refusing to consult with the plaintiff, had honorably and faithfully CHAP. VII. discharged his duty to the medical profession. The answer to that might depend altogether on the temper and peculiar opinions of the individual witness, and was a point on which the Jury were as capable of forming a judgment as the witness himself."

In some cases the difficulty arises whether the question be one of a scientific nature or not. Thus, in actions on policies of insurance, the materiality of facts concealed. Hence, probably, the conflict of decision in cases where the question has arisen, both in England and in America (1).

between proof

opinion.

It is necessary, too, to distinguish between a proof of the fact Distinction in issue on the trial, and that of the scientific theory. "The of the fact in witness," says Mr. Taylor, "cannot in strictness be asked his issue, and the opinion respecting the very point which the Jury are to determine. For instance, if the question be whether a particular act, for which a prisoner is tried, were an act of insanity, a medical man conversant with that disease, who knows nothing of the prisoner, but has simply heard the trial, cannot be broadly asked his opinion as to the state of the prisoner's mind at the time of the commission of the alleged crime; because such a question involves the determination of the truth of the facts deposed to, as well as the scientific inference from those facts. Where, indeed, the facts are admitted, or not disputed, and the question thus becomes substantially one of science only, it may be convenient to allow the question to be put in that general form, though it cannot be insisted on as a matter of right. An objection, too, is the less likely to be taken to this course under ordinary circumstances, as no practical benefit would result from taking it; for the counsel examining may always attain his object by putting the question hypothetically,—that is, by desiring the witness first to assume such and such facts to be true, and then to state his opinion as to the prisoner's state of mind” (2).

It is, of course, fitting to preserve accuracy of distinction. Practically, however, the distinction here taken, though certainly one which a Court would recognize, somewhat savors of the distinction without the difference.

In most cases in which the testimony of experts is involved, the testimony is, in truth, to a certain extent, a compound both of

(1) See Carter v. Boehm and note to it, 1 Smith's Leading Cases, p. 509; Arnould on Marine Insurance, Vol. I, pp. 548 and 599; and Taylor on Evidence, Vol. II, p. 1230. (2) Taylor on Evidence, Vol. II, p. 1231.

CHAP. VII. knowledge and belief. It is knowledge, so far as the sources of information on which the witness speaks is concerned,—that is, his own science or art; it is belief, so far as the facts in the case on which it is brought to bear are involved. The testimony but imports into, and applies to, one thing, a knowledge derived from another.

Legal experts.

Proof not the book of the law,

but the

66

In the case of legal experts, the testimony, perhaps, ought more appropriately to be classified altogether under the head of knowledge. The Court, for example, requires for its decision to know what the foreign law is. This accordingly, and this alone, it asks of the witness; and he deposes to it as a fact. Thus Lord Langdale expressed himself in the Sussex Peerage Case :-" Foreign law is, in the Courts of this country, a matter of fact. A witness, more or less skilled in it, is called in to depose to it. He may state what it is from his own knowledge, or assist his own knowledge by reference to books and authorities that are within his reach. He may refer to text-books, or to books of decision, and so render his knowledge more accurate than before" (1).

We shall see hereafter a provision of the Indian Evidence Act (2) rendering certain codes, reports, and so forth, admissible as evidence of foreign law; and so far, therefore, apparently abridging the occasion for much discussion on evidence by its experts. It may, however, be permitted here to suggest that there is no case in which the ancient proverb that " a little learning is a dangerous thing" is more likely to prove true than in that of the individuals of one country, even when themselves lawyers, assuming to determine, although by the books of another, what the law of the latter is. Even as respects the law of one's own land, one not a lawyer is rarely a very sound or safe interpreter, however plain to his unsophisticated mind the statute or the treatise may appear to be. There are shoals, quicksands, and rocks beneath the smoothest surface; and which the experienced and skilled navigator alone knows how to avoid.

In the case in which a foreign law is established on the evi'dence of an expert, the proof is that of his own notion of the law, evidence of the and does not even involve the production of the law itself. In fact, the proof is not that of the book of the law, but the evidence of the witness.

witness.

(1) 11 Clarke and Finelly, p. 117.

(2) Act II of 1855, s. 12.

Thus, in the case of the Baron de Bode, the testimony of a CHAP. VII. French advocate was given to prove the abolition of a particular law by a decree of the National Assembly. He stated that the feudal law which had prevailed in Alsace ceased there in the year 1789, de facto, by the torrent of the revolution; that de jure it ceased at a later period, upon the treaty of Luneville; that, on the 4th August 1789, there was a decree of the National Assembly abolishing feudal rights. He was then asked, "Have you read that decree in the books of law, in the course of your study of the law?" He answered that he had, and that it was part of the history of the law which he learnt when studying the law. Being asked the particulars and contents of the decree itself, the question was objected to. But Lord Denman, Chief Justice, after adverting to the general rule which precludes evidence of the contents of documents not produced, observed :-" In my opinion, however, the question is within another general rule that the opinion of skilful and scientific persons is to be received on subjects upon which they are conversant. I think that credit must be given to the opinion of legal men who are bound to know the law of the country in which they practise; and that we must take from them the account of it, whether it be the unwritten law, which they must collect from practice, or the written laws, which they are also bound to know. I apprehend that the evidence sought for would not set forth generally the recollection of the witness of the contents of the instrument, but his opinion as to the effect of the particular law. The instrument itself might frequently mislead, and it might be necessary that the knowledge of the practitioner should be called in, to show that the sense in which the instrument would be naturally construed by a foreigner is not its true legal sense" (1).

The doctrine here enunciated was adopted and acted on in a still later case in the House of Lords, that of the Sussex Peerage (2).

In adopting this, however, as the principle which is to prevail in the case of legal experts, there occasionally arises the obvious embarrassment that lawyers, any more than doctors, do not always agree-an embarrassment well pointed out by the late Judge Ordinary of the Court of Probate, Sir C. Cresswell, in a case before him involving a conflict on a question of Portuguese law,

(1) Baron de Bode v. Reginam, 10 Jurist, p. 217. See also the Report in 8 Exchequer, p. 246. (2) 11 Clarke and Finelly, p. 85.

CHAP. VII. and a Portuguese judgment:-" It was contended," said he," that the judgment ought not to be considered satisfactory, because the evidence before me showed that it was not in conformity with Portuguese law, and the facts of the case had not been correctly understood. As usual in such cases, experts were examined on each side, who gave conflicting evidence as to the Law of Portugal. They did not quote decided cases, and their evidence did not go beyond their opinion as to the true meaning of certain ordinances which were read in evidence. That such conflicting testimony should be given cannot be a matter of surprise to any one accustomed to legal proceedings. Very learned members of the legal profession in this country often entertain different opinions on points of law. Similar differences of opinion are found on the Bench, where the parties expressing them cannot be in any way biassed by the feelings of advocates; and even in the Court of last resort, in the House of Lords, it sometimes happens that the Law Lords are not unanimous in favor of the successful party. The difficulty of arriving at a correct conclusion as to foreign law at all times great is much increased when experts are examined and give conflicting testimony, for the Court has no means of ascertaining the comparative merits and learning of the witnesses "(1).

of experts, by reference to treatises.

The witness, however, under the doctrine of refreshing memory Refreshing the memory in case about to be adverted to, may himself assist his own knowledge by reference to books or other sources of professional information; and if he describe these as truly stating the law, they may be read as part of his testimony, though not as evidence in itself.

Refreshing

memory

generally.

Confining, as a general rule, a witness to speak from his own personal knowledge or recollection, there are circumstances under which he is allowed to aid this by what is called refreshing his memory.

Mr. Bentham in his work on Judicial Evidence puts the question:-"Should a witness be allowed to consult notes ?" and he answers it thus:-"This may appear a strange question. The witness to whom you refuse permission to consult his memorandum, his journal, his letters, claims it as absolutely necessary to refresh his memory; and asserts that, without this assistance, it is impossible for him to give accurate and complete testimony.

"On the other hand, what you want is a prompt and unpremeditated answer; if you allow him time to consult notes, you

(1) Crispin v. Doglioni, Weekly Reporter (1862-1863), p. 853; S. C., 3 Swabey & Tristram, p. 96.

partly lose the advantage of that lively and quick examination CHAP. VII. which does not give bad faith time to think.

"But the balance between these two inconveniences is not equal. For if notes be excluded, there are cases in which the evil you produce (by evil I here mean inaccurate and incomplete testimony) is certain; if they are admitted, there is merely a chance of error, a chance that a witness may take advantage of this facility to escape from the danger of unexpected questions.

"Since the propriety of admitting the auxiliary does not depend on any specific quality of certain causes, but on the circumstances of the particular case at issue, it is impossible for the legislator to draw the line. It must be left to the Judge to decide whether notes shall be allowed" (1).

English law has, within certain limits, adopted, or rather is in conformity with, the view of the able jurist; and by refreshing the memory, in the technical sense of the expression, is meant the resort, as a means of recalling the transaction to mind, or otherwise enabling the witness to speak to it, to some writing, either contemporaneous with the transaction itself, or made so recently afterwards as to secure its accuracy.

used to refreshcondition of ad

Where the instrument made use of to refresh the memory Instrument is in the nature of some written narrative or other memorandum of it, this must have been taken down by the witness missibility. at the time, or in his presence, or it must have been examined or seen by him recently afterwards, or at all events while the facts were fresh in the memory, and he knew the statement to be correct. A deposition formerly made by an aged witness has been allowed to be read to him to refresh his memory; as might a paper, written by himself, be read to a blind man. Where a witness for the prosecution gives an answer on examination-in-chief inconsistent with that which he had previously sworn before the Magistrate or Justices, his former deposition may be put in his hands for the purpose of refreshing his memory, and the same question be repeated. If he still make the same answer, a question in a leading form may be put to the witness from the deposition (2).

"Recently" is an expression of some latitude. In one case a What a date of six months (3), and in another, which occurred in the Scotch recent inspection.

(1) Judicial Evidence, p. 98.

(2) 6 Cox's Criminal Cases, p. 343.

(3) Jones v. Stroud, 2 Carrington & Payne, p. 196.