SECOND READING. (Hansard, 30 March 1859)

§ MR. DUNLOP
, in moving that this Bill be now read the second time, said, Sir, I have reason to hope that hon. and learned Gentlemen who have seats in this House will be united in support of the principles of this Bill, which has reference to the ascertainment of the law in England when a question involving that law is raised in a Scotch Court, and vice versâ. The House will be aware that cases constantly arise, in which a question of the law of one country is raised in a cause depending in the court of another. For instance, in England questions frequently arise as to the validity of a Scotch marriage, and in Scotland numerous cases are brought before the courts in which questions of English law are involved. The mode of ascertaining the law is, however, most uncertain. It is sometimes done by queries sent by the court to some individual lawyers—generally lawyers of great eminence and standing— but the queries are sent without any opportunity being afforded for discussion. By this means opinions are sometimes given in ignorance of the real point raised, and are given in such a way as to prevent the possibility of making a further inquiry, which would result in bringing out the real state of the law. In other cases gentlemen are cited as witnesses. Professional men are brought in on one side who give expression to one set of opinions, and then, other professional men are examined on 1136 the other side who enunciate totally opposite opinions. I need scarcely add that that is a very painful as well as unsatisfactory mode of procedure. It is just like the evidence of medical men, the result being on the one hand not very expensive, but on the other most unsatisfactory. Many cases have occurred in Scotland and England which show the difficulty and uncertainty of ascertaining the law by the modes at present adopted; but I will refer for a moment to one which occurred with reference to the law of France. Though this Bill does not affect the law of foreign countries, the principle involved in it is precisely the same. The case I referred to occurred two or three years ago, and if related to the will of a lady. The consul in France examined so many men on one side and so many men on the other, and a decision was come to, but the Judicial Committee of Privy Council formed a different opinion, and the result was that the whole matter was left in great and painful uncertainty. At that time I had this Bill in draft, and I was much encouraged to go on with it by an opinion given to me upon this very case, in which a very distinguished lawyer said, "It seems a pity that in a case of this kind, where really the decision turned upon an uncertainty as to what the law of France really was, the question could not have been brought before the highest French court for its decision. The shortest course of procedure in such matters is the simplest and best. "The shortest way as suggested by the gentleman whom I am quoting, would be to send instructions to our Ambassador in Paris to lay the case before the Court there, and obtain an opinion upon the point at issue. He proceeds to say, "However professional lawyers may shudder at such a direct proceeding, I really cannot see what mischief could result from the adoption of such a course." But I do not propose in my Bill to deal with foreign law or foreign Courts, but simply with legal questions relating to Courts in the same empire—for both in England and Scotland you have had the same difficulties to contend with in consequence of the inconvenient mode of ascertaining the law. Although my hon. and learned Friend the late Attorney General (Sir R. Bethell), with whom I consulted last year, informed me that 'he decidedly approved of some measure of the kind, and thought it ought to be accompanied by some provision to enable the courts of this country to ascertain the law of foreign Courts in 1137 the event of conventions being entered into, I have not extended my measure so far. Last year I had no opportunity of doing so, and this year I have thought it better that I should introduce a Bill the operation of which was simply confined to our own Courts. What I have now done has met, I may state, with the concurrence of the hon. and learned Gentleman below me (Mr. Moncreiff), the late Attorney General for Ireland (Mr. J. D. FitzGerald), and my hon. and learned Friend the Member for Wallingford (Mr. Malins). Under these circumstances, I trust that the House will have no hesitation in agreeing to the Motion for the second reading of the Bill. The course which I propose in the Bill is that after each party shall have been heard, it shall be competent for the Court to state a case and submit it to a Court in the kingdom whose law it is endeavoured to ascertain, and the opinion of the Court to which the case is submitted shall be binding upon the Court in which the cause is pending. I propose also that the Court to which the case is submitted shall be empowered to hear counsel. It may be thought that this is somewhat of a cause within a cause, and that the expense of ascertaining the law will be very considerable; but I believe the expense of the present system is fully as great or even greater, but if it be not greater the certainty of the decision gives advantages far beyond any that can be secured by adhering to the present system. I therefore think that a change might very wisely be effected, and I provide in the Bill that in the event of an appeal the House of Lords should deal with the case as it would deal with a judgment. The House of Lords even now would not look upon the opinion and deal with it as a matter of fact, but being cognizant of Scotch as well as English law they would hear the facts, and, if in a Scotch case they differed from the English lawyers, would give effect to their own opinion. I provide that in the case of one Court taking the opinion of another, if the case is appealed, the opinion of the Court which was consulted shall be deemed matter of law, and the Supreme Court having jurisdiction over both Courts shall be entitled to deal with it as a matter of law. There are matters of detail contained in the various provisions of the Bill which it is unnecessary to enter into now, but I entertain a strong conviction that the measure as it stands will meet with the approbation of the House.

§ MR. MALINS
—My hon. and learned Friend the Member for Greenock did me the honour to show me the Bill before he brought it into the House, and I at once stated that I thought it had a most reasonable object in view, and that I trusted it would succeed in accomplishing it. My hon. and learned Friend has correctly stated that whenever a question of the law of another country arises, the present mode of deciding it is to take the opinion of advocates, or to call witnesses to prove what the law is. Of course, upon all such subjects there is a great conflict of opinion. Indeed so many difficulties are in the way, that the learned Judges have ultimately to interpret the law in their own way as they best can. I may mention a case which occurred in reference to the law of France. An Englishman who had resided for some time in France left a large property to Southampton, but the next of kin raised the question whether the will properly passed the property. The point for decision was whether a man residing in Calais for fifteen years had not ceased to be a domiciled Englishman, and had become a domiciled Frenchman, and that, consequently, the will not being executed according to French law, was null and void. Now, a great number of persons are admirers of codification, and say it will be a happy day for England when she gets a code. Now, this particular case was argued upon the Code Napoleon, and there were immense briefs on either side of two or three hundred pages. On one side there were numerous opinions declaring the plaintiff's view to be right, and there were quite as numerous opinions on the other side declaring the plaintiff's view to be wrong. The only thing to be done was to compromise the case, and accordingly a compromise was entered into, by which the next of kin obtained about £20,000 or £30,000, and the rest went to Southampton, diminished by this most expensive litigation. The expense upon the mere question of domicile was more than £25,000. Nobody was to blame for that enormous expense. It arose from the conflict of law, and because there was no cheap and easy mode of deciding what the French law was. The only person to blame was the testator himself, who had not thought fit to reside in his own country. But the result was that the case cost £25,000 in litigation, and the town of Southampton, after paying £25,000 as a compromise, only got £50,000 1139 out of the £100,000 left them. There have been many cases in which similar conflicts of opinion have happened in this country and Scotland, for Scotch lawyers as well as English differ in opinion. My hon. and learned Friend the Member for Greenock proposes to obviate the existing difficulties by his present Bill. He provides that when a question of this kind arises, the English courts shall be able to send a case for the opinion of the Scotch Courts, and vice versâ, and that the opinion of the court to whom the case is submitted shall be conclusive, unless there is an appeal to the House of Lords. I believe that if the Bill of my hon. and learned Friend passes, we may be able hereafter to find out some mode by which the same result may be obtained in reference to foreign law. I think it would be of great advantage if we had the power of sending cases for the opinion of foreign courts, and if the foreign courts had the power of sending cases for the opinion of our courts. That, however, can only be done by an arrangement between the two countries; but I sincerely hope that an attempt will be made to effect an arrangement.

§ MR. J. D. FITZGERALD
My hon. and learned Friend who introduced this Bill did me the honour to consult me respecting the expediency of extending it to the sister country. I perfectly agree with him that the proposal he makes would effect a great improvement, and I only regret that the case mentioned by the hon. and learned Member for Wallingford (Mr. Malins)—namely, the case of foreign law —will not be met by it. I trust that if the change is made, it will be found to work well, and that some means will be devised whereby it may be extended to the law of foreign countries, and we may thus be saved from the evils which we at present experience. The absurdity of the present system is this. If in an Edinburgh Court a question of English law arises, or in a Court in London a question of Scotch law arises, we treat England or Scotland precisely as though they were foreign countries. An important question of Scotch law arose before Sir Edward Sugden, the present Lord St. Leonards, when Chancellor of Ireland, and he had first to determine whether it should be decided by vivâ voce evidence or by a case stated. He determined upon the latter course, and a case was submitted to the Dean of Faculty, the Lord Advocate, and the Solicitor General; but their opinions were found to be all dif- 1140 ferent, and in the end the Lord Chancellor had to undertake it himself. Of course, in order to enable him to decide upon the case, he was compelled to study the Scotch law, as also had the advocates in the case who differed from the Scotch lawyers; and ultimately a decision was come to which was given upon a totally different view of the Scotch law. Whether the decision thus arrived at was really right or wrong was never ascertained. It was come to in accordance with the view of a Judge and counsel, who might very easily have formed erroneous opinions in consequence of having to deal with a law with which they were utterly unacquainted. I think that the Bill of my hon. and learned Friend will provide a convenient and economic mode of disposing of all difficulties, and I sincerely thank him for having introduced it.

§ THE LORD ADVOCATE
I think it right that I should say a few words before the House agrees to the second reading. I cordially approve the principle of the Bill, but I am anxious to say nothing at present respecting its details, as all questions of detail can be dealt with in Committee. There is, however, one matter to which I may call the attention of my hon. and learned Friend. The preamble of the Bill makes the measure to apply to Her Majesty's dominions, which of course include the Colonies. I am not quite certain whether my hon. and learned Friend wishes to extend his Bill to the Colonies or not. If he does, I would remind him that this inconvenience may arise—he gives an appeal to the House of Lords which cannot be rendered available in the case of the Colonies.

MR. BOUVERIE
There is only one remark I would wish to make before the Bill is read a second time. I approve of the object of the measure; but the Bill itself, as I read it, seems to me to be much too widely and generally drawn. The last clause allows the powers given by the Bill to be exercised in any judicial Court whatever. No doubt this is a very desirable power for the superior Courts to possess in any one of the three kingdoms; but I do not think it desirable that the Courts of inferior jurisdiction, such as the County Courts and Courts of Quarter Session, should have the power. I therefore hope my hon. and learned Friend will consent in Committee to limit his Bill to the superior Courts.

THE SOLICITOR GENERAL
I quite 1141 agree with what my right hon. Friend has said; but I think it would be inconvenient to bring all the details of the Bill under discussion. The power ought, no doubt, to be confined to the superior Courts. There is another matter which requires some consideration. The 4th Clause provides that in case of an appeal to the House of Lords the opinion of the Court which had certified the law should be subject to review. That might suit in regard to English and Scotch Courts, but in regard to the colonial Courts it would be introducing an appellant jurisdiction of the House of Lords which has never yet been exercised. I hope the hon. and learned Gentleman will devise some means for obviating that difficulty; but with regard to the main object of the Bill, I give it my hearty concurrence. I think that considerable expense will be saved if it passes into law.

§ MR. DUNLOP
said, he should be only too happy to avail himself of the suggestions which had been made, and he would Amend the Bill in accordance with them when the Bill went into Committee,