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A TREATISE

ON

PRESUMPTIONS OF LAW AND FACT,

&c. &c. &c.

PART I.

ON PRESUMPTIVE EVIDENCE, AND PRESUMPTIONS IN GENERAL.

CHAPTER I.

ON PROOF, EVIDENCE, AND PRESUMPTIONS IN GENERAL, WITH THE DIVISION OF THE LATTER INTO PRESUMPTIONS OF LAW, FACT, AND MIXED LAW AND FACT.

§ 1. THE human mind, says Mr. Locke, has two faculties conversant about truth and falsehood, namely, knowledge and judgment.(a) The former he defines to be the perception of the connection and agreement, or disagreement and repugnancy, of any of our ideas; and the clearness of that perception is said to amount to certainty.(b) But, according to the same author, this knowledge is limited to the perception of relations *between ideas, and the perception of actual real existences without the mind, corresponding to [ 2 ] ideas within it. (c) Under the former are comprised all mathematical and other similar truths; while to the second belong our perceptions of the existence of the universe or any of the creatures it contains.(d) According to this able metaphysician, our knowledge of real existences is limited to an intuitive knowledge of our own existence, a demonstrative of the existence of a Supreme Being, and a sensitive of all other matters which fall under the immediate cognizance of our senses.(e) Intuitive knowledge he explains, in another place, to mean when the agreement or disagreement of any two ideas results from an immediate comparison of the ideas themselves-a species of knowledge the most clear and certain of all;(f) and demonstrative, to be when the mind, unable to bring two ideas together so as to ascertain their agreement or disagreement, attains that object by comparing

(a) Locke on the Human Understanding, book 4, c. 14, s. 4. (b) Id., book 4, c. 1, s. 2; and c. 4, ss. 7, 17, 18.

(c) Locke on the Human Understanding, book 4, c. 1, s. 7.

(d) Ib.

(e) Id., book 4, c. 3, s. 21. See Lord Brougham's Discourse of Natural Theology, part 1, s. 4; and Id., App., note 5, p. 263.

(f) Locke on the Human Understanding, book 4, c. 2, s. 1.

each with one or more intervening ideas, from the agreement or disagreement of which with the original ones, it, by a chain of reasoning, longer or shorter, as the case may be, establishes their agreement or disagreement with each other. The intervening ideas thus employed are called proofs, and the process employed in their application, reasoning.(g)

§2. It is obvious, from the above enumeration, that, if the assent of the human mind to propositions, or the sphere of human action, were only co-extensive with the range of human know

[ *3 ] ledge and the region of strict certainty, the limits of both would be most inconveniently circumscribed. In by far the greater number of our speculations, as well as in the most important transactions of life, we are carried far beyond the bounds of intuitive and sensitive knowledge, without being able to obtain demonstrative evidence to supply their room;(h) and to make this deficiency a ground of cessation from speculative inquiry or action, would be the height of absurdity. "He that will not eat" (as the author above cited emphatically remarks) "till he has demonstration that it will nourish him, he that will not stir till he infallibly knows the business he goes about will succeed, will have but little else to do but to sit still and perish."(i) In all cases, when actual knowledge or certainty is unattainable, we are obliged to resort to that second faculty of the mind already mentioned, namely, judgment; which may be defined to be that faculty by which the mind takes its ideas to agree or disagree, or, to speak more familiarly, any proposition to be true or false, by the intervention of proofs whose connection with each other is not constant and immutable, or, at least, is not perceived to be so.(k) The foundation of judgment is probability, or the likelihood of a proposition or fact being true or false, deduced from its conformity or repugnancy to our genral knowledge, observation, and experience.() It is also frequently founded on the testimony of others, who vouch their knowledge, ob[#4] servation, or experience for the truth or falsehood of the proposition or fact in question; in which case our assent flows from a reliance on the credit of the relators, generated by past experience of their veracity, or from the intrinsic probability of their story.(m)

§ 3. In all cases of probable reasoning, the proof is said to be presumptive, and the inference to which it gives rise a presumption ; which, therefore, taken in its largest and most comprehensive sense, may be defined to be, where, in the absence of or until actual certainty of the truth or falsehood of any proposition or fact can be obtained, an inference affirmative or disaffirmative of that truth or falsehood is drawn by a process of probable reasoning.(n)

(g) Locke on the Human Understanding, book 4, c. 2, s. 1. (h) Id., book 4, c.14, s. 1; 3 Benth. Jud. Ev. 351.

(7) Id., book 4, c. 15, ss. 3, 4.

(i) Locke on the Human Understanding, book 4, c. 14, s. 1. (4) Id., book 4, c. 14, s. 3, and c. 15, s. 1. (m) Locke on the Human Understanding, book 4, c. 15, s. 4. As connected with this subject, see the chapter on Improbability and Impossibility, in Mr. Bentham's work on Judicial Evidence, vol. 3, book 5, c. 16.

(n) Præsumptio nihil est aliud quam argumentum verisimile, communi sensu perceptum, ex eo quod plerumque fit aut fieri intelligitur. Matthæus de Criminibus, in lib. 48. Dig. tit. 15, c. 6. Est ex indiciis tantum quædam conjectio. (Id. de Prob., c. 1, n. 43.) Præ.

*§ 4. It is clear, from what has been already said, that the word proof is a generic term, an appellation *given to [ *5-6 ] any thing which serves to convince the mind of any truth, and neces

sumptio est anticipatio judicii de rebus incertis, ex eo quod plerumque fit percepta. (Huberus, Præl, J. C., lib. 22, tit. 3, n. 14; see also Ib., n. 3.) Est nihil aliud præsumptio quam opinio ex probabili ratiocinatione concepta. (Vinnius, Jurisprudent. Contract., lib. 4, c. 36.) Præsumptio est probatio negotii dubii ex probabilibus argumentis. (G. A. Struvius, Syntagma Juris, exercitatio 28, s. 15.) Argumenta artificialia sunt vel necessaria, ut ex principiis physicis desumpta, et facto applicata; vel probabilia, ex quibus oritur præsumptio. (Id., Jurisprudentia Roman. German., lib. 4, tit. 11, n. 3.) Præsumptio est probatio per argumenta probabilia facta. (Westenbergius, Principia Juris, lib. 22, tit. 3, n. 21.) Præsumptio est collectio seu illatió probabilis, ex argumentis per rerum circumstantias, frequenter evenientibus, conjiciens. (Strauchius, Dissertatio 25, aphorism 33.) Præsumptiones sunt conjecturæ ex signo verisimili ad probandum assumptæ ; vel opiniones de re incerta, necdum penitùs probata. (J. Voet ad Pand., lib. 22, tit. 3, n. 14.) On peut définir la présomption, un jugement que la loi ou l'homme porte sur la vérité d'une chose par une conséquence tirée d'une autre chose. Ces conséquences sont fondées sur ce qui arrive communément et ordinairement. (Pothier, Traité des Oblig., p. 4, c. 3, s. 2, § 806.) By a thing being presumed to be so, is meant, as the word imports, that it is taken to be so before it certainly appears. (Locke on the Human Understanding, b. 4, c. 14, s. 4.) A presumption of any fact is properly an inference of that fact from others that are known; it is an act of reasoning. In matters that regard the conduct of men, the certainty of mathematical demonstration is not to be expected. (1 Phillips & A. 457. Per Lord Tenterden, in Rex v. Burdett, 4 B. & A. 161, 162.) Where the existence of one fact so necessarily and absolutely induces the supposition of another, that if the one be true the other cannot be false, the term presumption cannot be legitimately applied. (2 Evans Poth. 329, n. 16, s. 14.) A very different definition is, however, given by Mr. Starkie, in his able Treatise on the Law of Evidence, who expresses himself as follows:-"A presumption may be defined to be an inference as to the existence of one fact from the existence of some other fact, founded on a previous experience of their connection. To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential, of such a nature, that, as soon as the existence of the one is established, admitted, or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning on the subject. It also follows, from the above definition, that the inference may be either certain or not certain, but merely probable, and therefore capable of being rebutted by proof to the contrary. According to some writers, the term presumption is not strictly applicable where the inference is a necessary one, and absolutely conclusive; as where it is founded on the certain and invariable course of nature. Such a distinction appears, however, to be an unnecessary one; and it may well be doubted whether it be founded on sound principles. The Roman lawyers used the term in the more extended sense. Their præsumptio juris et de jure was conclusive." (3 Stark. Ev. 927, 3d ed.) With respect to this last observation, it is to be remarked, that the præsumptio juris et de jure of the Roman law derived its conclusive effect not from the supposed force of the inference, but because the law superadded something to its own presumption. Præsumptio juris et de jure," says Alciatus, "est dispositio legis aliquid præsumentis, et SUPER PRESUMPTIO tanquam sibi comperto statuentis." (Tract. de Præs., pars 2, n. 3.) And, "præsumptio juris et de jure (si modò præsumptio, ac non potius juris quædam constitutio dicenda sit) dicitur, cum lex ipsa præsumit et simul disponit." (Vinnius, Jurisprud. Contract. lib. 4, tit. 36.) And the same may be said of the conclusive presumptions of our own law, in which, according to Professor Greenleaf, “the rule of law merely attaches itself to the circumstances when proved, and is not deduced from them. It is not a rule of inference from testimony, but a rule of protection, as expedient, and for the general good." (Greenl. Law of Ev., § 32, pp. 37-8.) Nor does the distinction taken between presumptive evidence and presumption, namely, that the former requires an exercise of the reasoning faculties which the latter does not, rest on a much better foundation, although rhetoricians have sometimes used the word presumption" in this sense. (Struvius, Syntagma Juris, ed. Muller, exercit. 28, tit. 15, n. (a).) The inferring one fact from another must ever be an act of reasoning, however rapid the process, or however obvious the inference; and although the law has in some cases added to particular facts an artificial weight beyond their natural tendency to produce belief, still many legal presumptions are only obvious and natural presumptions of fact recognized and enforced by law. The use of presumption as a generic term, applicable to certain as well as contingent inferences, although supported by the authority of some writers, (see Menochius de Præs., lib. 1, quæst. 3, et quæst. 7, n. 2 & 3; and Titius, Jus Privatum, lib. 2, c. 11, s. 14,) must be considered as overborne by the numerous authorities collected at the beginning of this note, and which might be easily increased. It will also be neces

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sarily varying with the nature of that truth.(o) Mathematical truths, for instance, being immutable and independent of human action, remain ever the same, whether we perceive their existence or not. But it is very different with truths of fact, which might or might not have happened; as, for instance, whether a certain event has taken place, *whether a murder or theft has been committed, [ *7 will forged, a party been in possession of property for a certain time, &c.; and require to be established in a very different way.(p) The word "proof" is also frequently used, both by lawyers and others, to designate the conviction or persuasion wrought in the mind by force of the proofs adduced.(q)

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§ 5. Truths of fact (with which alone the present treatise is concerned) may be evidenced to the mind in two ways: directly, through the medium of our senses, as when we see a man give another a blow, sign a deed, &c.; or indirectly, by reasoning from other truths which have been evidenced directly.

§ 6. We have used the word "evidenced." Evidence, taken in its largest and most comprehensive sense, has been accurately defined to be any matter of fact, the effect, tendency, or design of which, when presented to the mind, is to produce a persuasion therein affirmative or disaffirmative of the existence of some other matter of fact; the latter of which may be called the principal fact, and the former the evidentiary fact. And when the persuasion is at its highest point, the principal fact may, in a more expressive way, be termed "the fact proved," and the evidentiary, "the probative fact."(r) Hence, it is clear, that evidence of a fact and proof of it are not [ #8 ] synonymous terms. Proof (using the word in the sense of persuasion or belief wrought in the mind) is the perfection of evidence; without evidence there can be no proof, although there may be evidence which does not amount to proof. Take the case, for instance, of a man found murdered at a spot towards which another had been seen walking a short time before; this fact would be EVIDENCE to shew that the latter was the murderer, but, standing alone, would be far from PROOF of it.(s)

§ 7. The modes of reasoning by which the existence of any matter of fact not coming under the cognisance of our senses may be evidenced to

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sary to advert to the language of L. C. B. Gilbert on the subject, who says that presumption is defined by the civilians conjectura ex certo signo proveniens, quæ, alio [non] adducto, pro veritate habetur." (Gilb. Ev. 157.) This definition is, however, scarcely correct. It is one of the many given by the civilians of presumptions of law; (see Alciatus de Præs., p. 3, n. 1; Menoch. de Præs., lib. 1, quæst. 8, n. 1;) but is altogether inapplicable to the numerous presumptions of fact which are too slight to shift the burden of proof. (0) Domat, Les Lois Civiles dans leur Ordre Naturel, liv. 3, tit. 6.

(p) Ibid. (q) Probatio est intentionis nostræ legitima fides, quam judici facit aut actor aut reus. (Matthæus de Probationibus, c. 1; Mascardus de Probat, lib. 1, quæst. 2, n. 17; Huberus, Prælectiones Juris Civilis, lib. 22, tit. 3, n. 2; Struvius, Jurisprudentia, lib. 4, tit. 11, n. 2.) The word "probatio" is also frequently used by the civilians to designate direct evidence, in contradistinction to presumptio, argumentum, &c. See J. Voet ad Pand., lib. 22, tit. 3, n. 15, &c. (r) 1 Benth. Jud. Ev. 17, 18.

(8) The term "evidence," in this sense, seems peculiar to the English law. The Latin "evidentia" and the French "évidence," when used by foreign jurists, are rather intended to designate clearness or fulness of conviction. (Mascardus de Prob., lib. 1, quæst. 8; Domat, Lois Civiles, liv. 3, tit. 6). What we call the rules, the admissibility, the weight of "evidence," are treated of by the civilians and French writers under the respective heads of "probatio" and "preuve."

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