ferred_ from the nature of
commerce." "No rule," continued Lord Hardwicke, "can be more settled
than that testimony is not to be received but upon oath"; but he lays it
down, that an oath itself may be dispensed with. "There is another
instance," says he, "where the lawful oath may be dispensed with,--where
our courts admit evidence for the Crown without oath."

In the same discussion, the Chief-Baron (Parker) cited cases in which
_all_ the rules of evidence had given way. "There is not a more general
rule," says he, "than that hearsay cannot be admitted, nor husband and
wife as witnesses against each other; and yet it is _notorious_ that
from necessity they have been allowed,--not an _absolute_ necessity, but
a _moral_ one."

It is further remarkable, in this judicial argument, that exceptions are
allowed not only to rules of evidence, but that the rules of evidence
themselves are not altogether the same, where the subject-matter varies.
The Judges have, to facilitate justice, and to favor commerce, even
adopted the rules of _foreign_ laws. They have taken for granted, and
would not suffer to be questioned, the regularity and justice of the
proceedings of foreign courts; and they have admitted them as evidence,
not only of the fact of the decision, but of the right as to its
legality. "Where there are foreign parties interested, and in commercial
matters, the rules of evidence are not quite the same as in other
instances in courts of justice: the case of Hue and Cry, Brownlow, 47. A
feme covert is not a lawful witness against her husband, except in cases
of treason, but has been admitted in civil cases.[53] The testimony of
a public notary is evidence by the law of France: contracts are made
before a public notary, and no other witness necessary. I should think
it would be no doubt at all, if it came in question here, whether this
would be a valid contract, but a testimony from persons of that credit
and reputation would be received as a very good proof in foreign
transactions, and would authenticate the contract."[54]

These cases show that courts always govern themselves by these rules in
cases of foreign transactions. To this principle Lord Hardwicke accords;
and enlarging the rule of evidence by the nature of the subject and the
exigencies of the case, he lays it down, "that it is a common and
_natural_ presumption, that persons of the Gentoo religion should be
principally apprised of facts and transactions in th