PROCEDURE. CAP. X. Proof. (printed in the appendix to this chapter) jurisdiction is given PART IV. to the English courts, or to any judge thereof, to order the examination upon oath before a commissioner of any witness within the jurisdiction, upon application for that purpose (by summons at chambers), in aid of any civil or commercial suit in a foreign country, without any writ being issued or other proceedings taken in the English court. Provision is made for compelling the attendance of witnesses; and false evidence given upon such an examination is made perjury (s. 3). Though it does not appear that much use has been made of this statute, it has been resorted to in the Divorce Court.(a) It would appear that, in such cases, questions as to the admissibility of evidence would be decided by the law of the country where the suit was pending, which is the real forum.(b) The proof of foreign law is mainly controlled by the prin- Proof of ciple that the law of a foreign State is a fact which must foreign law. be established by evidence like any other, and of which no tribunal or judge has a right to take judicial notice. No judicial knowledge or discernment is attributed to a judge in such a matter; and if proper proof of a foreign law is not adduced, the Court must proceed according to the law of England.(e) All that can be required of a tribunal adjudicating on a question of foreign law is to receive and consider all the evidence as to it which is available, and bona fide to determine on that, as well as it can, what the foreign law is. If from the imperfect evidence produced before it, or its misapprehension of the effect of that evidence, a mistake is made, it is much to be lamented, but the tribunal is free from blame.(d) The judge "has not organs to know and to deal with the text of the foreign law, and therefore requires the assistance of a lawyer who knows how to interpret it." (e) How far the function of the judge is limited to the reception of this evidence and this assistance is perhaps not wholly free (a) See, e.g., Siripson v. Hazard, W. N. 1887, p. 115. (b) Dessilla v. Fels, 44 L. T. Rep. 423. When the judge of a foreign Court, to which a requisition from the Probate and Divorce Court had issued to examine a witness, having the interrogatories and cross-interrogatories before him, examined the witness himself at his discretion without putting the questions verbatim, and no further request was made to cross-examine, the deposition so made was received in evidence, though with doubt. Hitchins v. Hitchins, L. R. 1 P. & D. (1866), 153. But the knowledge that the examination will be conducted in this manner may be a reason for refusing to issue a requisition or commission to a foreign Court (In re Boyse, Crofton v. Crofton (1882), 20 Ch. D. 760). As to the form of such commission, see In re Imperial Land Co. of Marseilles (37 L. T. Rep. 588) and Seton on Decrees, 4th ed., pp. 21, 149, 1638. (c) Lloyd v. Guibert, L. R. 1 Q. B. 115, 129; Brown v. Gracey, D. & R. N. P. 41, n. PART IV. from doubt. It was said by Lord Langdale, that though a PROCEDURE. knowledge of foreign law is not to be imputed to the judge, CAP. X. there may be imputed to him a knowledge of the general art Proof. of reasoning; and that there may therefore be cases in which the judge may, without impropriety, take upon himself to construe the words of a foreign law, and determine their application to the case before him, especially if there should be a variance or want of clearness in the testimony.(a) The same view had been apparently adopted by Lord Stowell in earlier cases, (b) limiting the exercise of this function to the consideration of those authorities which were directly referred to by the witnesses; but, as Lord Langdale remarked in the case cited, a judge endowed as Lord Stowell was might perhaps safely do some things which other judges might find it very hazardous to imitate. Foreign law -whether by Court. The Court of Appeal, however, has held quite recently that examinable judges are entitled to look at written laws expressly referred to in the evidence of foreign experts, but only at the sections so referred to.(c) This rule was laid down after Nelson v. Bridport and the Sussex Peerage Case had been cited, and may therefore be regarded as conclusively established for the English Courts. The Judicial Committee of the Privy Council, indeed, had as long ago as 1857 assumed an apparently unrestricted right to examine for themselves, not only foreign statutes, but foreign reports and text-writers, (d) but there is no other direct authority for the proposition that a judge may of his own mere motion look even at the written or printed laws of a foreign State. In a recent case in the Exchequer Chamber the provisions of the French Code de Commerce were, no doubt, examined critically by the Court, but it is especially remarked in the judgments that the whole Code was, by agreement of the parties, considered to be in evidence.(e) The doctrine that it is necessary to prove foreign law as a fact by oral testimony was not therefore impugned, nor is the case even an authority for the admissibility in evidence of the statute law or codes of a foreign country, where the objection is not waived. The objection, though not waived, does not appear to have been taken in Trimbey v. Vignier,(ƒ) in which the same articles of the Code de Commerce came in question, and were no doubt (a) Nelson v. Bridport, 8 Beav. 537. (b) Lindo v. Belisario, 1 Hagg. Cons. 216; Dalrymple v. Dalrymple, 2 Hagg. Cons. 54. (c) Concha v. Murrieta, 40 Ch. D. 543, 549. (d) Bremer v. Freeman, 10 Moo. P. C. 306, 363. PROCEDURE. CAP. X. Proof. looked at by the Court. Upon this point of French law," PART IV. says Tindal, C.J., " the opinions of the foreign advocates which have been taken by consent since the trial of the cause appear to be contradictory; but as each of them founds his opinion on the Code de Commerce, arts. 137, 138, we feel ourselves at liberty to refer to the text of that Code, in order to form our own judgment on the point." It will be observed that in that case the opinions of the foreign advocates were taken by consent after the trial, and the disputed articles of the Code were in fact quoted in those opinions; so that both litigants appear to have waived their right to object to anything beyond the testimony of an expert. It is obvious that there is considerable danger in permitting any judge to attempt the construction and application of a foreign code or statute for himself. The opinion of a Continental judge, for example, upon the 4th section of the Statute of Frauds, given in ignorance that it had ever been the subject of judicial decision, would certainly be more likely to be wrong than right; and the stricter view would seem to be that a litigant has a right to demand, if he chooses, that the opinion of the witnesses as to the foreign law shall be accepted as conclusive, without any attempt being made by the judge to supplement it by an examination of the foreign law for himself. It is the office of the judge in such a case to decide upon the testimony submitted to him, not upon the comparative validity of the reasons given by the witnesses in support of their opposite opinions; (a) and the distinction between the task of construing a foreign document or contract after the law affecting it has been proved, and the task of ascertaining that law as a preparatory step towards doing so, will be well seen from the case just cited. The authorities, however, for the proposition that foreign written law may be looked at by the judge, are entitled to considerable respect, and in the Sussex Peerage Case (b) Lord Campbell gave his opinion in favour of that view in opposition to that taken by Lord Brougham. The Supreme Court of the United States, in a judgment cited at length by Story,(e) have expressed their opinion that the true rule was, that a foreign written law may be received when it is found in a statutebook, with proof that the book has been officially published by the Government which made the law. It has been said by (a) Di Sora v. Phillips, 10 H. L. C. 624, 638. (b) 11 Cl. & F. 85, 114; see Baron de Bode's Case, 8 Q. B. 208; Millar v. Heinrich, 4 Camp. 155; Lacon v. Higgins, 3 Stark. N. P. C. 178; Picton's Case, 30 How. St. Tr. 491; Middleton v. Janrerin, 2 Hagg. Cons. 437. (c) Story, Conflict of Laws, § 641 a, n. CAP. X. Proof. PART IV. Blackburn, J., that there is great and obvious danger of error PROCEDURE. in any attempt to construe the written code of a foreign law, without the aid of foreign lawyers to explain it,(a) but the rule as laid down for England in Concha v. Murrieta (suprà), admitting for judicial examination only those parts of foreign codes or statutes which have been expressly referred to by expert witnesses, ought to reduce this peril to a minimum. Nevertheless, it does not wholly exclude it. Foreign law experts. Whatever may be the rule, however, as to the right of the -proved by Court to look at the written or printed laws of a foreign country, it is certain that all foreign law may, and all unwritten foreign law must, be proved by parol evidence. The only witness competent to give such evidence is some person who is conversant with the foreign law, either as a legal practitioner in the foreign State, or as holding some other office there the duties of which would entail such knowledge. It does not appear necessary that he should be a legal practitioner or professor, at any rate if the law (b) to be proved is a mercantile custom; but it is clearly not sufficient that his knowledge of the law of the foreign State should be derived from his having studied it in another country.(c) If this were enough, as Alderson, B., observed in Bristow v. Sequeville, why should not a Frenchman, who had read books relating to Chinese law, be called to prove what the law of China really is? And in Cartwright v. Cartwright,(d) before Sir James Hannen in the Probate Division of the High Court, in June 1878, it was held that the Canadian marriage law could not be proved by the testimony of an English barrister, who had enjoyed a large practice in Canadian appeals before the Judicial Committee of the Privy Council; such a practitioner, not being an expert, in the contemplation of law, qualified to give evidence concerning the law of those countries for which the Privy Council is the ultimate court of appeal. Such a witness must be a person peritus virtute officii, according to Lord Lyndhurst, (e) from whose language it appears further that where the witness has no officium, he can have no peritia; and therefore that a mere resident in a foreign country is not a competent witness to prove its law.(f) It must be doubted whether the decision of Lord Tenterden, that a French vice-consul in England is peritus (a) Per Blackburn, J., in Castrique v. Imrie, 39 L. J. C. P. 350, 355(b) Vanderdonckt v. Thellusson, 8 C. B. 812. See R. v. Porey, 22 L. J. M. C. 19. (c) Bristow v. Sequerille, 5 Ex. 275; 19 L. J. Ex. 289; In the Goods of Bonelli, L. R. 1 P. D. 69. (d) 26 W. R. 684. (e) Sussex Peerage Case, 11 Cl. & F. 85, 134, where R. v. Dent, i C. & K. 97, is said to be not law; see also, R. v. Picton, 40 How. St. Tr. 509; Ward v. Dey, 7 Notes of Cases, 96. (f) Ibid. PROCEDURE CAP. X. Proof. virtute officii, so as to be a competent witness to prove French PART IV. law, would be followed at the present day. But a Persian ambassador has been allowed to give evidence of Persian law, on his stating that members of the Persian diplomatic service were expected to be versed in law, but that there were no professional lawyers in Persia. (a) And in a recent case the law of Russia as to the wills of members of the Russian Imperial family seems to have been proved by "the certificate of the Russian ambassador."(b) -statutory In addition to this ordinary and common law method of Foreign law proving foreign law, it was enacted by the Legislature in 1861 proof of. (24 Vict. c. 11) that in any action in one of the English superior courts, and now therefore in any action in any of the divisions of the High Court of Justice, it shall be competent for the Court to state and remit a special case to a superior court of any foreign country with which a convention to that effect shall have been made, in order to ascertain the law of that foreign country; and that a certified copy of the opinion of the foreign Court upon the case submitted to it shall be admitted to prove the foreign law. The opinion of the foreign Court, however, is not to be conclusive evidence, as the 2nd section of the same Act authorises the English Court to apply the opinion to the facts, in the same way as if it had been pronounced by itself upon a case reserved or upon a special verdict, "if if it shall think fit." The 3rd section of the Act authorises the English Courts to pronounce opinions upon cases similarly remitted to them by foreign States; but it must, of course, be noted that these provisions only apply to those foreign countries or States with the Governments of which a convention has been entered into by the British Government for the purpose of mutually ascertaining British and foreign law in the respective cases. The convention will, of course, determine in each instance to what court or courts in the foreign country the application is to be made; but it is not likely that the Act itself will ever be made extensively avail (a) In the Goods of Dost Ali Khan, 6 P. D. 6. (b) In the Goods of Prince of Oldenburg, 9 P. D. 234, apparently following In the Goods of Klingemann, 32 L. J. Prob. 16, and In the Goods of Dormoy, 3 Hagg. Eccl. 767, where a certificate of the French consul-general was received. This ambassadorial privilege seems peculiar to the Probate Court. In a petition for the dissolution of a marriage celebrated in Hong-Kong, when it was stated that the only legal expert available demanded a prohibitive fee, Gorell Barnes, J., admitted an affidavit of an ex-Governor of the colony, who was not a professional lawyer, but deposed that he was conversant with the law applicable to the case. (CooperKing v. Cooper-King (1900), P. D. 65.) It should be noted, however, that this was an undefended case, and that no authorities appear from the report to have been cited. See Wilson v. Wilson (1903), P. D. 157. |