SECTION 95. WITNESS SPEAKING FOREIGN LANGUAGE.

Where the witness speaks and understands only a foreign language, the better practice is to procure a competent interpreter, have him sworn to accurately and truly translate the interrogatories from English into the foreign language, and the answers thereto from the foreign tongue into English, in which language they are to be taken down. But answers written down in the foreign tongue have been received and translated by an interpreter at the time of trial.20

In Christman vs. Ray, 42 Ill. App., 111, it appears that, in a deposition taken before a notary public in Switzerland, the interrogatories and cross-interrogatories, put to the several witnesses, and their answers to the same, appeared in said deposition in the French language. The objection made to the deposition at the time it was offered, on account of the use of French so far as it was employed in the deposition, was based upon Section 18 of the constitution, which is as follows:

"All laws of the State of Illinois, and all official writings, and the executive, legislative and judicial procedings, shall be conducted, preserved and published in no other than the English language."

The objection was overruled and translation thereof was made to the jury. The method pursued in taking the deposition was this: The commission with the direct and cross-interrogatories was sent to the commissioner; each direct and cross-interrogatory was translated into the French language and written down in that language as put to the witness, and his Reichmann, 9 N. Y. App. Div.,

20 Christman vs. Ray, 42 Ill. App., 111; Canvasos vs. Gonzales, 33 Tex., 133; U. Sq. Bank vs.

596.

answer to each was written in his own words as spoken in his own language, which was French, and the deposition was then read to the witness and he signed and swore to it, and the whole was certified to and returned by the commissioner. The contention was, that the taking and returning of the deposition in this way was conducting a judicial proceeding in other than the English language, as prohibited by the constitution, and was therefore unlawful. Judicial proceedings, in the broadest sense, embrace all proceedings in a court of justice, or which relate to or proceed from such a court, but such proceedings are not all preserved or published. All that is preserved is the record history of a cause, and the provision concerning the language to be used in preservation and publication must refer to the records of the courts. The taking of the deposition was a method of making evidence, material to the determination of the rights of the parties, but which was beyond the jurisdiction, available in the cause. The commissioner in Switzerland acted by virtue of our laws and was bound to act in conformity with them. He had the same liberty in respect to foreign language, as a court here would have, and no more. If no part of his proceeding could be had in a foreign language, the same construction of the prohibition would exclude from the courts all evidence, oral and written, that must be adduced, in the first instance, in a foreign language. It is impossible to take the testimony of a witness who does not understand English, either in court or by deposition, without some portion of the proceeding being conducted in other than the English language. The evidence as it comes from the mouth of the witness is not English in such cases. By such construction,

documentary evidence would be entirely excluded unless in English. If a contract or other document be in a foreign language, still that and that only is the instrument of evidence, and it must be produced, proven and offered in evidence. Its meaning must be given to the jury by translation into English, but the fact remains that the evidence itself is in another language.

The Court says: "We are to seek in the language used in the constitution for the thought which the people intended to express by a consideration of the whole instrument in the light of the common law, and keeping in mind that the constitution was not the beginning of the law for the State, but that there was an existing system of laws which it recognizes, to be continued and enforced, subject to its limitations. The constitution, by such provisions as that the right of trial by jury should remain inviolate, and that the privilege of habeas corpus should not be suspended, assumes the existence of a system of laws. By its declaration that all persons should find in the laws a certain remedy for every injury and wrong, it shows a plain intent that every avenue to justice should be open. A construction so narrow and arbitrary as to cut off important methods of obtaining justice and to defeat the general intent of the instrument, should not be adopted. It would itself be at variance with the spirit of the instrument itself. In the furtherance of justice, evidence in foreign language must be used. To interpret the constitution so as to prevent it, would be to make it an instrument of oppression and injustice. Evidence, which must be presented in other than the English language, may be the only means of obtaining justice. The same provision as that under considera

tion was contained in the constitution of 1848, and during its continuance, as well as before, courts constantly recognized and enforced rights dependent upon evidence which could only be adduced in a foreign language. The common law recognized the right to offer evidence in a foreign language. Instruments in a foreign tongue have always been admitted in evidence in courts, and where the language of the instrument is foreign, evidence is received of the proper meaning of that language." The courts have always sanctioned actions for libel or slander published or uttered in a foreign tongue, and in such cases the words in the foreign language proven to have been employed by the libeler or slanderer are evidence and sustain the action. The very gist of the whole matter to be presented to the jury is in the foreign language. The meaning is to be given to the jury by translation, but the foreign words are to be proven in the judicial proceeding." It seems clear that it was not intended by this provision to bar out all evidence that must be adduced in a foreign language, and if it may be so adduced in court, it can be so adduced by way of deposition. Suppose a deposition to be taken merely to prove material documentary evidence in a foreign tongue so as to introduce it. In such a case it is evident that the original document is to be identified and returned by the commissioner, and not a translation of it, and if a translation should also be returned, the original, as a part of the deposition, would still be the only legal evidence. So, also, of oral testimony taken by deposition. A deposition taken by com

212 Phillips on Evidence, Cowen

and Hills and Edwards' notes, 709, 733; 1 Greenleaf on Evidence, 14th Ed., Sec. 280.

22 Schmisseur vs. Kreilich, 92 Ill.,

347.

mission is the testimony of a witness in a cause on oath or affirmation and written down, and the original answers, duly signed and sworn to by the deponent, and properly authenticated, are returned with the commission to the court from which it issued. His original answers as they come from the lips are his deposition. The commissioner is to cause the interrogatories, together with answers of the witness thereto, to be reduced to writing in the order in which they shall be proposed, and answered and signed by such witness, and the commissioner must certify that the deposition was sworn to and signed by the deponent. This was the method under the system of laws in force when the constitution was adopted. It would be absurd to say that the witness is to hear, read, or is to sign or swear to his answers written in English when he does not understand the language. He would know nothing about the truth of it and could not swear to it. It is evident that he must understand what he signs so that he may swear to its truth."

SECTION 96. DEPOSITIONS OF RESIDENT WITNESSES.

In Illinois it is provided by statute, Sec. 24, Chap. 5, Rev. Stat., 1905, that, "when the testimony of any witness, residing or being within this State, shall be necessary in any suit in chancery in this State, the party wishing to use the same may cause the deposition of such witness to be taken before any judge, justice of the peace, clerk of a court, master in chancery or notary public, without a commission or filing interrogatories for such purpose, on giving to the adverse party or his attorney ten days' notice of the time and place of taking the same, and one day in addition thereto (Sundays inclusive) for every fifty