Judicial Notice

Judicial Notice and the Law of Evidence
Author(s): James B. Thayer

Source: Harvard Law Review , Feb. 15, 1890, Vol. 3, No. 7 (Feb. 15, 1890), pp. 285-312
Published by: The Harvard Law Review Association
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LA W RE VIEhW.
VOL. III. FEBRUARY 15, 1890. No. 7.
JUDICIAL NOTICE AND THE LAW OF EVIDENCE.
N considering the subject of judicial notice one has to beware of

a common misconception. Very often it is supposed that
there is but one question where in reality there are two, viz.:
(a) the question whether the tribunal can assume a certain fact with-
out proof, and (b) the question what it can do with it when it is
assumed. Just as in applying the law of evidence,1 there is
no propriety in giving evidence of that which would not be
available if it were in, and so in common legal language much
is said not to be admissible which would be admitted if it
had any bearing upon the case, so, in regard to judicial notice,
there is much which in any given case would readily be noticed
without proof if it could be applied to the purpose desired, but
which is refused notice for the reason that the fact would be of no
legal significance if it were recognized, Judges, in presiding over
litigation, are not engaged in a philosophical investigation or an
academic exercise; with them the search for truth is but an inci-
dental matter and not the main one, and their ability to use a fact
when it is proved or admitted or assumed is limited by the require-
ments of their main business, which is that of awarding justice,-
awarding it according to the rules of law and under established
usages and forms. That familiar instrument of justice, the doc-
trine of estoppel, often makes the actual truth of fact unimportant
13 Harv. Law Rev. I47.

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286 HARVARD LA W RE VIEW.
in a particular case; and in all cases the chief question for a judge
is, not what is the actual truth of fact, but what is it lawful and
just for him to take to be true for the purposes of the particular
case then before him. Often, therefore, when a court is under-
stood to declare that it cannot notice a fact without proof, what it
really says is not this, but that it cannot hold a certain allegation
in pleading to be sufficient, or a certain finding in a special ver-
dict or an officer's return to be full enough, or a certain contract
to be binding, or a certain piece of property to belong here or
there.
After allowing for all this, however, there are yet many cases
where the question is fairly presented of the power or the duty of
a court to take cognizance of some matter without proof. The
maxim that mnanifesta (or ;zotoria) non indigent probatione may
be traced far back in the civil and the canon law; indeed, it is
probably coeval with legal procedure itself. We find it as a
maxim in our own books,1 and it is applied in every part of our
law. It is offset by another principle, also very old, and often
overtopping the former in its importance, - non refert quid not/un
sit judici, si not/mrn non sit in foruza judicii.2 These two max-
ims seem to intimate the whole doctrine of judicial notice,-a doc-
trine which has two aspects, one regarding the liberty which the
judicial functionary has in taking things for granted, and the other
the restraints that limit him.3
What is this doctrine of judicial notice, and whereabout in the
1 7 Co. 39 a-39 b; II Co. 25.

2 Coke, C. J., quotes this from Bracton, in an action of slander, Crawford, v. Blisse
Bul. 150 (i6r3), to support the overstrained doctrine of that day about taking the words
charged in mzitorisensu.
8 The expression " to take notice of " anything, in our ordinary popular phraseology,
imports observing or remarking it. In the legal language of to-day to "c take notice " has
a meaning correlative to that of giving notice; viz., that of a man's accepting or charging
himself with a notification, or with the imputation of knowledge of a thing. But the im-
port of the legal expression to " take judicial notice," as indicating the recognition without
proof of something as existing or as being true, seems traceable rather to the older English
usage. The word "notice" was formerly often used interchangeably with knowledge, and
with our legal term "conusance." In the English of our Bible we read: "Wherefore have
we afflicted our souls and thou takest no knowledge?" (Isa. lviii. 3.) "They took knowl-
edge of them that they had been with Jesus." (Acts iv. 13 ) So we find in the Norman
French of our old reports the expressions " take notice " and " take conusance; " and when
the reports begin to be translated and published in English, in the seventeenth century
and later, we find the phrase becomes interchangeably take notice, take knowledge, and
take conusance.

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7UDICIAL NOTICE. 287
law does it belong ? In trying to answer these questions, I propose

first to deal briefly with the second one; then to present a number
of cases which may furnish illustration, as well as a test and a basis
of judgment as regards both questions; then to consider briefly
the sort of thing of which courts will take notice without proof,
distinguishing also the case of juries; and finally to mention a few
discriminations which it is important to keep in mind if one would
make an intelligent application of the doctrine.
I. Whereabout in the law does the doctrine of judicial notice
belong? It does not belong peculiarly to the law of evidence.
It does, indeed, find in the region of evidence a frequent and con-
spicuous application; but the habit of regarding this topic as a
mere title in the law of evidence tends to obscure the true con-
ception of both subjects. That habit is quite modern. The care-
ful student will notice that a very great proportion of the cases
involving judicial notice raise no question at all in the law of evi-
dence; they relate to pleading, to the construction of the record
or of other writings, the legal definition of words, the interpreta-
tion of conduct, the process of reasoning, the regulation of the
order of trials. In short, the cases relate to the exercise of the
function of judicature in all its scope and at every step. The nature
of the process as well as the namne of it find their best illustration
in some of the older cases, long before questions in the law of evi-
dence engaged attention. We are the less surprised, therefore,
to find that it was not until Starkie printed his book on evidence,
in 1824, that any especial mention of this subject occurs in legal
treatises on evidence, and that Starkie has very little to say
about it.' The subject of judicial notice, then, belongs where the
general topic of legal or judicial reasoning belongs,-to that part
of the law which defines among other things, the nature and limi-
tations of the judicial function. It is, indeed, woven into the very
texture of this function. In conducting a process of judicial
1 Stark. Ev. i., 400-405. Bentham, to be sure, in his " Rationale of Judicial Evi-
dence" (which was not a law book), composed in 1802-I812, and published partly by
Dumont in I823, and in full under the editorship of John Stuart Mill in 1827, had briefly
discussed the question (Works, vi. 276, book i. c. 12,) how far a judge can pass on
questions of fact without " evidence." He,,concludes, inter alia, that a judge shoul
allowed " at the instance of either party to pronounce, and, in the formation of the ground
of the decision, assume, any alleged matter of fact as notorious," subject to the right of
the other party to deny the notoriety and call for proof.

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288 MAR VARD LA WV RE VIE W.
reasoning, as of other reasoning, not a step can be taken without

assuming something which has not been proved.'
II. Let me now illustrate the subject by a number of classified
cases drawn from all periods of our law.
I. Certain cases relating to pleading and other matter of
record. In looking at these the reader will find constant illustra-
tion of what has already been indicated, that the right of a court
to act upon what is in point of fact known to it must be subordi-
nate to those requirements of form and orderly communication
which regulate the mode of bringing controversies into court, of
stating them, and of conducting them. If formal words are
necessary, like " felonice," and " murdravit," and " burglariter," in
the old private appeals and in indictments, you must use them. If
a certain form of action is necessary, you must resort to it. If a
certain order or time of presentation be necessary, you must con-
form to it. If, as regards the fulness of detail or the precision of
allegation, there be any rule of " certainty," you must conform to
that. If there be any rule of the substantive law as to what con.
1 Stephen (Dig. Ev., 1st and 2d ed., Ch. VII.) originally dealt with judicial notice
under the general head of " Proof " and the special head of " Facts which need not be
Proved." For this he was taken to task by an acute critic (20 Sol. Journal, 937), who
suggested that since Stephen's art. 93, relating to the burden of proof, declares th
whoever desires a judgment as to any legal right depending on the existence or non-
existence of facts which he asserts, "must prove that those facts do or do not exist; "
and since art. 59 (about judicial notice) declares that some facts asserted by a party
need not be proved by him,-the true place for this last was that of an exception to the
art. 93. This led Stephen, in his third editioin, to change the special head of Ch. VII.
from "Facts which need not be Proved " to " Facts Proved Otherwise than by Evi-
dence" (his definition of "evidence," art. I, being (a) the statements of witnesses in
court, and (b) documents produced in court), and called forth certain remarks in the
preface to the third edition (Little & Brown's ed. (I877) 26) : " By proof I mean the
means used of making the court aware of the existence of a given fact; and surely the
simplest possible way of doing so is to remind the court that it knows it already. It is like
proving that it is raining by telling the judge to look out of the window. It has been
said that judicial notice should come under the head of burden of proof; but surely this
is not so. The rules as to burden of proof show which side ought to call upon the
court to take judicial notice of a particular fact; but the act of taking judicial notice,
of consciously recalling to the mind a fact known, but not for the moment adverted to,
is an act of precisely the same kind as listening to the evidence of a witness or reading a
document: that is, it belongs to the general head of proof." As regards all this, one or
two things may be briefly remarked: (a) "1 The general head of proof," and " the means
used of making the court aware of the existence of a given fact," include the whole topic
of legal reasoning: they spread far beyond the law of evidence. The same reach
belongs to the burden of proof. So that both Stephen and his critic recognize the wide
scope of judicial notice. (b) It seems a very inadequate conception of the subject of

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stitutes the actionable or punishable thing, or what is a defence

of course the pleadings and the record must come up to these
requirements. Under this head may be put the following cases:
(a) In I 332-3,1 in a quare imnpedit against the Dean and Chapter of
St. Peter's at York, the Dean made no appearance. Counsel
stated that he was dead, and then: " Trewe.2 Where notice
comes that a man is dead you are not to go to judgment against
him. It is a notorious thing that the Dean is dead, and, therefore!
you should not go to judgment against him. Herle (C. J. C. P.).
We cannot go to judgment upon a thing notorious, but only accord-
ing to what the process before us is. Basset. A quare imnpedit,
was brought against H. de Stanton,3 and he died pending the
writ, wherefore the writ abated. Herle. The writ was not
abated by judgment, but the plaintiff waived his writ because he
judicial notice to speak of it as " a means of making the court aware " of a fact; it has
to do not merely with the action of the court when the parties are seeking to move it, but
when alone and acting upon its own motion. To read a document in court, or to listen
to a witness there, is to deal with evidence." And so when an object is submitted to
the judge's inspection in court. But the true conception of what is judicially known is
that of something which is not, or rather need not, unless the tribunal wishes it, be the
subject of either evidence or argument - something which is already in the court's
possession, or at any rate is so accessible that there is no occasion to use " any means to
make the court aware " of it; something which it may deal with quite unhampered by
any rules of law. (c) There is sometimes confusion between judicial notice and inspection,
or the dealing by a court with what Bentham calls " real evidence,"- a thing submitted
directly to the senses of the tribunal; as in Stephenson v. The State, 28 Ind. 272 (I867),
where the trial judge had decided the question whether the appellant was over fourteen
years of age by simply inspecting him. He certified to the upper court that " as the
fendant, being present in court, presented . . . the appearance of a full-grown man, such
proof [i.e., other evidence] was not required." Of course this was merely an instance of
settling a question by the use of a certain sort of evidence,- and it may be added that it
was, at common law, a very familiar way. But the upper court describe the situation as
one where " no proof whatever was offered as to the age of the defendant. " " The judge
was not a witness, and the State is not entitled to avail itself of his knowledge, except upon
matters of which the court takes judicial notice." rhe real ground of the court's decision
here (granting a new trial) appeared to be that when a jury or trial judge decides a
question of fact in this way, a party loses the benefit of his exceptions, because there is no
way of presenting the evidence to an appellate court in such a manner as to enable it to
judge of " the reasonableness of the impression " made upon the mind of the lower tribu-
nal. We may agree that this case was rightly decided, without assenting to the court's
conception of what took place at the trial, or their view that it is impossible to have the full
benefit of exceptions when the trial court avails itself of " real evidence." Stephen's il-
lustration of " proving that it is raining by telling the judge to look out of the window,"
is another instance of the use of real evidence.
1 y. B. 7 Ed. III. 4, 7.
2 .Semble, Simon de Trewethosa, a sergeant of the period.
8 Herle's predecessor as Chief Justice of the Common Pleas.

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290 HA R VARD A LW REV IEW.
knew that le was dead." (b) In 1456,1 in a quare imipedit, the

declaration related to a church in Wales, and the writ was brought
in the County of Hereford. Littleton, for the defendant, objected
that the plaintiff had not stated, either in his account or his writ,
that Hereford adjoined Wales, and the law required that the
action should be brought in a county adjoining. But the court
held with the plaintiff, who insisted that "primia facie it will be
intended that the County of Hereford adjoins Wales until the con-
trary is alleged; if the defendant would take advantage of this,
he should allege that the County of Hereford is not adjoining, or
otherwise it will be taken that it is." (c) In I552-32, in an
action of debt upon a statute the defendant demurred to the
declaration for misreciting the statute as beingof the 32 H. VIII.,
while in truth it was of the 33 H. VIII. Saunders, for the plain-
tiff, argued: " You Judg-es have a private knowledge and a judicial
knowledge (un pryuate scyence et un iudyciall scyence), and of
your private knowledge you cannot judge. . . . [And then he re-
cites the story of Gascoigne and Henry IV., in Y. B. 7 H. IV. 4r
(infra, p. 296), adding:] But there he could not acquit him and
give Judgment of his own private knowledge. But where you have
a judicial knowledge, there you may, and you may give judgment
according to it. As if one be arraigned upon an Indictment for
an offence which is pardoned by Parliament, there you ought not
to proceed in it nor give judgment if he is found guilty, because
it appears to you by your judicial knowledge that you ought not
to arraign him. For the Judges ought to take Notice (prender
conusance) of Statutes which appear to them judicially, although
they are not pleaded; and then the misrecital of that whereof the
Judges ought to take Notice without Recital is not material." But
the court held that while the plaintiff need not recite the statute
" because it is a general statute, and extends to every one of the
King's subjects, and the Justices are bound to take notice of
it, . . . [yet] the court should abate for the Misrecital. . .
For Declarations ought to have two things; the first is certainty,
in order that the defendant may know what he is to answer to;
. . the other thing . . . is truth. . . . In our case he
- Y. B. 35 H. VI. 30, 35.

2 Partridge v. Strange, Plow. 77, 83-84. I quote some of the original phrases in this
case. It will be remembered that Plowden was published in French in 1571, and that
the first translation appeared in 176I.

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YUDICIAL AOTICE. 291
has grounded his Action upon a Statute by him recited, where

it appears to us judicially that there is no such Statute made at
that Time." Here the court was called upon to take judicial cog-
nizance of the date of a statute, and they did it; but they were re-
strained from giving the plaintiff the benefit of their knowledge by
a rule of pleading.
(d) In I588-9,1 in an action of ejectment, there was a special
verdict which set forth the founding of a hospital by the name of
the Master and Chaplains of the Hospital of Henry the Seventh
late King of England of the Savoy, and that afterwards the said
master and chaplains being seized, etc., leased the same to the
defendant by the name of W. H. Master of the Hospital . . . called
the Savoy. And afterwards by their true name they leased the same
to Thomas Fanshawe the plaintiff's lessor, and the question was
whether the lease to the defendant by the name above stated was
good.2 The ground upon which the judges went who decided the
case in the Exchequer of Pleas, and also those who agreed with
them in the Exchequer Chamber, seems to have been that a very
high degree of " certainty " was required in such a case.3 The case
is here cited mainly for the high-strung reasoning of Coke in
arguing for the plaintiff, in the Exchequer Chamber, against the
lease: " If the Name given to this Hospital upon the foundation of
it and the Name usurped in the lease be not unum in sensu (not
in your private understanding as private persons, but in your judi-
cial knowledge upon the Record, quod coram vobis residet as
Judges of Record) then this lease is void. For although you as
private persons, otherwise than by Record know that the Hospital
of Savoy and the Hospital vocat. le Savoy are all one Hospital, you
ought not upon that your private knowledge to give judgment, un-
less your judicial knowledge agree with it; that is, the knowledge
which is out of the Records which you have before you. But if
the name given upon the Foundation and the usurped Name be
1 Marriot v. Pascall, I Leon. 159; S. C. sub nomn. Mariot v. Mascal, I And. 202, and
sub nom. Fanshawe's Case, Moore, 228.
2 This case was hard fought; in the Exchequer of Pleas it was held (Manwood, C. B.,
dissenting in a long opinion, preserved in Moore's Reports) that the lease was bad. In the
Exchequer Chamber the court discussed it without giving judgment, and were divided in
opinion; the full opinion of Anderson (C. J. C. P.) is found in his reports. But the case
was finally settled by the parties.
8 See the quaint, pedantic discourse of Anderson, C. J., on words and names, in his long
opinion in I And. 208-220.

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292 HAR VAR D LA W RE VIE W.
not idem sensu in your judicial knowledge, and you cannot other-
wise conceive the identity of these two Hospitals nor make any con-
struction to imagine it but by the Record, for the Record is your
eye of Justice, and you have no other eye to look unto the cause
clepending before you but the Record, and to this purpose he cited
the case of 7 H. , io8, [sic, but meaning probably 7 H. 4, 4I,
which is thereupon inaccurately stated] . so in our case, it may
be that you in your private knowledge know that the Hospital de
la Savoy and the Hospital vocat. le Savoy is all one; but that doth
not appear unto you upon the Record which is before you, but it
may be for anything that appears in the Record, that they are
diverse and several Hospitals. Therefore the lease is void." 1
(e) In i6ii2 an indictment alleged an arrest at London on
i 8 November "between the hours of five and six in the afternoon."
It was contended that the arrest was illegal as being in the night, i.e.,
after sunset; but the court ("all the Judges of England and Bar-
ons of the Exchequer ") "resolved that although in truth between
five and six o'clock in November is part of the night, yet the Court
is not bound ex officio to take conusance of it, no more than in
the case of burglary without these words, in nocte . or noc-
tanter."3
(f) To these may be added a class of cases where the courts,
for the purposes of a particular kind of action, refused to give effect
1 To all this learned triviality add that of Manwood, C. B., in supporting the case of the
defendant against another objection, viz., that the lease was bad as omitting the word late
(nuper), in the designation of King IHenry VII. It is intended, he says, that he who
speaks of King Henry VII. speaks of the late king of that name, "Just as the Dean and
Chapter of Carlisle was incorporated by the name of the Dean and Chapter of the H,oly
and undivided Trinity, of Carlisle; and in the lease they omit undivided, yet was it good
enough . . and the reason was because by the name of the Trinity the word undivided
is as strongly intended as if it were expressed; for everybody knows that the Trinity is
undivided, and so in 36 H. 6 the foundation was the Church of St. Peter and Paul the
Apostles, and the lease omit.ted the Apostles, and yet good, for it is intended in the plea,
and all know that P'eter and Paul were Apostles. So also the lease is good where the
foundation is of the blessed Virgin Mary and Virgin is omitted; yet it is good, for all
men well know that Mary was blessed and a Virgin."
2 Mackalley's Case, 9 Co. 65 a, 67; ib. 62.
8 The phrases here are probably those of the first English edition of these reports in
I658, long after Coke's death in I633. He published his reports in Norman French.
The ninth book appeared in i6r3, and the passage above quoted (not to quote it all)
reads in the French: " Le court nest tenus ex officio a prender conusance de ceo nient
pluis que in case de burglarie sans ceux paroles in nocte eiusdem diei, or noctanter." In
Trotman's " Epitome " of the first eleven books, published in I640, this reads (p. 468),
"Court nest ten p prend notice," etc.

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YUDICZAL NOTICE. 293
to the ordinary meaning- of words, and persisted for many years in

considering only whether they were susceptible of some other
meaning. Actions for defamation, a slip transplanted from the
popular and ecclesiastical courts, started into such a savage luxuri-
ance of growth in the king's courts, in the sixteenth and seventeenth
centuries, that the judges appear to have been frightened at it.1 At
any rate, for many years they did their best to discourage the action
by applying a rule that the words should be taken in initiori sensu.
For example, it was held that it was not actionable as imput-
ing crime to say of another,2 "Thou hast stolen by the highway
side," for it might be taken that he came unawares upon some one
by the highway, or that he stole a stick under a hedge; or to say,3
" Holt struck his cook on the head with a cleaver and cleaved his
head; the one part lay on the one shoulder and another part on the
other," for "the party may yet be living, and it is then but trespass;
and again, in I6I5-i6,4 where one was charged with saying of
another, "Thou art a Thief, for thou hast stolen me (Defendant
innuendo) a hundred of slatte," it was held not actionable. The
plaintiff's counsel in vain urged that this form of expression was
" le usuall phrase del paies; " Coke, C. J., answered that he should
have averred it, "otherwise we cannot take notice of it, for I do
not know that it is a usual phrase in the country. It seems to me
that the words are insensible, for it is clear that the first words
are not actionable, scil., 'thou hast stolen me,' for it is not
felony to steal a man, although it is to steal some women." At
Easter, in i6i6, plaintiff's counsel again brought up the case and
said " ceo est un usuall phrase, come en le Scripture, Fetch me a
kidd from the Flock."5 Doderidg-e, J.: "That is for me, and not
1 See Professor Maitland's admirable little paper on " Slander in the Middle Ages
The Green Bag, ii. 4 (January, I890). In I67I, even, we find Vaughan, C. J., saying, in
King v. Lake (2 Ventris, 28), in an action of slander: " The Growth of these Actions will
spoil all communications; a Man shall not say such an Inn or such Wine is not good. Their
Progress extends to all Professions. . . . The Words spoken here have no more Relation to
the Plaintiff's Profession, than to say of a Lawyer he hath a Red Nose, or but a little
Head." Vaughan was dissenting.
2 Brough v. Dennison, Goldsborough, I43, 58 (i6oi).
8 Holt v. Astgrigg, Cro. Jac. 184 (I607).
4 White v. Brough, i Rolle, 286.
6 Shakespeare had just died, almost on the first day of this very Easter term. Would
Coke, we may wonder, have recognized Prince Henry's description of Hotspur, " Ile
that kills me some six or seven dozen of Scots at a breakfast," or the many other like
phrases that are now so familiar to us,- " Rob me the exchequer," " He smiled me in the
face," How this river comes me cranking in," and the like?

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294 HAR VrARD LAW RE VIEW.
from me." The counsel urged that either way was good enough
for him. Doderidge: "' It is uncertain how it should be taken, and
therefore the action lies not, for the discredit of such actions; and
judgment was given accordingly against the plaintiff."
(g) And again, under this head belong such cases as that of
Taylor v. Barclay,' where, on a demurrer to a bill in equity which
alleged that the British Government had recognized the indepen-
dence of the Federal Republic of South America, the Vice-Chan-
cellor, having informed himself at the foreign office that this was
not true, took judicial notice of the fact, and declined to hold that
what was thus known to the court to be a false allegation had been
admitted by the demurrer to be true.
2. A second class of cases relates merely to the construction
of writings or the interpretation of words. Here the courts take
notice of the ordinary meaning of words, and, as some of the
cases of slander already cited may indicate, they formerly took
judicial notice, not merely, as nov, of the general meanincr, but
also of the local use of language.2 (a) In 1536,3 in holding
good the condition of a bond to pay seven pounds to the obligor's
own wife, Fitzherbert, J., says: "The meaning and intent of
the parties shall be taken; for I have seen this case adjudged.
Two made a contract for eighteen barrels of ale, . . . and the
buyer would have had the barrels when the ale was gone; ad-
judged that he should not, because it is commonly used that the
seller should have them, and it was not the intent of the parties
that the buyer should have the barrels but only the ale. Suppose
I make a covenant with you that if you come to my house I will
give you a cup of wine ; if you come you shall not have the cup,
for it cannot be intended (entend) that my intent was to give you
the cup." (b) In i6i I,4 on the defendant's demurrer, in an ac-
tion of debt on a bond, -in passing upon the meaning of these
words in the condition, -_ " which should be levied," Fleming, C. J.,
laid it down that, " as touching construction of words they shall be
taken according to the ... intent of parties, . . . and this intention
and construction of words shall be taken according to the vulgar and
usual sense, phrase, and manner of speech of these words and of
1 2 Sim. 2213 (1828)

2 See McGregor v. Gregory, ii M. & W. p. 295.
8 y. B. 27 II. VIII., 27, I2.
4 Hewet v. Painter, I Bul. 174.

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_7UDICIAL NOTICE. 295
that place where the words are spoken." In this case there was no
averment that the words had any peculiar local meaning; the arg
ment of counsel was in the terms adopted by the court and just
quoted, and he illustrated thus: " As in Lincolnshire where eight
strikes make a bushel, the judges of the common law are for to
take notice of particular usages in several places, as of London
measure in buying, of cloth there." (c) And so in 1613 and
i623,1 in actions on the case (i) for not delivering "20 CuLmbos
tritici," " though it is not avowed by any Anglice quid est Cum-
bos, yet the court ought to take notice thereof, being the Phrase
of the Country of Norfolk and Suffolk and other Places, and there
well known; " (2) upon a sale of " quosdam Carrucas signatas, An-
glice Car-rooms, though it is not averred what is intended by the
Word Car-rooms, nor what it signifies, yet the Declaration is good;
for it is a Phrase in London well known, of which the Court ought
to take notice, this being a Phrase of the country." 2 (d) In the
case of Hoare v. Silverlock,3 where, in an action for libel, in
saying of the plaintiff in a newspaper that certain persons dealing
with her "had realized the fable of the Frozen Snake," after a
verdict for the plaintiff the court declined to arrest the judgment.
Lord Denman remarked: " We are not called upon here to take
judicial notice that the term 'Frozen Snake' had or had not the
meaning ascribed to it by the plaintiff, but to say, after verdict,
whether or not a jury were certainly wrong in assuming that
those words had the particular meaning." 4
It would be idle to add to this class of cases. Nothing is more
familiar than the spectacle of courts construing wills, deeds, con-
tracts, or statutes upon their own knowledge of the import of
words.5
3. The last class of cases which I shall name relates to various
miscellaneous duties of the court. (a) In 1302 6 (among cases tried
1 Rolle's Ab Court C. 6, 7.
2 " By Car-rooms," adds Rolle, " is intended a Mark which the Lord Mayor puts upon
a Cart."
8 I2 Q. B. 624 (1848).
4 Of the same character is the case of Capital and Counties Bank v. Henty, 7 App. Cas.
741, where the question was presented in a similar way, but the judgment was arrested.
6 Nelson v. Cushing, 2 Cush. 5I9, 533; Atty.-Gen. v. Dublin, 38 N. H. 459, 513;
Meyer v. Arthur, 9I U. S. 570; Tindal, C. J., in Shore v. Wilson, 9 Cl. & F. p. 569;
Bowes v. Shand, 2 App. Cas. 455; Towgood v. Pirie, 35 W. R. 729; Union Pac. R. R. Co.
v. Hall, 91 U. S. 343.
6 y. B. 30 and 3I Ed. I. 256.

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296 HAR V4RD LA W RE VIE W.
at the Cornish Iter), in an assize of novel disseisin brought by John

de Botton against John de Wilton and others, a plea in abatement
for misnomer was put forward, and was promptly allowed. "Westcot
Sir John answers and says that his name is John de Willington;
judgment of the writ, . . . Hunt. known by this name; ready, etc.
Brompton, J. He is known through all England as Willington and
by no other name, and that well know we; and therefore as to John
you shall take nothing by your writ." This was giving judgment
upon a point of ordinary fact as being notorious. (b) In I406,1
in' a discussion over arresting judgment on the ground that the
facts appeared of record to be otherwise than as the jury had
found, Gascoigne (C. J. K. B.) said: "Certainly if I had been
sworn on the same inquest I shlould, upon the evidence shown on
the King,'s part, have found for him (i. e., against the actual ver-
dict). Tirwhit. Sir, suppose a man killed another in your presenlce
and actual sight, and another who is not guilty is indicted before
you and found guilty. You ought to respite the judgment against
him, for you know the contrary, and to inform the King, that he
may pardon (faire grace). No more in this case. . . . for you
are apprised of the Record.... Gascoigne. Once the King
himself questioned me as to this case which you put, and asked
me what the law was; and I told him as you say. And he was
well pleased that the law was so." (c) A well-known set of cases
has to do with the calendar and certain sorts of facts ordinarily
given in almanacs. When the books talk about "the calendar,"
they refer sometimes to the mere order and arrangement of days,
and especially saints' days and ecclesiastical feasts, by which the
terms and days of court were regulated; and sometimes to the
books or written or printed tables in which this order was set down.
The courts almost of necessity recognized without proof the estab-
lished order and arrangement of days, and the phrase was that
"the calendar was part of the law of England," and so of "the
almanac." Moreover, in the multitude and multiplication of saints
and saints' days, and the intricacies attending upon the notion of
movable feasts, and the arrangement of the Council of Nice regu-
lating Easter by the relation of the moon to a certain date in
March, it was no easy matter to find out the details of the calendar
for any given year; so that the courts were assisted by written and
1 Y. B. 7 H. IV. 4I1 5-

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YUDICIAL NOTiCE. 297
printed tables of more or less authority. In the Black Book of

the Exchequer' there is preserved a calendar and a list of domini-
cal letters, dating back, perhaps as far as II87. This may well
have been the official memorandum of the Exchequer. Since the
courts found it convenient or necessary to rely upon such tables,
the notion of taking judicial notice of the order of days was easily
transferred to the table which set it forth. In I493-4,2 a question
arose on a writ of error over the continuance of a case to the Mon-
day before St. Boniface's day. There was only one St. Boniface
in the "mertlage," 3 and apparently only one was generally
recognized; but two were in the printed calendar. The court
finally held the continuance good. I give a translation of ttlis
early case in a note. It is curious as showing a very early ref-
erence in our reports to a prinZted calendar, and as showing
the perplexity that such questions might cause at that period.4
1 Bond's Handy Book of Dates, 68.
2 y. B. 9 H. VII. 14, I.
3 My friend Professor Child has helped me to the meaning of this word, which puzzled
the Chief Justice in the case. It is what we call a " Lives f the Saints," a martyrology.
See Ducange; "Martilagium et Martilegium;" also "Matrilogium;" "pro Martyrologium."
The martyrs and confessors " are the chief names which appear in the list of Saints'-days
and festivals of the Church." (Bond's Handy Book of Dates, 146.)
4 " A writ of error was brought, and error was assigned that: One brought an action
of debt in a court which was granted by patent, and had a day of continuance till
Monday next before St. Boniface's day; and the defendant pleaded, . . . and on Monday
next the defendant appeared, and found against him; and it was assigned for error that
St. Boniface's day was past before the day given as Monday next before St. Boniface. In
fact, there were two St. Boniface's days in the printed calendar, and in the mertlage only
one Boniface. It was moved whether this be error or not. Kingsmil. Although there
are not two Bonifaces in every book, if there be two Bonifaces, the continuance is good.
There are two in the calendar; and so the continuance is good and will be referred to the
Boniface who is to come and not the one passed. There are divers saints who are not
in the calendar, and yet a continuance to such apd such a day of such and such a saint is
good if any such saint there be. As St. Swithin here at Winchester is not in the calen-
dar, yet a continuance to this day is good; . . . for if the day be known there it is
enough, though it be not in the calendar. ( Which the justices agreed to.) They say
(diont) that there are a hundred saints who are not in the calendar; people, also, here in
the South do not recognize them; and yet the continuance to one of the days is good.
Just so there are two Bonifaces, and the printed calendar proves it. Wherefore, etc. Hus.
ton [argued] to the contrary, and [said] in the mertlage there is only one. Hussey
[C. J. K. B.] What do you mean by this mernlage ? What is it? Huston. It is a calen-
dar universal in the church of this realm, which priests are bound to keep, and no other
(nient pluis); and although a new saint were canonized beyond sea, there is no reason
why people are bound to recognize him; and so a continuance to such a saint's day is not
good. So here, for in this realm there is only one Boniface, and whether there are [any-
where] two or not, I know not, but it seems not, for he is not in the mertlage. The

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298 HAR VARD LA WV RE VIE W.
In I704,1 when a writ of inquiry was returnable ic-s Triniatis

and was returned executed June I4, which was on Monday, the
day after the return day, the court held that they must judici-
ally take notice that tres Triniiatis was on a Sunday, and
equally although it was not assigned for error on the record.
"Holt, C. J.: At the Council of Nice they made a calculation
movable for Easter forever, and that is received here in England
and becomes part of the law; and so is the calendar established
by act of Parliament. And can we take notice of a feast without
telling- what day of the month it is ? Shall we take notice of it
because you show it on the record and not when we see it as
plainly without your telling?" There are also cases where courts
judicially notice any common almanacs as accurate sources of
information about such facts as the time of the setting and rising
of the sun and moon; or rather, as it is more accurately put,
these courts notice without proof the facts themselves.2 (d) In
Brown v. Piper,3 on appeal in equity from a Circuit Court,
where the plaintiff asked for an injunction to restrain the de-
fendant from infringing a patent for preserving fish and other
articles, the Supreme Court of the United States, having in this
case the duty of passino- upon facts as well as law, reversed
a decree for the plaintiff on the ground that his invention
lacked novelty. They adverted to a matter of fact which was
nowhere mentioned in pleadings of proof. The patent was for
preserving fish and other articles in a close chamber by a freezing
mixture having no contact with the atmosphere of the preserving
chamber. The Supreme Court called to mind something, which
printed calendar is not to the purpose, and(i may be false; and maybe there are two Boni-
faces beyond sea and only one in England. The judges sent to the Common Bench about
the matter. Brian [C. J. C. B.] thought the continuance not good unless two Bonifaces
were recognized in England and in the mertlage; or at least recognized, for the printed
calendar is of no authority ( ne dasc, aucthorit.). Vavisor [Justice of the C. B.] to t

contrary. And we were in doubt (fuimus in doubt). Aind those in the King's Bench
held the continuance good." I have followed an edition of 1597; the Maynard edition
appears to have various misprints.
1 Harvey v. Broad, 6 Mod. 159, s. c. il. I96. "1 The Almanack to go by is that whic
annexed to the Common Prayer-Book." Holt, C. J., in Brough v. Perkins, 6 Mod.
8I (1703). And see Tutton v. Darke, 5 H. & N. 647; Nixon v. Freeman, ib. 652.
Now-a-days. in referring to the almanac, courts have as little thought of any particular
edition as they have when they refer to the Bible or to zEsop's Fables.
2 People v. Chee Kee, 6I Cal. 404; State v. Morris, 47 Conn. 179; Munshower v. The
State, 55 Md. ii; aliter Collier v. Nokes, 2 C, & K. I012.
8 91 U. S. 37,

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_UDICIAL NOTICE. 299
is in all men's knowledge as being old, in daily use, and involving

the same principle; viz., the common ice-cream freezer. Of this
and of the preservative effect of cold, they said we take judicial
notice, and will deal with it as if set up in the answer and fully
proved. "' We think this patent was void on its face, and that the
court might have stopped short at that instrument, and without
looking beyond it into the answers and testimony, suia sponte, if the
objections were not taken by counsel, well have adjudged in favor
of the defendant."
(e) Recently, the Court of Appeals of New Yorkl reversed a
judgment for the plaintiff, in an action for personal injuries re-
ceived while in the defendant's service as a brakeman in passing
through a tunnel on the top of a freight car. The height of the
tunnel was considerably lessened in the interior of it by an arch not
visible at the entrance, and of this lessening the plaintiff must be
assumed to have had no notice. The injuries appeared to have
come from striking the plaintiff's head against the arch. But his
own testimony was that he was sitting when the accident happened,
and the distance between the top of the car and the bottom of the
arch was four feet and seven inches. The trial judge had left it
to the jury that, "If the plaintiff was sitting down, it is for you to
say whether his head would reach to that height." After verdict
and judgment the defendants appealed, and the Court of Appeals
put the question thus: " Whether we will accept that finding .
or whether we will take judicial notice of the height of the human
body and the measurements of its separate parts, and . . . reverse a
judgment that is based upon a finding clearly contrary to the laws
of nature." In proceeding to grant a new trial, the court take
judicial notice that the average height of man is less than six feet,
and the average length of the human trunk to the top of the head
is less than three feet, and that men differ in height mainly from a
difference in the length of their legs ; that this plaintiff could not
have struck his forehead against the arch while sitting, unless he
were at least nine feet high, and that there is no authenticated
instance in human history of any such height; that while the
plaintiff may have been a tall man and the jury may properly
have acted upon their inspection of him, "a fact so rare in the
1 Hunter v. N. Y., 0. & W. Ry. Co., 23 No. East. Rep. 9 (Dec. I889).

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300 HAR VARD Lr A W- RE VIEW.
course of nature should be made apparent, in some way, on the

record." 1
III. So far I have spoken of the court. As regards our
modern jury, the same considerations apply to them; for now they
also are judicial officers, bound to act only upon the evidence
which is given to them under the eye of the judge. "A jury,"
says Mr. Justice Grier, speakin, for the Supreme Court of the
United States in 1850, "has no rig,ht to assume the truth of any
material fact without some evidence legally sufficient to establish
it. It is therefore error in the court to instruct the jury that they
may find a material fact of which there is no evidence from which
it may be legally inferred." 2
Formerly this was not so. For centuries the jury used freely
their private knowledge; it was their duty to do so. They did,
indeed, exercise a judicial function,3 but they were not restrained
by the doctrine of judicial notice. The change in their character
was a very gradual one. We may still read in the second edition,
published in 1735, of the anonymous "Law of Evidence," 4 the
doctrine about the jury which was stated in Bushell's case: " The
law supposeth them to have knowledge of and capacity to'try the
Matter in Issue (and so they must ), though no Evidence were
given on either side in court; but to this the Judge is a Stranger;
i.e., he cannot Judge without Evidence, though the Jury may." But
taking the jury as it stands to-day, it is a body which is bound to
keep within the restrictions imposed upon courts by the principle
of judicial notice; and also it has the same liberty which that prin-
ciple allows to courts. No doubt, in the case of Brown v. Piper,5
above named, it was the rig-ht and the duty of the lower court,
1 It will be observed that the substance of this decision is merely that the j ustice of the
case required a new trial, and we may suppose that the court had sufficient reason for
thinking that the points here elaborated had not been duly considered. But the opinion
has an aspect of nicety. Might not thie brakeman justly have been regarded by himself
and by the jury as "sitting," although at a given moment he was shifting his position,
and so raising himself momentarily a foot or two above his sitting height? The tunnel at
its entrance was more than four feet higher than the arch, and allowed him a good margin.
2 Parks v. Ross, I I 1Iow. 362, 373; and see Schmidt v. Ins. Co., I Gray, 529. This is
modern doctrine. A learned writer (Pike's Hist. Crime, ii. 368, 369) has even said that it
is not found formally declared in our reports before i8i6, by Lord Ellenborough in R. v.
Sutton, 4 M. & S. 552.
3 See, e.g., Temple v. Cooke, 3 Dyer, 265 b.
4 The earliest English treatise on this subject, originally published in 1717.
5 91 U. S. 37.

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acting as it did without a jury, to deal with the generally known

fact about ice-cream freezers in the way it was used by the Supreme
Court. Equally true is it that if the same question had in any
way come before a jury they should have done the same. The
circumstance that the jury is a subordinate tribunal does not
change the nature of their office; it merely subjects them in many
of the details and particulars of their exercise of it to the direc-
tion of the judge. Accordingly we find it abundantly recognized
in our law that juries are also within the range of the doctrine of
judicial notice; as in Com. v. Peckham,l where on an indictment
for the sale of intoxicating liquor the court below refused the
defendant's request for an instruction that evidence of a sale of
gin was not enough, without further evidence that gin was intoxi-
cating; and this refusal was sustained on exceptions. "Jurors,"
said Mr. Justice Metcalf, " . . . are allowed to act upon
matters within their general knowledge without any testimony on
those matters."2 On the other hand, the restraining operation of
this doctrine was applied by the same court, a little later, to a ques-
tion of the character of the witnesses.3 The plaintiff in his closing
argument appealed to the personal knowledg-e of some of the jury,
that the general character of certain witnesses was " so infamously
bad " as to make them unworthy of belief; but the trial judge in-
structed the jury that they could not act upon such knowledge
unless it were testified in court; and this ruling was sustained. In
all cases where a jury has to estimate damages and to act upon
expert testimony, their power is recognized of bringing into play
that general fund of experience and knowledge which in theory of
law is always imputed to them. This was formally held in i88I by
the Supreme Court of the United States, in a case4 where experts
had testified to the value of a lawyer's professional services. And
the court cited with approval a case in which Chief Justice Shaw,
2 Gray, 514.
2 And he continued with that well-known flavor which gives character to his
opinions: "Now everybody who knows what gin is, knows not only that it is a liquor,
but also that it is intoxicating. And it might as well have been objected that the jury
could not find that gin was a liquor without evidence that it was not a solid substance, as
that they could not find that it was intoxicating without testimony to show it to be so.
No jury can be supposed to be so ignorant as not to know what gin is. Proof, therefore,
that the defendant sold gin is proof that he sold intoxicating liquor. If what he sold was
not intoxicating liquor, it was not gin."
3 Schmidt v. Ins. Co., I Gray, 529, 531, 535.
4 Head v. Hargrave, 105 U. S. 45.

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302 HAR VARD LA W RE VIE WV.
speaking of the question of damages in trover, remarked: "The

jury may properly exercise their own judgment and apply their
own knowledge and experience in regard to the general subject of
inquiry. . . . The jury were not bound by the opinion of the
witness; they might have taken the facts testified by him as to
the cost, quality, and condition of the goods, and come to a
different opinion as to their value," The operation of the same
principle in supplementing evidence came out neatly in Brad-
ford 7. Cunard Co., 147 Mass. 55, where woollen goods of a cer-
tain value had been soaked or otherwise injured by salt-water and
soda ash, and no admissible evidence was before the jury going
to the precise amount of the damages ; they fixea it at $500; and
the court allowed this to stand, on the ground that they could not
say but that the jury might, " as a matter of common experience,"
find the damage to be not less than the amount named. In
R. v. Suttonl the refined doctrine seems to be put forward that a jury
may be referred to their own knowledge of facts which have been
sufficiently proved otherwise, in confirmation of this evidence.
At the end of this collection of instances illustrating the appli-
cation of the doctrine of judicial notice, I may be permitted to re-
peat what they help to illustrate, that this topic has its proper place,
not in the law of evidence or of pleading-, or in any other particu-
lar department in our ordinary classification of the law, but in
that part of it which is concerned with stating the nature of the
judicial function and the limitations under which it has to be
discharged; that any consideration which this suibject can prop-
erly receive in treating other titles must be merely incidental;
and, in particular, that in considering the law of evidence,
the question of what the judicial tribunal may or must take
knowledge of without evidence or argument, is on the same
footing as the question of what one needs or does not need to
prove in order to sustain any particular action. That is, indeed,
something very necessary for one to know who would apply the
law of evidence; but he must learn it elsewhere.
IV. What are the things of which judicial tribunals may take
notice, and should take notice, without proof ? It is possible to
indicate with exactness only a part of these matters. Some things
are thus dealt with by virtue of express statutory law; some in a
1 4 M. & S. 532.

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manner that is referable merely to precedent,-to the actual

decisions, which have selected some things and omitted others in
a way that is not always explicable upon any general principle;
others upon a general maxim of reason and good sense, the
application of which must rest mainly with the discretion of the
tribunal, and, in any general discussion, must rather be illustrated
than precisely defined.
Courts, then, notice without proof: (I.) Things which are
required by statute to be so noticed, as certain certificates, and
attestations of the records and judicial proceedings of the States
and Territories ;1 and certain volumes or printed sheets, purport-
ing to be authentic records of law, whether domestic or foreign;
and the like.2 (2.) Whatever they have been accustomed to notice
in this way, according tQ the established course of the common
law and the practice of particular courts; as the authenticity of
the signature, seal, and certificate of a notary public, when his
certificate purports to be given in the discharge of his ancient
international function of protesting foreign bills of exchange.3
The recognition by courts of the international relations of their
own country, of the great seal, of the names and official signatures
and public acts of high public officials, past and present, and the
like, may come under this head.4 The administration of justice is
carried on by the sovereign. The sovereign, in the lapse of time,
has lost something of his concreteness, if he have not become a
mere political expression. But when the king, long ago, sat per-
sonally in court, and, in later times, when judicial officers were in
a true and lively sense the representatives and even mere depu-
ties of the king, it was an obvious and easily intelligible thing
that courts should notice without evidence whatever the king
himself knew or did in the exercise of any of his official func-
tions, whether directly or through other high officers. The same
usages of the courts have continued, under the prevalence of
legal and political theories very different indeed from those just
mentioned; and it is not to be wished that these usages should
change. Practical convenience and good sense demand an in-
crease rather than a lessening of the number of the instances in
1 Rev. St. U. S. s. 905; Pub. St. Mass. c. 569, s. 67.

2 Sec 2 Tayl. Ev. s. 1527 for illustrations of this; Brady v. Page, 59 Cal. 52.
8 Anonymous, Holt, 296, 297; Pierce v. Indseth, io6, U. S. 546.
4 Wells v. Jackson Co., 47 N. H. 235.

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304 HAR VA RD LA W.RE VIE W.
which courts shorten trials, by makingpi,-ima-facie assumptions of

matters not likely, on the one hand, to be successfully denied, and,
on the other, admitting readily of verification one way or the
other if they be denied.1
It should be remarked, also, that some of the limitations upon the
power of taking judicial notice of facts which are laid down in the
books are only explicable upon the ground of precedent, and so
are properly to be referred to this head of the established practice
of the courts. It is said in English cases and in the text-books
that the courts will notice the different counties, but not that any
particular place is in a given county, or where it is.2 Cases of
this class often decide something quite different from the broad
principle for which they are cited; but in so far as any such doctrine
as that last mentioned is true, it must rest merely on authority.
The refusing to notice a well-known custom of London in Argyle
and Hunt 3 is to be regarded in the same light.
(3.) Courts notice without proof all that is necessarily or justly
to be imputed to them, by way of general outfit for the proper dis-
charge of the judicial function ; and, as Lord IMansfield said of the
underwriters and certain usages which they were bound to know :'
" If they do not know them they must inform themselves." Such
things are the ordinary usages and practice of their courts; the
general principles and rules of the law of their jurisdiction ; ' the
ordinary meaning, construction, and use of the vernacular language;
the ordinary rules and methocds of human thinking and reason-
ing; the ordinary data of human experience and judicial experience
in the particular region ; the ordinary habits of men.6
(4.) And then, finally, there is a wide principle, covering some
1 In Peltier's Case, 28 State Trials, 6i6 (1803), Lord Ellenborough, in summing up to
the jury, said: "That Napoleon Buonapart6 was the chief magistrate and first consul of
France is admitted. And that [France and England were at peace] is also admitted;
and, indeed, they were capable of easy proof if they had not been admitted. Their
notoriety seems to render the actual proof very unnecessary."
2 Deybel's Case, 4 B. & Ald. 243; Brune v. Thompson, 2 Q. B. 789. But see infra
310-3I 2.
3 I Strange, 187.
4 Noble v. Kennoway, 2 Doug. 50o.
r In a great proportion of the cases that come before the United States courts they
and must take judicial notice of the laws of any State in the Union, as well as of the
United States. Hanley v. Donoghue, ii6 U. S. p. 6.
6 " And Holt, Chief Justice, said, That the Way and Manner of Trading is to be taken
notice of." Ford v. Hopkins, i Salk. 283. In Turley v. Thomas, 8 C. & P. 103, at nisi
prius, the judge took notice of the [English] rule of the road, to turn to the near hand,
and ruled that it applied to riding as well as driving.

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things already mentioned, that courts may and should notice with.
out proof, and assume as known by others, whatever, as the phrase
is, everybody knows. The application of such a principle must, as
I have said, leave a great range of discretion to the courts; only in
a large and general way can any one say in advance what are and
what are not matters of common knowledge. Some such things
as the following may be laid down: Whatever a court will notice
without proof it may state to the jury, or allow to be stated to it,
without proof. Just as it is safe, and even necessary, to assume
that juries, witnesses, counsel, and parties, as well as the court
itself, all understand the ordinary meaning of language, and have
enough capacity, training, and experience to conduct ordinary
business and to understand it when it is talked about, so and upon
like grounds it is assumed that they all know certain conspicu-
ous and generally known facts, and are capable of making certain
obvious applications of their knowledge. A knowledge of certain
great geographical facts will be assumed, as that Missouri is east
of the Rocky Mountains,1 and that " such streams as the Mississippi,
the Ohio, and the Wabash for some distance above its confluence
with the Ohio, are navigable," 2 but the point where they cease to
be navigable is on a different footing. In Massachusetts it is lately
held that a court may judicially notice that the Connecticut river,
above the Holyoke dam, is not a public highway for foreign or
interstate commerce.3 Certain great facts in literature and in his-
tory will be noticed without proof; e.g., what in a general way the
Bible is, or AEsop's Fables, or who Columbus was; but as to par-
ticular details of the contents of these books or of Columbus's dis-
coveries, it may well be otherwise. A knowledge will be assumed
of the nature and effects of familiar articles of food or drink or ordi-
nary use, and an infinite number of like matters. Illustrations of th
abound in our books; some have already been given; let me add
a few others. Where a tobacconist was indicted for illegally keep-
ing his shop open on Sunday, and sought to bring himself within
a statute which permitted "' the retail sale of drugs and medicines,"
without any attempt to show that he sold tobacco -as a medicine,
or kept his shop open for the sale of it as such, this evidence was
excluded, and the jury were charged that "keeping one's shop
1 Price v. Page, 24 Mo. 65.

2 Neaderhouser v. The State, 28 Ind. 257.
8 Com. v. King, 22 No. East. Rep. 9o5 (November, I889).

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306 HARVARD LA W RE VIE W.
open to sell cigars on the Lord's Day" would support a conviction.

In holding this construction right, the court (Knowlton, J.) say:
"Some facts are so obvious and familiar that the law takes notice
of them. . . . The court has judicial knowledge of the meaning
of common words, and may well rule that guns and pistols are not
drugs or medicines, and may exclude the opinion of witnesses who
offer to testify that they are. . . . We are of the opinion that
cigars sold by a tobacconist.in the ordinary way are not drugs or
medicines, within the meaning of those words as used in the stat-
ute." In passing on the constitutionality of a prohibitory liquor
law,2 Comstock, J., in the New York Court of Appeals, laid it
down as a basis of reasoning that " we must be allowed to know
what is known by all persons of common intelligence, that intoxi-
cating liquors are produced for sale and consumption as a bever-
age; that such has been their primary and principal use in all
ages and countries. . . . It must follow that any . . d legislation
which . . . makes the keeping or sale of them as a beverage
a criminal offence.. . must be deemed . . . to deprive the
owner of the enjoyment of his property." On a like question in
the Supreme Court of Indiana,3 one of the majority of the court
declared: "The court knows as matter of general knowledge,
and is capable of judicially asserting the fact, that the use of beer,
etc.,4 as a beverage is not necessarily hurtful, any more than
the use of lemonade or ice-cream." The Court of Appeals in New
York,5 in declaring unconstitutional an act prohibiting the manu-
facture of cigars and tobacco in tenement houses, said: "We
must take judicial notice of the nature and qualities of tobacco. It
has been in general use among civilized men for more than two
ICom. v. Marzynski, I49 Mass. 68; S. C. 2I No. East. Rep. 228 (1889).
2 Wynehamer v. The People, I3 N. Y. 378, 387 (1855),
3 Beebe v. The State, 6 Ind. 501, 519 (1855), and so Klare v. The State, 43 Ind.
483, declining to recognize judicially that common brewers' beer is intoxicating.
4 This " etc." gives great possible enlargement to the doctrine. Coke's maudlin com-
mentary upon Lyttleton's " &c " may be recalled. " Here is the first ' &c' and there is
no '&c' in all his three books . . . but it is for two purposes. First, it doth imply
some other necessary matter. Secondly, the student may, together with that which our
author hath said, inquire," etc., etc. And he goes on to catalogue a hundred and more of
these pregnant symbols (Co. Lit. 17 a-I7 b). As regards the "etc." in the text, the
same court judicially knows that whiskey is intoxicating, and alloWs a jury to find it so
upon their general knowledge (Carmon v. The State, I8 Ind. 450). The Supreme Court
of Wisconsin (Briffitt v. The State, 58 Wis. 39) takes judicial notice that " beer," whe
the word is used alone, imports strong beer, and that such beer is intoxicating; aliter in
the New York Court of Appeals, Blatz v. Rohrbach, 22 No. East. Rep. 1049 (Nov., I889).
5 Jacobs's Case, 98, N. Y. 98, I 13 ( 885) .

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YUDICIAL NOTICB. 307
centuries. It is used in some form by a majority of the men in

this State, by the good and bad, learned and unlearned, the
rich and the poor. Its manufacture into cigars is permitted with-
out any hindrance, except for revenue purposes, in all civilized
lands. It has never been said . . . that its preparation and
manufacture into cigars were dangerous to the public health.
We . . . are not able to learn that tobacco is even injurious to
the health of those who deal in it, or are engaged in its produc-
tion or manufacture." 1 So a court will notice, without pleading
or proof, that a pile of lumber is likely to attract children to play
about it ;2 that a freight car left in a highway is not likely to
frighten horses of ordinary gentleness; 3 that photography is a
proper means of producing correct likenesses ;4 what are the " na-
ture, operation, and ordinary uses " of the telephone; 5 what is the
meaning, upon a parcel, of C. 0. D.; 6 that steamboats (first used
in I807) were in I824 freely employed in transporting merchan-
dise, and not merely passengers ; 7 that a post-card is likely to be
read by others than the one to whom it is addressed; 8 that coupon
railroad tickets for a continuous journey over several different lines
1 The judges sometimes cover a wide range in their reasonings, and take a very great
deal for granted. See e.g., the opinion of Chancellor Walworth on ale and beer, in Nevin
v. Ladue, 3 Denio, 437; that of Chancellor Bland on trees and their mode of growth, in
Patterson v. M'Causland, 3 Bland, 69; and that of Taney, C. J, on negroes, in Dred
Scott v. Sandford, I9 How. 393.
2 Spengler v. Williams, 6 Southern Rep. 6I3 (Miss. I889).
8 Gilbert v. R'y Co., 5 i Mich. 488, a singular decision.
4 Udderzook v. Com., 76 Pa. St. 340; Dyson v. N. Y. & N. E. R'y Co., I7 Atl.
Rep. I37 (Conn. i888), " not hitherto passed upon by this court."
6 Wolfe v. Mo. Pac. R'y Co., i i So. W. Rep. 49 (Mo. i889).
6 State v. Intoxicating Liquors, 73 Me. 278. " What is notorious needs no proof."
Peters. C. J.
7 Gibbons v. Ogden, 9 Wheat. Is 220. Such questions relating to new inventions and
new usages, must often be answered one way at one time, and in a different way later on.
In ex parne Powell, I Ch. Div. 501, we finld the English Court of Appeal declining to
recognize without proof the existence of a certain custom in I875, while in i88i, in
Crawcour v. Salter, i8 Ch. Div. 30, the same court holds it to be now so well known
that the courLs must judicially notice it. For centuries our courts have noticed without
proof what the term " o'clock," imports; but when we read (Black Book of the Admi-
ralty, I. 313, note) that "' hours of the clock are mentioned [in certain records] in this
reign (Richard II.) for the first time, on Mlarch 8, I390 " we are reminded that there was
a time, in the long annals of these courts, when they would have refused to take judicial
notice of this novelty.
8 Robinson v. Jones, 4 L. R. Ir. 39I (I879); and as to telegrams, Williamson v.
Freer, L. R. 9 C. P 393 (1874). Post-cards containing certain objectionable matter are
declared non-mailable by a statute of the U. S. of Sept. 26, i888 (25 St. U. S. 496).

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308 HAR VARD LA W RE VIEW.
were in general use long before March I7, I885, the date of a
certain patent;1 what the nature of the business of a mercantile
agency is;2 and that "habitual drunkenness" as a ground for
divorce, and being a "habitual drunkard " as a ground for punish-
ment, do not include habitual or common excess in the use of
morphine or chloroform.3
V. Some discriminations should now be mentioned which ought
to be attended to in applying the doctrine of judicial notice.
(I.) Sometimes the ultimate fact that is sought to be proved is
noticed, and sometimes the thing noticed is the trustworthiness of
a certain medium of proof, and not the thing itself which this tends
to prove, as when a notarial seal and signature are taken without
proof, or the certificate of a registrar of deeds or other public official.
That is to say, the question sometimes concerns an evidential
fact and sometimes an ultimate one; whichever it be, it is gov-
erned by the same principles. When the statutes of the United
States 4 make Little & Brown's edition of the laws and treaties com-
petent evidence of their contents " in all the tribunals and public
offices of the United States and of the several States, without any
fuirther proof or authentication thereof," the courts are required to
take notice of a certain medium of proof as being sufficient. Some
of these contents - the public acts - are supposed to be known
by the judges without calling for evidence of them ; but even as
regards these, their discretion in selecting and rejecting modes of
proof is here restricted; they cannot reject these volumes. And
when in an excellent case 5 it was held that although in our courts
English statutory law is matter of fact to be pleaded and proved,
yet a court will recognize printed books of statutes and printed
reports of adjudged cases shown to the satisfaction of the court to
be correct - ' books of acknowledged or ascertained authority "-
as competent evidence of the foreign law, we perceive the doctrine
that the court may take judicial notice of a certain means of prov-
ing a fact when it cannot take notice of the fact itself.6 The
doctrine that almanacs may be referred to in order to ascertain
I Eastman v. Chic. & N. W. R'y Co., 39 Fed. Rep. 552 (C. C. N. D. Ill. I889)
2 Eaton Co. v. Avery, 83 N. Y. p. 34.
3 Youngs v. Youngs, 22 No. East. Rep. 8o6 (111. I889); Com. v. Whitney, iI Cush.
477.
4 R. S. U. S. s. 908.
5 The Pawashick, 2 Lowell, 142.
6 And so in Ennis v. Smith, I4 How. 426-430.

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YUDICIAL NOTICE. 309
upon what day of the week a given day of a month fell in any
year, to learn the time of sunrise or sunset, and the like, and that,
in order to prove facts of general history, approved books of his-
tory may be consulted, may also be regarded as illustrating the
taking notice of the authenticity of evidential matters,-of certain
media of proof.' But in such cases the truth often is that the court
takes notice of the fact itself which these books authenticate; and
wherever that is so, a court may refer to whatever source of infor-
mation it pleases,- the statement that it may consult an almanac or
a general history being only an unnecessary and misleading speci-
fication of a particular sort of document that may be examined.2
(2.) It is to be observed that much is judicially noticed without
proof, of which the court at a given moment may in fact know
nothing. A statute may have been passed within a few hours or
days, and be unknown to the court at the trial; or a given fact as
to the international relations of the government may not be in
fact known, as in Taylor v1. Barclay, before cited,3 where the judge
informed himself by inquiring at the foreign office; or the general
meaning of language, where the expression was used in a docu-
ment of many years ago, may not be known to the court without
private study and reflection.4 In such cases not only may a
court, as indeed it must, avail itself of every source of information
which it finds helpful, but also, for the proper expedition of
business, it may require help from the parties in thus instructing
itself.5
(3.) Taking judicial notice does not import that the matter
is indisputable. It is not necessarily anything more than a
prina facie recognition, leaving the matter still open to con-
troversy. It is true that as regards many of the things which are
judicially noticed, it cannot well be supposed that they admit of
question; e. g., that Missouri is east of the Rocky Mountains, and
1 R. v. Holt, 5 T. R. 436; R. v. Withers, ib. 446; Dupays v. Shepherd, Holt, 296.
2 Gardner v. The Collector, 6 Wall. 499; State v. Morris, 47 Conn. I 79; People v. Chee
Kee, 6i Cal. 404. In this last case the almanac used was an ordinary medical advertising
almanac, Dr. Ayer's. And so in Quelch's Case (I4 State Trials, 1083) counsel says,
"We shall now (though there be no necessity for it) prove that . . . at the time
. . her sacred majesty and the King of Portugal were entered into a strict alliance,"
etc. " Upon this [goes on the report] two London Gazettes . . . were produced and
two paragraphs were read."
3 2 Sim. 213.
4 Atty.-Gen. v. Dublin, 38 N. H. 459.
6 School Dist. v. Ins. Co., IOI U. S. 472; Steph. Dig. Ev., art. 59.

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3I0 HAR VARD LAW RE VIEW.
that Hereford borders on Wales; but the doctrine is by no means

limited to that class of questions. A seal which purports to be
the great seal of any State may in fact not be genuine, and so of
the certificate and seal of any public official. A sale of tobacco
and cigars may be made for medical purposes, although ordinarily
it is not. In very many cases, then, the taking judicial notice of
a fact is merely presuming it, assuming it until there shall be reason
to think otherwise. Courts may judicially notice much which they
cannot be required to notice. That is well worth emphasizing, for
it points to a great possible usefulness in this doctrine in helping
to shorten and simplify trials ; it is an instrument of great capacity
in the hands of a competent judge, and is not nearly as much
used, in the region of practice and evidence, as it should be.
This function is, indeed, a delicate one ;I if it is too loosely or
ignorantly exercised it may annul the principles of evidence and
even of substantive law. But the failure to exercise it tends daily
to smother our trials with technicality, and monstrously lengthens
them out.
(4.) Another thing should be observed, which often escapes
attention, viz., that the thing of which a court is asked to take
cognizance without proof is often a totally different matter from
what it appears to be; so that their refusal is misconceived and
misquoted. Thus, in Phillips on Evidence,2 one reads that "the
courts . . . will not take notice . . . of any particular city; as, for
instance, that Dublin is in Ireland," citing Kearney v. King,
2 B. & Ald. 301. But that case decides no such thing; the
question was whether a declaration in assumpsit on a bill drawn
at Dublin for a certain number of pounds, etc., without any aver-
ment to show the facts that it was drawn in Ireland and for Irish
currency, could be read as importing those facts, and it was held
that it could not. "It is not possible," said Abbott, C. J., " for the
court to take judicial notice that there is only one Dublin in t/Se
world." Again, where a suit was brought in Texas on a promis-
sory note payable at New Orleans, and no averment that this New
Orleans was in Louisiana, the defect was supplied by other matter
upon the record; but the court thought that they could not
1 Cuin multa putentur notoria que revera notoria non sunt, prospicere debet judex ne
quid ddbium est pro notorio recipiat. Calvinus (A.D. I6oo) sub probatio.
2 I, 466 (ioth Eng. ed.); c. X. s. I, end.

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YUDICIAL NOTICE. 311
judicially know that the note was payable in Louisiana.' Every-

body in this country knows, to be sure, or may know for the
asking, that there is a New Orleans in Louisiana; but few could
say whether there be not another New Orleans in another State,
or in a dozen of them. In like manner in an English case,2 on a
motion to set aside the service of a summons as not conforming
to a statute which required the indorsement on it of the name and
place of abode of the attorney suing it out, the actual indorse-
ment was, "Featherstone buildings, Holborn, in the County of
Surrey;" and the objection was that, upon the face of it, it was
irregular, as it was well known that this place and street were in
Middlesex and not in Surrey. But Wightman, J. "I cannot
take judicial notice that there is no such place in the County of
Surrey." 3 Another case,4 in which an English court is generally
quoted as refusing to recognize without evidence that the Tower
of London is in London, may illustrate the need of scrutiny and
discrimination before accepting such paradoxical statements. The
case was on a rule for setting aside a nonsuit and giving a new
trial, which was, in fact, made absolute on paying costs. But the
court refused to do this, as of strict right, and to say that the
court below ought to have taken notice without proof that a
certain part of the Tower of London was in the city of London
instead of being in Middlesex. The point turned upon the fact,
that although much of London is in the County of Middlesex, yet
much of it, for judicial and political purposes, is not; and the
line was said to pass through the Tower.5 The decision, there-
fore, is merely that a court is not required to take notice without
proof of the precise boundary line of a county; a very different
thing from holding that they cannot and should not take notice
without proof that an object admitted to be the famous Tower of
1 Andrews v. Hoxie, 5 Tex. 17I. This case was cited by the court in Ellis v. Park, 8
Tex. 205, to support the holding that they could not take judicial notice that " St. Louis,
Mo.," meant St. Louis in Missouri; but that was a very different thing, and, as it seems,
indefensible. Price v. Page, 24 Mo. 65.
2 Humphreys v. Budd, 9 Dowl, iooo.
8 And so Bayley, J., in Deybel's Case, 4 B. & Ald. p. 246.
4 Brune v. Thompson, 2 Q. B. 789.
6 " This," says Coke, in the Fourth Institute, 251, " upon view and examination was
found out Mic. 13 Jac. regis [i6I5], in the case of Sir Thomas Overbury, who was
poysoned in a chamber in the Tower on the west part of that old wall." What is on the
west of the wall is said to be in London, and on the east in Middlesex. And so Coke,
Third Inst. I36. These passages are cited by counsel in 2 Q. B. 789.

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312 HARVARD LA WV RE VIE V.
London is in what is popularly and generally known as London.'

In another case a learned author2 misconceives, apparently, the
scope of a Maryland case. " The courts," he remarks, " have re-
fused, more or less capriciously, to take judicial notice of . . .
[among other things] the meaning of a printer's private mark to
an advertisement, thus, 'Oct. 13, 4t,' as indicating the date and
term of publication ;" and he cites Johnson v. Robertson, 3I Md.
476. But in reality, the court, in that case, was declining not
merely to notice the meaning of this expression, but to infer
from the use of it that a certain advertisement actucally was pub-
lislhed on the date named, and three times afterwards; and to do
this where the question wvas as to the meaning of the record,
in determining wvhether a mortgage had been properly foreclosed.
Finally, a case may be mentioned under this head,3 where a
hotel-keeper, now bankrupt, had hired his furniture from a
furniture dealer. Upon his becoming bankrupt the furniture was
claimed for the creditors as having been left in the credit and dis-
position of the bankrupt; but the dealer claimed on the ground
that the custom of letting furniture to hotel-keepers without
passing the title to it was established and generally known. The
court, in considering whether they could take notice of this without
proof, drew attention to the fact that the real question was not as
to the mere existence of the custom, but whether it had existed so
long and been so extensively acted on that ordinary creditors of
the hotel-keeper, "the wine merchant, the spirit merchant, the
brewer, the ordinary tradesman of his town, were likely to know
that it exists."
Without going further into detail, enough has now been said
to accomplish my purpose, - that of indicating the place in our
law of the subject of judicial notice, and of pointing out and illus-
trating its main features.
-7ames B. Thzayer.
CAMB3RIDGE.
I Wharton (Ev. i. s. 339, notes) apparently supposes this last to be the decision,
when he says that in this case " the court went to the absurd extreme of nonsuiting the
plaintiff because he did not prove that the Tower of London was in the city of London."
2 Wade on Notice (2d ed.), s. 1417. Mr. Wade has a useful collection of cases, and I
am indebted to him for several references.
3 kx xarle Powell, I Ch. Div. 501.

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Judicial Notice and the Law of Evidence

Author(s): James B. Thayer

Stable URL: https://www.jstor.org/stable/1322294

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JUDICIAL NOTICE AND THE LAW OF EVIDENCE.

N considering the subject of judicial notice one has to beware of

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1 7 Co. 39 a-39 b; II Co. 25.

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law does it belong ? In trying to answer these questions, I propose

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reasoning, as of other reasoning, not a step can be taken without

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stitutes the actionable or punishable thing, or what is a defence

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knew that le was dead." (b) In 1456,1 in a quare imipedit, the

- Y. B. 35 H. VI. 30, 35.

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has grounded his Action upon a Statute by him recited, where

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to the ordinary meaning- of words, and persisted for many years in

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1 2 Sim. 2213 (1828)

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at the Cornish Iter), in an assize of novel disseisin brought by John

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printed tables of more or less authority. In the Black Book of

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In I704,1 when a writ of inquiry was returnable ic-s Triniatis

calendar is of no authority ( ne dasc, aucthorit.). Vavisor [Justice of the C. B.] to t

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is in all men's knowledge as being old, in daily use, and involving

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course of nature should be made apparent, in some way, on the

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acting as it did without a jury, to deal with the generally known

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speaking of the question of damages in trover, remarked: "The

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manner that is referable merely to precedent,-to the actual

1 Rev. St. U. S. s. 905; Pub. St. Mass. c. 569, s. 67.

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which courts shorten trials, by makingpi,-ima-facie assumptions of

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1 Price v. Page, 24 Mo. 65.

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open to sell cigars on the Lord's Day" would support a conviction.

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centuries. It is used in some form by a majority of the men in

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that Hereford borders on Wales; but the doctrine is by no means

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judicially know that the note was payable in Louisiana.' Every-

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London is in what is popularly and generally known as London.'

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