will not recognise private orders made at the council-table,1 for these are matters of particular concernment; nor, it seems, any orders of Council, even though they regard the Crown and the government; nor the transactions on the journals of either House of Parliament.3

6

4

§ 19. Lastly, each division of the Supreme Court is bound § 17 judicially to notice its own rules and course of proceeding; as well as the rules and practice of the other Divisions; 5 and also the limits of their respective jurisdictions, as, for instance, that the Probate, Divorce, and Admiralty Division has so far jurisdiction over the personal estate of an intestate British subject, whether situated in Ireland, the colonies, or any foreign country, that it may grant letters to administer such property, and, indeed, must do so before the administrator can sue in any English Court in respect thereof. They will further notice the privileges of their officers and solicitors, which last term,―probably, as being more euphonistic than "attorneys,"-is now made by the legislature to include those functionaries as well as the heretofore proctors of the Ecclesiastical Courts.10 So all Courts will judicially notice the fact that the assizes, though constituting for some purposes one legal day, may be continued from day to day with or without adjournment, and often occupy several natural days," the existence of Courts of

16 Vin. Abr. 490.

2 Att.-Gen. v. Theakstone, 8 Price, 89. See post, §§ 1527, 1664. 3 R. v. Knollys, 1 Ld. Ray. 10, 15. Copies of the journals are now admissible, if purporting to be printed by the official printers, 8 & 9 V., c. 113, § 3, cited ante, § 7.

4 Dobson v. Bell, 2 Lev. 176; Pugh v. Robinson, 1 T. R. 118.

5 Lane's case, 2 Rep. 16 b.; Worlich v. Massey, Cro. Jac. 67; Mounson v. Bourn, Cro. Car. 526; Reidy v. Pierce, 11 Ir. Law R., N. S. 374, per Pigot, C. B.; Caldwell v. Hunter, 10 Q. B. 85, 86.

Doe v. Caperton, 9 C. & P. 116. See Spooner v. Juddow, 6 Moo. P. C. R. 257. 7 See Whyte v. Rose, 3 Q. B. 493, per Ex. Ch.

9 Stokes . Mason, 9 East, 426; Chatland v. Thornley, 12 East, 544; Hunter v. Neck, 3 M. & Gr. 181; 3 Scott, N. R. 448, S. C.; Walford v. Fleetwood, 14 M. & W. 449.

10 Supreme Court of Judicature Act, 1873, 36 & 37 V., c. 66, § 87.

Whitaker v. Wisbey, 12 Com. B. 56, 59.

4

general jurisdiction,'-the powers of the Ecclesiastical Courts,-and the jurisdiction of the Court of Bankruptcy, together with all general rules made by the Lord Chancellor with the advice of the chief judge in bankruptcy, either for regulating the practice and procedure of that court,3 or in relation to proceedings whether on the occasion of liquidation by arrangement, or on the occasion of the acceptance of a composition by creditors. So the rules made under "the Bankruptcy, Ireland, Amendment Act, 1872," must be judicially noticed; and the same law applies to the rules made by the Board of Trade under the Gas and Water Works Facilities Act, 1873, to those made by the Lord Chancellor with the assistance of the Registrar, under the Land Transfer Act, 1875,8-and to those made under the Landlord and Tenant (Ireland) Act, 1870, either by the court for Land Cases reserved, or by the Privy Council in Ireland.

6

9

§ 20. It does not seem clear, whether or not the judges of the § 19 Supreme Court of Judicature are bound to notice who are the judges in inferior courts of record. The weight of American authorities is in favour of recognising them; 10 but the Court of Queen's Bench not very long ago refused to notice who was judge of the then Court of Review.11 With regard to inferior courts of limited jurisdiction, the Supreme Court will not, unless when called upon to review their judgments,12 take cognizance of the customs and proceedings therein,13 except so far as they are regulated by statute.11

10 Hawks v. Kennebec, 7 Mass. 461; Ripley v. Warren, 2 Pick. 592; Despau v. Swindler, 3 Mart. N. S. 705.

Van Sandau v. Turner, 6 Q. B. 773, 786.

12 Chitty v. Dendy, 3 A. & E. 324; 4 N. & M. 842, S. C.

13 R. v. U. of Cambridge, 2 Ld. Ray. 1334. In that case the court refused to notice that the University Court in Cambridge proceeded according to the rules of the civil law. See, also, Lane's case, 2 Rep. 16 b. n. d; Peacock v. Bell, 1 Wms. Saund. 75; and Dance v. Robson, M. & M. 295.

As in the case of the Court of the V.-Ch. of Oxford, which, under the Act of 17 & 18 V., c. 81, § 45, must now, in all matters of law, be governed by the common and statute law, and not by the rules of the civil law.

§ 21.1 In all these and the like cases, where the memory of the § 20 judge is at fault, he resorts to such documents or other means of reference as may be at hand, and he may deem worthy of confidence. Thus, if the point at issue be a date, the judge will refer to an almanac ; 3 if it be the meaning of a word, to a dictionary; * if it be the construction of a statute, to the printed copy; or, in case that appears to be incorrect, to the parliament roll. In some instances, the judge has refused to take cognizance of a fact, unless the party calling upon him to do so could produce at the trial some document by which his memory might be refreshed; as was the case in Van Omeron v. Dowick, where Lord Ellenborough declined to take judicial notice of the King's proclamation, the counsel not being prepared with a copy of the Gazette in which it was published. So, also, in R. v. Withers, tried before Mr. Justice Buller, in which case it became a material question to consider how far the prisoner owed obedience to his sergeant, and this depended on the articles of war, which were not produced at the trial, the judges thought that they ought to have been produced. But in many other cases, the courts have themselves made the necessary inquiries, and that, too, without strictly confining their researches to the time of the trial. Thus, to give but a few examples: in Taylor v. Barclay, where the question was, whether the federal republic of Central America had been recognised by the British Government as an independent state, the Vice-Chancellor sought for information from the Foreign Office; in Chandler v. Grieves, the Court of Common Pleas directed an inquiry to be made in the Court of Admiralty as to the maritime law; 20 in Doe v. Lloyd, the same court caused an inquiry to be made by their officers, as to the practice of the Inrolment

9

1 Gr. Ev. § 6, as to first three lines.

2 Gresl. Ev. 295.

3 Page v. Faucet, Cro. El. 227. See Tutton v. Darke, 5 H. & N. 649.

4 Clementi v. Golding, 2 Camp. 25.

5 Since the commencement of the year 1866, a copy of the Public General Acts has been printed each year by Messrs. Eyre and Spottiswoode, as printers to the Queen, for the proprietors of the Law Journal, and has been published in the thirty-fifth and succeeding volumes of that excellent work.

6 R. v. Jeffries, 1 Str. 446; Spring v. Eve, 2 Mod. 240.

8 Cited by Buller, J., in R. v. Holt, 5 T. R. 446.

9 2 Sim. 221. See also The Charkieh, 42 L. J. Adm. 17. 10 2 H. Bl. 606, n. a.

72 Camp. 44.

1

Office in the Court of Chancery; and in Willoughby v. Willoughby, Lord Hardwicke himself asked an eminent conveyancer respecting the existence of a general rule of practice in that branch of the profession.2

11 M. & Gr. 685. The court in that case acted on the authority of Worsley. Filisker, 2 Roll. R. 119.

* 1 T. R. 772. See, also, 15 & 16 V., c. 80, §§ 40, 41; and Cons. Ord. Ch. 1860, Ord. ii.

CHAPTER III.

THE FUNCTIONS OF THE JUDGE AS DISTINGUISHED FROM THOSE

OF THE JURY.

§ 22. WITH respect to trial by jury, Lord Hardwicke has § 21 observed, and all reflecting men will agree in the observation, that "it is of the greatest importance to the law of England, and to the subject, that the powers of the judge and jury be kept distinct; " yet important as this object undoubtedly is, it is one which, even at the present day, is not very perfectly effected. The general principle, that the judge must determine the law, and the jury the fact, is not, and cannot be disputed; 3 but in the applica

2

1 The merits and demerits of trial by jury are fairly set forth in the 2nd report of the Common Law Commiss., pp. 3-6. The right to demand such a trial is carefully preserved to suitors by § 22 of the Sup. Ct. of Judic. Act, 1875, 38 & 39 V., c. 77. See, however, Rules of Sup. Ct., Ord. xxxvi., rr. ii., iii., xxvi., xxvii ; Back v. Hay, L. R., 5 Ch. D. 235; Pilley v. Baylis, id., 241; Swindell v. Birmingham Syndicate, L. R., 3 Ch. D. 127; Clarke v. Cookson, L. R., 2 Ch. D. 746; Sugg v. Silber, L. R., 1 Q. B. D. 362; 45 L. J., Q. B. 460, S. C. See also the Common Law Proced. Act of 1854, 17 & 18 V., c. 125, § 1, which gives a limited power to suitors, by consent in writing, to dispense with the jury, and to leave the decision of issues of fact to the judge, provided the court think fit to allow such trial. The Irish Common Law Proced. Amend. Act, 19 & 20 V., c. 102, § 4, and the Scotch Ct. of Session Act, of 1850, 13 & 14 V., c. 36, §§ 46–48, respectively contain similar provisions.

2 R. v. Poole, Cas. temp. Hard. 28.

3 In R. v. The Dean of St. Asaph, Ld. Mansfield declared, "that the fundamental definition of trial by jury depended upon the universal maxim, ad quæstionem juris non respondent juratores; ad quæstionem facti non respondent judices;" and his lordship added-" Where a question can be proved by the form of pleading, the distinction is preserved upon the face of the record, and the jury cannot encroach upon the jurisdiction of the court; when, by the form of pleading, the two questions are blended together, and cannot be separated upon the face of the record, the distinction is preserved by the honesty of the jury. The constitution trusts that, under the direction of a judge, they will not usurp a jurisdiction which is not in their province. They do not know, and are not presumed to know, the law: they are not sworn to decide the law; they are not required to decide the