A

TREATISE

ON

THE LAW
LAW OF EVIDENCE.

PART I.

OF THE NATURE AND PRINCIPLES OF EVIDENCE.

CHAPTER I.

PRELIMINARY OBSERVATIONS.

§ 1. Definitions. The word EVIDENCE, in legal acceptation, includes all the means by which any alleged matter of fact, the truth of which is submitted to investigation, is established or disproved. This term, and the word proof, are often used indifferently, as synonymous with each other; but the latter is applied by the most accurate logicians, to the effect of evidence, and not to the medium by which truth is established.2 None but mathematical truth is susceptible of that high degree of evidence, called demonstration, which excludes all possibility of error, and which, therefore, may reasonably be required in support of every mathematical deduction. Matters of fact are proved by moral evidence alone; by which is meant, not only that kind of evidence which is employed on subjects connected with moral conduct, but all the evidence which is not obtained either from intuition, or from demonstration. In the ordinary affairs of life, we do not require demonstrative evidence, because it is not consistent with the nature of the subject, and to insist upon it would be unreason

1 See Wills on Circumstantial Evid. 2 Whately's Logic, b. 4, ch. 3, § 1. 2; 1 Stark. Evid. 10; 1 Phil. Evid. 1.

CHAPTER II.

OF THINGS JUDICIALLY TAKEN NOTICE OF, WITHOUT PROOF.

All civil

§ 4. Public functionaries, seals, laws, and acts of state. ized nations, being alike members of the great family of sovereignties, may well be supposed to recognize each other's existence, and general public and external relations. The usual and appro priate symbols of nationality and sovereignty are the national flag and seal. Every sovereign, therefore, recognizes, and, of course, the public tribunals and functionaries of every nation take notice of the existence and titles of all the other sovereign powers in the civilized world, their respective flags, and their seals of state. Public acts, decrees, and judgments, exemplified. under this seal, are received as true and genuine, it being the highest evidence of their character. If, however, upon a civil war in any country, one part of the nation shall separate itself from the other, and establish for itself an independent government, the newly formed nation cannot without proof be recognized as such, by the judicial tribunals of other nations, until it has been acknowledged by the sovereign power under which those tribunals are constituted; 2 the first act of recognition belonging to the executive function.3 But though the seal of the new power, prior to such acknowledgment, is not permitted to prove itself, yet it may be proved as a fact by other competent testimony.4 And the existence of such unacknowledged government or State

Church v. Hubbart, 2 Cranch, 187, 238; Griswold v. Pitcairn, 2 Conn. 85, 90; United States v. Johns, 4 Dall. 416; The Santissima Trinidad, 7 Wheat. 273, 335; Anon., 9 Mod. 66; Lincoln v. Battelle, 6 Wend. 475 [United States v. Wagner, 2 L. R. (Ch. Ap.) 585]. It is held in New York that such seal, to be recognized in the courts, must be a common-law seal, that is, an impression upon Coit v. Milliken, 1 Denio, 376. 2 City of Berne v. Bank of England, 9

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may, in like manner, be proved; the rule being, that if a body of persons assemble together to protect themselves, and support their own independence, make laws, and have courts of justice this is evidence of their being a state.1

§ 5. Law of Nations, Seals of Notaries, and Admiralty Courts, and all facts of common knowledge. In like manner, the Law of Nations, and the general customs and usages of merchants, as well as the public statutes and general laws and customs of their own country, as well ecclesiastical as civil, are recognized, without proof, by the courts of all civilized nations.2 The seal of a notary-public is also judicially taken notice of by the courts, he being an officer recognized by the whole commercial world.3 Foreign Admiralty and Maritime Courts, too, being the courts of the civilized world, and of co-ordinate jurisdiction, are judicially recognized everywhere; and their seals need not be proved.* Neither is it necessary to prove things which must have happened according to the ordinary course of nature; nor to prove the course of time, or of the heavenly bodies; nor the ordinary public fasts and festivals; nor the coincidence of days of the week with days of the month; nor the meaning of words in the

Yrissarri v. Clement, 2 C. & P. 223, per Best, C. J. And see 1 Kent, Comm. 189; Grotius, De Jur. Bel. b. 3, c. 3, § 1.

2 Ereskine v. Murray, 2 Ld. Raym. 1542; Heineccius ad Pand. 1. 22, tit. 3, § 119; 1 Bl. Comm. 75, 76, 85; Edie v. East India Co., 2 Burr. 1226, 1228; Chandler v. Grieves, 2 H. Bl. 606, n.; Rex v. Sutton, 4 M. & S. 542; 6 Vin. Abr. tit. Court, D; 1 Rol. Abr. 526, D. [An act which extends to and affects all persons within the limits defined is a public act. Levy v. State, Ind. 281. See also post, §§ 479, 489, 490. Courts will not take notice of private statutes, such as a special act for a survey of a particular tract of land, Allegheny v. Nelson, 25 Penn. St. 332; post, § 480; nor of the history of public statutes, as shown by legislative journals, Grob v. Cushman, 45 Ill. 119; nor of municipal ordinances and by-laws, Hassard v. Municipality, &c., 7 La. An. 495; Mooney v. Kennett, 19 Mo. 551; Case v. Mobile, 30 Ala. 538; Garvin v. Wells, 8 Iowa, 286]. Judges will also take notice of the usual practice and course of conveyancing. 3 Sugd. Vend. & Pur. 28; Willoughby v. Willoughby, 1 T. R. 772, per Ld. Hardwicke; Doe v. Hilder, 2 B. & Ald. 793; Rowe v.

Grenfel, Ry. & Mo. 398, per Abbott, C. J. So, of the general lien of bankers on securities of their customers, deposited with them. Brandao v. Barnett, 3 M. G. & Sc. 519.

3 Anon., 12 Mod. 345; Wright v. Barnard, 2 Esp. 700; Yeaton v. Fry, 5 Cranch, 535; Brown v. Philadelphia Bank, 6 S. & R. 484; Chanoine v. Fowler, 3 Wend. 173, 178; Bayley on Bills, 515 (2d Am. ed. by Phillips & Sewall); Hutcheon v. Mannington, 6 Ves. 823; Porter v. Judson, 1 Gray, 175.

4 Croudson v. Leonard, 4 Cranch, 435; Rose v. Himely, Id. 292; Church v. Hubbart, 2 Cranch, 187; Thompson v. S'e art, 3 Conn. 171, 181; Green v. Waller, 2 Ld. Raym. 891, 893; Anon., 9 Mod. 66; Story on the Conflict of Laws, § 643; Hughes v. Cornelius, as stated by Lord Holt, in 2 Ld. Raym. 893. And see T. Raym. 473; s. c. 2 Show. 232.

Rex v. Luffe, 8 East, 202; Fay v. Prentice, 9 Jur. 876 [Floyd v. Ricks, 14 Ark. 286].

6 6 Vin. Abr. 491, pl. 6, 7, 8; Hoyle v. Cornwallis, 1 Stra. 387; Page v. Faucet, Cro. El. 227; Harvey v. Broad, 2 Salk. 626; Hanson". Shackelton, 4 Dowl. 48; Dawkins v. Smithwick, 4 Flor. 158 [Sasscer v. Farmers' Bank, 4 Md. 409;

vernacular language; nor the legal weights and measures;2 nor any matters of public history, affecting the whole people; nor public matters, affecting the government of the country.4

§ 6. Political divisions, events, and public officers. Courts also take notice of the territorial extent of the jurisdiction and sovereignty, exercised de facto by their own government; and of the local divisions of their country, as into states, provinces, counties, cities, towns, local parishes, or the like, so far as political government is concerned or affected; and of the relative positions of such local divisions; but not of their precise boundaries, farther than they may be described in public statutes.

Sprowl v. Lawrence, 33 Ala. 674; Bury v. Blogg, 12 Q. B. 877; Holman v. Burrow, 2 Ld. Raym. 795; nor of the differences of time in different longitudes, Curtis v. Marsh, 1 C. B. N. s. 153; but vicissitudes of the season must be proved, Dixon v. Nicholls, 39 Ill. 372].

1 Clementi v. Golding, 2 Campb. 25; Commonwealth v. Kneeland, 20 Pick. 239 [nor of customary abbreviations, Weaver v. McElhanon, 13 Mo. 89; Mosely v. Maston, 37 Ala. 216; Stephen v. State, 11 Geo. 225; Ellis v. Park, 8 Texas, 205. But in Texas it will not be assumed that "New Orleans, La.," means New Orleans, Louisiana, Russell v. Martin, 15 Texas, 238; though it would doubtless take notice that New Orleans is not in Texas, Cooke v. Wilson, 1 C. B. N. s. 153. But the meaning of special phrases, such as "cost-book principle (Bodmin Mines Co., 23 Beav. 370), "Black Republicans," and the like, must be proved. Baltimore v. State, 12 Md. 376.]

2 Hockin v. Cooke, 4 T. R. 314. The current coins of the country, whether established by statute or existing immemorially, will be judicially recognized. [Daily v. State, 10 Ind. 536.] The courts will also take notice of the character of the existing circulating medium, and of the popular language in reference to it, Lampton v. Haggard, 3 Monr. 149; Jones v. Overstreet, 4 Monr. 547 [United States v. Burns, 5 McLean, 23; United States v. King, Id. 208; but not of the extent of its depreciation, Modawell v. Holmes, 40 Ala. 391]; nor of the current value of the notes of a bank at any particular time, Feemster v. Ringo, 5 Monr. 336.

3 Bank of Augusta v. Earle, 13 Pet. 519, 590; 1 Stark. Ev. 211 (6th Am. ed.) [See also Payne v. Treadwell, 16 Cal.

220; Douglass v. Branch Bank, 19 Ala. 659. So, that slavery is abolished, and when and how, Ferdinand v. State, 39 Ala. 706; that the Methodist Episcopal church was divided into two parts, and when, Humphrey v. Burnside, 4 Bush (Ky.), 215; and that the Rebellion was suppressed, and when, Clay v. Patton, 50 Ala.]

4 Taylor v. Barclay, 2 Sim. 221. Where a libel was charged, in stating that the plaintiff's friends, in the advocacy of her claims, "had realized the fable of the Frozen Snake," it was held that the court might judicially take notice that the knowledge of that fable of Phædrus generally prevailed in society. Hoare v. Silverlock, 12 Jur. 695; 12 Ad. & El. N. s. 624.

5 Deybel's case, 4 B. & Ald. 242; 2 Inst. 557 [Kirby v. Hickson, 1 L. M. St. p. 364]; Fazakerley v. Wiltshire, 1 Stra. 469; Humphreys v. Budd, 9 Dowl. 1000; Ross v. Reddick, 1 Scam. 73; Goodwin v. Appleton, 9 Shepl. 453; Vanderwerker v. The People, 5 Wend. 530 [State v. Powers, 25 Conn. 48; Ham v. Ham, 39 Maine, 263; Id. 291; Wright v. Phillips, 2 Greene (Iowa), 191; Robertson v. Teal, 9 Texas, 344; Wheeler v. Moody, Id. 372; Ross v. Austill, 2 Cal. 183; Kidder v. Blaisdell, 45 Maine, 461; Winnipiseogee Lake Co. v. Young, 40 N. H. 420. So they will take notice of the great geographical features of the country, its lakes, rivers, and mountains. Mossman v. Forest, 27 Ind. 233. And that a particular place is or is not in a particular county. Martin v. Martin, 51 Me. 366; and see also Cooke v. Wilson, 1 C. B. N. s. 153. Contra, Brune v. Thompson, 2 Ad. & El. N. s. 789. Nor will the courts judicially take notice, that a de facto sovereignty is or is not