Abbildungen der Seite

historical, geographical, commercial, judicial, legislative, scientific and artistic, can be accurately determined; but, in addition to these, notice will be taken of a wide range of matters of natural occurrence, and of those arising in the usual course of life, the recognition of which depends upon the completeness of their certainty and notoriety. With regard to such facts care must be taken that the requisite notoriety exists. This power of judicial notice is to be exercised with caution. Every reasonable doubt upon the subject should be resolved promptly in the negative.1

As will be seen, the most practical view of these questions will be acquired from the adjudicated cases upon this subject.

3. Public Functionaries, Seals and Acts of State.—All civilized nations recognize each other's existence as members of the great family of sovereignties, and general public and external relations. The national flag and seal are the universal symbols of nationality and sovereignty. Every sovereign power, therefore, recog- . nizes, and its public tribunals take notice of, the existence and titles of all the other sovereign powers in the family of nations, their respective flags and seals of state. The seal is held to be evidence of the highest character, and public acts, decrees and judgments authenticated by it are received as true and genuine. The recognition of a new nation belongs to the executive function, and when a de facto power has not been thus recognized by the sovereignty under which the court is organized, its seal cannot be admitted to prove itself. The courts also recognize all executive acts of this department of their own government, when the same are so promulgated as to have the force of law; as proc

of the expense or difficulties in procur- matter of notoriety, and will be taken ing it. i Phillips' Ev. (5th Am. ed.) 514, notice of as part of the law of $ 619.

nations acknowleged by all. Lincoln 1. The courts should exercise this v. Battelle, 6 Wend. (N, Y.) 476. power with caution; care must be taken Seal of De Facto Government.—But that the requisite notoriety exists, and courts cannot take judicial notice of a every reasonable doubt upon the sub- foreign government not acknowledged ject should be promptly resolved in the by the government of the country in negative. Per SWAYNE, J., in Brown v. which the court sits; and the fact of Piper, 91 U. S. 37.

acknowledgment is matter of public 2. The National Flag and Seal.— The notoriety. United States v. Palmer, 3 public seal of a kingdom or sovereign Wheat (U. S.) 610. The seal of such state is, by common consent and usage acknowledged government cannot be of civilized communities, the highest permitted to prove itself, but it may be evidence and the most solemn sanction proved by such testimony as the nature of authenticity in relation to proceed- of the case admits. City of Berne, in ings, either diplomatic or judicial, that Switzerland -v. Bank of England, 9 Ves. is known in the intercourse of nations; Jr. (Eng.) 347; Dolder v. Lord Huntingand as such is taken notice of judicially field, 11 Ves. Jr. (Eng.) 283. by all courts of justice in other States. Authentication of Foreign Judgments. Griswold v. Pitcairn, 2 Conn. 90: The Foreign judgments are authenticated, Santissima Trinidad, 7 Wheat. (U. S.) 1, by an exemplification under the

great seal; 2, by a copy proved to be a National Seal Proves Itself.—The pub- true copy; 3, by the certificate of an lic seal of a State, affixed to the exem- officer authorized by law, which cerplification of a law or judicial proceed- tificate must itself bě properly authening, it seems, proves itself; it is a ticated. These are usual, and appear


lamations of the president announcing a state of war,' or the establishment of peace; 2 the granting of general amnesty, or pardon, for political offences ; 3 the fixing of rules for conducting business by the executive departments, and the like. While the same rules as to judicial notice are followed in both countries, in Engiand many facts are noticed which do not arise in the American courts.5 to be the most proper, if not the only, United States, 45th congress, chapter mode of verifying foreign judgments. 150, will be considered such an act of the If they are all beyond the reach of the executive department of the United party, other testimony inferior in its States as the courts will take judicial nature might be received. Church v. notice of under the Revised Statutes of Hubbart, 2 Cranch (U. S.) 187.

Montana; and it is not necessary to set Proclamations of Governor. — The out such rules in a complaint seeking courts of Indiana take judicial notice to recover for an infringement thereof. of the proclamation of the governor, United States v. Williams, 6 Mont. declaring in force an act of the legis. 379. lature containing an emergency clause. The rules adopted by the treasury Dowdell v. State, 58 Ind. 333.

department of the United States gov1. President's Proclamation and Laws ernment for the payment of arrears of of Congress.—The federal courts take pay due to deceased officers, seamen judicial notice of the general enact- and mariners in the United States navy, ments of congress, and of the duly pro- have the force of law, and courts will mulgated proclamations of the presi- take judicial knowledge of them. Low dent. The late civil war, being a mat- v. Hanson, 72 Me. 104. ter of public history, is likewise ju- 5. Facts Taken Notice of by the Courts dicially known to the courts; and from of England-Public Matters.-The Eng. this general historical fact they will lish courts will take judicial notice of also take judicial notice of particular all public matters which affect the govacts which led to it, or happened during ernment; such as the time of the acits continuance, whenever it becomes cession or demise of the sovereign. essential to the ends of justice to do so. Holman v. Borough, 2 Ld. Raym. 791, Cuyler v. Ferrill, 1 Abb. (U. S.) 169. 794; s. c., Salk. 638. They will also

2. Close of the Civil War.-It was take notice of the correspondence of the held that the court would take judicial year of any particular reign with the notice of the ending of the rebellion, year of our Lord. Henry v. Cole, 2 although no proclarnation to that effect Ld. Raym. 811; s. C., Mod. 104. Rex v. had been made by the president. Pringle, 2 Mod. & R. 276. United States v. Fifteen Hundred Bales Prerogatives and Privileges.—They of Cotton, 10 Internal Rev. Record (U, will take notice of the prerogatives of

the crown and the privileges of the 3. Amnesty Proclamation - The proc- royal palaces. Elderson's Case, 2 Ld. lamation of pardon and amnesty made Raym. 978; $. c., Salk. (Eng.) 284; by the president on December 8th, Winter 1. Miles, 1 Camp. (Eng.) 475; 1863, is a public and official act, of s. c., East 578; Atty. Gen. v. Donald which the courts will take judicial son, 10 M. & W.117. notice. The Greathouse Case, 2 Abb. Royal Seals.-In like manner they (U. S.) 382.

also take notice of the great and privy Foreiga Officers and Seals.—The seals, and also of the sign manual. courts of this country take judicial Rex v. Miller, 2 W. Bl. 797; s. c., 1 Lea. notice of all other nations and their C. C.74; Rex v. Gully, i Lea. C. C., 98. seals of state, but not of their inferior See also Lord Melville's Case, 29 How. departments and their officers and seals. St. Tr. (Eng.) 706. Schoerkin v. Swift and Courtney and Royal Proclamations. — They also Beecher Co., 19 Blatch. (U. S.) 209. take notice of royal proclamations as

4. Executive Acts.—The rules and being acts of state. Wells v. Williams, regulations as to the cutting of timber i Ld. Raym. 283; s. C., 1 Salk. 46; Duupon the public lands of the United puys v. Shepherd, 12 Mod. (Eng.) 216; States prescribed by the secretary of Rex v. Oulton,

M. & S. 532. the interior under the laws of the Qrders of Council.-But they do not 12 C. of L.-10#5


S.) 52.


4. Elections.--The courts will take judicial notice of the result of voting at public elections, not only as to the persons chosen to fill the various offices,2 but, where a special ballot has been taken upon any question of public affairs, courts will take cognizance of the whole number of votes cast at such election, and whether such proposition is adopted. 3

5. Public Statutes.--Courts will take judicial notice of all public statutes enacted by the legislative authority within the State or take notice of orders of council. 6 Vin. election at which he might offer to vote. Abr. 490; Atty. Gen. v. Theakstone, Afterward an indictment was returned 8 Pri. (Eng.) 89.

against an inspector of an election held Sessions of Parliament.—They will subsequently to such spring election, also take notice of the commencement for refusing to receive a ballot offered of the sessions, prorogations and disso, thereat, to which the defendant pleaded lutions of parliament, and of the place specially, that, at such spring election, where any particular parliament sat. 169,483 votes had been cast for such Rex v. Wilde, 1 Lea. 296; s. c., 2 Keb. amendment, and only 152,251 votes had 686; Birt v. Bothwell, i Ld. Raym. 210, been cast against it, and that such elec343.

tor had not resided within the precinct Customs Privileges and Proceedings.- for thirty days, at the time he offered to They will also notice the customs, vote, as required by such amendment. privileges and proceedings of par. To which plea the State specially reliament and of each branch of the plied, alleging that at such spring eleclegislature. Lake u. King, i Saurd. tion, 380,471 votes had been cast, and (Eng.) 1310; Astley v. Younge, that, therefore, such amendment had Burr. $11. See also Stockdale 7. received less than a majority of votes so Hansard, 7 C. & P. (Eng.) 731; Case cast, and had failed. Held, on demurof Sheriff of Middlesex, u A. & E. rer to such reply, that the supreme court (Eng.) 273

takes judicial notice of the number of Journals of Houses of Parliament.-But votes cast at a general State election they will not take notice of the jour- upon all questions of public affairs afnals of either house, such not being the fecting the State, and therefore must records of parliament. Rex 7. Knol- know all the facts necessary to the deleys, Ld. Raym. 10, 15.

cision of the question whether or not 1. Public Elections.-The supreme such amendment was ratified. State v. court takes judicial notice of the time Swift, 69 Ind. 505. of holding general elections. L’rnston The contested election between Gen. 7'. State, 73 Ind. 175.

J. Wheeler and Col. W. M. Lowe, as Results of Elections Will Receive Ju- member of congress from the eighth dicial Notice.—State v. Swift, 69 Ind. district of Alabama, at the general elec505

tion held November, 1980, is public offiContested Elections Will Receive Ju- cial history, of which the court takes dicial Notice.--Lewis v. Bruton, 74 Ala. judicial notice. Lewis v. Bruton, 74 317.

Ala. 317 Rauch 7. Com., 78 Pa. St. 490. 2. Public Elections.—The supreme National Courts Have Knowledge of court takes judicial notice of the time Laws of All States at the Same Time.of holding general elections. Urnston The judicial knowledge of a l'nited v. State, 73 Ind. 175.

States court is not contined to the enact3. And the Results of Such Elections. inents of the State where it happens to -An amendment of section 2, article 2, be sitting at the particular time, but exof the constitution of Indiana, adopted tends at all times to the laws of all other in 1851, was submitted by the legisla- States within its jurisdiction.

As a ture to the electors, for ratification, at general rule, however, when the proper the spring election of 1880, for town- construction of a statute has been fixed ship officers, by which amendment a and settled by the court of last resort in voter wouid be required, in addition to that State, the same construction will the residence qualification already ex- be adopted by the federal courts sitting isting, to have resided within the town within her borders. Elmendorf v. Tayship sixty days, and within the precinct lor, 10 Wheat. (U. S.) 152. thirty days, immediately preceding any State courts will take judicial notice

territory where the court is held. They are also bound to take notice of all acts of congress of a public character, or which are declared to be such. Of these may be mentioned 2 laws fixing the value of coin; providing for surveying and subdividing the public lands; 3 authorizing the assessment and collection of the internal revenue; the bankruptcy acts; laws for the government

St. 131.

of State laws and regulations which, by 3. The congressional survey of the implication, have been incorporated into lands lying north west of the Ohio river, a public act of congress. Flanigen v. under the various acts of congress, is Washington Ins. Co., 7 Pa. St. 306. part of the public law, of which the

Public Local Laws.—The court will courts of this State must take judicial take judicial notice of a public local notice. Murphy z'. Hendricks, 57 Ind. 593. law. Van Swartow v. Com., 24 Pa. A tax collector is bound to take no

tice of a general statute which exempts 1. Judicial notice will be taken of the corporations from any except specific existence and tenor of the public laws taxes; and if he levies upon the propof the State. Lane v. Harris, 16 Ga. erty of a corporation for taxes, it may 217. The court judicially knew that be replevied from him. LeRoy v. East the general railroad law was in force at Saginaw, 18 Mich. 233. the time the corporation defendant was Publication of Statutes.—The courts formed. Heaston v. Cincinnati etc. R. take judicial notice of the time at which Co., 16 Ind. 275; S. C., 79 Am. Dec. a statute takes effect by publication. 430; State v. Bailey, 16 Ind. 46; s. C., 79 Duncan v. Cobb, 32 Minn. 460. Am. Dec. 405; Bierson v. Baird, 2 The courts of Indiana, being authorGreene (Iowa) 235; Berliner v. Water- ized by its constitution to take judicial loo, 14 Wis. 378. The existence or the notice of all its laws, both public and time of the taking effect of a public act private, the circuit court of the United cannot be put in issue, or admitted or States will likewise take judicial notice denied by the pleadings, but must be of all the laws of that State. Junction determined by the judges themselves. R. Co. v. Bank of Ashland, 12 Wall. Atty. Gen. v. Foote, ni Wis. 14; s. C., (C. S.) 226. 78 Am. Dec. 689; citing Sedgwick on Municipal Officer.—The courts of the Stat. and Const. Law, 94, 118; Dwarris United States take judicial notice of the (Potter's ed.) on Stat. 169, 172.

laws of all the States, respectively, and 2. Private Corporation Under General in the case cited, that by the law of the Law.-Judicial notice cannot be taken State, the mayor of a certain city is a of the charter of a private corporation, magistrate. Gordon v. Hobart, 2 Sumn. or of its corporate power or capacity, if (U. S.) 401. it derives existence from such charter, Private Acts Must be Proved.-Pubi.e., a special act of incorporation. If lic acts of State legislatures may be it be shown, however, to have been in- read in federal courts, but private acts, corporated under the general laws, such as those concerning the estates of which authorize the formation and de- deceased individuals, are to be proved fine the powers of corporations, there like other matters of fact. Leland v. are public laws, of which judicial no- Wilkinson, 6 Pet. (U. S.) 317. tice must be taken, and the power must Municipal Corporation.-The United be referred to such general law. Peoria States courts will take judicial notice of etc. R. Co. i'. Scott, 116 Ill. 401; Gorm- an act conferring powers upon a muley v. Day, 114 Ill. 185; Kelley v. Ala. nicipal corporation, such an act being etc. R. Co., 38 Ala. 489.

public in its nature. Fauntleroy v. HanMunicipal Revenue Laws. It is doubt. nibal, i Dill. (U. S.) 118. less a correct principle, that all acts of Donation of Swamp Lands.--Courts the legislature conferring or restricting take judicial notice of the act of conthe revenue laws of a municipal cor- gress of September 28th, 1853, granting poration are in their nature public laws, swamp lands to the States, and a patent whether so declared in terms or not, for such lands from the United States any of which all courts will be bound to the State of Iowa, dated in 1869, is to take judicial notice in all proceedings suthcient proof of title in that State at affecting revenue matters. · Binkert v. the date of the act of congress. HamJansen, 94 Ill. 283.

ilton r'. Shoaff, 99 Ind. 63.

of the District of Columbia, and the like. In like manner the

1. Acts of Congress.-Both the State to be specially averred in pleading and United States courts also take judi- which would not be so required by the cial notice of all public acts of congress, tribunals of those States respectively." or which are declared to be such. Mor- Hinde v. Vattier, 5 Pet. (Ú. S.) 398; ris v. Davidson, 49 Ga. 361; Chesa- Pennington v. Gibson, 16 How. (U. S.) peake etc. Co. v. Balt. R. Co., 4 Gill & 65, 81. J. (Md.) 1 & 63; Kessel v. Albetis, 56 State Courts—Laws of Other States.Barb. (N. Y.) 362; Mims v. Swartz, 37 Following the foregoing principle it is Tex. 13; Bird 7. State, 21 Gratt. (Va.) held that, where judgments of a State Soo; Bayly's Admrs. Chubb, 16 court, by reason of their affecting a Gratt. (Vaj 284; The Scotia, 15 Wall. right under the federal constitution and (U. S.) 171.

legislation, would be reversible in the The United States circuit courts take supreme court of the United States, the judicial notice of the State laws apply. State courts will take judicial notice of ing to causes depending before them. such laws of other States as the United Merrill v. Dawson, Hempst. (U. S.) States court would on appeal. “It 563; Jones v. Hays, 4 McLean (U. S.) would be a very imperfect and discord521; Jasper v'. Porter, 2 McLean (U.S.) ant administration for the court of orig. 579.

inal jurisdiction to adopt one rule of “The circuit courts of the United decision while the court of final resort States are created by congress not for was governed by another; and hence the purpose of administering the local it follows that in questions of this sort law of a single State alone but to ad- we should take notice of the local laws minister the laws of all the States in of a sister State in the same manner as the Union in cases in which they re- the supreme court of the United States spectively apply. The judicial power would do on a writ of error to our judg. conferred on the general government ment.” Ohio v. Hinchman, 27 Pa. St. by the constitution extends to many 479; Jarvis v. Robinson, 21 Wis. 523; cases arising under the laws of the dif- Butcher v. Brownsville, 2 Kan. 70; ferent States, and this court is called Paine v. Schenectady Ins. Co., I. R. I. upon, in the exercise of its appellate 411; Shotwell z. Harrison, 22 Mich. 410; jurisdiction, constantiy to take notice of Salter v. Applegate, 3 Zab. (N. J.) 115. and administer the jurisprudence of all By statute the supreme court of Ten. the States. That jurisprudence, then, nessee is authorized to take judicial is in no just sense a foreign jurispru- notice of the laws of other States. Held, dence, to be proved in the courts of the that where a foreign statute is put in United States by the ordinary modes of evidence in the trial court it need not proof by which the laws of a foreign be incorporated in the bill of exceptions country are to be established; but it is to secure such notice; but if such erito be judicially taken notice of in the dence be not offered below, the appelsame manner as the laws of the United late court will not take such notice States are taken notice of by these where the result will be to put the court courts." Carpenter v. Dexter, 8 Wall. below in error. Bagwell 7. McTighe, (U. S.) 515; Fourth National Bank v. 87 Tenn. 616; Templeton 7. Brown Francklyn, 120 L. S. 747. "And it (Tenn.), 5 S. W. Rep 141. Compare can never be maintained in the courts Hobbs V. Memphis etc. R. Co., 9 Heisk. of the United States that the laws of (Tenn.) 873. any State of this Union are to be treated Acts of Congress Confirming Foreign as the laws of a foreign nation and Laws.—The acts of congress confirming ascertained and determined as a matter claims to lands in Missouri are public, of fact by a jury upon testimony of not private acts, and will be judicially witnesses.” United States v. Turner, noticed without being read in evidence. I lIow. (U. S.) 563; Miller v. Me- Papin v. Ryan, 32 Mo. 21. Querry, 5 McLean (C. S.) 469. “And Amendments to the United States in further affirmation of this doctrine Constitution. — The provisions of the we hold that the courts of the United amendment to the United States conStates can and should take notice of the stitution abolishing slavery are a part laws and judicial decisions of the of the public law of the land, of which several States in this Union, and that courts will take judicial notice. Graves with respect to these nothing is required v. Keaton, 3 Coldw. (Tenn.) 8.

« ZurückWeiter »