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matters in difference between the parties or any two of *them, and an action of trover was afterwards brought bythe creditor, the assignee under a commission of bankruptcy of one of the partners, (in which action the plaintiff pro

1

60. n. (2.) Robinson v. Clifford, C. C. Ù. S. P. Condy's Marsh. 706. n. Millar v. Heinrick, 4 Campb. 155. A witness being offered to prove that the exportation of specie from the Spanish colonies was a prohibited trade, the court rejected the evidence, saying it was a commercial regulation of the government, and a subject of pure municipal regulation, not of common law. The law itself should be produced, or evidence given that efforts had been made to obtain a certified copy, which had failed, in which case inferior evidence might be 'received. Seton v. Del. Ins. Co. C. C. U. S. P. Condy's Marsh. 706. a. In Church v Hubbart, ubi sup. two edicts of the king of Portugal, certified by the American consul at Lisbon under his official seal, to be copies from the ori-, ginal law of the realm, were given in evidence in the court below, but were held inadmissible by the Sup, Court of the U. S. Marshall, Ch. J. says "Foreign laws are well understood to be facts, which must, like other facts, be proved to exist before they can be received in a court of justice. The principle that the best testimony shall be required which the nature of the thing admits of; or, in other words, that no testimony shall be received which presupposes better testimony attainable by the party who offers it, applies to foreign laws as it does to all other facts. The sanction of an oath is required for their establishment, unless they can be verified by some other such high authority that the law respects it not less than the oath of an individual. In this case the edicts produced are not verified by an oath. The consul has not sworn; he has only certified that they are truly copied from the originals. To give to this certificate the force of testimony, it is necessary to show that this is one of those consular functions to which, to use its own language, the laws of this country attach full faith and credit. Consuls, it is said, are officers known to the law of nations and are intrusted with high powers. This is very true, but they do not appear to be intrusted with the power of authenticating the laws of foreign nations. They are not the keepers of those laws. They can grant no official copies of them. There appears no reason for assigning to their certificate respecting a foreign law, any higher or different degree of credit than would be assigned to their certifi

duced the award and deed of reference, as evidence of a separate debt due to him from the bankrupt,) the court of King's Bench held, that it was indispensably necessary to prove the execution of the deed by all the parties; for this

cates of any other fact. It is very truly stated, that to require, respecting laws or other transactions in foreign countries, that species of testimony which their institutions and usages do not admit of, would be unjust and unreasonable. The court will never require such testimony. In this, as in all other cases, no testimony will be required which is shown to be unattainable. But no civilized nation will be presumed to refuse those acts for authenticating instruments which are usual, and which are deemed necessary for the purposes of justice. It cannot be presumed that an application to authenticate an edict by the seal of the nation would be rejected, unless the fact should appear to the court. Nor can it be presumed that any difficulty exists in obtaining a copy. Indeed, in this very case the very testimony offered would contradict such a presumption. The paper offered to the court is certified to be a copy compared with the original. It is impossible to suppose that this copy might not have been authenticated by the oath of the consul as well as by his certificate. It is asked in what manner this oath should itself have been authenticated, and it is supposed that the consular seal must ultimately have been resorted to for this purpose. But no such necessity exists. Commissions are always granted for taking testimony abroad, and the commissioners have authority to administer oaths, and to certify the depositions by them taken." Marine ordinances of foreign countries, promulgated by the executive, by order of the legislature of the United States, may be read in the courts of the United States, without further authentication or proof. Talbot v. Seaman, 1 Cranch 1. The admission of a party that he had infringed the revenue laws of a foreign country, whereby the plaintiff had sustained damage, for which he stipulated to indemnify the plaintiff, will supersede the necessity of further evidence of those laws. Smith v. Elder, 3 Johns. Rep. 105. As to evidence of the acts of state of a foreign government, vide 1 Campb. 65. n. (a).

The manner in which the acts of the legislatures of the several states are to be authenticated has been already stated: vide ante, 289. n. The same section of the act of congress directs, that

was a reference of the aggregate accounts between all and each of the partners, and the consideration to each for entering into the submission was, that each party's a count should be liquidated, not only as to one, but as to all; the accession of all therefore ought to be proved; and, without such proof, the arbitrator would not appear to have competent authority to decide the whole question between the parties (1).

(1) Antram v. Chace, 15 East 209.

CHAP. VI.

On Public Writings, not judicial.

THE next species of evidence, which our subject leads us to consider, relates to such public writings as are not ju

"the record and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with a certificate of the judge, chief justice, or presiding magistrate, as the case may be, that the said attestation is in due form. And the said records and judicial proceedings authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken." 1 Laws U. S. 115. s. 1. Of the effect, in evidence, of a record thus authenticated, see supra, p. 254. n. A record, the attestation of which was not certified to be in due form, was held not to be sufficiently proved. Smith v. Blagge, 1 Johns. Cas. 238. Where there is no seal, it should be certified that there was none. 1 Hayw. 395. n. In Ellemore v. Mills, 1 Hayw. 359., it was held that the act of congress was only affirinative and did not abolish such modes of authentication as were used before it passed. A record of a court of the U. S. is not within the act of congress, and it was held, that a record of the Circuit Court of the United States for the district of Massachusetts, under the seal of the court, but certified by the clerk as a copy, this being the ordinary mode used in Massachusetts, was sufficient. Pepoon v. Jenkins, 2 Johns. Cas. 119.

dicial. In treating of this part of the subject, it will only be necessary to mention some of the principal documents of this description; after which, we shall proceed to inquire, how a party, who wishes to use public writings in evidence, may obtain an inspection.

book.

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The most ancient public document in the kingdom is Doomsday. Doomsday-book, consisting of two volumes, kept in the receipt of the Exchequer. They contain a general survey of all the counties in England, excepting the four northern, and were compiled soon after the Conquest, for the purpose of ascertaining the ancient demesne lands, which were the socage tenures first in the hands of Edward the Confessor, *and afterwards of William the Conqueror. This has been always considered a book of the greatest authority; and if a question should at any time arise, whether a manor is ancient demesne, the trial is by inspection of Doomsdaybook (1). These volumes have of late years been printed at the expense of government, in consequence of an address from the House of Lords; and the work is said to be executed with the most scrupulous fidelity and correctness (2). Another ancient survey, which ascertains the extent of the king's ports, is also deposited in the Exchequer (3). These surveys are recognized and treated as authentic documents in courts of justice, having been made by the authority and order of the government of the country, on public occasions, and on subjects of public interest.

ecclesiastical benefices.

The Valor Beneficiorum, or Pope Nicholas's Taxation, Surveys of is another document of a public nature, and of great authority. In the year 1288, Pope Nicholas the Fourth, to whose predecessors in the see of Rome the first fruits and tenths of all ecclesiastical benefices had for a long time been paid, granted the tenths to King Edward the First for six years, towards defraying the expense of an expedition to the Holy Land; and, that they might be collected to their full value, a taxation by the king's precept was begun in

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that year, and finished for the province of Canterbury in the year 1991, or the 20th year of the reign of Edward the First; and for that of York in the following year; the whole being under the direction of the Bishops of Winton and Lincoln (4). This taxation of Pope Nicholas is a most important document, because all the taxes, as well those paid to our kings as those to the pope, were regulated by it, till the survey made in the twenty-sixth year of Henry VIII.; and because the statutes of colleges, which were founded before the Reformation, are also interpreted *by this criterion, according to which their benefices, under a certain value, are exempted from the restriction in the statute of the twenty-first of Henry VIII. concerning pluralities (1). The original is kept in the office of the king's remembrancer in the Exchequer.

A new Valor Beneficiorum was instituted in the twentysixth year of Henry VIII., when the first fruits and tenths of every ecclesiastical promotion were annexed to the revenue of the crown (2). To ascertain their value, ecclesiastical surveys were taken, by virtue of commissions in the king's name, issuing under the great seal (3); and these surveys are evidence of their amount at that period. Upon -the same principle, surveys of the possessions of religious houses, previous to the dissolution of the monasteries, are received in evidence (4); and these surveys are admissible, although the commissions, under which they were taken, are not to be found (5).

Surveys of the church and crown lands were taken by commissioners in the time of the commonwealth, under the authority of acts or ordinances of the parliament; and copies of these surveys were deposited in many of the cathedrals. The originals would have been good evidence of the particulars of the surveyed estates, upon the same principle as

(4) See First Report of H. of Commons on Public Records, p. 15.

(1) Humphreys v. Knight, Cro. Car. 455. 2 Lutw. 1305. Stump v. Ayliffe, 2 Gwill. 536.

(2) St. 26 H. 8. c. 3.

(3) Sect. 3 & 10.

(4) Vicar of Kellington v. Trin. Coll. Cambridge, 1 Wils. 170.

(5) See (4), and Bagshaw v. Bp. of Bangor, cited in Underhill v. Dur ham, 2 Gwill. 542.