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ART. V.-NEW LAW STATUTES OF THE SESSION.
N resuming our summary of the legislation of the past session as it affects the procedure and practice of the courts of law and equity, we may begin by congratulating the country upon some very valuable and important additions to the Statute Book which have passed into law since the appearance of our last number. The voice of public opinion, for some time raised against the over-strict refinements which, in many instances, disfigured our system of legal procedure, and rendered it not unfrequently an engine of chicanery and oppression, has, we are happy to say, at length forced itself upon the consideration of parliament; and one or two highly salutary acts directed to this object have recently received the royal assent. We hail this as the beginning of a new era in our courts, when substance will be no longer sacrificed to mere form, and when the rights of the litigant parties will be disposed of more speedily and less expensively, but at the same time with an increased satisfaction and respect for the judgment of the law. It rests much with lawyers themselves to carry to a successful issue this good beginning, and we earnestly trust that the profession will see how greatly to its own interest it is to unite in the common purpose of facilitating the attainment of justice between litigant parties, and how detrimental to its welfare are those practices which have not undeservedly brought upon it the reprobation of persons who, viewing it from a distance, are perhaps better able to form a rough and practical estimate of its merits or demerits. In these days of increased progress, any obstruction to the advancement of the science of law ought to be unheard of; still less should it be possible to assert, with any appearance of truth, that such an obstruction is sanctioned by those who have, from their practical experience, the best means of appreciating the subject. While, however, we make these remarks, we think it right to enter our earnest protest against an accusation which has been, we fear in no friendly spirit, advanced against lawyers as a class. Wherever any disinclination to change has been found to exist in the profession, we are confident it does not arise, as is insinuated, from any fear of interference with the interests of the individual. It is with great regret that we hear such sordid motives seriously imputed to a body of men whose general character is so universally recognized. The more true reason may, we think, be sought in the habit acquired by every man's
mind of esteeming that mode of operation, with which he is practically and habitually conversant, as the one best adapted for the purpose, and consequently of feeling disinclined to engraft any great change into the existing system. Lawyers and judges, like other reasoners, come to look upon the determination of the rights of parties brought within their cognizance as an abstract science, and they are apt to reduce to strict rules what must ever in a great degree depend upon the varying circumstances of human life and action. Justice is itself immutable, but the subjects to which it is to be applied are constantly changing.
The method of applying the abstract principles of law to actual practice, or, in other words, the system of legal procedure, of necessity requires constant modification. Tanquam clavus ejicit clavum, one mode is found preferable to another, and the new course of proceeding will supersede that which went before. The great desiderata of a sound system of jurisprudence are the extraction of truth, and a reasonable certainty that the party really in the right shall succeed. It is to this object that all real law reform must be directed; and although we have had occasion in some recent instances to doubt whether the means devised for obtaining that end are the best calculated for the purpose, still any measures which fall short of actually thwarting that object, we are bound to receive and test, trusting that further experience will lead the legislature to a more correct knowledge of what is required to be done, and of the mode of doing it.
The first of the new statutes to which we shall advert, although it does not stand the earliest in point of date, is that for the amendment of the Law of Evidence in all courts and tribunals, civil or criminal. This is perhaps one of the most thorough and radical alterations in legal procedure which has occurred for centuries, and from its universal importance we place it in the foreground. There is no action or indictment, or other proceeding depending upon the examination of witnesses, which will not be directly affected by its operation. As will be seen, it works an entire change in the principles of evidence, as it has been for ages admitted in English courts of justice; and it extends to the superior courts an experiment hitherto tried only in those small tribunals which have been recently erected throughout the kingdom. It is not our province at the present moment to consider whether the change sanctioned by this statute be prudent or not. There is much diversity of opinion upon that point, and we have on a former occasion expressed our doubts whether the legislature may not have been too hasty in introducing into the superior tribunals a class of evidence which may possibly have been found
to work well in the County Courts, but which may still prove utterly unadapted to the trial of more serious and extensive rights. The mischief, if it exist, is already done, and it is only after a practical experience that the system can be now again altered by the legislature. However, this is one of those matters upon which it is scarcely possible for even the most experienced mind to form an à priori judgment, or to foresee what may be the ultimate consequences of an alteration so extensive as that of admitting the evidence of parties in their own favour in all suits and inquiries, of what nature or kind soever.
In order fully to appreciate the extent of this alteration, and to see its bearing upon the pre-existing practice, it will be necessary shortly to call our readers' attention to the former rules of evidence in this particular. The sole object of the law of evidence being to ascertain by the best and surest means the attainment of truth, it is obvious that every species of proof cannot properly be admitted. The question to be determined with reference to any proposed kind of proof is, whether, on the whole, its admission would be most likely to lead to truth or error. the former, it should clearly be admitted in evidence; if the latter, it should as clearly be rejected. Acting upon these notions, our ancestors excluded several kinds of parol proof, i. e. proof by oral evidence, and held that witnesses were incompetent on various grounds, one of which was that of being interested in the matter at issue. The general rule therefore observed in criminal as well as in civil cases was, that a person interested in the event was not a competent witness in the inquiry. (See Rex v. Williams, 9 B. & C. 549.) The reason for this exclusion is thus stated by Chief Baron Gilbert in his Treatise upon Evidence, p. 122:-" When a man, who is interested in the matter in question, comes to prove it, it is rather a ground for distrust than any just cause of belief; for men are generally so shortsighted as to look at their own private benefit, which is near to them, rather than to the good of the world, which is more remote; therefore, from the nature of human passions and actions, there is more reason to distrust such biased testimony than to believe it."
If the interest of the witness were certain in its nature, he was thereby rendered incompetent, however small the amount of his interest; and therefore, in cases where this rule of law operated to prevent a person, who was able and willing to do so, from giving evidence in behalf of another, the mode of restoring his competency was by his releasing all interest in the matter at issue, and so removing the cause for exclusion. But there were other cases where the proposed witness had no direct interest in
the matter then litigated, but where he might obtain an indirect benefit, by subsequently using in his own favour the judgment obtained by his evidence. Here he was, on the ground already stated, considered as incompetent, because he had a bias towards that event, which would afterwards make in his own favour. In such a case it might be unjust to oblige the witness to abandon his own rights by a release, in order to further those of a stranger; and, on the other hand, it might be unfair to deprive the stranger of the benefit of his testimony. A security for such a witness giving impartial evidence would be obtained, if he were precluded from availing himself of the verdict gained through his evidence in any subsequent action brought by himself. Accordingly the statute 3 & 4 Will. IV. c. 42, s. 26, provided that in such cases the witness should be examined, but that his name should be indorsed upon the record, and that such indorsement should have the effect of for ever preventing the verdict or judgment so obtained from being admissible for or against him. This, which was the first general statutory interference with the rule excluding interested witnesses, was a means of restoring competency to a large number of witnesses who were before rejected. Still the general rule existed; and if a witness had a direct interest, which he refused to release, a party to whom his evidence was essential was unable to obtain it. At this juncture passed a second act of parliament, commonly known as Lord Denman's Act (6 & 7 Vict. c. 85), which enacted that no person offered as a witness should thereafter be excluded, by reason of incapacity from crime or interest, from giving evidence, either in person or by deposition;" "but that every person so offered may and shall be admitted to give evidence, notwithstanding that such person may or shall have an interest in the matter in question, or in the event of the trial of any issue, &c., or of the suit, &c., in which he is offered as a witness." But this enactment
was restrained by the following proviso:
"Provided that this act shall not render competent any party to any suit, action or proceeding, individually named in the record, or any lessor of the plaintiff, or tenant of premises sought to be recovered in ejectment, or the landlord or other person in whose right any defendant in replevin may make cognizance, or any person in whose immediate and individual behalf any action may be brought or defended, either wholly or in part, or the husband or wife of such persons respectively."
This statute had the effect of rendering all persons competent as witnesses, except those who were the substantial parties to the record the real actors in the suit depending before the court. As to these persons, the rule of exclusion was still pre
served, whether they were or were not named in the proceedings before the court. The evidence of all other interested persons was thenceforth receivable in all judicial inquiries; all objections that could be raised to it, being now directed, not to its admissibility in the first instance, but to its credibility, when given before the jury or judge. The inquiry was thus transferred from a question of law to a question of fact.
The exclusion of a party to the record as a witness necessarily led to the double consequence that such a person was both unable to swear to the facts of his own case, and was also not compellable to give evidence in support of his adversary's case and against himself. So far as the latter result is concerned, it can scarcely be doubted that the rule was always productive of much more injury than of good. It seems to have originated, as is said by Mr. Phillipps in his Treatise on Evidence," from some apprehension of vexation or inconvenience which might ensue if a person were bound to prejudice or accuse himself." But it is obvious that much expense would be saved to an honest creditor suing for his debt, if he were able to put his debtor in the box and so oblige him to discover such facts as would support his case; while the possibility of false swearing would be much lessened in the case of an inquiry so limited as would thus occur. The practice in equity has always been to oblige a defendant to answer upon oath interrogatories put to him by the plaintiff, and although the mode of taking evidence in those courts places great impediments in the way of attaining speedy justice, this principle of discovery has generally been looked upon as one of the best portions of the system of Chancery judicature. In courts of law one of several plaintiffs was probably always admissible to give evidence in support of the defendant's case and against his co-plaintiffs, but he could not be obliged to do so, and the fact of his volunteering would most frequently have a disadvantageous effect upon the jury, and cause them to regard his testimony with suspicion; see Norden v. Williamson, 1 Taunt. 378.
The rule which excludes parties to a suit from giving evidence in their own favour and protects them from being called against themselves, extends also to the husbands and wives of the parties, who are rendered absolutely incompetent to give evidence either for or against those to whom they stand in that intimate relation. This extension of the rule is founded partly on public policy, which deems it necessary to protect the confidences of private life from inquiries of a hostile nature, and partly on that identity of interest which, if one is rejected, must 1 Vol. i. p. 59.