Some knowledge of the law of evidence is the best security against this inconvenience; we propose therefore to lay down a few general rules on the points most likely to occur, and to refer our readers for more particular information to those works which expressly or incidentally treat on this subject.[[230]]
It is necessary in the first place to consider how the attendance of witnesses is to be compelled by process, under what terms they must appear, their liabilities if they fail to appear, and their duties when in Court.
The writ of Subpœna ad testificandum, is the ordinary process of the Courts for compelling the attendance of witnesses; by this the intended witness is required to appear at the trial at a fixed time and place, to testify what he knows in the cause, under the penalty of £100 to be forfeited to the king.
Four witnesses may be included in one subpœna, but a ticket containing the substance of the writ (which is to be shewn at the same time) is as effectual service as the writ itself, (5 Mod. 355). The service must be upon the witness in person, (Cro. Eliz. 130) and within reasonable time, before the trial, respect being always had to the residence and circumstances of the party.
In Civil suits, the reasonable expense of the witness in going to, staying at, and returning from the place of trial, must be tendered at the time of serving the subpœna: (5 Eliz. c. 10, f. 12): if this is not done, the Court will not grant an attachment against the witness (Fuller v. Prentice, 1 H Bl. Rep. 49) not even if he be present in Court, and refuse to be sworn; (Bowles v. Johnson, 1 Bl. Rep. 36). But where a witness lives within the weekly Bills of Mortality, it is usual to leave only one shilling with the subpœna: this limitation is not created by the statute of Elizabeth, nor have we been able to trace its origin.
The Judge will not compel a witness to be sworn till his reasonable expenses are paid him. (ubi supra.)
If a witness fail to attend on subpœna, without sufficient excuse, he is liable to be proceeded against in one of three ways. 1. By attachment for a contempt of the process of the Court, from which even a Peer is not exempt. 2. By a special action on the case for damages at common law. 3. By an action on the Statute of Elizabeth for the penalty of ten pounds (5 Mod. 355), and for the further recompense recoverable under the Statute; but this must be by the party aggrieved, and where the further damage has been assessed by the Court, out of which the process issued. Formerly no remuneration was given to witnesses attending the trial of criminal causes, yet they were bound to appear unconditionally, for “Criminal prosecutions are of public concern, and a witness summoned to appear on a criminal trial has a public duty to perform; and he ought not to be at liberty to make a bargain for his appearance, as he may in the case of a civil suit, where only private interests are involved.” (Phill. on Evid.). But as such attendance must frequently have been productive of considerable hardship, especially to poor persons, the Statute 22 Geo. 2. c. 3. s. 3. enacts, that when any poor person shall appear on recognizance to give evidence in cases of larceny or felony, the Court may order the Treasurer of the County to pay such person, such sum as to the Court may seem reasonable: as this Statute extended only to poor persons who appeared on recognizance, and not to such as appeared on subpœna, it was afterwards deemed reasonable by the Legislature, that every person so appearing on recognizance, or subpœna, should be allowed his reasonable expenses, and also in case of poverty, a satisfaction for his trouble and loss of time. (Phill. on Evid.). The Statute 18 Geo. 3. c. 19. s. 8. therefore enacts, that “Where any person shall appear on recognizance or subpœna to give evidence as to any grand or petit larceny or other felony, whether any bill or indictment be preferred or not to the Grand Jury, it shall be in the power of the Court (provided the person shall, in the opinion of the Court, have bonâ fide attended in obedience to such recognizance or subpœna,) to order the Treasurer of the County or Division, in which the offence shall have been committed, to pay him such sum as to the Court shall seem reasonable, not exceeding the expenses, which it shall appear to the Court the said person was bonâ fide put unto by reason of the said recognizance and subpœna, making a reasonable allowance, in case he shall appear to be in poor circumstances, for trouble and loss of time.” These Statutes apply only to cases of felony; on prosecutions therefore for misdemeanors, and in other cases not specially provided for by Act of Parliament, the Court is not authorized to order a compensation to witnesses for their attendance; (7 T. R. 377: see also Burn’s Justice, tit. County Rate). As these Acts, and the 45th Geo. 3. c. 92. which compels the attendance of witnesses in any part of the United Kingdoms, their expenses being first tendered, do not meet many possible and probable cases of extreme hardship, it is to be wished that some further enactments may be made on this subject: it has indeed been doubted whether the obligation on witnesses in criminal causes is as peremptory as we have stated, (1 Chitty on Criminal Law, p. 612), but the weight of authority appears to be on the other side. Mr. Serjeant Hawkins, 2 P. C. p. 620, observes that “to persons of opulence and public spirit this obligation cannot be either hard or injurious; but indigent witnesses grow weary of attendance, and frequently bore their own charges to their great hindrance and loss;” and Sir Mathew Hale (2 P. C. 282) complains of the want of power in Judges to allow witnesses their charges, as a great defect in this part of judicial administration.
Our present object is to show that whatever hardship may exist in this point in general, it presses with peculiar severity on medical practitioners,[[231]] to whom time is most valuable, and the nature of whose profession requires that they should be continually within reasonable distance of their ordinary place of residence; to them therefore the tender of mere traveling expenses becomes a very insufficient compensation: the same policy which exempts them from attendance on other public duties may suggest the propriety of allowing them some adequate indemnity when their assistance becomes indispensable, and this not only for their private and immediate advantage, but ultimately for the public benefit; for if properly remunerated for their attendance, practitioners of a superior class would not be unwilling to devote some portion of their time to the assistance of public justice; whereas under the existing system it is notorious, that all who can, will avoid the burthen; and the duty therefore devolves on those who are least competent to its execution: this evil is particularly apparent on Coroner’s Inquests, where the opinion of a shop-boy has often been allowed to determine a question in limine, which properly investigated, might have required the first science to obtain a satisfactory result.
As attendance is more burthensome on a professional man than on others, so also it is more frequently called for; men in general can only be summoned as witnesses when they have, or are reasonably supposed to have, cognisance of the particular facts in question; and he may therefore deem himself peculiarly unfortunate or imprudent, who is often present at such scenes as give rise to criminal investigation; but the medical practitioner, in addition to his liability of being called in for his assistance, and so becoming acquainted with facts, may also be summoned on matters of opinion; those therefore who stand highest in public estimation as men of science and research, will be most frequently burthened with the execution of painful and unprofitable duties; we do not believe that they will shrink from the performance of them when necessary, but we may express a hope that they may be rendered as little burthensome as their nature will allow.
Great difficulties must always arise in the examination of a medical or chemical witness, where the examining party is uninformed or at least very partially acquainted with the science in question; for it is next to impossible for Counsel so to frame their examination of a scientific witness, as to elicit the whole truth unless they are, by previously acquired knowledge, acquainted with the bearings of each answer upon the case which they are maintaining; and though there are a few instances of persons of such superior talent, that they can collect from the mere information of their briefs, so much knowledge as will enable them to perform this duty, with credit to themselves and satisfaction to their clients and the public; yet such instances are rare, and even those most gifted will admit that there is a most material difference between examining a witness on matters of fact of which all persons who have applied themselves to the laws and nature of evidence may be competent judges, and the examination of abstract opinions, and speculations of philosophy or physics, where the examiner can as little follow the reasoning of a witness as if he spoke some foreign and unknown language. For it is impossible within the compass of any ordinary viva voce examination to elicit all the points on which explanation may be necessary, or to remove all the doubts which may give occasion to future controversy; hence questions of this kind are seldom determined at the first hearing, but are repeatedly brought before the Courts in the form of new trials; the cases of Severn, King & Co. against several Fire Insurances Offices, which in part suggested the undertaking of the present work, may serve as an elucidation of this point. The causes were conducted by professional men of the first eminence, the Judge who presided well known for his love of science, and from having attained more knowledge in several branches of natural philosophy, than can usually be acquired by those whose time is engrossed by severer studies; the witnesses were among the best Chemists of the day, yet the question (simple as it might at first appear) whether oil or sugar at certain temperatures, and under certain circumstances, should be considered the more inflammable substance, occupied three days on the first and six days on the second trial. Notwithstanding which, a third trial took place involving the same question, and controversial pamphlets were published on both sides on the nature and supposed contradictions of the evidence.