The San Francisco call., 1909-01-26
WIGMORE GRI[LS
SCnM|Tz DECISION
Noted Jurist Asserts Beatty
Misconceived Rules G0verr1-
ing the Case
Further Ayers That Chief JUS
tice Is Entangled in Web of
His Own Weaving

From the pen of Prof. John H. Wig
more of Northwestern university, one
of the greatest living authorities on
American law, has come a vigorous
arraignment of the supreme court de-
cision in the Schmitz case. After
study of the opinion and the letters on
the subject written by Chief Justice
Beatty and Francis J. Heney, the emf
nent Jurtst declares that the Callfor-
MA tribunal committed grievous error.
Professor Wigmore nolds that the in
dictment was all sufficient that the
court should have taken judicial notice
of the fact that Schmitz was mayor,
and in thus expressing his opinion he
takes occasion to condemn the local
court for It's recourse to the scholastic
process of reasoning that prevailed
900 years ago.
Such disputations were the life of
scholarship and of the law 500 years
ago" declares Professor Wigmore.
They are out of place today. And
there are enough rules of law to sus-
tain them If the court wants to do SO.
And there are enough rules of law to
brush them away if the court wants to
do that. All the rules in the world will
not get US substantial justice" he ex-
claims, IF the judges have not the
SOiIcEb living moral dtllluuS lONdIQ
substantial justice"
These are words that carry the sting
of the lash, but there is no doubt that
Professor Wigmore wrote with a full
recognition of their significance, for
he proceeds:
I'VE do not doubt there are dozens
of other supreme justices who would
decide, and are today deciding, in OBJ
scure cases, just such points in just the
coz 49, - 4 to 4
we do not doubt that there are hun
dreds of lawyers whose professional
habit of mind would make them decide
Just that way if they were elevated to
the bench tomorrow in place of those
other anachronistic jurists who are now
there. The moral is that our profess
sion must be educated out of such vi
cious habits of thought. One way to
do this is to let the newer ideas be
dinned into their professional con-
sciousness by public criticism and pri-
vate conversations. The Schmitz-Ruef
case will at least have been al i'll wind
blowing good to somebody if it helps
to achieve that result"
Professor Wigmore speaks with the
authority of recognized expert. His
treatise on evidence is standard and is
used to large extent as a guide by
the supreme court of the United States
AS the head of the law faculty of
Northwestern university, Wigmore has
gained reputation as one of the fore
most exponents of American jurispru-
dence.
He deals sharply with the declara-
tions of Chief Justice Beatty that he
could not take judicial notice of the
fact that Schlnttz was mayor. He as
serts that Judg% Beatty nlisconceiyed
the rules on this subject and continues
IL then, man named Schmitz
was notoriously mayor of San
Francisco, and a man named Ruef
was notoriously its political boss
at the time in question that is all
that any court needs; and the doc
trine of judicial notice gives il all
the liberty 1t needs 1t is conceiy-
able that trial Judge might some
times hesitate in applying this doc
trlne OF notoriety, because the trial
court might fear that the supreme
court would not perceive the no.
toriety. But there never need be
any such hesitation in a supreme
court, If that court does see the
And this is just where the
learned chief justice is to be criti-
cised. He does not for moment
ask or answer the question, Did
we actually, as men and officers,
believe these facts to be notoriously
soys but refers to certain mechani-
cal rules, external to his mind.
What that supreme court should
have done was to decide whether
they, under the circumstances, did
actually believe the facts about the
status of Schmitz and Ruef to be
notorious IL not SO doing, they
erred against the whole spirit and
principle of Judicial notice. And
Mr.. Heney's demonstration that
there is nothing in the codes to
forbid them is complete; for, of
course, the code of procedure, in
etelIing them (section 1870 that the
courts take judicial notice of the
following facts simply gave them
a liberty of belief as to those speci-
fed facts, and did not take away
their liberty as to other unspecifed
facts"
Having dealt this blow to the chief
Justices Interpretation of the law, Pro-
fessor Wigmore. proceeds to entangle
him in his own logic, concluding
bluntly:
The truth is that the learned chief
justice, in endeavoring to support his
decision, weaves a logical web and
then entangles himself in it."
He reaches this conclusion by show
ing an apparent contradiction in the
chief Justices reasoning. Passing from