The order of the day was read for the remainder of the learned Judges to deliver their opinions, seriatim, upon the question of yesterday; the general effect of which was, "whether, according to law, a witness is bound to answer questions relative to the matter in issue, the answers to which do not tend to accuse himself, but establish, or tend to establish, that he owes a debt recoverable by a civil suit?"
Mr. Baron Thompson
said, he could find nothing in any of the legal writers which was satisfactory on the subject involved in the questions referred to the Judges; but, from the best consideration which he was enabled to give the subject, he was of opinion that a witness, under the circumstances mentioned, was not compellable to give evidence of facts which might be afterwards used against himself.
Mr. Justice Heath ,
as a general rule of law, was of opinion, that witnesses under such circumstances, were compellable to answer.
Lord Chief Baron Macdonald
deprecated the consequences which would ensue from the establishment of such a principle as that a witness was not compellable to answer where that answer might tend to acknowledge a debt recoverable by civil suit, as in that case a witness interested to the amount of five shillings, by refusing to give evidence might defeat the just claim of a party to ten thousand pounds. In the court in which it was his lot to preside, it would, also be productive of the worst consequences, as in revenue causes witnesses would on such a ground very frequently demur and prevent the truth from being ascertained. Judging from precedents, and from the law and reason of the case, he concurred in opinion with Mr. Justice Heath.
Lord Chief Justice Mansfield
entered at considerable length into a contrary line of 245 argument. He had ever considered it as an established point of law, that a witness was not compellable to answer any question, the answer to which might subject him to a civil action. He travelled thee western circuit for many years, at a time when the Judges who usually went that circuit were lawyers of the greatest eminence, as were also the leading counsel who went that circuit, and he was as fully convinced, as that he was then addressing their lordships, that all those eminent lawyers were of the same opinion. The same opinion he always understood to be entertained in Westminster hall, and it was so decided by lord Kenyon in a case, where an action was brought by a person against another who had been his clerk, for money alleged to have been received for the use of the plaintiff. The defence was that the money had been paid over to another clerk of the plaintiff's, of the name of Wright, who was authorized to receive it. Wright was called to prove this, who stated that no money was due from the defendant to the plaintiff. The counsel for the plaintiff (Mr. Erskine) then asked the witness if he knew of any other person who owed money to the plaintiff, but was stopped by lord Kenyon, who immediately declared that the witness was not bound to answer against himself. This therefore seemed to be a point of law so clearly established, that there had been no doubt about it. The reverse of such a principle would, in his opinion, be productive of the worst consequences. Besides the case of lord Keith, which had been already mentioned, he remembered a case which happened in 1771 or 1772, where a gentleman from India, in consequence of some acknowledgments which he made in evidence before a committee of the house of commons, was subjected to two actions where the proof against him consisted of the evidence given by himself, and in which he had a verdict against him for 2,000l. in one action, and 1,000l. in the other. After going through a variety of other arguments, he concluded by giving it as his opinion, that a witness under the circumstances mentioned, was not compellable to answer.—After the learned chief justice had delivered his opinion,
§ Earl Stanhope
rose, and observed upon the very material difference of opinion among the Judges. They differed, not only in principle, but as to the extent of particular rules. The inconvenience of leaving 246 the law in its present uncertain and unsettled state, was too obvious to require illustration. He would suppose a case, which would put this in the clearest possible light. Suppose a case were to come for decision before two Judges of opposite opinions; on this, their opinions would, of course, be stated different ways. One would decide, the witness should be allowed to demurr; the other, that he should not! How would this appear? He had no difficulty, in his opinion, of what the law ought to be. What he proposed was, that the witness should be fully examined, but that his evidence should not be brought against him. Under this impression he had, as he gave notice on a former night, prepared a short bill, the general title of which, his lordship stated to be, "An act for the more effectual discovery of matters to be given in evidence," &c. and which went to provide, that when any person shall be examined as a witness, in any court, or before any magistrate, or other person, the evidence which should be given, should not, upon any pretence, be produced against him in any criminal prosecution, &c. The noble earl then presented his bill, which he moved should be now read a first time.
§ Lord Eldon
observed, he should not oppose the first reading of the bill, such a proceeding not being customary in that house. He would, however, say, such a bill would require a great deal of consideration; and possibly it should necessarily undergo a great deal of alteration, before their lordships could, with propriety, agree to it. With respect to what had been stated by some of the learned Judges, in one point of view, he would declare, upon his professional word of honour, until he heard the note read from Mr. Peake's book, though he had lived thirty years in the profession, and officiated in different departments, where he had to institute examinations as to every point of law, he could declare he never heard the right of such a privilege contended for; and he believed a noble lord, now in that house, though there never lived a man who had more extensive practice at common law, never heard such an objection. He would not refer to what might occur to particular Judges, on particular circuits; but in Westminster-hall, where all the Judges were assembled, from all the circuits, he had never heard such an objection started. The practice on one of the western circuits 247 had been adverted to; he should, however, as a north-country man, never wish to see, in that respect, the northern circuits assimilated to the western. His own opinion, upon the point in question, was well known. At present, however, the matter which occasioned such a difference of official opinion, should be prudently and wisely set at rest: they were not, because they perceived the impending mischief, to decide too hastily, with respect to the mode of remedying the evil. The principle held forth was, that an individual was never to be called upon for what would directly, or circuitously, put him in hazard: to obviate that by a bill, which said, that an individual should make discoveries, and then that nothing of these should he brought against him, would be expecting too much; as in ninety-nine cases out of a hundred, through the intervention of a third person, or some other means, the witness may be got at, through the medium of such discoveries; at the same time, he felt it of the utmost importance, that care should be taken, that their fellow subjects should understand their real situation in that respect.
The Lord Chancellor (Erskine)
left the woolsack. He felt it his duty to communicate his sentiments on a subject of so much consequence to the proceedings in courts of law. He had been for seven-and-twenty years engaged in the duties of a laborious profession, and while he was so employed, he had the opportunity of a more extensive experience in the courts, than any other individual of his time. It was true, that in the profession there had been, and there now were, men of much more learning and ability, than he would even pretend to; but success in life often depended more upon accident, and certain physical advantages, than upon the most brilliant talents and profound erudition. It was very singular, that, during these twenty-seven years, he had not for a single day been prevented in his attendance on the courts by any indisposition, or corporeal infirmity. Within much the greater part of this period, he had been honoured by a gown of precedency, and in consequence of this privilege, had not only been engaged in every important cause, but had conducted causes of this description during that period in the court of King's Bench. But with the history of his professional life, their lordships had no concern, otherwise than as it was connected with the pre- 248 sent enquiry. For this purpose it was material to declare, that, although his experience was equal not only to any individual judge on the bench, but to all the Judges, with their collective practice; yet, that he never knew a single objection to have been taken to an interrogatory proposed, because the reply to it would render the witness responsible in a civil suit. It was true, that in Mr. Peake's book, which had been frequently cited on the present occasion, there was a note by which it should appear that an objection of this kind had been taken by the late chief justice Kenyon; but, notwithstanding his high opinion of the minute accuracy and great learning of that reporter, he thought he had, in this instance, been guilty of a mistake on two grounds: 1st, because he himself had been counsel in the cause, and had no recollection of the circumstance; 2dly, because, if that note were correct, lord Kenyon must have been guilty of an obvious contradiction of his own principles and sentiments, as they appeared even on the face of the same report. His lordship was of opinion, that the bill now proposed would not effectually answer the purpose intended by the noble mover: he most heartily concurred in the object, but most materially differed from him as to the means of effecting it. Notwithstanding some difference of opinion among high authorities, among persons for whom he had the greatest veneration, yet he could not help thinking that the law itself was unembarrassed from these contradictions. He considered it so far precise, clear, and perspicuous, that it was necessary no new law should be promulgated, otherwise than in the form of a declaratory law, by which it should be announced what had been the law, what was the law, and what ought to be the law, and what should be the law of the land as to this important particular. On these grounds he could not give his assent to the bill now suggested; and if no other noble lord, more competent than himself, would undertake the business, he should himself move a legislative regulation, with the view to place the question for ever in repose.
§ Lord Ellenborough
perfectly coincided with the sentiments of his noble and learned friend on the woolsack. The labours of his existence had also been devoted to the same arduous duties, and he had attended a circuit the largest in extent, and the most comprehensive in the variety of 249 its business; but neither in the course of his experience on his itinerant duties, nor during his constant application at Westminster-hall, where he might say he had been engaged in almost every important cause, nor since he had been called by his majesty's pleasure to the bench where he now had the honour to preside, did he recollect a single instance where the objection had been taken, that the answer of the witness would place the deponent in a situation of responsibility to a civil suit. It was true, that where the reply to the question would expose the witness to the consequences of a criminal prosecution, his lordship always felt it his duty to caution him from the bench; but even in that case, partial communications must not be made, the testimony must not be garbled; if a portion were imparted, the whole evidence must be disclosed; and so it was held by the noble and learned lord whom he had the honour to succeed, with much inferior powers. Although he perfectly agreed with the noble mover on the necessity of some legislative measure, yet he thought the bill now read, would be inadequate to the object proposed; it therefore would not receive his support.
§ Earl Stanhope
considered his bill capable of comprising every object suggested by the noble lords who had opposed it, and said, that he should move for the second reading on Tuesday next. In the mean time, it was ordered to be printed.