subject, taken in connexion with his subsequent conduct, was entirely for the jury.'

§ 37. The power of the jury to interpret expressions is not confined to such as are employed in contracts, or have a peculiar commercial meaning; but seems to extend to all phrases, capable of being used in a technical sense, which do not require any knowledge of the law to explain them. Thus, the Courts have more then once refused to entertain the question, whether an excavation is a mine, and as such not rateable to the relief of the poor; but having so far laid down a legal principle with reference to the subject, as to decide that the method of working was to be considered, and not the chemical or geological character of the produce, they have declined to go further, and have left the sessions to apply to the question, as one of fact, the information they possess, and their knowledge of the English language. So, it has been held, that the jury must determine what constitutes such a representation of part of a dramatic production, as to subject the person representing it to penalties under the Act of 3 & 4 Will. 4, c. 15. But if a word of doubtful import be used in an Act of Parliament, the judge ought to explain its general meaning; and, therefore, when, on the trial of an issue whether a railway was passing through a "town," within the meaning of the Railway Clauses Consolidation Act, the judge merely told the jury that the word "town" was to be understood in its ordinary and popular sense, the Court held that this was a misdirection, and granted a new trial in consequence. So, the jury will not be allowed to examine a record, for the purpose of giving their opinion as to what word has been written above an

1 Wilkinson v. Storey, 1 Jebb & Sy. 509.

See Darvill v. Roper, 3 Drew. 303.

R. v. Sedgeley, 2 B. & Ad. 65; R. v. Brettell, 3 B. & Ad. 424; R. v. Dunsford, 2 A. & E. 568; 4 N. & M. 349, S. C. "The Court of Quarter Sessions are judges of law and fact. The appeal to the Queen's Bench is confined to questions of law. The distinction, therefore, between the respective provinces of the two courts is so far analogous to the distinction under discussion, as to justify the drawing of illustrations from cases of appeal." 12 Law Mag. 64, n. 2.

• Planché v. Braham, 4 Bing. N. C. 19.

Elliott v. The South Devon Rail. Co., 2 Ex. R. 725.

erasure, for the inspection of a record is within the peculiar province of the Court.'

§ 38. On the rule of law, which intrusts the judge with the interpretation of written instruments, an exception has been engrafted in certain cases, when the writing forms the subject of an indictment or an action on the case, and the guilt or innocence of the defendant depends upon the popular meaning of the language employed. Thus, on a prosecution for libel, the legislature, after much acrimonious discussion between the judges on the one hand, and the advocates of popular rights on the other, has expressly determined,' that the question whether the particular publication, which is the subject of inquiry, is of a libellous character, and is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is

1 R. v. Hucks, 1 Stark. R. 522, per Lord Ellenborough.

2 As to this celebrated dispute, see, in support of the claims of the judges, R. v. Udall, 1 How. St. Tr. 1289; R. v. Woodfall, 20 id. 913, 918, 920, per Lord Mansfield; 5 Burr. 2661, S. C.; R. v. Dean of St. Asaph, 21 How. St. Tr. 1033, per Lord Mansfield: and in support of the rights of the jury, R. v. Tutchin, 14 id. 1128, per Lord Holt; R. v. Owen, 18 id. 1223, 1227; R. v. Dean of St. Asaph, 21 id. 922, 971, arguments of Mr. Erskine, and 1040, per Willes, J.; 29 id. 49, per Lord Ellenborough ; 1 Woodfall's Junius, 14, et seq., 163, 169-176. As to proceedings in the House of Lords on passing the Libel Act, see 22 How. St. Tr. 294, 297.

3 32 Geo. 3, c. 60, § 1, declares and enacts that, on every trial of an indictment or information for a libel, "the jury sworn to try the issue may give a general verdict of guilty or not guilty upon the whole matter put in issue upon such indictment or information; and shall not be required or directed by the court or judge, before whom such indictment or information shall be tried, to find the defendant or defendants guilty, merely on the proof of the publication by such defendant or defendants of the paper charged to be a libel, and of the sense ascribed to the same in such indictment or information." § 2 provides, that, "on every such trial, the court or judge, before whom such indictment or information shall be tried, shall, according to their or his discretion, give their or his opinion and directions to the jury on the matter in issue between the King and the defendant or defendants, in like manner as in other criminal cases." § 3 provides, that a jury may find a special verdict; and § 4 reserves to defendants a right to move in arrest of judgment.

*

* Semble the word "may" had been used.

"shall" should here be interpreted as if the word See per Littledale ". Lawrence, 11 A. & E. 925.

one upon which the jury must exercise their judgment, and pronounce their opinion, as a question of fact. The judge, indeed, as a matter of advice to them in deciding that question, may give his own opinion respecting the nature of the publication, but is not bound to do so as a matter of law.' The statute here noticed is strictly applicable to criminal trials only, but, being a declaratory Act, its provisions have been adopted in civil actions for libel, and, for a series of years, it has been the course for the judge, first to give a legal definition of the offence, and then to leave the jury to determine whether the writing complained of falls within that definition or not.' It is not, however, absolutely necessary that the judge should explain what constitutes a libel, but he may leave the whole question without reserve to the jury; though, if they find a verdict against the defendant, either on an indictment or an action, the Court will arrest the judgment, if the writing on the face of it is not libellous."

§ 39. On indictments for writing threatening letters, the respective duties of the judge and jury are not very clearly defined. In some cases the jury have been permitted, upon examination of the paper, to decide for themselves whether or not it contained a menace. In other cases, the question appears to have been exclusively determined by the Court;' while on a few occasions the opinions of the jury, and of the judges, have alternately been taken on the point."

§40. In regard to foreign laws, usages and customs, which we have already seen cannot be judicially noticed, but must be proved as facts in each particular case," the distinction between the functions.

' Per Parke, B., in Parmiter v. Coupland, 6 M. & W. 108.

* Id. 107, 108.

3

Baylis v. Lawrence, 11 A. & E. 920. 'Hearne v. Stowell, 12 A. & E. 719; 4 P. & D. 696, S. C.; Goldstein v. Foss, 6 B. & C. 154; Parmiter v. Coupland, 6 M. & W. 106, per Alderson, B.

6

See 7 & 8 Geo. 4, c. 27; and 7 & 8 Geo. 4, c. 29, § 8.

R. v. Girdwood, 1 Lea. C. C. 142; 2 East, P. C. 1120, S. C.

7 R. v.

Smith, 1 Den. 510, 512; 2 C. & Kir. 882, 884, S. C.; R. v. Pickford, 4 C. & P. 227. R. v. Robinson, 2 Lea. C. C. 755, 765.

10

8

Although a point of foreign law may have been proved and acted upon

in one court, another court will not rely upon the report of such a case,

2

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 rest upon disputed facts. 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."

§ 41. Before leaving the subject of foreign law, it will be 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."

but will 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 Lord Just. Knight Bruce; 5 De Gex, M. & Gord. 278, S. C.

1 R. v. Picton, 30 How. St. Tr. 536-540, 864-870.

2 Bristow v. Sequeville, 5 Ex. R. 275. The whole of this subject will be discussed, post, Part iii., Chap. iii. See Index, Tit. Foreign Laws.

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.

5 Trasher v. Everhart, 3 Gill & John. 234, 242; Story, Confl. of Laws, § 638, n. 3; ante, § 22.

6

Story, Confl. of Laws, § 638, & n. 3; Mostyn v. Fabrigas, 1 Cowp. R. 174, per Lord Mansfield.

7 Clark v. Mullick, 3 Moo. P. C. R. 279, per Lord 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 contractús, 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." 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" 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 a notary, and a copy, sealed by the notary 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

1

Bain v. Whitehaven and Furness Junc. Rail. Co., 3 H. of L. Cas. 19, per Lord Brougham. 2 14 & 15 Vict., c. 99, §§ 11 & 19.

'Clark v. Mullick, 3 Moo. P. C. R. 252, 280.

4 Yates v. Thomson, 3 Cl. & Fin. 577, 580, et seq., per Lord Brougham. 5 6 A. & E. 185.