Ennis et al. v. Smith et al. proofs in the record, receive it as a fact that he was domiciled there at the time of his death. The error of the argument and of the averment against Kosciusko's domicil in France is this: that they considered him a forced exile from Poland, and that he had only made France his asylum during banishment. In such a case, it is true, a person cannot be presumed to have abandoned all hope of return to his country, whatever length of time may have passed since he was driven from it. But Kosciusko is not placed in that predicament by any proof in the case. Nor could such proof have been made; for it is well known, when he was liberated by the Emperor Paul, that it was done without restraint or inhibition of any kind. He was offered high military command and presents of princely amount, which he declined to accept. He came to the United States, and afterwards went voluntarily to France, where he lived for fifteen years. He could have returned to Poland at any time, if he had chosen to do so. Not having done so, the conclusion ought to be that he abandoned his residence there for a residence in France, which cannot be affected, as to its permanency, by any event which might have happened to induce him to change it again to the domicil of his origin. This is coincident with the fact that he had been made a French citizen by a decree of the National Assembly of France, in August, 1792. Knowing that such a naturalization would not have the effect of investing him with the privileges of a native-born citizen, if he did not become domiciled in France, unless his residence there was expressly dispensed with in the letters of naturalization, he went to France to get a civil status which he could not conscientiously enjoy in Poland whilst it continued to be under a foreign dominion. Pothier, Tr. des Personnes, &c. P. 1, tit. 2, § 3; Denesart, tit. Aubaine. These general principles of jurisprudence in respect to domicil, by which Kosciusko's has been determined, are such as the courts.of France would have ruled in this case. Kosciusko's intestacy as to the funds in controversy, and his domicil having been determined, we will now state the law as to the right of succession in such cases. For several hundred years upon the continent, and in England, from reported cases, for a hundred years, the rule has been, that personal property, in cases of intestacy, is to be distributed by the law of the domicil of the intestate at the time of his death. It has been universal for so long a time that it may now be said to be a part of the jus gentium. Lord Thurlow speaks of it as such in the House of Lords, in the case of Bruce v. Bruce. Erskine, in his Institutes of the Law of Scotland, (B. 3, tit. 9, § 4, 644,) Ennis et al. v. Smith et al. says, this rule is founded on the laws of nations. He says, "When a Scotsman dies abroad sine animo remanendi, the legal succession of his movable estate in Scotland must descend to his next of kin according to the law of Scotland; and where a foreigner dies in this country sine animo remanendi, the movables which he brought with him hither ought to be regulated, not by the law of the country in which they locally were, buť that of the proprietors patria, or domicil whence he came, and whither he intends again to return. This rule is founded in the law of nations, and the reason of it is the same in both cases, that since all succession ab intestatio is grounded upon the presumed will of the deceased, his estate ought to descend to him whom the law of his own country calls to the succession, as the person whom it presumes to be most favored by the deceased." The law of Scotland had been different in this particular, but it was brought into harmony with the law of the rest of Europe by the decision of the House of Lords, in Bruce v. Bruce, 6 Brown's Par. Cases, 550, 566; 2 Bos. & Pul. 226, 230, 231; Lord Stair's Institutes, B. 3, tit. 8, § 5; Hogg & Lashley, House of Lords, June 25th, 1788; Robertson on Personal Success. 131; Omman v. Bingham, House of Lords, March 18, 1776; Colville & Landor v. Brown & Brown, Dict. Success. Ap. p. 1, 4; W. & S. 28. The earliest case reported in the English books, is that of Pipon v. Pipon, Am. 6, 27. Lord Hardwicke recognized in it the rule that the personal estate, in cases of intestacy, followed the person, and becomes distributable according to the law or custom of the place where the intestate lived. Among other reasons given by him is, that a contrary rule would be extremely mischievous, ar.1 would affect our commerce. No foreigner could deal in our funds but at the peril of his effects going according to our laws, and not those of his own country. He reaffirmed the same in a few years afterwards, in Thorne v. Watkins, 2 Ves. 35. Lord Kenyon did the same when he was Master of the Rolls in 1787, in Killpatrick v. Killpatrick, which will be found cited in Robertson on Personal Succession, 116. In 1790, the House of Lords acted upon the rule, in Bruce v. Bruce, and two years afterwards, in Hogg v. Lashley. Many cases followed in the English courts, and the only question since has been, what was the domicil of the intestate at the time of his death? In the United States the rule has been fully recognized. 14 Martin, Lou. 99; 3 Paige, 182; 2 Gill & Johns. 193, 224, 228.. The rule prevails, aiso, in the ascertainment of the person who is entitled to take as heir or distributee. It decides whether primogeniture gives a right of preference, or an exclusive right Ennis et al. v. Smith et al. to take the succession; whether a person is legitimate or not to take the succession; whether the person shall take per stirpes, or per capita, and the nature and extent of the right of representation. Story's Conflict of Laws. But it is objected, before the rule can be applied in this suit against the defendants, that the complainants must prove what the law of France is for the distribution of the fund. It is said that has not been done. For this purpose, the Code Civil of France was offered in evidence, but it was objected to. It is true, that the existence of a foreign law, written or unwritten, cannot be judicially noticed, unless it be proved as a fact, by appropriate evidence. The written foreign law may be proved, by a copy of the law properly authenticated. The unwritten must be by the prol testimony of experts. As to the manner of authenticating he law, there is no general rule, except this: that no proof shall be received, "which presupposes better testimony behind, and attainable by the party." They may be verified by an oath, or by an exemplification of a copy, under the great seal of a State, or, by a copy, proved to be a true copy by a witness who has examined and compared it with the original, or by a certificate of an officer, properly authorized, by law, to give the copy; which certificate must be duly proved. But such modes of proof as have been mentioned, are not to be considered exclusive of others, especially of codes of laws and accepted histories of the law of a country. In Picton's case, Lord Ellenborough said: "The best writers furnish us with their statements of the law, and that would certainly be good evidence upon the same principle as that which renders histories admissible. There is a case, continued Lord Ellenborough, in which the History of the Turkish Empire, by Cantemir, was received by the House of Lords, after some discussion. I will, therefore, receive any book that purports to be a history of the common law of Spain. B. N. P. 248, 249; 30 How. St. Tr. 492; 2 Phil. Ev. 123; 1 Salk. 281: Morris v. Harmer, 7 Pet. 554; 3 Cary, 178; 11 Clark & Fin.; Russel's Peerage Cases; 3 Wend. 173, Lord Tenterden, in Lacon v. Heggins, (Stark. Rep. 178,) admitted a copy of the Code Civil of France, produced by the French Consul, who stated that it was an authentic copy of the law of France, upon which he acted in his office, and that it was printed at the office for printing the laws of France, and would be acted upon in the French courts. In the Russel Peerage case, Lord Campbell said: "The most authentic form of getting at foreign law, is to have the book which lays down the law. Thus, we have had the Code Napoleon in our courts. It is better than to examine Ennis et al. v. Smith et al. a witness, whose memory may be defective, and who may have a bias influencing his mind upon the law." The Supreme Court of New York has held, that an unofficial copy of the Commercial Code of France, could not be proved by the French Consul residing at New York, though he stated it to be conformable to the official publications; and that it was an exact copy of the laws furnished by the French government to its Consul at New York. Had it been an official copy, and sworn to be such, by the Consul, it would have been received in evidence, as the Irish Statutes were, in Jones v. Maffet, (5 Serg. & Rawle, 523,) where they were sworn to by an Irish barrister, and that he received them from the King's printer, in Ireland. In Church v. Hubbart, (2 Cranch,) this court said, that the edicts of Portugal, offered in evidence, would have been admissible, if the copies of them had been sworn to be true copies, by the American Consul at Lisbon, instead of his having given his consular certificate, that they were true copies, because it was not one of the functions of a Consul to authenticate foreign laws in that way. The court say, "The paper offered to the court is certified to be a copy compared with the original. It is impossible to suppose that this copy might not have been authenticated by the oath of the Consul, as well as by his certificate." It will be seen, that what the court required, was a verification of the original, upon oath, and that then the edicts would have been admissible in evidence. They were municipal edicts, too, it should be remembered, and not one of those marine ordinances of a foreign nation, on a subject of common concern to all nations, which may, according to the manner of its promulgation, be read as law, without other proof. Talbot v. Seeman, 1 Cranch, 1. The rule of this court has always been, since those cases were decided, "that the laws of a foreign country, designed only for the direction of its own affairs, are not to be noticed by other countries, unless proved as facts; and, that the sanction of an oath is required for their establishment, unless they can be verified by some other such high authority, that the law respected not less than the oath of an individual." The question in this case, is, has the Code Civil, which was offered in evidence, a verification equivalent to the oath of an individual? Opinions and cases may be found in conflict with the cases cited, but, from a perusal of many of them, we find that they have been formed and decided without a careful discrimination between what should be the proof of foreign written and unwritten law; and when written laws, either singly or in statute books, or in Ennis et al. v. Smith et al codes, have been offered in evidence, without a sufficient authentication that they were official publications, by the government which had legislated them; or when written laws have been offered, properly proved to be official, but which were equivocal in their terms, and in the judicial administration of which there have been, or may be, various interpretations, making it necessary to call in experts, as in cases of an unwritten law, to state how the law offered in evidence is administered in the courts of the country of which it is said to be the law. In England, until recently, it was not doubted that a foreign written law was admissible in evidence, when properly authenticated. But, in the Sussex Peerage case, 1844, (in 11 Clark & Finnelly, 115,) several of the Judges gave their opinions upon the subject. Lord Brougham, in that case, differed from Lord Campbell, and said that the Code Napoleon ought not to be received in an English court, and that before it could be received from the book, that an expert, acquainted with the text and the interpretation of it, must be called. And so it was ruled, afterwards, by Erle, Justice, in 1846, in Cocks v. Purdy, (2 C. & K. 269,) in which fragments of a code were offered as evidence. But his Lordship's opinion, and the case of Clark v. Purdy, must be taken, subject to the facts upon which the point arose. In the first, it was, whether Doctor Wiseman, who had been called as a witness, could refer, whilst giving his evidence of the law of Rome on the subject of marriage, to a book, whilst it was lying by him. In the other case, fragments of laws were offered. This point had been settled by Lord Stowell, in Dalrymple v. Dalrymple, 2 Hagg. 54. Lord Brougham again expressed the same opinion, in his sketch of Lord Stowell, in the second series of the Statesmen of the Time of George III, 76. But Lord Langdale, who also sat with the other Juages, in the Sussex Peerage case, gave the rule, with its qualifications, in the case of the Earl of Nelson v. Lord Bridport, 8 Beav. 527 After stating the rule, coincidently with the opinion of Lord Brougham, he says: "Such I conceive to be the general rule, but the case to which it is applicable admits of great variety. Though a knowledge of foreign laws is not to be imputed to the Judge, you may impute to him such a knowledge of the general art of reasoning, as will enable him, with the assistance of the bar, to discover where fallacies are probably concealed, and in what cases he ought to require testimony more or less strict. If the utmost strictness was required, in every case, justice might often stand still; and I am not disposed to say that there may not be cases, in which the Judge may not, without impropriety, take upon himself to construe the words of a foreign law, and deter mine their application to the case in question; especially, if |