CHAPTER X. JUDICIAL NOTICE AND PROOF OF STATUTES, AND THEIR AUTHORITATIVE EXPOSITION. § 181. Judicial notice of statutes. § 192. Functions of court and jury in respect of foreign laws proved. 193. Private statutes. § 181. Judicial notice of statutes.- Courts of justice take official notice of public statutes and the general jurisprudence of the state under whose authority they act. They judicially know the origin and history of that jurisprudence, and all the facts which affect its derivation, validity, commencement and operation. A state court will take notice of the federal constitution and amendments to it 2 and the public acts of congress. The courts of a state carved out of the territory of another take judicial notice of the statutes of the old state in force up to the time of the separation. The states formed from territory ceded by Spain will take notice of the Spanish law existing prior to the cession affecting rights and titles then in being." 1 People v. Mahaney, 13 Mich. 481; Town of South Ottawa v. Perkins, 94 U. S. 260; Post v. Supervisors, 105 id. 667; Opinion of Justices, 52 N. H. 622; Berry v. Baltimore, etc. R. R. Co. 41 Md. 446; People v. De Wolfe, 62 Ill. 253; Supervisors v. Heenan, 2 Minn. 336; Coburn v. Dodd, 14 Ind. 317; Moody v. State, 48 Ala. 115; De Bow v. People, 1 Denio, 9; Commercial Bank v. Sparrow, 2 id. 97; Purdy v. People, 4 Hill, 384; Ryan v. Lynch, 68 Ill. 160; Lanning v. Carpenter, 20 N. Y. 447; Lusher v. Scites, 4 W. Va. 11; Rumsey v. People, 19 N. Y. 48; Lorman v. Benson, 8 Mich. 18, 25; Stokes v. Macken, 62 Barb. 145; Neeves v. Burrage, 14 Ad. & El. (N. S.) 504. 2 Graves v. Keaton, 3 Cold. 8. Dickenson v. Breeden, 30 Ill. 279; Gooding v. Morgan, 70 id. 275; Papin v. Ryan, 32 Mo. 21; Kessel v. Albetis, 56 Barb. 362; Semple v. Hagar, 27 Cal. 163; Rice's Succession, 21 La. Ann. 614; Morris v. Davidson, 49 Ga. 361; Flanigen v. Washington Ins. Co. 7 Pa. St. 306; Bayly v. Chubb, 16 Gratt. 284. 4 Delano v. Jopling, 1 Litt. 417; Berluchaux v. Berluchaux, 7 La. 539. United States v. Turner, 11 How. 663, 668; United States v. King, 7 id. 883; United States v. Philadelphia, $182. The courts will inform themselves of facts which may affect a statute; for example, the precise time when it was approved, to determine its existence, commencement or any other fact for like purpose. They will take notice of the terms in which an act was passed, though they differ from those of the officially published statutes. No issue by pleading can be made by the parties involving such facts to be tried by evidence. The judges make the proper inquiry to inform themselves in the best way they can. An eminent jurist says: "An act of parliament, made within the time of memory, loses not its being so because not extant of record, especially if it be a general act of parliament. For of the general acts of parliament the courts of common law are to take notice without pleading them. And such acts shall never be put to be tried by the record upon an issue of nul tiel record, but shall be tried by the court, who, if there be any difficulty or uncertainty touching it, or the right of pleading it, are to use for their information ancient copies, transcripts, books, pleadings and memorials to inform themselves, but not to admit the same to be put in issue by a plea of nul tiel record. For, as shall be shown hereafter, there are many old statutes which are admitted and obtain as such, though there be no record at this day extant thereof; nor yet any other written evidence of the same, but which is in a manner only traditional, as namely, ancient and modern books of pleading and the common received opinion and reputation and approbation of the judges learned in the law." 4 § 183. In this country the inquiry may have more range; the existence or validity of statutes, under constitutions, will depend on a greater variety of facts open to investigation. While the constitution or a statute may provide what shall be 11 id. 609; Arguello v. United States, 18 id. 550; Fremont v. United States, 17 id. 542; Chouteau v. Pierre, 9 Mo. 3; Ott v. Soulard, id. 581; Doe v. Eslava, 11 Ala. 1028. 1 Gardner v. The Collector, 6 Wall. 499; Louisville v. Savings Bank, 104 U. S. 469; Cargo of Brig Aurora v. United States, 7 Cranch, 382; Lapeyre v. United States, 17 Wall. 191; Ken nedy v. Palmer, 6 Gray, 316; Burgess v. Salmon, 97 U. S. 381; ante, § 110. 2 Gardner v. The Collector, supra; Purdy v. People, 4 Hill, 384; De Bow v. People, 1 Denio, 14; State v. Platt, 2 S. C. 150; Brady v. West, 50 Miss. 63. Town of South Ottawa v. Perkins, 94 U. S. 260. 4 Hale's His. Com. L. 14, 16. 3 conclusive evidence,' the inquiry is not generally so restricted, and the general principle governs that record or constitutional evidence must be adduced to impeach a statute the record of which is fair on its face. Where the purpose is not to invalidate the statute, but to give it effect, to ascertain the fact on which the taking effect depends, or to ascertain the time more precisely than appears by the record, any source of information which is capable of conveying to the judicial mind a clear and satisfactory answer is available. Extraneous facts relating to the subject of a statute fair on its face, or the procedure to enact it, will not be considered for the purpose of overturning it for some infraction of the constitution, unless a statute or the constitution itself has provided for such proof. In the absence of such provisions, a court cannot resort to the legislative rolls and journals for the purpose of examining as to whether the bill as passed is the same as the bill certified;" nor for the purpose of determining whether the statute passed in conformity with the rules adopted by the legislature for its own government. It cannot resort to extrinsic evidence to show that the certified and published law actually passed." § 184. The written law of a state embraces as well the statutes in force at the time of its organization, and not in conflict with its constitution, as those subsequently enacted. The laws of England, written and unwritten, or, as it has been other 1 Town of South Ottawa v. Perkins, 173; Louisville v. Savings Bank, 104 94 U. S. 260. U. S. 469; Gardner v. The Collector, 6 Wall. 499. 2 English v. Oliver, 28 Ark. 317; Worthen v. Badgett, 32 id. 496; State v. Swift, 10 Nev. 176; State v. Hastings, 24 Minn. 78; Larrison v. Peoria, etc. R. R. Co. 77 Ill. 11; Pangborn v. Young, 32 N. J. L. 29 ; Legg v. Mayor, etc. 42 Md. 203, 224; State v. County of Dorsey, 28 Ark. 378; Wall, Ex parte, 48 Cal. 279; Happel v. Brethauer, 70 Ill. 166; Rumsey v. People, 19 N. Y. 48; De Camp v. Eveland, 19 Barb. 88; Lanning v. Carpenter, 20 N. Y. 447; Duncombe v. Prindle, 12 Iowa, 1; Lusher v. Scites, 4 W. Va. 11. See Bradley v. Commissioners, 2 Humph. 428; Ford v. Farmer, 9 id. 152. 3 Wells v. Bright, 4 Dev. & Batt. L. 4 Ante, § 28; Matter of Church, 28 Hun, 476; Matter of New York Elevated R. R. Co. 70 N. Y. 327, 351; South Ottawa v. Perkins, 94 U. S. 260. 5 Pangborn v. Young, 32 N. J. L. 29; Sherman v. Story, 30 Cal. 253; Coleman v. Dobbins, 8 Ind. 156; Grob v. Cushman, 45 Ill. 119; Green v. Weller, 32 Miss. 650; 1 Whart. on Ev. § 290. 6 Id. 7 Mayor, etc. v. Harwood, 32 Md. 471. 8 American Ins. Co. v. Canter, 1 Pet. 511; Brice v. State, 2 Overt. 254; Egnew v. Cochrane, 2 Head, 320; Lee v. King, 21 Tex. 577. wise expressed, the common law and all the statutes of parlia ment in aid of the common law, in force at the time of the emigration to this country, were brought hither by the cmigrants who first settled the original colonies, as a birthright, so far as those laws were suitable to the circumstances and conditions which existed in the new country. To them they were unwritten laws. Subsequent acts of parliament did not affect the colonies unless named or the acts related to the prerogatives of the crown." In states formed from colonies settled by Englishmen, and in those which are shown to have adopted the common law by statute or constitution, it will be presumed to continue as a system of jurisprudence. And recognizing its existence in another state, the court will take notice of its principles, but not of any peculiarities, exceptional in the foreign state and divergent from the law of the court. 12 P. Wms. 75; Blankard v. Galdy, 2 Salk. 411; Scott v. Lunt's Adm'r, 7 Pet. 603; Commonwealth v. Knowlton, 2 Mass. 534; O'Ferrall v. Simplot, 4 Iowa, 400; Dodge v. Williams, 46 Wis. 92; Gardner v. Cole, 21 Iowa, 205; Williams v. Williams, 8 N. Y. 541; Calloway v. Willie's Lessee, 2 Yerg. 1; Clawson v. Primrose, 4 Del. Ch. 643, 652; Stump v. Napier, 2 Yerg. 35; Carter v. Balfour, 19 Ala. 814; Horton v. Sledge, 29 id. 478; Nelson v. McCrary, 60 id. 301; McCorry v. King, 3 Humph. 267; Webster v. Morris, 66 Wis. 366; Coburn v. Harvey, 18 id. 147; Sackett v. Sackett, 8 Pick. 309; Bruce v. Wood, 1 Met. 542; Commonwealth v. Churchill, 2 id. 123; Stout v. Keyes, 2 Doug. (Mich.) 184; Powell v. Brandon, 24 Miss. 363; Jacob v. State, 3 Humph. 493; Griffith v. Beasly, 10 Yerg. 434; Drew v. Wakefield, 54 Me. 291; Pemble v. Clifford, 2 McCord, 31; Gough v. Pratt, 9 Md. 526; Canal Com'rs v. People, 5 Wend. 445; Fowler v. Stoneum, 11 Tex. 478; Boehm v. Engle, 1 Dall. 15; Ayres v. Methodist Ch. etc. On principle, the courts 3 Sa df. 368; Attorney-Gen. v. Stewart, 2 Meriv. 162; Van Ness v. Pacard, 2 Pet. 137; Tappan v. Campbell, 9 Yerg. 436; Cathcart v. Robinson, 5 Pet. 280. 2 Matthews v. Ansley, 31 Ala. 20; Carter v. Balfour, 19 id. 829; McKineron v. Bliss, 31 Barb. 180; Sackett v. Sackett, 8 Pick. 309: Commonwealth v. Knowlton, 2 Mass. 534; Porter's Lessee v. Cocke, Peck, 30; Preston v. Surgoine, id. 80; Chapron v. Cassaday, 3 Humph. 661; Rolfe v. McComb, 2 Head, 558; Smith v. Mitchell, Rice, 316; Stokes v. Macken, 62 Barb. 145. 3 Cressey v. Tatom, 9 Or. 542; Goodwin v. Morris, id. 322; Norris v. Harris, 15 Cal. 226; Wallace v. Burden, 17 Tex. 467; Vardeman v. Lawson, id. 10; Holmes v. Broughton, 10 Wend. 75; 1 Whart. on Ev. § 314: McDeed v. McDeed, 67 Ill. 545; Kingsley v. Kingsley, 20 id. 203; Abel v. Douglass, 4 Denio, 305; Andrews v. Hoxie, 5 Tex. 171; Titus v. Scantling, 4 Blackf. 89; Smith v. Bartram, 11 Ohio St. 691. of one state cannot presume the existence of any other law in another state. The circumstance that a written law modifying or supplementing the common law has been enacted in the state where the court sits is no evidence that a like statute has been passed in another state.' It has, however, often been decided that where a case or defense depends on the law of another state, and that law has not been proved, the court will presume it to be the same as that which is in force in its own jurisdiction. If this were the common law the presumption would be natural, logical, legal, but the cases are not so confined; the presumption is applied literally and comprehensively.* The result would be the same and its basis would be more satisfactory if the principle were formulated thus: the law 1 Kermott v. Ayer, 11 Mich. 181; rick v. Burke, 30 id. 124; Warren v. Ellis v. Maxson, 19 id. 186. 2 Territt v. Woodruff, 19 Vt. 182; Pauska v. Daus, 31 Tex. 67; McDonald v. Myles, 12 Sm. & M. 279; Harris v. Allnutt, 12 La. 465; Mason v. Mason's Widow, id. 589; Dwight v. Richardson, 12 Sm. & M. 325; Bemis v. McKenzie, 13 Fla. 553; Holley v. Holley, Lit. Sel. Cas. 505; Selking v. Hebel, 1 Mo. App. 340; Paget v. Curtis, 15 La. Ann. 451; Nalle v. Ventress, 19 id. 373; Allen v. Watson, 2 Hill (S. C.), 319; Desnoyer v. McDonald, 4 Minn. 515; Whidden v. Seelye, 40 Me. 247; Thurston v. Percival, 1 Pick. 415; Fouke v. Fleming, 13 Md. 392, 407; Surlott v. Pratt, 3 A. K. Marsh. 174; Thomas v. Beckman, 1 B. Mon. 29, 34; Prince v. Lamb, Breese, 378; Leavenworth v. Brockway, 2 Hill, 201; Crozier v. Hodges, 3 La. 357; Hall v. Woodson, 13 Mo. 462; Lougee v. Washburn, 16 N. H. 134; Stokes v. Macken, 62 Barb. 145; Langdon v. Young, 33 Vt. 136; Chase v. Ins. Co. 9 Allen, 311; Cluff v. Ins. Co. 13 id. 308; Conolly v. Riley, 25 Md. 402; Green v. Rugely, 23 Tex. 539; Hall v. Pillow, 31 Ark. 32; Hyd Lusk, 16 Mo. 102; Houghtailing v. Ball, 19 Mo. 84; Lucas v. Ladew, 28 id. 342; Robinson v. Dauchy, 3 Barb. 20; Pomeroy v. Ainsworth, 22 id. 118; Huth v. Ins. Co. 8 Bosw. 538; Wright v. Delafield, 23 Barb. 498; Bradley v. Ins. Co. 3 Lans. 341; Savage v. O'Neil, 44 N. Y. 298; Smith v. Smith, 19 Gratt. 545; Bean v. Briggs, 4 Iowa, 464; Crafts v. Clark, 38 Iowa, 237; Crake v. Crake, 18 Ind. 156; Davis v. Rogers, 14 Ind. 424; Crane v. Hardy, 1 Mich. 56; Ellis v. Maxson, 19 id. 186; Cooper v. Reaney, 4 Minn. 528; Brimhall v. Van Campen, 8 id. 13; Rape v. Heaton, 9 Wis. 328; Walsh v. Dart, 12 Wis. 635; State v. Patterson, 2 Ired. L. 346; Atkinson v. Atkinson, 15 La. Ann. 491; Hickman v. Alpaugh, 21 Cal. 225; Hill v. Grigsby, 32 Cal. 55; Mostyn v. Fabrigas, 1 Cowper, 174; Smith V. Gould, 4 Moore, P. C. 21; State v. Cross, 68 Iowa, 180; Van Wyck v. Hills, 4 Rob. 140; Phila. Bank v. Lambeth, 4 Rob. 463. 3 See Diez, In re, 56 Barb. 591: Lockwood v. Crawford, 18 Conn. 261. 4 Id. |