brought in a Bill to amend the Law of Scotland in regard to the relationship of Husband and Wife.

, in rising to move that this Bill be now read a second time, said Sir, when I introduced this measure to the House I stated shortly its purport and effect. It is very simple in its character; but I am anxious to make a few observations upon it, mainly in consequence of a discussion which took place on the subject of trial by jury last night in the other House. Although, as I have said, the Bill is a very simple one, it is at the same time a very important improvement on the law of trial by jury. The debate which took place last night in the other House was with reference to a project introduced by the Lord Chief Justice, with a view of assimilating in some degree the English and Scotch law with respect to this subject; the view of the noble and learned Lord being to introduce the system of delivering the verdict of the jury by the majority, instead of by their unanimity, in this country. When I introduced this measure, and it was read a first time, the Lord Advocate requested that I should not fix the second reading until after the Bill, to which I refer as having been introduced into the House of Lords, should have been brought forward. To that request I willingly acceded, although the Bill in question was one which raised an issue entirely distinct from that contained in this Bill. That Bill, however, has been thrown out in the House of Lords, and therefore cannot be introduced in this. I may remark to the House that the system of trial by jury in Scotland is altogether different to that of England. We are not accustomed to a forced unanimity, and know nothing of the mysterious virtues of the number twelve. Even by the law of criminal procedure in Scotland there is a jury of fifteen, and the verdict of the majority is received at once, without any obligation with respect to unanimity. We have never found any inconvenience from that mode of trial; but when, in 1815, trial by jury in civil causes was introduced into Scotland, the system was copied exactly from the English mode of procedure. A jury of twelve were appointed, and unanimity was enforced. That system has always been the subject of great complaint and dissatisfaction in Scotland; and in 1854 circumstances occurred which induced me to give the subject my attention, and I thought that the matter might be again brought under the consideration of the Legislature, with a view to remedying the inconvenience complained of. In that year a Bill was introduced for the purpose of regulating the common law procedure in the courts of England, and one of the clauses of that Bill provided that verdicts might be delivered by a jury in which ten out of the twelve agreed. That clause was passed in Committee in this House, but was thrown out on a subsequent stage of the measure; and I immediately took advantage of the strong feeling then evinced by English Members in favour of receiving a verdict which should be the verdict of a majority of the jury, to introduce a Bill with respect to Scotland, assimilating the mode of proceeding in trials of civil and criminal cases to this extent, that civil causes should be decided by a majority of nine out of twelve jurymen after six hours' deliberation. None of the dangers which were anticipated in respect to applications for new trials arose in consequence of the passing of the Act; and, in point of fact, the only difficulty and dissatisfaction that had been felt in Scotland arises out of the circumstance that they consider the period of the confinement too long. It is to put an end to that grievance that the present Bill is introduced. Unquestionably the House of Lords last night threw out the Bill introduced by the Lord Chief Justice, which had for its object to establish in England a system somewhat similar to the system which five years ago they approved of with respect to Scotland. But that does not at all prove any inconsistency on the part of the House of Lords; for the fact that a Bill having been passed for Scotland, while a similar measure had been refused for England, shows only that there are circumstances in the two countries which make them quite distinct in this matter, and that a measure which is applicable to one is not necessarily applicable to the other. The feeling in England is strongly in favour of maintaining the system of the unanimity of twelve jurymen, and the great argument in the House of Lords last night was that it had lasted 500 years, and that unless some overwhelming reasons were given against its continuation, it ought to be assumed that the people of England wore in favour of the unanimity of juries; and that, therefore, it would be very un-advisable to have cases settled by the decision of a majority of the jurymen, for the powerful reason that the decision might not have the same weight that it possessed when it was considered to be the unanimous decision of the whole. Now, the very same grounds that were urged to induce their Lordships to declare that such a system was unfit for England might be urged with still greater force against the establishment of the unanimity principle in Scotland. There the decision of the majority was received with perfect confidence; and to have an enforced unanimity would be extremely irksome to the Scotch people, and I believe would be very prejudicial to the due administration of justice. The origin of juries is not very easily discoverable, nor are the decisions of their constituent members very easily ascertained, seeing that they deliberate in secret; but the general impression is, that in an assembly of that number, one or two men would naturally differ from the others; and I believe it will be found that, whatever may be the cause submitted to them, they are generally the same persons. When a jury is empannelled, and there are among them many persons connected with the country, no doubt it would be a temptation to them, when they wished to go away into the country, to know that the decision would be in accordance with the numbers; but certainly the evil is not one which has been found to operate to any extent against the interests of the public, and it is certainly far less than the grievance which would arise if large numbers of respectable persons, whose time is most valuable to them, were to lose that time by being kept in a state of enforced confinement until unanimity of opinion had been obtained. It is quite clear to me that in any case to which the plaintiff is entitled to a verdict, he will get it by the system at present pursued in Scotland, and the only question that is at all likely to arise is a question whether the amount of his damages would be likely to be affected by the system. The people of Scotland have no two opinions as to the comparative merits of the system of deciding by a majority, but the only doubt is whether the Bill I have submitted does not give too long a time. I now propose by this Bill that the time of deliberation shall be confined to three hours instead of six— and, indeed, I believe the majesty of the people of Scotland believe that two hours would be quite sufficient. Upon this point I need only refer the House to the letter which Lord Campbell received from that paramount lawyer and admirable Judge who now presides over the Supreme Court of Scotland upon this subject. He refers to the measure introduced five years ago, and to its excellent working—and he voluntarily makes this remark— "But I think that the period of six hours granted for deliberation is unnecessarily long — half that time probably would not be taken up in discussing evidence — even obstinate jurymen listen to reason." I believe that that opinion is concurred in by the whole of the Judges of the Superior Courts of Scotland, who, in expressing that opinion, only express the opinion of the profession in Scotland; and it is also the expression of the opinion of the whole body of the people, who are satisfied that no advantage will arise, but that, on the contrary, great inconvenience would be felt, if it is thought absolutely necessary to retain it. I trust that as the House of Lords on a former occasion gave way to the feelings, the habits, and the customs of the Scotch people with reference to the administration of justice, they will now yield this further privilege, which is quite in accordance with all their customs, prejudices, and habits. Believing, therefore, that the alteration I propose to effect by this Bill is a sound one, and one which will be satisfactory to the whole of Scotland, I now beg leave to move that it be read a second time.

I wish, Sir, to say one word with respect to this very important measure. We have now in Scotland tried the experiment of having in civil cases a verdict returned by a majority of nine to three, and in criminal cases we have long had a jury of fifteen, and have had the cases decided by a simple majority. As regards the working of the system pursued in civil cases, by which the verdict is returned by a majority of nine to three, I can say with the greatest possible confidence, that the only difficulty or difference of opinion that has arisen with regard to the efficacy of the system, has been in consequence of the long period of time during which the jury is obliged to be detained before they are permitted to give in their decision. There are very few-cases, indeed, in which the juries in Scotland have separated without coming to a determination one way or the other; there are few cases in which they have returned a verdict in which there has been a minority of three; but in all cases in which there has been a difference of opinion to that extent, it has been perfectly obvious that had the time been shortened to three hours instead of extended to six, the verdict would still have been returned by a majority of nine against three. The principle of insisting upon a jury returning a unanimous opinion has always appeared to me to be contrary to common sense. When it is required that a jury shall be unanimous, it is plain that the unanimity cannot be complete, and to try to compel that which is not within the power of compulsion must result in an inconsistency; and in truth the real effect of such an attempt is, that although juries may enter the court and say, that they have agreed upon their verdict, and although it may appear on the face of the record that the verdict is a unanimous one, yet if there has been any difference of opinion at all in the minds of the jury, the verdict has really and truly been returned by the majority. It is very strange, in my opinion, that we should insist upon the harmonious opinion of twelve men in legal questions; because we never insist upon a unanimity of opinion upon any other questions, but invariably take the opinion of the majority and act upon it. Surely, the Commons' House is a striking instance of the truth of that assertion; and it appears paradoxical to me that, while we do not require unanimity in the making of our laws, we require the unanimous opinion of a jury as to whether they have been broken or not. During the last four or five years, the principle of a majority has been conceded in civil cases in Scotland, with a proviso that there shall be a deliberation of six hours; and what is now proposed is to shorten the time during which juries are detained. I cordially agree with the proposal of my hon. and learned Friend, for I believe it to be a fact, that one result of the long period of this forced deliberation is, that in some cases the minorities have actually been able to overpower the majorities. And it is to be considered that jurors are for the most part shopkeepers and persons in the middle classes to whom time is very important. When there is a clear idea of the issue, and anything like a general understanding of the case, the minority have a strong lever on the majority to induce them to give in to a view of the case which is contrary to their opinion. I know, of course, that there are cases of great importance in which it is quite right that a jury should be detained sufficiently long to ensure that they shall deliberate upon the questions submitted to them; but I certainly do think, that if they are subjected to a detention of three hours, and then return a verdict by a majority of nine to three, that would answer every possible purpose. I may mention that the opinion on this point in Scotland is unanimous. The proposed change is supported by the important body of the Faculty of Advocates, over which I have the honour to preside; and it entirely meets the wishes of all classes of the people. I am sorry to find that the views entertained on this question in this portion of the United Kingdom, where the trial by jury is of longer standing than it is in Scotland, are contrary to those which we entertain. I am bound to assume that there is a general feeling in England that it is desirable that there should be a unanimity in juries; but I am equally convinced, that as far as Scotland is concerned, the change proposed by this measure will not only be received as a boon, but will be conducive to the attainment of justice.

I can assure the hon. and learned Gentleman who has introduced this Bill that in my opinion he has earned for himself, and I believe has received, the greatest credit from the people of Scotland by the change which he introduced into the law in respect to the trial by jury four or five years ago, and I cordially assent to the further change which he has proposed upon the present occasion. Entertaining that view, it will not be necessary for me to detain you for more than a few minutes on the question. At the same time I think it right, holding the position I do, to state shortly my view, that we are not here to discuss the question whether or not a jury, under the present system, is the most appropriate tribunal for the purpose of determining civil actions in Scotland, or whether it would be better that the principle of the unanimity of juries should be adopted. It appears to me that the laws of the country which have existed for so considerable a time have so affected the customs and habits of the people, and have so influenced the train of thought and the direction of their mind, that it is very important, before we consent to any alteration of the laws, that we should most carefully consider whether we are about to alter them in accordance) with the habit of thought which influences the nation, or whether we are about to make a change which, in consequence of that habit of thought, it is not very probable they would approve. I am not surprised at all that it is considered a matter of great doubt and difficulty in England whether it would be wise that a change should be introduced into the system of trial by jury which should have the effect of enabling juries to return a verdict in accordance simply with the opinion of the majority; but I have not the least doubt that the very reasons and arguments which in England are used in favour of the maintenance of the present system, and against the introduction of decision by the majority, would lead in Scotland to the very opposite conclusion. It has been the custom from time immemorial in Scotland not to have recourse to the unanimous opinion of a jury, but to be content with the verdict of a simple majority; and therefore any change in the law would have the effect of completely bewildering the minds of the class of people who usually form the bulk of the juries. A juryman in Scotland can by no moans understand why on one side of the border he must return a verdict by a simple majority, while on the other the opinion of the jury was bound to be unanimous. The consequence of the change in the law which enabled jurymen in Scotland to give their verdict by a majority of nine against three, with a deliberation of six hours, conferred very great benefit upon the country, and, as was correctly said by my hon. and learned Friend opposite, has worked extremely well since it has been introduced. The proposition which has now been made to limit the period of the detention of jurymen from six to three hours has met with general approval. That it has met with the approval of the very experienced and highly talented individual who now, with so much credit, presides over the Courts of Scotland—that he should have approved of the change— would naturally have affected my mind even if I had been otherwise inclined to differ in opinion with the hon. and learned Gentleman as to its advisability. That learned functionary has had more experience with respect to the working of the system of trial of civil cases by jury in Scotland than any other person; and, therefore, the Lord Justice Clerk being of opinion that such a change as that which is now proposed ought to be introduced, and that opinion being further supported by the approbation of the learned Faculty of Advocates, over whom my hon. and learned Friend opposite presides with so much ability, I have no hesitation in saying, not only that I do not oppose, but I thoroughly approve of the measure which has been introduced into this House by my hon. and learned Friend the Member for Greenock. The advisability of the proposed change had indeed occurred to me before, and I may mention a case which occurred at the time I was acting as public prosecutor, which shows the extreme difficulty of obtaining unanimity in a jury—a difficulty not arising so much from any circumstances relating to the cases tried, as from an irreconcilable difference which appeared to exist in the constitution of the minds of some of the jurymen. My hon. and learned Friend and many hon. Gentlemen in this House know that it is frequently the custom to try several cases by the same jury; and I recollect upon one occasion, when I was engaged in criminal trials, there were several consecutive cases in which the verdict was returned by a majority of fourteen to one, and on inquiry it turned out that it was the same individual who was in a minority in each case. I merely mention that in order to instance how unreasonable it is to expect perfect unanimity of opinion among any body of men upon any question. With respect to the Bill now before the House, I have expressed my opinion that the change is a good one, and one that, I believe, will meet the wishes of the people. For that reason, I give it my cordial support.

said, that with respect at all events to England, he thought such a change in the law as that which it was proposed to effect by the Bill which was thrown out by the House of Lords last night would prove most disastrous; and, entertaining that view, he had given notice of a Motion for a Return of all cases in which juries in England had been discharged for want of unanimity. He believed, in point of fact, that those cases were very few indeed in number; and it had been his intention when he obtained the Return in question to found a Motion upon it to the effect that the House was of opinion that any departure from the present practice of requiring unanimity in juries would be disastrous to the country, would create confusion, and prove highly detrimental to the administration of justice. The Bill of the Lord Chief Justice, however, having been lost in the House of Lords, could not now come before the Commons for discussion; and, inasmuch as his object was answered by the premature defeat of the measure, it would not be necessary for him to persist in his Motion.

Sir, having had frequent calls made upon me, and having frequently acted as a juryman myself, this House will perhaps permit me to make a single observation upon the Bill now before us. It has been said that there having been no very great difficulty experienced in obtaining complete unanimity in English juries arises from the circumstance that that uniformity has now been required in England for a very great number of years, and that the principle of the unanimity of juries has been altogether incorporated with the ideas and habits of thought in the country. Well then, Sir, in respect to Scotland, I say that it is exactly the reverse—that it is only comparatively recently that we have had established the system of trial by twelve jurymen in civil cases; and when that system was introduced and acted upon on the same basis as the same system in England, the prejudices of the country were altogether opposed to it, and in favour of working by a majority of jurymen. With regard to criminal cases, they wore already decided by a majority, fifteen being the number of the jurymen appointed to try the case. They worked by a small majority; and certainly the entire prejudices of the people were in favour of deciding by a mere majority. When the change in the law was introduced which rendered a jury capable of deciding by a majority of nine against three, hon. Gentlemen can hardly understand or conceive the difficulty which was experienced in getting that majority, and, in point of fact, it seemed to be the most hopeless thing in the world to expect anything like unanimity even to that extent. It was perfectly vain, and a mere waste of words, to endeavour to argue with jurymen, and to impress upon their minds that the idea of unanimity was an abstract and theoretical idea—that in reality it was nothing more than a yielding of the minority to the majority, and I really know of no task which was so difficult and harassing as the task of endeavouring to convince three or four men who had all their lifetime been accustomed to decide cases according to the numerical majority of the jurymen, and who could by no means be made to understand that unanimity in a jury meant nothing more than a compromise. Well, a great change was made in the law four or five years ago, through the exertions of the hon. and learned Gentleman who proposes the present Bill. That change, I am free to admit, was a most judicious change, and it has effected a vast amount of good. As, therefore, an evil still remains to be redressed, and a grievance to be remedied, I cannot but hope that much good will result from the proposed additional relaxation of the law. I cannot sit down without adding one more instance of the favourable working of the jury system when the majority is empowered to decide the question submitted to it. The effect of the system at present pursued in criminal cases has, I think, not been so satisfactory as could be wished, for I think one man can often turn a bare majority to his own views; whereas, if there is a necessity for great deliberation and consideration, which is implied in the majority being a large one, I think that very often a different verdict would be arrived at. I, therefore, am of opinion that a change in the criminal law, which would render it necessary that the majority should be three-fourths, would be a great improvement.

It seems to me that when we argue this question upon general principles, we go upon the basis that human nature is different in Scotland and in England. If the Bill which was lost last night in the House of Lords had come down to this House, and had been discussed, I have no doubt that we should have had a vast variety of opinions upon it; but I cannot but think that it is more reasonable that we should be bound by the decision of the majority of a jury than that we should insist upon obtaining that which we really never can obtain—namely, perfect unanimity on the part of juries. I can bear testimony to the great advantage which the decision by a majority possesses over the principle of perfect unanimity. I resided for several years in one of our colonies, in a position in which I had a good opportunity of judging with respect to this matter. There we had a mixed community of English, Scotch, and Irish. The colony I allude to is New South Wales. Sixteen years ago the system in New South Wales was the same as that which now exists in England; it was based upon the principle of the perfect unanimity of the jury. I had the honour at that time to fill a position in the colony which enabled me to introduce the principle of the Scotch system; and I may observe that the introduction of that principle did not in any degree alter the general jurisdiction cither of the criminal or the civil law. Instead of the old practice of perfect unanimity, we introduced the system which it has been stated has effected such great good in Scotland, namely, the decision of jury cases by a majority of three-fourths of the jury after a deliberation of six hours. In the Bill which was necessary to establish that sys- tem, we gave the power that by the consent of both parties the verdict of the jury might be given when the necessary majority for the decision of the case was arrived at, notwithstanding that the six hours might have remained unexpired. What was the result of the introduction of that system into the colony of New South Wales? I can speak with respect to its operation during no less than eight years; and, therefore, my experience is such as enabled me to form something like a judgment upon the question. These jury cases were constantly coming under my notice. I myself was frequently in the jury room, and I found that in point of fact any pretence of perfect unanimity among juries is mere hypocrisy. I found that before the alteration was made which enabled the jury to return a verdict by a majority, eight times out of nine the verdict that was returned was not the unanimous opinion of the jury, but was, in fact, a compromise between different parties. In cases of very great importance where there was any very strong feeling on the subject, my real belief is that the majority of the jury very often, by standing out, were unable to decide the verdict. I do not pretend to say that that was proper. Of course I know it was wrong. But what followed the working of the Act? Why, that practically two hours after the retirement of the jury had very rarely elapsed before they came to a verdict, and that verdict was very often a verdict of ten to two, or eleven to one. Seeing the great advantage that followed the introduction of that system into the colony of which I speak, I cannot but believe that the principle upon which juries should be formed should be the principle of a majority as opposed to the principle of perfect unanimity. I think the change proposed by the Bill now before the House will be a beneficial one, and, therefore, I shall support the second reading.

I merely rise to express, to a great extent, the same sentiments which have been expressed by my hon. Friend behind me, in reference to the unanimity of juries in civil cases. I regret that we shall not have an opportunity of considering that subject in this House, and I very deeply regret the loss of the Bill of the Lord Chief Justice in the House of Lords. In most of the cases upon which the decision of a jury is given, I cannot help thinking that the unanimity is more apparent than real. I perfectly agree with the lion, and learned Gentleman below me (Mr. Moncreiff) that it is impossible to expect that, considering the constitution of the human mind, there can be that unanimity in every case which the law requires. Under these circumstances I should have been most glad to have discussed, in this House, the propriety of permitting juries some escape without compelling them to do that which in many cases is a direct violation of their consciences. With regard to criminal cases the issue is very different, and I can see abundant reasons why criminals should not be convicted otherwise than upon the direct verdict of the whole of the jury. But in civil cases there are no such reasons. I am prepared to admit, that under the law as it now exists a verdict is rarely given of which I could not approve; but to show the House that the notion of the unanimity of juries in such cases is a pure fiction I may mention an anecdote which may throw some light upon the question. I happened some time ago to meet a very experienced juryman, who is frequently summoned upon special juries, and I inquired of him the modus operandi. He said, "I have had very great experience of the working of juries, and I always make it a practice, whenever we are called upon to give our verdict, to differ in the box. By that means I secure our being sent away to a private room, which generally enables us to be discharged without being required in another case, a second jury being almost invariably sworn. When I get into the room, I propose before discussing the question at all that we should agree to be bound by the decision of the majority. We then proceed to discuss the points at issue, and upon a division I frequently find that there is a small majority of one, two, or three, one way or the other. We go into court, however, and pronounce what is considered the unanimous verdict of the jury; but what is very frequently merely the verdict of a majority. I think this statement satisfactorily proves that the unanimity of juries is more apparent than real; and I should be glad to have an opportunity of discussing the question in all its bearings in this House.

I once had the honour of acting upon a jury as foreman, or what would be called in Scotland chancellor. The object of the cause was to determine the value of solum fifty acres in extent under high-water mark. The solum had been required for the formation of dry docks in the neighbourhood of Edinburgh, and various parties competed for the right of ownership—namely, the Crown, the City, and the Commissioners of the Port of Leith. It became necessary to empannel a jury to determine the value of the solum in question; and after having been detained for a considerable time, we were sent down in three or four hackney coaches to see the solum. When the coaches were put in motion, I must confess that we felt very much like convicts marched off to the hulks; but when he had returned, and were assembled in a small room to consider our verdict, a juryman pulled out a pencil and began to calculate the value of the solum. My opinion was, that as the scheme had been abandoned, and the land was under high-water mark, it was worth little or nothing, and I was for giving the smallest coin in the realm; but the gentleman with the pencil and paper entered into a very elaborate calculation, and wished to give a verdict for £100,000. There were a great variety of sums proposed between that and the extraordinary low figure I fixed as the value; and while we were engaged in discussing the question we were imprisoned in a small and ill-ventilated room. I looked out of the window to see if there was any mode of escape, but I found we were three stories from the ground. The door was locked; we had not a particle of fire, or of creature comforts of any kind, and I found it totally impossible, by any ingenuity, to make my escape. After a very long and a very absurd deliberation, we agreed at length, not for the sake of unanimity, but because we found it was the only way of escaping to our families, to agree upon a verdict for £50. I certainly think that in this 19th century it is high time to abandon all such absurd schemes for producing what is never arrived at after all—total unanimity.

After the expressions of opinion which have fallen from the Lord Advocate and from my hon. and learned Friend (Mr. Moncreiff), who are both very high authorities on the practice and experience of the courts of law in Scotland, I have not the slightest doubt of the de-desirability of the proposal now made by the hon. and learned Member for Greenock. I am anxious, however, to guard against any misapprehension, and I therefore beg to state, that however desirable an alteration of the law of England may be in reference to the unanimity of juries in civil cases, in regard to criminal cases, I perfectly agree with the hon. and learned Member for Yarmouth (Mr. Mellor) that under no circumstances can a case be foreseen in which it would be advisable to alter the law which now requires such juries to be unanimous in their verdict. According to the feeling which prevails in this country, I am satisfied that in criminal cases, with anything short of the unanimous verdict of twelve men, it would be utterly impossible to carry out the sentence. In a case of murder, for example, if three jurymen thought the accused person innocent, it would be perfectly impossible to carry the sentence into execution. The question, however, is so palpable that I will not detain the House with any further remarks upon it. At the same time I think that many amendments in our law in strict analogy with the forms now established in Scotland might be safely introduced, and would be of considerable service. I do not know how the jury system in Scotland works in every particular. I am not aware whether they have established the absurd system of starving a jury. In my opinion nothing can be more absurd or more contrary to human nature. In this country it is almost one of the institutions of the country that when men meet together they should refresh themselves, and if they were not aware that they were liable to be exposed to starvation and cold, a jury would always go into the jury-box with much better spirit and humour. I believe there is no institution which we value more than trial by jury, and yet there is no class of men more ill-used than jurymen. Whether you take common or special jurymen, there is no class worse used. No accommodation is provided for them in the courts, but they are obliged to find places where they can, and frequently they are kept standing for hours in the passages of the court: and perhaps in the end the case for which they were summoned, never come on at all. Again, I cannot see upon what principle of justice a special juryman is paid a guinea and a common juryman nothing. Some people attend the courts in order to be appointed jurors, so that they might get the guinea, and several are said to make a very good thing out of it. For my own part, I cannot see why all the jurymen should not be placed on the same footing; why they should not have ample accommodation provided for them; and why, in civil cases, the absurdity of restricting the number of jurymen to twelve should be continued, especially in special jury cases. In those cases it frequently happens that the list of special jurors is read over several times, when it is found that two or three are absent, and then at length a tales is prayed, and the vacancies are supplied. You thus get nine or ten men upon the jury of superior mind and attainments, but you put upon the same jury two or three uneducated men, any one of whom may stand out against the rest. In that respect, and also in reference to the principle now adopted of starving a jury and exposing them to the cold, I should be glad to see an alteration. I rejoice to find that the law of Scotland, which does not require unanimity in civil cases, bas worked well, and, as that is the case, I cannot object to the proposition of the hon. and learned Member for Greenock to reduce the time of the confinement of a jury from six hours to three.

, 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 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 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.

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 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.

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- 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.

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.

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.

I quite 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.

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,

said, since the second reading of this measure he found there had been so many suggestions made, and so many points raised, that he thought there would be great difficulty in discussing them properly in a Committee of the whole House until the Bill had been first considered by a more select number of hon. Members. He was therefore inclined to accept the proposal of his right hon. Friend (Mr. Bouverie) to refer the Bill to a Select Committee. He did not know what course the hon. and learned Attorney General intended to take with respect to the Debtor and Creditor Bill. He would suggest to the hon. and learned Gentleman that not only this Bill, but also the Bill from the House of Lords, should be referred to the same Select Committee. If that course should be adopted he hoped that the Select Committee would consist of persons who were fully competent, from their legal knowledge and mercantile experience, to come to a right conclusion upon the matter. He should therefore take leave to move that the Bankruptcy and Insolvency Bill be referred to a Select Committee.

said, he entirely agreed with the noble Lord in the expediency of the course he proposed to take in reference to his own Bill. The number of questions and points involved in the Bill were such as to render it most advisable that they should be first dealt with by a Select Committee. Indeed, the House would hardly be in a position to do justice to the entire subject without the aid such a Committee would afford. In regard to the Government Bill which had come down from the House of Lords, and was waiting for a second reading in that House on Friday next, he proposed that it should be then read a second time pro formâ. He should be afterwards prepared to state to the House the course he proposed to pursure regarding it. He did not, however, apprehend that there would be any objection to refer the Bill to the same Select Committee as the noble Lord's measure, so that by the assistance of such a Committee a satisfactory measure might be framed on the subject.

said, he was quite satisfied that the course now taken was the only way to obtain a Bill on this important subject which would he at all satisfactory to the House or country. The subject was so important that it deserved the consideration of one of the ablest and most comprehensive Select Committees that could possibly be appointed. He would suggest that the Committee should have power to call witnesses, who might be able to give both information and advice.

said, he was glad that the noble Lord had determined to refer his Bill to a Select Committee. He could also assure the hon. and learned Gentleman the Attorney General that the large constituency which he represented reposed the greatest confidence in him, and felt convinced that the interests of the commercial community would be properly attended to so long as the matter rested in his hands.

said, the subject was one which excited the greatest interest throughout the country, and it was most desirable that some measure should be passed in the present Session. The subject had already been inquired into, and he was persuaded that if the Committee were to be allowed to enter into an examination of witnesses, there would be no Bill on the subject during the present Session.

said, he also was glad the Bill was to be referred to a Select Committee. He was also opposed to going into any evidence at that stage, inasmuch as he believed all the facts bearing upon the subject were already recorded in documents to be found in the library of the House. He hoped that the hon. and learned Attorney General would assent to act upon this Committee.

said, he also concurred in the propriety of referring the Bill to a Select Committee. If evidence were to be gone into, however, he should much prefer the appointment of a Royal Commission to a Committee. Still, considering the mass of evidence already before the House, on the whole he should prefer to adopt the recommendation of the hon. and learned Member (Mr. Headlam), and proceed with the Bill at once.

observed, that if the Committee were composed of lawyers and experienced mercantile men it would not be necessary to call witnesses, the hearing of whose evidence would prolong the inquiry indefinitely. The mercantile community of Ireland were anxious for the passing of an English Bill on this subject, because they were aware that it would form a basis for legislation for Ireland.

said, that the only point on which there was a difference of opinion was, as to whether the Committee should take evidence or not. That was a matter on which the Committee could exercise a judgment of their own, and could, if they thought fit, apply at any moment to the House for power to examine witnesses. It might, perhaps, be desirable to obtain evidence on minor points of the Bill, though not as to its general principles. The matter, therefore, had better be left to the discretion of the Committee. With respect to the noble Lord who had brought this subject before the House, he begged to offer to him his humble tribute of respect for the attention he had bestowed on this important matter.

said, he quite agreed that it would not be necessary to go into the general law of bankruptcy; at the same time there were many questions of practice with respect to which it would be absolutely necessary to obtain information, in order that the Committee might deal with the two Bills in a satisfactory manner. He could not, therefore, see that any good purpose would be attained by turning the Committee adrift without the power of calling witnesses.

said, the difference between hon. Members was lather one of words than of substance. The objections to a general inquiry were no doubt obvious; for, if that were done, there could be no hope of legislation during the present Session. He agreed, however, with the right hon. Member for Kidderminster in thinking that there might be some minor points to be considered upon which the Committee would feel it desirable to call for more evidence. If they accompanied the appointment of this Committee with the power of calling witnesses, the Committee would probably proceed to examine into the whole question. Whereas, if they allowed the Committee to wait until they considered the channels through which the inquiry was to run, there would be ample time for them to come clown to the House and to ask for further power to call witnesses at that particular stage of the inquiry.

said, that he quite concurred in the suggestion of the right hon. Gentleman the Home Secretary. If the Select Committee, in going through these Bills, should think further evidence was necessary, they could apply to the House for power to call witnesses; but to give them that power in the first instance might induce them to think that they ought not to confine their attention to the Bills, but ought to embark into an inquiry as to what should be the basis of legislation on the subject.

said, he rose to move the Second Reading of this Bill, its object being to open the practice in the High Court of Admiralty to all Serjeants and barristers-at-law, attorneys, and solicitors. In the Probate and Testamentary Administration Bill of last year he had proposed a clause which met with the approbation of the House, and was passed, declaring that no compensation ought to be given to the proctors for any alleged loss they might sustain by the opening of the Admiralty Court. When the Bill went up to the other House, that clause was struck out of the Bill without his knowledge. When that Bill became an Act he was greatly surprised to find his clause omitted. He had received information upon which he could rely that it was the proctors themselves who induced the late law officers of the Crown to urge the striking out of that clause, and it was accordingly struck out in the Upper House without any discussion. The Bill of last year allowed the enormous sum of £72,000 as compensation to the proctors, and now they wanted £10,000 a year additional as compensation for opening the Admiralty Court to the profession at large. Those were the circumstances which induced him to move the second reading of this Bill, which provided against any such arrangement. He considered that this large sum of money in the shape of compensation was an imposition upon the country. The opening of the Admiralty Court to the profession generally was not worth that sum of £10,000. He considered it would be better to continue the monopoly than assent to such an arrangement. He should be happy to resign this Bill to the Attorney General if that hon. and learned Gentleman would but take it in hand.

was quite sure that the House would not desire to proceed with this Bill under a misapprehension of the facts. Hon. Members would recollect the circumstances under which the Probate Administration Bill was amended, so as to give compensation to the proctors for the destruction of their business which they considered that measure would occasion. During the passage of the Bill, but at a late period of the Session, the hon. Member for Sheffield proposed a clause, the effect of which was to open the Admiralty Court to the profession, without giving the proctors any compensation. As, however, the Bill itself did not relate to the Admiralty Court, it was strenuously objected the clause of the hon. and learned Gentleman was quite inapplicable. The Attorney General of the day, however, reluctantly gave way, and permitted the clause to pass. He (Mr. Malins) then contended, that if that Court were to be opened, compensation should be allowed to the proctors who would suffer by such an arrangement as well as to the proctors immediately damaged by the Probate Administration Bill. The Bill, however, left the House with the clause of the hon. and learned Gentleman added to it. It was, however, omitted in the House of Lords, and, in contradiction of what had been stated by the hon. and learned Gentleman, he could say that it was struck out on the representation of the Judge and officers of the Court, to the effect that such a clause ought to be accompanied by many provisions which could not be inserted in the Bill then before Parliament. The Bill, as amended, came back to that House and was duly considered. The hon. and learned Gentleman, it appeared, had relaxed his usual vigilance, for he took no notice of the alteration that had been made in the measure. Now, he proposed that the Admiralty Court should be opened to the profession at large, to which no one objected, but at the same time he refused to give the proctors who would be damaged by such a measure any compensation. The hon. and learned Gentleman was under a great misapprehension when he thought that there was any burden thrown upon the country by the provisions for compensation in the Probate Act. The country did not suffer to the amount of a single farthing. By the Probate Administration Bill one-half of the fees usually paid to the proctors was now constituted a fund, from which the amount of compensation granted them was paid. He asked, upon what principle should the proctors who suffered by the opening of the Admiralty Court be deprived of compensation when those whose business was destroyed by the Probate Administration Bill were provided for? The proctors connected with the Admiralty Court had received no compensation, because the Bill which had passed last Session did not apply to their case. As there was no objection to opening the Court to solicitors, he would not oppose the second reading; but he would oppose the Bill in its subsequent stages, if the injustice in refusing compensation to which he had referred were perpetuated.

said, he should not oppose the second reading of the Bill. The object of the measure was to open the court to barristers generally, and to solicitors. With regard to the first of these objects no difference of opinion existed. It was universally admitted it was for the public interest that the court should be thrown open to advocates of all classes. Perhaps, however, an objection might be made to opening the court to solicitors; and then came the question of compensation. It appeared to him that it would be inconvenient to enter into a discussion of that question at that moment; and he would, therefore, suggest that the whole matter should be loft to Her Majesty's Government. The subject was under the consideration of the Government, and inquiries were being made into the facts on which claims for compensation would be made. He would remind the hon. and learned Gentleman (Mr. Hadfield) that it was the Government, and the Government alone, who could carry a compensatory clause through Parliament with a due regard to the public interests on the one side, and to the rights of individuals on the other. He hoped the hon. Gentleman would not proceed further with the Bill till the Government should have announced their intentions; but in the meantime he would consent to the second reading.

said, that in the absence of his hon. and learned Friend the Member for Durham (Mr. Atherton) he rose to move the second reading of this Bill. No less than four Mortmain Bills had been passed by that House which the movers had not succeeded in carrying through the other House of Parliament. The object of this Bill was to remove some technical difficulties which arose under the 9th Geo. IV., and which stood in the way of settlements and devises for charitable purposes; and he trusted that it would be committed to some noble Lord who would see what were the difficulties of passing such a measure through the other branch of the legislature. In Scotland real estate of the value of £400,000 had recently been left by a deceased gentleman chiefly for charitable purposes, and as the law of Scotland did not interfere with the will, the bequests took effect. In Ireland, where, to use the mildest term, the Protestants believed that the people were more susceptible of influences brought to bear at the deathbed, the only restriction on a devise by will of real property for charitable uses was that provided by the 16th section of the Act of 1844, which required that the will should be made three months before the death of the testator, and that the will should be registered in Dublin; while in England there was an absolute prohibition to the devising by will of real property for charitable uses. He thought, that an amendment of the English law in this respect was absolutely necessary, and the Bill would remove the difficulties which were now experienced by charitable persons who wished to endow schools, hospitals, places of worship, and other similar institutions, and would afford them cheap, effectual, and easy means of carrying out their wishes.

said, he did not propose to enter upon the general question of the policy of the Mortmain Laws, and he was certainly not inclined to relax them. Undoubtedly, if the Bill went as far as the hon. Gentleman's speech he should not assent to the second reading, but he found that its object was simply to obviate a construction of the Mortmain Act which invalidated bequests of an unobjectionable character. He should not, therefore, object to its being read a second time; but he must at the same time observe that the Bill involved questions of detail which would require very careful consideration in Committee.

moved aproviso to Clause 19, restricting the tolls to an amount sufficient to meet the necessary expenditure of the market.

promised to frame a clause to effect this object.

moved the omission of Clause 29, on the ground that it made it compulsory upon buyers and sellers to have recourse to the public market.

defended the clause.

said, that if the clause were not agreed to the sellers might pitch their articles in the streets or any where else than in the market. With competition of this sort it was not likely that the owners of a market would expend money in improving it. The clause was essentially a poor man's clause, inasmuch as it provided that corn, cattle, butter, and other merchandise should be brought to one common centre. All the evidence taken before the Committee showed that the present confusion which reigned in Irish towns on market days ought to be put an end to.

said, he was of opinion that if the clause were omitted the Bill would be deprived of its chief value.

said, he agreed with the noble Lord (Lord Naas) that the clause was a poor man's clause. Reject it, and it would be impossible for any party to come forward and give the accommodation which it was the object of the measure to provide. If sellers were to be permitted to pitch their articles in the streets, and not compelled to carry them to the market, the Bill might as well be at once abandoned.

said, that the proposal contained in the clause was in accordance with the law of this country, to the effect that the person who exposed goods for sale in any other place than his own shop or premises during the continuance of the market, should be liable to a penalty of 40s.

said, he would recommend the withdrawal of the Motion for omitting the clause, and that the point should be reserved until the Bill was reported.