, I understand, that the witness had fully explained his whole motive and inducement to inform C. D. that he was to be one of the witnesses; and, so understanding the matter, and there being no ambiguity in the words, "I am to be one of the witnesses," I think there is no distinction to be made between the previous and subsequent parts of the conversation, and I think myself bound to answer your Lordships' question in the negative. I think the counsel has a right, upon re-examination, to ask all questions, which may be proper to draw forth an explanation of the sense and meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and, also, of the motive, by which the witness was induced to use those expressions; but, I think, he has no right to go further, and to introduce matter new in itself, and not suited to the purpose of explaining either the expressions or the motives of the witness. And, as many things may pass in one and the same conversation relating to the subject of the conversation, (as, in the case put by your Lordships, the declaration of a witness that he was to be a witness in cause or prosecution,) which do not relate to his motive or to the meaning of his expressions, I think, the counsel is not entitled to re-examine to the conversation to the extent to which such conversation may relate to his being one of the witnesses, which is the point proposed in your Lordships' question to the Judges. And I distinguish between a conversation which a witness may have had with a party to the suit, whether criminal or civil, and a conversation with a third person. The conversations of a party to the suit, relative to the subject 1820. The QUEEN'S Case, 1820. The QUEEN'S Case. subject matter of the suit, are, in themselves, evidence against him in the suit, and, if a counsel chooses to ask a witness as to any thing which may have been said by an adverse party, the counsel for that party has a right to lay before the Court the whole which was said by his client in the same conversation; not only so much as may explain or qualify the matter introduced by the previous examination, but, even matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion. But the conversation of a witness with a third person is not in itself evidence in the suit against any party to the suit. It becomes evidence only as it may effect the character and credit of the witness, which may be affected by his antecedent declarations, and by the motive, under which he made them; but, when once all which had constituted the motive and inducement, and all which may show the meaning of the words and declarations has been laid before the Court, the Court becomes possessed of all which can affect the character or credit of the witness, and all beyond this is, in my opinion, irrelevant and incompetent. On these grounds I feel called upon to answer your Lordships' question in the negative. The counsel were called in, and were informed by the Lord Chancellor, that the question which gave rise to the above discussion could not be put. The The following questions were proposed by their Lordships to the learned Judges, and were delivered to the Lord Chief Justice. 1820. The QUEEN'S October 7. 1. If a wit ness examined in chief on the Plaintiff, being asked whether he remembers taking place First, If, in the courts below, a witness, examined in chief on the part of the Plaintiff, being asked whether he remembered a quarrel taking place between A. and part of the B., answered, that he heard of a quarrel between them, but he did not know the cause of it; and such witness was not asked, upon his cross-examination, whether he a quarrel had or had not made a declaration stated in the ques- between 4. tion touching the cause of it; and, in the progress of and B., anthe defence, the counsel for the Defendant proposed to swers, that examine a witness to prove that the other witness had of a quarrel made such a declaration to him touching the cause of between them, such quarrel, in order to prove his knowledge of the but does not cause of the quarrel: according to the practice of the cause of it, courts below, would such proof be received? Secondly, If, in the courts below, a witness, examined he has heard know the and such wit ness is not asked, upon his in chief on the part of the Plaintiff, being asked cross-examinwhether he remembered a quarrel taking place between ation, whether he has or has not made a de A. and B., answered, that he did not remember it; and such witness was not asked on his cross-examin- claration stated in the question ation, whether he had or had not made a declaration touching the stated in the question respecting such quarrel; and, cause of the in the progress of the defence, the counsel for the De- quarrel, the fendant proposed to examine a witness to prove, that Defendant the other witness had made such a declaration, in order cannot, in order to prove such witness's counsel for the knowledge of the cause of the quarrel, afterwards examine a witness to prove that the other witness has made such a declaration to him touching the cause of such quarrel. 2. If a witness examined in chief on the part of the Plaintiff, being asked whether he remembers a quarrel taking place between A. and B., answers, that he does not remember it, and such witness is not asked, on his cross-examination, whether he has or has not made a declaration stated in the question respecting such quarrel, the counsel for the Defendant cannot, in order to prove that such witness must remember the quarrel, afterwards examine a witness to prove that the other witness has made such a declaration. VOL. II. to 1820. The QUEEN'S Case. to prove that he must remember it: according to the practice of the courts below, would such proof be received? The Judges desired leave to withdraw, which they did; on their return, ABBOTT C. J. delivered the following answer to the House. My Lords, the Judges have considered the questions proposed to them by your Lordships. One of those questions is in these words. (Here the Lord Chief Justice read the first question.) The Judges are of opinion, my Lords, that this question must be answered by them in the negative. The question proposed to the witness, upon his cross-examination, is, do you remember? That question applies itself to the time of the examination; and many things may have taken place, and conversation may have been held upon them at one season by persons of the strictest honour and integrity, which may, at another season, be absent from their memory. It must be in the knowledge and experience of every man, that a slight hint or suggestion of some particular matter connected with a subject, puts the faculties of the mind in motion, and raises up in the memory a long train of ideas connected with that subject; which, until that hint or suggestion was given, were wholly absent from it. For this reason, the proof, that, at a time past, a witness has spoken on any subject, does not, in our opinion, lead to a legitimate conclusion that such witness, at the time of his examination, had that subject present in his memory; and, to allow the proof of his former conversation to be adduced without first interrogating him to that conversation, and reminding him of it, would, in many cases, have an unfair effect upon him and upon his credit, and would deprive him of that reasonable protection, which it is, in my opinion, the duty of every Court to afford to every person who ap pears pears as a witness on the one side and on the other. According, therefore, to the practice of the courts below, a witness is asked, on cross-examination, whether he has made a declaration or held a conversation; and, such previous question is considered as a necessary foundation for the contradictory evidence of the declaration or conversation to be adduced on the other side. I must, however, my Lords, take the liberty to add, that, in any grave or serious case, if the counsel had, on his cross-examination, omitted to lay the necessary foundation in the way in which I have mentioned, the Court would, of its own authority, call back the witness, in order to give the counsel an opportunity of laying the required foundation, by putting his questions to the witness, although the counsel had not before asked them: it being much better to permit the order and regularity of the proceedings as to time and season to be broke in upon, than to allow irrelevant or incompetent evidence to be received. My Lords, this being the opinion of the Judges upon the question, which I have taken the liberty to read to the House, it will follow as a consequence, your Lordships will be aware, that to the other question, which applies itself to the witness's knowledge of a particular fact, the same answer in the negative must be given; and, in addition to the reasons with which I have troubled your Lordships on the first question, it may also be added, where the question proposed regards the witness's knowledge, that, although a witness may have mentioned a fact in ordinary conversation at a former period, it does not follow, that he may have that which, in a court of law, can be considered as knowledge of the fact. A fact is often mentioned in conversation from the representation of others, without such a knowledge of it as can enable a person to say in a court of law, I know the fact. 1820. The QUEEN'S Case. |