CHAPTER XVII. EVIDENCE AND PROOFS. [* § 629. The law which governs in regard to evidence and proofs. § 630. This question may arise in various modes. 630 a. Presumptions of fact governed by lex fori. 630 b. Competency of evidence governed by lex rei sitæ, &c. § 631. Contracts must be executed according to lex loci contractus. § 632, 632 a. The formalities of a contract governed by lex loci; the proof of them by lex fori. § 633, 634. Subject further discussed by foreign jurists. § 634 a. Matters of evidence strictly pertain to procedure. § 635. Embarrassing cases stated. 635 a. Questions affecting the testimony of colored persons. § 635 b. Discussion of the subject by Lord Brougham. 635 c. Notarial copies of contracts not admissible, as such, in England. § 635 d, 635 e. The kind and degree of evidence governed by lex fori. § 636. Wills of personalty proved according to law of domicil. § 637. Foreign laws must be proved as facts. § 637 a. Courts will presume the existence of general principles of universal law, but not the statute law. § 638, 638 a. Testimony as to foreign law addressed to the court, but where conflicting, referred to jury. 639. Best attainable proof required. § 640. Written laws proved by duly authenticated copies. 641. This must be done by great seal of the state, or the oath of a witness. § 641 a. Authorized editions of public laws sufficient. § 642. Unwritten law proved by experts. §643. How the seal of foreign courts authenticated. § 644. Congress prescribes the mode of authenticating state records and other proceedings. § 645. Conclusion. § 629. WE come in the last place to the consideration of the operation of foreign laws in relation to evidence and proofs. And, here, independently of other more complicated questions, two of a very general nature may arise. In the first place, what rule is to prevail, as to the competency or incompetency of witnesses? Is the rule of the law of the country where the transaction to which the suit relates, had its origin, to govern, or the law of the country where the suit is brought? In the next place, what is the rule which is to prevail in the proof of written instruments? In other words, in what manner are contracts, instruments, or other acts. made or done in other countries to be proved? Is it sufficient to prove them in the manner and by the solemnities and proofs which are deemed sufficient by the law of the place where the contracts, instruments, or other acts, were executed? Or is it necessary to prove them in the manner and according to the law of the place where the action or other judicial proceeding is instituted? § 630. Various cases may be put to illustrate these questions. A contract or other instrument is executed and recorded before a notary public in a foreign country, in which by law a copy of the contract or other instrument certified by him is sufficient to establish its existence and genuineness; would that certificate be admissible in the courts of common law of England or America to establish the same facts? Again; persons who are interested, and even parties in the very suit, are in some foreign countries admissible witnesses to prove contracts, instruments, and other acts, material to the merits of the suit; would they be admissible as witnesses in suits brought in the courts of common law in England and America, to prove the like facts in relation to contracts, instruments, or other acts, made or done in such foreign countries, material to the suit? These are questions more easily put, than satisfactorily answered upon principles of international jurisprudence. § 630 a. Similar considerations may arise in respect to the rules as to presumptions de facto and de jure, which may be different in different countries. Thus, for example, the title to movable property may depend upon the question of survivorship of one of two persons, who both died under the like circumstances; as, for example, on board a ship which foundered at sea, or was totally lost with all her crew by shipwreck. Now, different countries may, and probably do, adopt different presumptions, as to the survivorship in such calamitous circumstances, founded upon considerations of the age, or sex, or other natural or even artificial grounds of belief or presumption.2 What rule, then, is to be adopted? The law of the place of domicil of the parties, or the law of the forum where the suit is instituted? On one occasion, when a question of this very nature was before him, a late learned 1 See Mascardus, De Probat. Vol. 2, Conclus. 927, n. 4 to n. 8, p. 336, [455, edit. 1731.] 2 See Fearne's Posthum. Works, 38; The Case of Gen. Stanwix and Daughter; Code Civil of France, art. 720, 721, 722; 4 Burge, Comm. on Col. and For. Law, Pt. 1, ch. 3, § 5, p. 152, 153. judge (Sir William Grant) said: "There are many instances in which principles of law have been adopted from the civilians by our English courts of justice; but none that I know of, in which they have adopted presumptions of fact from the rules of the civil law." 1 § 630 b. There are certain rules of evidence which may be affirmed to be generally, if not universally, recognized. Thus, in relation to immovable property, inasmuch as the rights and titles thereto are generally admitted to be governed by the law of the situs, and as suits and controversies touching the same ex directo properly belong to the forum of the situs, and not elsewhere, it would seem a just and natural, if not an irresistible conclusion, that the law of evidence of the situs touching such rights, titles, suits, and controversies, must and ought exclusively to govern in all such cases. So, in cases relating to the due execution of wills and testaments of immovables, the proofs must and ought to be according to the law of the situs. So in respect to the due execution of wills and testaments of movables, as they are governed by the law of the domicil of the testator, the proofs must and ought to be according to the law of his domicil. By the present law of England, a will or testament of movable property, in order to be valid, must be executed in the presence of two witnesses. If, then, an Englishman, domiciled in England, should make his will in England, in the presence of one witness only, that will could not be admitted to proof in Scotland to govern movable property situate there. The like rule would apply to a case where the will was executed in the presence of two witnesses, both or either of whom were incompetent by the law of England, although competent by the law of Scotland. § 631. Similar principles may well be applied to many other cases. There are certain formalities of proof, which are required by the laws of foreign countries in regard to contracts, instruments, and other acts which are indispensable to their validity there; and these are therefore held to be of universal obligation; and must be duly proved in every foreign tribunal, in which they are in litigation, before any right can be founded on them. An illustration of this doctrine may be drawn from the 1 Mason v. Mason, 1 Meriv. R. 308, 312. 2 See Tulloch v. Hartley, 1 Y. & C. New Cas. in Ch. 114, 115. Yates v. Thomson, 3 Clark & Finnell. 544, 576, 577. See Trasher v. Everhart, 3 Gill & Johns. R. 234, 242; ante, § 260 to § 263. known rule of the common law, that a bill of exchange upon its dishonor must be protested before a notary; and if not proved to be so protested, no remedy can be had against the drawer or indorsers.1 Another illustration may be drawn from the registration of deeds and other instruments, which cannot be given in evidence unless proved to be duly registered according to the lex loci rei sitæ. Another illustration may be drawn from cases of contract under the statute of frauds, which must be in writing, and must state a good consideration, in order to be valid in point of legal obligation or evidence.2 Another illustration may be drawn from the known doctrine as to stamps, by which it is held, that no instrument can be given in evidence unless it is properly stamped.3 In all these cases the proper proofs must doubtless be given in conformity with the local law. And if the proofs are given in the mode which the local law requires, there is some difficulty in asserting that such proofs ought not to be deemed everywhere a full authentication of the instrument.5 § 632. Boullenois divides the formalities of acts into several classes; those which are required before the act, quæ requiruntur ante factum; those which are required at the time of the act, qua requiruntur in facto; and those which are required afterwards, quæ requiruntur ex post facto. But a more important distinction in his distribution is of the formalities at the time of the act, which he denominates the formalities of proof, (formalites probantes) and those which are substantial and intrinsic formalities." Among the former he includes those which respect the number of witnesses who are to witness the execution of the act, their age, and quality, and residence, and the date and place of the act. And here he holds, that as to the formalities of proof the maxim applies: Solemnitates testimoniales non sunt in potestate contrahentium, sed in potestate juris.8 Solemnitates sumendæ sunt ex consuetudine loci, in quo res et actus geritur.9 1 See Bryden v. Taylor, 2 Harr. & Johns. 396; ante, § 260 a, § 360, 361; Wilcox v. Hunt, 13 Peters, R. 378. § 632 a. Mascardus holds a similar opinion; and says, that an act, executed before a notary in any place, if duly executed according to the law of that place, and valid as a notarial act, ought to be held of the same obligation and validity in every other place. Unde jus probationis, ortum a principio, non tollitur mutatione loci. Paul Voet appears to entertain a different opinion; and he puts the case, whether, if an instrument were executed in one place before a notary, who by the lex loci is competent for that purpose, the validity or force of that instrument would extend to another place, where the notary would be deemed incompetent, so that he could not there give public authenticity to the instrument. Quid si tamen in uno loco factum sit instrumentum coram notario, qui ibidem est habilis, an extendetur vis illius instrumenti ad alium locum, ubi censetur inhabilis, sic ut publicum ibidem nequeat facere instrumentum. After giving the opinions of several jurists in the affirmative, he proceeds to give his own to this effect; that it is not so much a question of solemnities as of the efficacy of proof, which, although it may be sufficient in one place, may not be so everywhere; and that the tribunal of one country cannot give such validity and force to any instrument, as that it shall have operation elsewhere.3 § 633. Paul Voet, also, in another place, speaking upon the subject of the operation of the lex fori, as to the modes of proceed 1 Mascard. De Probat. Conclus. 927, Tom. 2, p. 336, 337, [454, 455, edit. 1731,] n. 4 to n. 14; ante, § 260 a. 2 P. Voet, de Stat. § 10, ch. 1, n. 11, p. 287, 288, edit. 1715; Id. p. 347, edit. 1661. 3 P. Voet, de Stat. § 10, ch. 1, n. 11, p. 287, 288, edit. 1715; Id. p. 347, edit. 1661. His language is: Quid si tamen in uno loco factum sit instrumentum coram notario, qui ibidem est habilis, an extendetur vis illius instrumenti, ad alium locum, ubi censetur inhabilis, sic ut publicum ibidé nequeat facere instrumentum ? Sunt qui id adfirmant. Quasi loci consuetudo, dans robur scripturæ, etiam obtineat extra territorium. Sunt qui id ideo adfirmant, quod non tam de habilitate et inhabilitate notarii laboremus, quam de solemnibus. Quod si verum foret, res extra dubitationis aleam esset collocata. Verum, ut quod res est dicam existumem hic agi, non tam de solemnibus, quam probandi efficaciâ; quæ licet in uno loco sufficiens, non tamen ubique locorum ; quod judex unius territorii nequeat vires tribuere instrumento, ut alibi quid operetur. Hinc etiam mandatum ad lites, coram notario et testibus hic sufficienter factum, non tamen erit validum in Gelriæ partibus, ubi notarii non admittuntur, ut coram lege loci, hic confectum esse oporteat, quo in Geldriâ sortiatur effectum. Quemadmodum enim personam non subditam, non potest quis alibi inhabilitare; ita nec personam subditam potest alibi facere habilem. P. Voet, ubi supra. |