APPENDIX I. Evidence of J. W. Freshfield, Esq., 40. In the cases on which you have been under the necessity of making searches for wills in the Prerogative Office, has facility been given you?-I think nothing can be more perfect, it would be fanciful to suggest anything in the form of improve ment. 41. Has it happened to you to have occasion to search for a will of an old date?—Yes. 42. Can you state what length of time has been required for your attendance before that will has been found?-It would be an extreme case, if that will was not found within half an hour; it would be obtained within so short a time that no person, except for the purpose of cavil, would object to the system; no man can go to the office without coming away with more of admiration than disposition to complain. 43. Have you had much experience in the practice of the Ecclesiastical Courts in litigated cases ?-A good deal. 44. How have you found the business conducted in those Courts? I should say very satisfactorily with respect to the system of examination, assuming one fact, that is, that the original case is opposed so as to render it necessary that there should be cross interrogatories: I think nothing can be more satisfactory than the system of examination. 45. Do you think the truth is discovered by the system of examination pursued?—I do. 46. Have you been examined as a witness?—I have; I think that the mode of eliciting truth is extremely satisfactory in the Ecclesiastical Court; I have prejudices probably upon the subject of examination, as I entertain an opinion which is contrary to the popular opinion: my opinion is, that viva voce examination is the very worst method; that the examination in the Court of Chancery is defective in an inferior degree, and that the examination in the Ecclesiastical Court is the most perfect; speaking of my own experience upon that subject, I think that in viva voce examination it is not the question what is the truth, but how much of the truth shall be allowed to be elicited; it is a question who is to be the examiner, and what will be the state of the nerves of the individual who is to be examined. Then the examiner is not a person, as in the Ecclesiastical Court, who has no interest on the one side or the other; but it is a part of the duty of a person having a witness under examination, to make out the proposition for which his client contends, and it is the duty of the opposite counsel to endeavour to prevent that proposition from being established; he is to interpose between the justice of the case and the interest of his client; and then the question with the practitioner is not whether he could prove a clear fact by a credible witness, but whether that witness has nerves to bear the examination, which will be necessary to prove that fact; and if he has any fear that the witness should fail from his nervous temperament, or from the superior tact of the individual into whose hands he would fall for cross-examination, he would say, I will run the risk of the case of my adversary rather than submit that witness to the chance of examination. Now in the Ecclesiastical Court, the officer is not satisfied with the answer given by the witness till he convinces himself that the witness understands the object of inquiry; he obtains the whole answer upon the subject-matter, and until he is satisfied that the witness has understood it, and that he has received from the witness what he knows upon the subject, he does not leave him. In the Court of Chancery, on the other hand, a distinct question is put to the witness; and if a man, intending to evade the question, finds that by the manner in which it is put, he can change any term in the question, so that by answering it literally he can give a negative to it, you do not get from him what he really knows, because the question has not aptly met his state of knowledge. You ask, for instance, as to a transaction which occurred at a particular place; he says to himself, no, it occurred at another place; I can therefore safely say that it did not occur as suggested by the question; the examiner has no power to change the question; and the party is enabled actually to negative that which is true in fact, but which is not true in form. 47. Then your opinion as to a vivá voce examination is, that it is rather a trial of the skill of the counsel and the nerves of the witness, than a good mode of eliciting the truth ?—Yes. 48. Do you think that the process of cross-examination and re-examination is generally successful in eliciting the truth ?— I think it very often succeeds; but it often happens that a violent man, with good nerve, is driven by a sort of opponent feeling to state more than he knows: he becomes a partisan in the case in consequence of the manner of examination. On the contrary, a timid man says, the more I say the more I shall be examined; I will therefore say as little as I possibly can, because I will give as little subject for cross-examination and teazing as I possibly can. 49. Do you think the interposition and interference of the Judge is sufficient protection for a witness of a timid disposition? I should say decidedly not; and that probably arises from the disinclination of the Judge to bring himself into contact with the Counsel, and the reliance which Judges have upon what will be the effect of their subsequent summing up; and yet that, in my opinion, fails, because the reserve which belongs to the dignity of the Judge's character, will prevent his expressing himself in terms sufficiently strong to remove the impression made by the Counsel. 50. Did you ever know an instance of an honest witness being kept back from examination in the prudent management of a cause?- Many instances; I have known it done at considerable peril; I have had to tender or not to tender, in my own discretion, men of the highest honour, upon whose veracity I would have pledged my life, but have decided against their production, on account of the anxiety I have felt, as to what might be the effect of placing them in the witness box, an anxiety increased by the honour and delicate feeling of the parties; and I am satisfied that such individuals would in many cases be brought to say that they knew nothing, for fear they should assert more than they knew. |