Inhabitants of Raynham v. Inhabitants of Canton

20 Mass. 293

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1825
• Status: Published

Opinion

Parker C. J.

We think the testimony of the woman was properly received. It is admitted that according to the law of England it should be received, but it is contended tnat fornication being here a punishable offence, the law is different as to the competency of the guilty parties to testify. But this would make no other difference than that the woman called may refuse to answer. If she makes no objection, then her liability to punishment and desire to screen her reputation are things which affect her credibility only.¹

The declarations of John Wentworth were rightly rejected, since he might have been produced on the trial. It was said that his declarations should be opposed against the declarations of the woman ; but that would be letting his simple declarations go against hers made under oath.

With respect to the rejection of the book offered in evi deuce, we concur with the courts of Pennsylvania and some other States, and the court of the United States, in holding that a volume purporting on the face of it to contain the laws of a sister State, is admissible as prima facie evidence to prove the statute law of that State. ² It certainly is the best evidence next to an exemplification or authenticated copy, to require which would put the citizens to an unnecessary burden and expense. It is better evidence than the testimony of any individual who may know the general purport of the law, but cannot carry in his mind so minute a knowledge as may sometimes be necessary in the application of such law. The distinction between written and unwritten law in regard to the manner of proving them, is very sensible. Common law may be considered as custom, which may be proved by parol ;³ indeed there is no other way of proving such law, unless by reports , but in some countries there are no reports. Written law of all civilized countries exists in records and may be proved with certainty. In case it appeared that a foreign statute could not be procured, properly authenticated, then perhaps oral evidence of the law might be admissible.⁴

In England it does not seem to be settled, that printed books of foreign laws are to be received in evidence, and we do not mean to decide that the law of any country merely foreign may be so proved. But the connexion, intercourse and constitutional ties which bind together these several States, require that this species of evidence should be sufficient until contradicted.¹

Then the question will arise, how shall it be contradicted. Certainly not by the testimony of one who may have merely resided a short time in the country, nor by that of any citizen or subject ; for there is no fact which it would be more difficult to establish by such evidence.

The law being proved to have existed, in the manner above stated, it must be presumed to exist until proved by as good evidence to have been repealed. Now we think it difficult, ii

not impossible, to do this by oral evidence. Laws are sometimes repealed by implication. Sometimes an act purporting to repeal, leaves some of the former acts in force. Questions of construction arise, and the law is to be ascertained not only by the words, but by reference to the subject matter, preexisting laws, &c. We think therefore that the Court of Common Pleas erred in rejecting the book. It is true it was afterwards admitted, but accompanied by the testimony of Mr. Hunt; it should have been admitted free of his testimony.

It is said on behalf of the plaintiffs, that a marriage de facto being proved, it should be presumed to be according to the laws. And this appears to be reasonable. As if a marriage were proved to have taken place in France, for instance, it should seem fit to require the party who denies the marriage to prove its invalidity. Still however in the case before us the law was in question, and it is proper that there should be a new trial.

New trial granted.

1 See Carnaghan's case, 6 Rogers’s Rec. 45; Southard v. Rexford, 6 Cowen, 254; Parkhurst v. Lowton, 2 Swanston, 215; Burr’s Trial, 245; 1 Stark. Evid. (5th Amer. ed.) 165 to 173; United States v. Craig, 4 Wash. C. C. R. 729; Johnston v. Goss, 2 Yerger, 110; Roscoe’s Dig. Crim. Evid, 129 to 135.

2 Confirmed, Revised Stat. c. 94, § 59. In England the law of France as to marriage may be proved by the production of a printed book, purporting to contain the code of France, and proved by parol testimony to contain the law of that country. Lacon v. Higgins, 3 Stark. R. 178; S. C. Dowl, & Ryl. N. P. Rep. 38.

3 Confirmed, Revised Stat. c. 94, § 60. The usual course is to make such proof by the testimony, under oath, of competent witnesses instructed in the law. Story on Conflict of Laws, 530. See Haven v. Foster, 9 Pick. 130; Rex v. Wakefield, cited in 2 Russell, 694; Douglass v. Forrest, 4 Bingh. 699, Talbot v. Seeman, 1 Cranch, 12, 38; Church v. Hubbart, 2 Cranch, 237; Strother v. Lucas, 6 Peters, 763; Dalrymple v. Dalrymple, 2 Haggard Consistory Rep. Append. 15 to 154; Frith v. Sprague, 14 Mass. R. 455; Hill v. Packard, 5 Wendell, 375; Brackett v. Norton, 4 Connect R. 517; Hempstead v. Reed, 6 Connect. R. 486; Denison v. Hyde, 6 Connect. R. 508; Middlebury College v. Cheney, 1 Vermont R. 336; Dougherty v. Snyder, 15 Serg. & Rawle, 87; Ripple v. Ripple, 1 Rawle, 386; Le Roy v. Crowningshield, 2 Mason, 151; 2 Stark. Evid. (5th Amer. edit.) 331, notes; Roscoe’s Dig. Crim. Ev. (Amer. edit.) 138, n. (1).

4 See Revised Stat. c. 94, § 61.

1 See State v. Stade, 1 Chipman, 303. In Craig v. Brown, 1 Peters’s C. C. R. 352, it was held, that printed statute books not authenticated by the seal of the State, are not admissible evidence in any other State. This decision has been followed in North Carolina. State v Twitty, 2 Hawks, 441; 1 Stark. Ev. (5th Amer. edit.) 176, n. (2). But see Revised Stat. of Mass. c. 94, § 59.