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the functions of the judge and the jury does not yet appear to be very clearly defined. It would seem, however, that while the existence and abstract meaning of the law must, in general, be determined by the jury on the testimony of the skilled witnesses, it will be the duty of the court to decide, first, as to the competent knowledge of the witnesses called ;? next, as to the admissibility of the documents by which they seek to refresh their memory; and lastly, as to the special applicability of the law, when proved, to the particular matter in controversy. If, indeed, the admissibility or inadmissibility of certain evidence depends on the existence or interpretation of a foreign law, the proof should exclusively be addressed to the court, as in other cases where questions respecting the admissibility of evidence rests upon disputed facts.5 Perhaps, also, as all matters of law are properly referable to the court, and as the object of the proof of foreign law is to enable the court to instruct the jury as to its bearing on the case in hand, it will always be advisable for the judge to assist the jury in ascertaining what the law really is.
$ 49. Before leaving the subject of foreign law, it will be § 41 important to notice, that the peculiar rules of evidence adopted in one country,—whether established by the practice of its courts, or enacted by the legislature for the government of those courts,
-cannot be permitted to regulate the proceedings of courts in another country, when transactions, which took place in the former country, become the subject of investigation in the latter.?
require fresh proof of the law, as a matter of fact, on each particular occasion ; M'Cormick v. Garnett, 23 L. J., Ch. 717, per Knight-Bruce, L. J.; 5 De Gex, M. & G. 278, S. C.
R. v. Picton, 30 How. St. Tr. 536–540, 864–870. ? Bristow v. Sequeville, 5 Ex. R. 275. The whole of this subject will be discussed, post, $$ 1423—1425.
3 See Sussex Peer. Case, 11 Cl. & Fin. 114-117; Ld. Nelson v. Ld. Bridport, 8 Beav. 527; Church v. Hubbart, 2 Cranch, 187, 236-238.
Story, Confl. § 638. 5 Trasher v. Everhart, 3 Gill & John. 234, 242; Story, Confl. § 638, n. 3; ante, § 23.
6 Story, Confl. § 638, & n. 3; Mostyn v. Fabrigas, 1 Cowp. R. 174, per Ll. Mansfield.
7 Clark v. Mullick, 3 Moo. P. C. R. 279, per Ld. Brougham.
The law of evidence is the lex fori which governs the courts. Whether a witness is competent or not,-whether a certain matter requires to be proved by writing or not,—whether certain evidence proves a certain fact or not,—these, and the like questions, must be determined, not lege loci contractûs, but by the law of the country where the question arises, where the remedy is sought to be enforced, and where the court sits to enforce it. The case of Clark v. Mullick, which was decided before the law was altered by the Evidence Amendment Act, of 1851,” affords a striking example of this rule. There, the assignees of a bankrupt under an English fiat having brought an action in Calcutta against a debtor of the bankrupt, and the pleas having put in issue the bankruptcy and the assignment, it was held that the affirmative of these issues could not be proved by producing copies of the proceedings in the Bankruptcy Court, purporting to bear the seal of that court, and to be signed by the Clerk of Enrolments; for although, by the statutes relating to bankruptcy, such evidence was sufficient in English courts of justice, it was not at that time admissible in India, as the Acts did not extend to that country.3 Again, although by the Scotch law, all instruments prepared and witnessed according to the provisions of the Act of 1681, are probative writs, and may be given in evidence without any proof, yet still, if it were required to prove one of these Scotch instruments in an English court, its mere production would not suffice, but it would be necessary to call one or other of the attesting witnesses. The case of Brown v. Thornton 5 is another illustration of this rule. There, a charter-party had been entered into at Batavia ; and, in accordance with the Dutch law which prevails in that colony, the contract had been written in the book of the notary, and a copy, signed and sealed by him and countersigned by the governor of Java, had been delivered to each of the parties. In the courts of Java, the contract is proved by producing the notary's book; but in all other Dutch courts the copies are
i Bain v. Whitehaven & Furness Junc. Rail. Co., 3 H. of L. Cas. 19, per Ld. Brougham.
? 14 & 15 V., c. 99, $$ 11 & 19. 3 Clark v. Mullick, 3 Moo. P. C. R. 252, 280. 4 Yates v. Thomson, 3 Cl. & Fin. 577, 580, et seq., per Ld. Brougham. 5 6 A. & E. 185.
received as due evidence of the original. Under these circumstances, the plaintiff in an English court tendered his copy of the charter-party, as evidence of the contract, but the court held that it was inadmissible, on the ground that English judges could not adopt a rule of evidence from foreign courts. Several other cases could be cited to the same effect ;) and in all, the distinction is recognised between the cause of action, which must be judged of according to the law of the country where it originated, and the mode of proceeding, including of course the rules of evidence, which must be adopted as it happens to exist in the country where the action is brought.”
1 Trimbey v. Vignier, 1 Bing. N. C. 151; Huber v. Steiner, 2 Bing. N. C. 202 ; British Linen Co. v. Drummond, 10 B. & C. 903 ; Appleton v. Ld. Braybrook, 2 Stark. R. 6; 6 M. & Sel. 34, S. C.; Black v. Ld. Braybrook, 2 Stark. R. 7; 6 M. & Sel. 39, S. C.; Don v. Lippmann, 5 C1. & Fin. 1, 13– 17; Leroux v. Brown, 12 Com. B. 801 ; Finlay v. Finlay, 31 L. J., Pr. & Mat. 149.
: Mostyn v. Fabrigas, 1 Smith, L. C. 641. See also Story, Confl. $$ 550, et seq. & 629–636.
THE GROUNDS OF BELIEF. § 50.1 We proceed now to a brief consideration of the General $ 42 Nature and Principles of Evidence. No inquiry is here proposed into the origin of human knowledge; it being assumed, on the authority of approved writers, that all that men know is referable, in a philosophical view, to perception and reflection. But, in fact, the knowledge acquired by an individual through his own perception and reflection, is but a small part of what he possesses ; much of what we are content to regard and act upon as knowledge, having been acquired through the perception of others. It is not easy to conceive, that the Supreme Being, whose wisdom is so conspicuous in all his works, constituted man to believe only upon his own personal experience; since, in that case, the world could neither be governed nor improved ; and society must remain in the state in which it was left by the first generation of men. On the contrary, during the period of childhood we believe implicitly almost all that is told us; and we thus are furnished with information, which we could not otherwise obtain, but which is necessary at the time for our present protection, or as the means of future improvement. This disposition to confide in the veracity of others, and to believe what they say, may be termed instinctive. At an early period, however, we begin to find that of the things told to us some are not true; and thus our implicit reliance on the testimony of others is weakened ; first, in regard to particular things, in which we have been deceived ; then, in regard to persons, whose falsehoods we have detected; and, as these instances multiply upon us, we gradually become more and more distrustful of statements made to us, and learn by experience the necessity of testing them by certain rules."'3 “ Confidence," exclaimed Lord Chatham, on a memorable occasion, “is a plant of
3 Id. Part 2, § 3, p. 73.
1 Gr. Ev. § 7, nearly verbatim.
slow growth in an aged bosom ;” and indeed, it may be generally observed, that, as our ability to obtain knowledge by other means increases, our instinctive and indiscriminate reliance on testimony diminishes, by yielding to a more rational belief. Still, in every
1 * Gamb. Guide, 87; M‘Kinnon, Phil. of Ev. 40. This subject is treated more largely by Dr. Reid in his profound Inquiry into the Human Mind, c. 6, $ 24, pp. 196, 197, of his collected Works, in these words :-“The wise and beneficent Author of Nature, who intended that we should be social creatures, and that we should receive the greatest and most important part of our knowledge by the information of others, hath, for these purposes, implanted in our nature two principles, that tally with each other. The first of these principles is a propensity to speak truth, and to use the signs of language, so as to convey our real sentiments. This principle has a powerful operation, even in the greatest liars; for where they lie once they speak truth a hundred times. Truth is always uppermost, and is the natural issue of the mind. It requires no art or training, no inducement or temptation, but only that we yield to a natural impulse. Lying, on the contrary, is doing violence to our nature ; and is never practised, even by the worst men, without some temptation. Speaking truth is like using our natural food, which we would do from appetite, although it answered no end ; but lying is like taking physic, which is nauseous to the taste, and which no man takes but for some end, which he cannot otherwise attain. If it should be objected, that men may be influenced by moral or political considerations to speak truth, and therefore, that their doing so is no proof of such an original principle as we have mentioned ; I answer, first, that · moral or political considerations can have no influence, until we arrive at years
of understanding and reflection ; and it is certain from experience, that children keep to truth invariably, before they are capable of being influenced by such considerations. Secondly, when we are influenced by moral or political considerations, we must be conscious of that influence, and capable of perceiving it upon reflection. Now, when I reflect upon my actions most attentively, I am not conscious, that in speaking truth I am influenced on ordinary occasions by any motive moral or political. I find, that truth is always at the door of my lips, and goes forth spontaneously, if not held back. It requires neither good nor bad intention to bring it forth, but only that I be artless and undesigning. There may indeed be temptations to falsehood, which would be too strong for the natural principle of veracity, unaided by principles of honour or virtue; but where there is no such temptation, we speak truth by instinct; and this instinct is the principle I have been explaining. By this instinct, a real connection is formed between our words and our thoughts, and thereby the former become fit to be signs of the latter, which they could not otherwise be. And although this connection is broken in every instance of lying and equivocation, yet these instances being comparatively few, the authority of human testimony is only weakened by them, but not destroyed. Another original
* Gr. Ev. § 7, n. verbatim.