conducted, with the trial court in loco defendentis, the party who had prevailed 
below, in whose interest it would be to raise the issue of competence, 
was in the position of a mere witness to the correctness of a record. Under 
these circumstances, any claims to a particular law had to be fought out at the 
trial stage and established with great specificity for the event of a review. 
This method fell short of securing the benefit of an appellate judgment by 
persons completely conversant with a particular body of custom. But it was a 
procedure which had a place in the practice of the English royal courts, and the 
French had something approximating it. 119 The English practice had developed 
as a minor incident in the proliferation of a "common" law, a process in 
which what began as a mere fiction was converted by effective law administration 
into a reality. There were occasions when for reasons of immunity, political 
convenience, or otherwise the royal courts would entertain a plea of a special 
custom. This was a matter traditionally within the sole competence of the 
judgment finders, and consequently it presented a point of possible collision 
over who might speak authoritatively thereon. With characteristic ingenuity 
this was evaded in the King's courts by preserving the outward form of a community 
pronouncement, the specification of the usage being submitted to an 
assize or a jury. 120 The question of its vigor as law was a decision which the 
judges reserved to themselves. 
The English solution of their domestic conflicts problem had both a 
theoretical and a practical bearing upon dominion appeals. It established that 
any particular law outside the orbit of the common law was matter in pais 
susceptible of proof. Consequently, when in the course of a dominion appeal 
the applicability of unfamiliar customs was in issue, if these were not sufficiently 
averred the record could be supplemented by requiring a certification 
of the usage from the country of origin. In thus treating the foreign law as a 
factum for which proof was directed to the judge 121 for the purposes of the 
case at bar, the issue of his inherent qualifications to speak law for a system 
not his own was avoided. 122 
119 The enquete par turbe, on which cj. 
Pissard, Essai sur la connaissance et la preuve 
des coutumes (1910), 98 et seq. 
120 Placitorum abbreviatio, 74 (John-Henry); 7 
CRR, 289 (1214); Bracton's Notebook, pi. 
1899, pi. 1902. Two cases {ibid., 1474, 1644) 
indicate the nexus between such a jury finding 
and the ancient law-speaking function of the 
judgment finders. 
121 Whether by way of remainder or by way 
of revivor, this is the theory which underlies 
the handling of colonial laws in the eighteenthcentury 
appeals. The eighteenth-century rule 
re "particular laws" is in Gilbert, Law of Evidence 
(1769), 40, 41. 
122 The extent of either civil law or canon law 
influence in England on this is problematical. 
The inclination of the legists was favorable to 
the law of the judge (2 Neumeyer, Die gemeinrechtliche 
Entwic\elung des Internationalen 
Privat- und Strafrechts bis Bartolus [1916] 58 
et seq.; and cf. the collection [note 3] of 
matter on the opinion of Azo). The English 
solution of their problem approaches the segment 
of canonist opinion which, recognizing 
the confusion which would follow the "law of