“A declaration excluded by the Constitution, as in violation of individual right, will not be allowed to accomplish indirectly what it is not permitted to do directly.”
How later courts described this case
- “A declaration excluded by the Constitution, as in violation of individual right, will not be allowed to accomplish indirectly what it is not permitted to do directly.”
Written by the judges who cited it.
The opinion
Shepherd, C. J.,
dissenting: I cannot assent to the broad proposition that any person who simply professes to haAre knowledge of the unwritten laws of a foreign country, and who merely states that he has had an opportunity of learning them, is a competent witness in respect to their requirements as to the celebration of marriages or the entering into other contracts. Our statute, providing that such laws “may be proved as a fact by oral evidence” is but in affirmance' of a general principle laid down in the works on evidence (1 Greenleaf Ev., 486; 1 Wharton Ev., 303), and very clearly does not change in the slightest degree the existing rules as to the competency of witnesses by which suchlaws are to be established. This is plainly manifest by the declaration of this Court in Moore v. Gwyn, 5 Ired., 187 (a case decided long after the statute was enacted), that “the existence of such a law could be proved only by the opinions of persons learned in that law.” It *809 would, it seems to me, be a novel thing in our jurisprudence to allow a plaintiff suing in the Courts of North Carolina upon a contract made in another State or country to testify not only to the terms of the contract, but also to lex loci contractus, upon his bare statement that he is familiar with such law. In the decisions of this Court it will be seen that only professional witnesses have been examined, but the rule in this respect has been relaxed to some extent in other jurisdictions and it has been laid down, as stated in Insurance Co. v. Rosenagle, 77 Pa., 514 (cited in the opinion of the Court), that “the law of a foreign country on a given subject may be proved by any person who, though not a lawyer or not having filled a public office, is or has been in a position to render it probable that he would make himself acquainted with it.” This view seems to have been adopted by many of the Courts, but it is surely no authority in support of the rule as stated in the opinion in this case. In the case above mentioned there was much more than the statement of the witness that he was fa-miliar with the laws of a foreign country. He was a resident of that country, and he testified that he was the Catholic dean and parson at Odenheim, and that as such he was .the proper custodian of the records of births, baptisms, marriages and deaths of the parish. He was permitted to testify that the records had been kept according to the laws of the country. The Court said: “ It was his duty to know, and he testified that he did know, the law relating to the records in his charge. His knowledge was just that which the responsible head of a public office would be assumed to have of the law which had controlled the past operations of his department.” Equally inapplicable, I think, is the point of decision in Pickard v. Bailey, 6 Foster, 171 , the other case cited in the opinion. In that case the witness had acted as a magistrate in Canada and had also *810 been extensively engaged in mercantile business there, and in such employment had become acquainted with the law in relation to notarial instruments. He was held competent to testify that it was the sworn duty of every notary not to suffer any original paper executed before him to be taken out of his custody, and that notarial instruments are received in all the Courts in Canada without further proof of the execution of the original. These cases are similar in principle to those cited in Rogers on Expert Testimony. That author states that “ in order to prove the law of a foreign country it is necessary that the witnesses produced to testify .in respect to it should be more than ordinarily capable of speaking upon the subject” (sec. 96), and the cases cited by him also establish the proposition that the knowledge must be acquired in the foreign country, Sec. 100; see also, 1 Bishop Marriage and Divorce, 1123.
Applying these principles to the present case, I am very certain that the testimony of the witness Album should not have been received. All that the witness stated as to his competency was “that he was familiar with the law of marriages among the Jews in- Russia.” He does not state how he acquired such knowledge nor does it appear that he v'as ever in Russia in his life. For aught that appears in the record he may have been born and raised in the county of Edgecombe, and it is not pretended that he witnessed the marriage. His testimony, therefore, is opinion evidence only, and I am unable to see why any other resident of said county is not as competent to testify to the law of Russia, provided he simply states that he is familiar with its laws.
Had this witness testified to the fact of the marriage and that it was solemnized in the manner usual and customary in Russia by a person duly authorized to celebrate the rites of matrimony, and the parties afteiuvarcls lived together as *811 man and wife, his testimony would have been competent, and it would have been unnecessary to offer any further evidence of the law in order to establish the marriage. 1 Bishop, supra, 1122. “ Aud there is almost authority,” remarks Mr. Bishop, supra, 1124, “for saying that any inhabitant of a foreign country may be a witness to its marriage laws, because, as judicially observed (Wottrich v. Freeman, 71 N. Y., 601 ), all residents of a country of marriageable age and ordinary understanding are familiar with the usual and customary forms of marriage.” The contrary was held in England, but the rule would seem to be in-the line of public convenience and policy. However this may be it is not applicable to this case, as we have seen that notwithstanding the defendant's objection the witness was not qualified in any way to testify as to the laws of Russia nor was it shown that he was a Russian or that he was ever in that country.
'Without discussing the subject further I conclude that under the most liberal rules to be found in the text-books or decided cases the witness Album was incompetent and that his testimony should have been excluded. I am.also of the opinion that the general proposition that not only the law of marriage but all other unwritten laws can be proved in such a loose and unsatisfactory manner is dangerous in its consequences and contrary to our own decisions as well as the consensus of judicial authority.
It is proper to say that the witness “ testified under objection” and defendant moved for a new trial upon the ground of error in admitting improper testimony. The Attorney General made no point as to the formality of the exception, and the admissibility of the testimony was fully argued by him.