FRENCH CLAIMANTS. (Hansard, 21 May 1840)

§ Lord Lyndhurst
said, the petition which he rose to present, was connected in some degree with the administration of justice; and he called the particular attention of the noble Viscount at the head of the Treasury to it, because he was sure, that if the statements contained in the petition were verified, as he believed they could satisfactorily be, the noble Viscount would see the propriety and justice of acceding to what the petitioner required. In the year 1818 or 1819, a convention was entered into with the French Government by the noble Duke below him, by which a considerable sum of money was appropriated to the discharge of claims made by British subjects on account of losses which they had sustained by confiscations during the revolutionary contest in France. Commissioners were appointed to investigate those claims; and an Act of Parliament was passed, by which it was enacted that any of the claims not decided satisfactorily to the claimants by the commissioners, might be brought by appeal before the Privy Council, provided those original claims were made within a certain time. But certain of the claimants, from various circumstances, were not able to comply with that provision, and their applications were not made within the specified time. It turned out, however, that the sum paid was larger than what was necessary to meet the demands that were preferred; and it was accordingly ordered by the Treasury, and was considered as just, that the second class of petitioners, who were in the first instance late in their application, should be placed in the same situation as the first, and that they should, after investigation, receive compensation according to the extent of their losses. The Act of Parliament, however, only applied to the first class, and some difficulty was found in extending the right of appeal to the second class. With that view an arrangement was made by the Treasury, that the right of appeal should be extended to the 464 second class claimants, but that they should bind themselves to the decision of the Privy Council. One of those claimants was the present petitioner, John Warr, or De Warr, the son of Patrick Warr, and he made a claim for the value of estates in Burgundy and Champagne. With respect to Burgundy, he rested his claim on the purchase of the estate by his father; and with reference to Champagne, his claim was founded on the marriage of his mother with his father, the latter deriving his title to the estate from his wife. Such were the circumstances of the case. The claim was considered by the commissioners, and was by them rejected. An appeal was then lodged before the Judicial Committee of the Privy Council, who rescinded the decision of the commissioners, and directed the commissioners to ascertain, by estimate, what was the amount of the claimant's loss by the confiscation of the estates in Burgundy and Champagne, named in the award. Nothing could be more clear or concise than that decision and direction. It would appear from it, that the commissioners had nothing more to do than to ascertain, in the manner of a writ of inquiry, what the loss of the claimant was. In the mean time, while these proceedings were taking place, the commission was changed, and a new set of commissioners were appointed. The former commissioners decided in public, every body knew what they were doing, and an opportunity was given to all who were interested to inquire into their proceedings. But the new commissioners took another course. They investigated in private, they decided in private. None of the parties were heard prior to the award. That award was given in general terms, and those who were interested could not tell on what grounds it proceeded. They applied, therefore, to the commissioners of her Majesty's Treasury, requesting that the commissioners appointed to consider those claims might be called on to state the precise grounds of their award in this case. The Lords of the Treasury were satisfied with the justice and propriety of that application, and made an order on the commissioners, directing them to give the necessary explanation. It appeared, from the statement which was produced in consequence, that the commissioners had omitted to give compensation for a part of the Burgundy estates, and that they 465 had entirely omitted the estates in Champagne. Now, the Judicial Committee of the Privy Council had directed the commissioners to investigate and ascertain the amount of loss sustained with respect to both estates. The parties were heard before the commissioners, both with respect to the omission of the loss on a part of the Burgundy estates, and as to the total omission of the loss with respect to the Champagne estates. The commissioners held that, by the marriage contract, the property in the Champagne estates was vested in the wife, and that the children had no claim on it. The contract of marriage was in consequence laid before M. Dupin by the party claiming for his opinion, and he decided, that under the marriage contract, the son had a just right to claim. That was a matter which, in point of fact, the Privy Council appeared to have before decided. But, if that body had not done so, then it would appear that a question of law, and a most important question too, the commissioners had taken upon themselves to decide. Under these circumstances it became a question whether the claimant had a right again to appeal, and application was made to the Privy Council. The Treasury did not allow that appeal, but a minute was drawn up, which declared the facts stated in the opinion of the Privy Council. He (Lord Lyndhurst) did not object to the terms of that minute, but on the part of the claimant he objected to the course which had been taken; for the Treasury formed part of the Government, and the Government was a party to the subject-matter of the claim; the petitioner, therefore, contended he had a right to state his own case, and be heard by counsel upon it, before the Judicial Committee of the Privy Council. The minute proved to be useless, for the judicial committee would not give an opinion upon an ex parte statement: however, the Treasury persevered, and the judicial committee refused to pronounce an opinion upon it. Under these circumstances, the petitioner required that this case should be submitted by way of appeal to the Privy Council; if not, he would suffer a grievous injustice and loss, as the fund was now in the course of distribution. The Treasury had, in fact, given, by its minute, judgment against itself, for in drawing up the case it was not left to the decision of the commissioners, but it was 466 directed that further inquiry should be made. That being so, what course ought to be taken? Why, that course of proceeding which was pointed out by the Act of Parliament, under which the petitioner had a right to appeal from the decision of the commissioners upon an important question of law, which ought to be submitted for decision to the judicial committee of the Privy Council. The petitioner stated, that he had taken the opinions of two eminent lawyers in France, and that opinions had been also taken from French lawyers on the part of the Government, and he had reason to believe those opinions all corresponded; if so, therefore, it was but reasonable and just that he should have the benefit of those opinions; but if they differed, still he had the right to have a decision pronounced between them by the proper and fitting tribunal. Under these circumstances, he presented this petition, feeling very certain that the noble Viscount at the head of the Treasury would direct whatever was proper to be done with respect to its prayer.

§ The Lord Chancellor
said, the petition related to a matter which had been heard before the judicial committee of the Privy Council, and that the petitioner had no legal right to ask that which by his petition he prayed. It would be mere matter of favour and discretion to grant the prayer, and its concession would depend upon the nature of the claim and the proceedings which had taken place upon it. The statute certainly gave a right of appeal to the Privy Council, provided the appeal was presented within three months after the adjudication of the commissioners. The adjudication complained of was made in 1835, so that five years had elapsed before the party thought himself entitled to try the matter before the Privy Council. But the information which his noble and learned Friend had received was in many respects inaccurate, and it differed much from the information derived from official documents which had reached him (the Lord Chancellor). His noble and learned Friend had correctly stated, that the claim was originally made in respect of two estates. To one of these estates, situate in Burgundy, the claimant had succeeded in right of his father, and with respect to which no question could now arise, as its value had been ascertained, and the party had been paid it 467 with interest. The other estate (in respect to which he also claimed compensation) was situate in Champagne, which was the property of the claimant's mother, a French woman, who had married an English subject. These two claims came before the commissioners, who were under a misapprehension as to a matter of fact, for they had supposed the father of the claimant was not a British subject, and under that misapprehension they rejected both claims, on the ground that the present petitioner did not come within the provisions of the statute, by reason of his parents not having been British subjects. Upon this the case had come before the judicial committee of the Privy Council, and the decision of the Privy Council, which was reported and in print, turned simply on the point as to whether the commissioners had been mistaken upon the matter of fact as to whether the father was or was not a British subject, and, if so, whether the son was entitled to claim compensation. The Privy Council never went into the question of title at all, and that appeared not only from the printed report of the case, but also from the certificate given to the Treasury by the learned persons who presided as to the grounds of their decision that the father was a British subject. It was accordingly sent back to the commissioners, not, as it had been stated, to ascertain the value of the two estates, but to ascertain the loss the petitioner had sustained by the confiscation, and the commissioners were desired to examine the case de novo. The construction his noble and learned Friend had put upon the reference back was not the true construction of the decision of the Privy Council, who had merely examined as to the matter of fact, and sent the claims back to the commissioners to ascertain what the claims were, and how far they were maintained, the terms of the reference being "to ascertain the amount of the petitioner's loss in respect to the confiscation of the two estates." The commissioners proceeded accordingly to review their decision as to the compensation with respect to the Champagne estate, and they adhered to their decision, on the ground that the mother was solely entiled to that estate, and that there was no community of interest in it between the father and the mother, and they reported against that claim. With that decision the claimant was dissatisfied, and to a 468 certain extent he had reason to be so, and accordingly an opinion had been taken upon the marriage contract from M. Dupin, but the question whether the husband had an interest in the Champagne estate had not been put to that learned person, as his noble and learned Friend supposed. However, the question was ultimately referred to the law officers of the Crown in this country, and they differed from the decision of the commissioners, on the ground, that in their opinion, the husband having survived the wife nine months, had a life-interest in the estate, and that he being a British subject, the son who inherited was entitled to claim compensation to the extent of the value of the life-interest of the father.

§ Lord Lyndhurst
That is disputed. This is the first intimation the petitioner has had of the nature of that opinion of the law officers of the Crown; at least I am so instructed.

§ The Lord Chancellor
was certain his noble and learned Friend had not been instructed correctly as to that part of the case. Both his noble and learned Friend and himself had had experience enough in the discussion of private rights to know that it was not uncommon for the parties to tell those who advocated their interests all that was in their favour, but to keep back matters which made against them. It was better that the whole truth should be stated before a complaint was made. But, in fact, a further question had been put to the law officers of the Crown— namely, how far the son had an absolute and indefeasible interest in the Champagne estates after the death of both parents. The law officers of the Crown reported their inability to answer that part of the case, and it was accordingly referred to M. Dupin and M. d'Est Ange, in France, and those learned individuals held that the son had not an absolute and indefeasible right to that estate. Such being the case, he (the Lord Chancellor) was at a loss to know what question could now be referred to the Judicial Committee, except the opinion of the French lawyers, the accuracy of which would be all the Judicial Committee could have to decide. There had been a very long and protracted investigation of these claims, and no pains had been spared to come to a right conclusion; and if the party could not impugn the opinions of the French lawyers, he could not be entitled to more compen- 469 sation than he had already received. If his noble and learned Friend could have had recourse to the documents and opinions he (the Lord Chancellor) had seen, he would have found the claim of title to be such as he had stated it.

§ Lord Lyndhurst
remarked, that his noble and learned Friend on the Woolsack said the petitioner was too late in making the present application. Why, the moment the judgment was known to the petitioner, he claimed the right of appeal. He differed from the opinion expressed by his noble and learned Friend, that this was a matter for the discretion of the Treasury. The Act of Parliament gave the absolute right of appeal, and what said the Treasury minute? Why, that the claimant should be placed by it in the same situation as if another act was passed. It was clear that the award of the commissioners was incorrect; it gave no compensation whatever for any part of the Champagne estate, it was entirely confined to the Burgundy estate, and therefore the party had a right to correct it by an appeal to the Judicial committee of the Privy Council. His noble and learned Friend had said the opinion of the law officers of the Crown had been taken. But they were parties—they were the advocates for the Treasury before the commissioners. Was the petitioner, then, to be conclusively bound by the opinions of the law officers of the Crown? The opinions of the French lawyers had never been submitted to the claimant, and he had a right to have those opinions referred to a court of appeal, in order that the court might exercise a judgment upon them.

§ The Lord Chancellor
said, that if the law officers of the Crown gave any opinion at all, it was in favour of the petitioner. Those who had absolutely decided against his claim were the two French lawyers whose names he had mentioned.

§ Lord Lyndhurst
said, that ought not to bind the party. The courts of this country admitted the opinions of foreign lawyers as matter of fact, and the opinions of one set of lawyers might in court be met by the opinions of another set, and the British tribunal then decided between those opinions.