Opinions given by the Judges, in Answer to certain Questions of Evidence put to (The Queen's Case)

[284] (IN the house of lords.) August 24, 1820. Opinions given by the Judges, in Answer to certain Questions of Evidence put to them by the Lords in the Course of the Proceedings against the Queen, and confirmed by the House. If a witness, without objecting to it, takes the oath in the usual form, he may be afterwards asked, whether he thinks the oath binding upon his conscience; but it is unnecessary and irrelevant to ask him, if he considers any other form of oath more binding, and such question cannot be asked. The following question was proposed to the learned Judges by the House, and delivered to the Lord Chief Justice Abbott: If a witness produced in the courts below, without objecting to it, takes the oath according to the usual form, can he be asked whether he considers the oath he has taken, as binding upon his conscience, and can he be, also, asked, whether there are other modes of swearing more binding upon his conscience than the oath he has taken 1 The Judges, after having retired for some time, returned the following answer, which was thus delivered by ABBOTT C. J. My Lords, the Judges have considered the question proposed to them by your Lordships, and they have taken the liberty to detain your Lordships while they sent for books, iu order that they might consult the authorities referred to in the course of the argument before your Lordships. My Lords, the Judges are of opinion, that tiie moat correct and proper time for asking a witness whether the form in which the oath, as about to be administered to him, is one that will be binding upon his conscience, is before that oath is administered; but, inasmuch as it may occsLsion-[285]-*.lly happen, that the oath will be administered in the usual form by the officer of the Court, before the attention of the Court, or party, or counsel is directed to it, we think, that the party ought not to be precluded ; and, therefore, my Lords, in answer to your Lordships' first question, the Judges are of opinion, that, although the witness produced in a court of law shall have taken the oath in the usual form as therein administered, without making any objection to it, he may, nevertheless, be, afterwards, asked, whether he considers the oath he has taken as binding upon his conscience. I am, further, to inform your Lordships, that the Judges are of opinion, that, if the witness, in answer to that question, shall declare in the affirmative, namely, that he does consider the oath which he has taken as binding upon his conscience, ha eannot, then, be further asked, whether there be any other mode of swearing that would be more binding upon his conscience than that which has been used. Speaking Jor myself, not meaning, thereby, to pledge the other Judges, though I believe their sentiments concur with my own, your Lordships will allow me to speak in my own person. I conceive, that, if a witness says he considers the oath as binding upon his conscience, he does, in effect, affirm, that, in taking that oath, he has called his God to witness, that what he shall say will be the truth, and that he has imprecated the Divine vengeance upon his head, if what he shall afterward say is false; and, having done that, that it is perfectly unnecessary and irrelevant to ask any further questions. [286] Sept. l.-i-l. It ia not allowable, on cross-examination, in the statement of 'a question to a witness, to represent the contents of a letter, and to ask the witness whether he wrote a letter to any person with such contents, or contents to the like effect, without having first shewn the witness the letter, and having asked him whether he wrote that letter.-2. Two or three lines of a letter may be exhibited tq a witness, without exhibiting to him the whole, and the witness may 2 BBOB. & B. 287. THE QUEERS CASE 977 be asked whether he wrote the part exhibited.-3. But, if the witness deny that he wrote such part, he cannot be examined as to the contents of the letter. The following questions were proposed to the learned Judges, and delivered to the Lord Chief Justice: First, whether, in the courts below, a party, on cross-examination, would be allowed to represent, in the statement of a question, the contents of a letter, and to ask the witness, whether the witness wrote a letter to any person with such contents, or contents to the like effect, without having first shewn to the witness the letter, and having asked that witness, whether the witness wrote that letter, and his admitting that he wrote such letter? Secondly, whether, when a letter is produced in the courts below, the Court would allow a witness to be asked, upon shewing the witness only a part of, or one or more lines of such letter ;md not the whole of it, whether he wrote such part or such one or more lines; and, in case the witness shall not admit that he did or did not write the same, the witness can be examined to the contents of such letter. The Judges, after having retired for a short time, returned the following answer: abbott C. J. My Lords, the Judges have conferred upon the questions propounded to them by your Lordships, the first question was in these words. (Here the Lord Chief Justice recited the first question.) The Judges are of opinion, that that question must be answered by them in the negative; and the reason and foundation of our opinion is shortly this. The contents of every written paper, are, according to the ordinary and well established rules of evidence, to be proved by the paper itself, and by that alone, if the paper be in existence; the proper course, therefore, my Lords, is to ask the witness, whether or no that letter is of the [287] hand-writing of the witness 1 If the witness admits that it is of his or her hand-writing, the cross-examining counsel may, at his proper season, read that letter as evidence, and, when the letter is produced, then, my Lords, the whole of the letter is made evidence. One of the reasons for the rule requiring the production of written instruments is, in order that the Court may be possessed of the whole. If the course, which is here proposed, should be followed, the cross-examining counsel may put the Court in possession only of a part of the contents of the written paper; and thus the Court may never be iu possession of the whole, though it may happen, that the whole, if produced, may have an effect very different from that which might be produced by a statement of a part. My Lords, the next question proposed by your Lordships, is, (here the second question was stated). The Judges beg your Lordships' permission to divide this question into two parts. In answer to the first part, namely, " Whether, when a letter is produced in the courts below, the Court would allow a witness to be asked, upon shewing the witness only a part or one or more lines of such letter, and not the whole of it, whether he wrote such part?" The Judges are of opinion, that that question should be answered by them in the affirmative in that form; but, in answer to the latter part, which ia this, "And in ease the witness shall not admit that he did or did not write such part, whether he can be examined as to the contents of such letter1?" the learned Judges answer in the negative, for the reason I have already given, namely, that the paper itself is to be produced, in order that the whole may be seen, and the one part explained by the other. The counsel were called in and informed, that, upon croas-oxamination, counsel .cannot be Allowed to represent in the statement of a question the contents of a letter, !and to askj the witness whether the witness wrote [288] a letter to any person;with such contents, or contents to the like effect, unless the letter is first shewn to the witness, and the witness is asked whether he wrote such letter, and admits that he did write it; and also, that the House will allow a witness to be asked, upon cross-examination, upon shewing such witness only a part, or one or more lines of such letter, and not the whole of it, whether he wrote such part, or such one or more lines. But, if the witness should not admit that he wrote such part, or such one or more lines, the witness cannot be examined to the effect of the contents of the letter, unless it is shewn to him, and he admits that he wrote it. Same day.- If, on cross examination, a witness admits a letter to be of his handwriting, he cannot be questioned by counsel whether statements, such as the 978 the queen's case 2 bbod. & b. asg. counsel may suggest, are contained in it, but the whole letter must be read in evidence.-2. In the ordinary course of proceeding, such letter must be read as part of the cross-examining counsel's case. The Court, however, may permit it to be read at an earlier period, if the counsel suggest that he wishes to have the letter immediately read, in order to found certain questions upon it, considering it, however, as part of the evidence of the counsel proposing such a course, and subject to the consequences thereof. The following question was proposed to the Judges: Whether, when a witness is cross-examined, and, upon the production of a letter to the witness under cross-examination, the witness admits that he wrote that letter, the witness can be examined in the courts below, whether he did not, in such letter, make statements such as the counsel shall, by questions addressed to the witness, enquire are or are not made therein ; or whether the letter itself must be read as the evidence to manifest that such statements are or are not contained therein ; and in what stage of the proceedings, according to the practice of the courts below, such letter could be required by counsel to be read, or be permitted by the Court below to be read 1 The Judges, after having retired for a short time, returned the following answer: [289] abbott C. J...