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ART. X.-SELF-CRIMINATION-OPTION OF JURY TRIAL.

A Bill entitled "An Act for further amending the Law touching Evidence and Procedure." House of Lords, 1853.

THERE are many provisions of this Bill, some of them very important, to which it should seem that little or no opposition will be offered. Of this description are the amendments of the Law respecting evidence of handwriting, contradiction of witnesses, Crown costs, payment of money into Court, change of the venue in criminal cases, payment of costs upon acquittal, and perhaps above all, the completion of the great change of the Law by the Act of 1851 for the Examination of Parties, by repealing the exception then introduced of husband and wife, and by rendering them admissible witnesses for or against each other, but at the same time placing their mutual communications during coverture on the footing of confidential communications. This has already been introduced into the Act for extending to Scotland the English Act of 1851. Upon all these provisions we shall for the present offer no remarks; but proceed at once to the controverted parts of the Bill, viz. 1. the provisions respecting selfcrimination, and 2. those respecting the option of trial by Judge or by jury.

1. In entering upon this subject,-one of the most important which have come before us since we began our labours,-we must first of all remove the prejudice occasioned by a great misconception-the confounding two things entirely different and which ought carefully to be kept distinct-the case of a party on his trial for an offence, and that of a witness in a trial whether civil or criminal. No one has ever proposed to adopt the French Law, which subjects defendants to interrogatory as part of the proceedings against them: no one at least since Lord Denman's most able and most conclusive argument on this subject. But he gave no opinion whatever in favour of the protection afforded to witnesses, and with

that alone we have now to deal. The question is, not whether a person on his trial shall be compellable to answer questions which may lead to his conviction, or indeed any questions at all, but whether a person called to give evidence between other parties, or himself being a party in a civil suit, and either called by his adversary or tendering himself as a witness, shall be obliged to answer questions, when his answers may either be an admission of guilt, or may give information whereby his guilt may be established in some other proceeding. It is proposed that what he says shall not be admissible in evidence upon any other proceeding, except a prosecution for perjury if he have sworn falsely; but that as a witness he shall no longer have the protection now given, and which we must before going further describe.

It is manifest that to be consistent with itself the Law must needs make the witness the sole judge of the tendency of his answers. If it is intended to protect him, he must be allowed, without giving any particulars, to declare that if he answers the question he considers he will be exposed to a risk. If he can be asked in what way the risk will arise, what it is that he apprehends, and why, he must disclose the very things he fears may lead to his conviction. At one time there were conflicting decisions on this point; some Judges held that the Court must determine whether or not the witness could safely answer; and it was more than once said, that if he answered at all, he must go on and answer every question put upon the matter. But Lord Eldon authoritatively laid down the rule that the witness alone is to decide; that he may stop short wherever he pleases; and indeed, it is strange that any doubt should ever have been entertained upon this point, for nothing can be more plain than that the risk which the witness runs may never arise till a certain point of the examination, or, if it has arisen, may never have occurred to his mind. A late case in the Common Pleas, accordingly, has recognised in the most unqualified terms the principle that the witness alone is to decide, and the Judges have gone so far as to affirm that every question put to him must be understood to have this preface, "answer only if you consider that you expose yourself to no risk."

It has, indeed, been held that the witness is bound to state what the charge is which he apprehends his answer may expose him to; and upon this an argument is raised, first, that this is a check upon him, inasmuch as to avoid giving evidence in the cause he must expose himself to the disgrace of being suspected to have committed an offence; next, that it prevents him from avoiding to answer by a simple assertion of danger, amounting to a mere refusal to give any evidence at all. But it is evident both that he may put his refusal upon the ground of some supposed charge attended with no disgrace, as riot, or things liable to sentence of the Spiritual Court, and also that he may evade the supposed rule by suggesting some such apprehension. But is there any such rule? Can there be any such if the protection really exists? "Were you present at such a time and place ?" "I refuse to answer." "Why?" "Because I may thereby furnish the means of proving an offence to have been committed by me." "What offence?" Now it is clear that if he answers this

question, he has all but admitted the offence, and has altogether furnished the means of proving it against him. Therefore he cannot be compelled to answer it. But if not, he at once escapes the obligation to give his evidence, and escapes not by the statement of a fact, but an opinion; a statement upon which, however false, no perjury can be successfully assigned. Consequently he escapes giving evidence without incurring any risk of punishment; and as he has mentioned no offence, he may, though credited to the full extent of his deposition, have only been suspected of the most venial misconduct, and thus he may escape giving evidence without incurring any disgrace. Wherefore he has been, by the rule of Law, enabled to escape from the duty of giving his evidence, one of the duties imposed upon him by another rule of Law, and escapes absolutely without any let, hindrance, or penalty whatever.

We have been considering the effects of the principle in sheltering an unwilling witness, unwilling from favour towards one party, or from interest in the cause, or it may be, under the new Law, the party himself. But in the more ordinary case of the witness having no such bias, the impedi

ment to inquiry, the obstruction to justice, is very great, and in various ways the principle prevents truth from being arrived at and justice done, and also causes falsehood, and consequent injustice to prevail. That the truth is often concealed must be manifest, because the investigation is stopped by something wholly collateral to the question, and foreign to it. The Court has a right, and the parties have a right, to the discovery of the whole circumstances which bear upon the matter in issue. If any person is in possession of information which can throw light upon these circumstances, provided he has it of his own knowledge, the Court and the parties have a right to that information. It may be against the person's interest to give it; he may be a loser by the disclosures; he may be ruined in his fortune by it. The Law says he still must give it. He happens to have been present when those things were done respecting which the inquiry is pending, or to have learnt them from one of the parties to that inquiry, and by Law he is bound to disclose them, however injurious,-nay, however ruinous to himself the disclosure may be. He is moreover bound to answer all questions touching his credit, except only those which most of all go to testing his credit; and bound to answer them, however much he may be disgraced or degraded by his answers; for we take it to be now clear that the notion is exploded which at one time prevailed to the contrary-a notion utterly inconsistent with the rule always maintained—that there was no protection against questions imputing even the gravest offences, provided by pardon or acquittal, or otherwise, there could be no prosecution for them. Can there be then the least consistency in retaining the only exception which now exists, that of questions tending to crimination? The witness must answer, though he shall be made a bankrupt by confessing an act of bankruptcy, or insolvent by admitting a debt, or utterly ruined by the loss of his estate both real and personal by disclosing circumstances which prove him illegitimate; but he cannot be called upon to answer if he shall be exposed to a prosecution for a five pound penalty, or for some misdemeanour which would only be punished by a shilling fine.

We have said that the road to truth and justice is thus stopped up; and that the road to falsehood and injustice is also thrown open; and observe how the rule operates. A witness is produced, it may be in a criminal case, to swear away the life or the reputation of the defendant; that witness may be the most infamous of mankind, and yet he may never have been convicted, or the record of his conviction may not be forthcoming; and yet were he to deny having committed some felony, or swindling, or other offence charged in the question put, there may be present a person who had direct knowledge from having seen it or heard him admit it. But he is not to be asked the question, and his evidence goes to the conviction of an innocent man. The innocent is sacrificed that the guilty may escape; for the ground of the rule is that if the question is answered it may enable a prosecutor to obtain evidence which would convict the witness. Surely so gross an anomaly cannot be suffered any longer to disfigure our Law.

The advantage of removing obstacles to the investigation of truth, and preventing falsehood from prevailing, is the direct gain which the proposed alteration of the law would give. The loss which we should incur appears to be only an additional gain. It is said that if the witness is compelled to answer, he may furnish the means of his own conviction. The supposition, therefore, is, that he has committed the offence respecting which he is interrogated. The mischief apprehended is, that he may be punished for it. Is that a loss or a gain to the administration of justice? We apprehend that this alleged loss is only an incidental gain.

It has been said that, were the rule of Law altered, advantage might be taken of the compulsion of a witness, by calling him for the purpose of making him disclose circumstances which would give a clue to the prosecutor, and enable him to convict. But the risk (not a very great one, we must admit,) of such an abuse would be completely avoided by vesting in the Court a discretion which all who favour the change in the Law must needs contemplate as necessary,— the discretion of stopping all irrelevant inquiries-all' questions directed to other matters than the matter in issue—all

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