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the mind are twofold. First, where the connexion between the principal and evidentiary facts is so absolute and immutable, that the existence of the latter once established, that of the former follows as a necessary consequence of the laws of nature. Second, where the existence of the evidentiary facts is sufficiently strong to produce in the mind a persuasion, belief, or conviction of the existence of the principal fact, without excluding its non-existence from the limits of physical possibility.(t) As examples of the former, proof that a person charged *with having committed a murder in England at a specified moment was on that day and hour at Rome, (a defence [ *9 ] known by the technical name of an alibi) must at once put an end to the accusation. So, where a female was found dead in a room, with every mark of having met with a violent end, the presence of another person at the scene of action was demonstrated by the bloody mark of a left hand visible on her left arm.(u) And where a man was found killed by a bullet, with a discharged pistol lying beside him, the hypothesis of suicide from that pistol was negatived by proof that the bullet which caused his death was too large to fit it.(x) To the second class belong those cases where the existence of the principal fact is only inferred by a process of presumptive or probable reasoning from that of the evidentiary facts; an inference which, like all others of the same nature, may be founded either on the intrinsic probability of the fact itself, or the credit due to the testimony of witnesses or writings, attesting either the fact itself, or others from whence it may be inferred. In this latter case the truth of the principal fact manifestly rests on the double presumption of the truth of the statement, and the legitimacy of the reasoning from it.

§ 8. As the principles by which the investigation of truth is governed have their foundation in the very constitution of our nature, and must ever remain the same, whatever may be the immediate subject of inquiry, courts of justice, to whom the decision of *dis[ *10 ] puted facts is entrusted, will never be justified in departing from those principles, except so far as the municipal law, from motives of policy, based on the peculiar habits of society, or with the view of excluding mischiefs, proved by experience to be prevalent in particular states of it, has occasionally interposed with technical rules to limit their operation. Having, therefore, in the preceding pages, shewn the nature of presumptive evidence and presumption, in general, we will proceed to consider them as applied to the science of jurisprudence, where they have each obtained a somewhat limited or secondary signification.

§ 9. Every cause litigated in a court of justice involves two things: the existence of certain facts, the acts of intelligent agents or otherwise, as the foundation or substratum for the application of the principles of jurisprudence-ex facto oritur jus ;(y) and, secondly, the

(t) Argumentum vel necessarium vel contingens est. Necessarium; cujus consequentia necessaria est, veluti eam coivisse que peperit: contingens; cujus consequentia probabilis est, veluti cædem fecisse qui cruentatus est, Atalantam virginem non esse, quod cum adolescentibus spatietur sola per silvas. (Matthæus de Criminibus, c. 6, p. 691. See also Quintilian, lib. 5, c. 9.) (u) Case of Mary Norkott and Others, 14 Ho. St. Tr. 1324. (x) Theory of Presumptive Proof, App. case 2, p. 7.1; Wills on Circumstantial Evidence, p. 108. See other instances in Beck's Medical Jurisprudence, p. 591, 7th ed. (y) 2 Inst. 49.

applicability to those facts of some one or more of those principles. Hence, in the administration of justice, a twofold duty is in general cast on the tribunal; namely, to ascertain the truth of the alleged facts from the proofs or evidence adduced by the litigant parties; and, secondly, to pronounce a legal decision on those facts, so far as they may appear proved or disproved. Where the litigant parties agree upon either the law or the facts, the proceedings are, of course, so far simplified.

§ 10. Abstractedly speaking, questions of law are questions of fact. Is such or such conduct punishable? Do such or such acts give rise to a debt or obligation? are equivalent to asking, does there, in point of fact, *exist any rule of written or unwritten law con[ *11 ] demning the one, or conferring a binding efficacy on the other facts to be determined by reference to the records of the legislature, decided cases, works of authority, precedents, forms, &c.,which afford a species of evidence, direct, conclusive, or presumptive, according as the disputed proposition is confirmed or negatived by express words, or by conclusive or probable inference. In forensic practice, however, the words 'evidence" and "proof" are seldom used in this sense, but are restricted to evidence and proof of the disputed facts which form the subject-matter of the cause, and are brought before the tribunal for the purpose of inducing an adjudication in favour of one or other of the litigant parties.(z)

§ 11. Questions of fact, then, using the word for the future in this secondary sense, are sometimes determined by things which come under the cognisance of the tribunal, with the certainty of sensitive knowledge. In murder, for instance, the weapon with which the fatal blow was struck, in cases of rape, the torn or stained clothes of the female, are sometimes produced in court; while spots of blood, injuries, or natural marks on the person of an individual not unfrequently indicate him as the author of a crime.(a) So, the general aspect of all media of testimony, or, as they are technically termed, "instruments of evidence," such as the demeanor of witnesses during their examination, the appearance of written documents, &c., often form valuable elements in the discovery of truth. (b) In by far

[ *12 ] the greater number of cases, however, the tribunal, whether judge or jury, is obliged to decide matters of fact on a presumptive inference of the veracity of witnesses, or the genuineness of documents, testifying certain facts; in which cases the proof or evidence is said to be direct. (c) But, when any fact in dispute has neither fallen under the cognisance of the senses of any person, nor is stated in terms in any authentic writing, so that its truth or falsehood can only

(z) 1 Benth. Jud. Ev. 24 and 40; Co. Litt. 283, a.; Termes de la Ley, 317; Voet ad Pand., lib. 22, tit. 3, No. 8; Huberus, Præl. J. C., lib. 22, tit. 3, s. 1 ; Struvius, Jurisprudentia, lib. 4, tit. 11, s. 2; Vinnius, Jurisprud., lib. 4, cap. 25.

(a) This is what Mascardus calls the evidentia facti, which he considers the most complete and satisfactory of all kinds of proof. (Mascardus de Prob. vol. 1, quæst. 8.)

(b) The Anno Domini watermark on paper, for instance, has frequently been the means of detecting forgery. It is not, however, always infallible. See Wills on Circumstantial Evidence, p. 41.

(c) Domat, liv. 3, tit. 6; 3 Benth. Jud. Ev. 2. Omnis nostra probatio aut directa est, aut obliqua. Directa, cum id quod probare volumus ipsis tabulis aut testimoniis continetur. Vinnius, Jurisprud., lib. 4, c. 25.)

be deduced by special inference from facts proved directly, the evidence of that fact is said to be circumstantial.(d) And when the conclusion of the existence of the principal fact does not follow necessarily from the facts proved, but is deduced from them by probable inference, the evidence is said to be presumptive, and the inference drawn a presumption; which, therefore, in this restricted legal sense, may be defined "an inference, affirmative or disaffirmative of the existence of a disputed fact, drawn by a judicial tribunal, by a process of probable reasoning, from some one or more matters of fact, either admitted in the cause or otherwise satisfactorily established."(e) That this is a secondary signification of the word is manifest, for it excludes all those cases where the decision is based solely *on the probability of the truth of direct testimony, and (except in [ *13 ] the few instances where the evidentiary facts are present to the senses of the tribunal) is confined to those where the decision rests on the double presumption of the veracity of evidence, and the correctness of the inference drawn from it. (f)

(d) 3 Benth. Jud. Ev. 2. Probatio obliqua est, cum id quod intendimur ex tabulis aut testimoniis argumentando colligitur. (Vinnius, Jurisprud., lib. 4, c. 25.)

(e) Domat, liv. 3, tit. 6, s. 4, No. 3, and the title generally. 2 Ev. Pothier, App. No. 16, p. 332.

(f) The above classification of judicial evidence is extremely ancient. Aristotle and Quintilian say that all proofs are either are vas or inartificial, or évre vos or artificial; (Arist. Rhetor., lib. 1, c. 2; Quintil. Inst. Orat., lib. 5, c. 1); and the latter subdivides signa into necessaria and non necessaria. (Id., lib. 5, c. 9. See, also, Cicero de Oratore, lib. 2.)

In addition to the terms, probatio, præsumptio, and argumentum, which have been already explained, the civilians made use of several expressions to indicate the different species of proof, and the degrees of conviction resulting from them, which, although in some degree obsolete, are not altogether undeserving attention. Among these the principal are, plena probatio, semi-plena probatio, indicium, signum, conjectura, suspicio, and adminiculum. As, by the positive text of the Roman law, the testimony of one witness was unavailable for any purpose whatever, (Cod., lib. 4, tit. 20, 1. 9), the earlier civilians logically inferred that it was equivalent to a semi-proof, and that the testimony of two witnesses amounted to full proof; not recollecting that the credibility of the story told by witnesses is as important an element as their number in generating belief. This is certainly one of the greatest absurdities in the practice of the civil law, and one of which the more enlightened commentators upon it seem heartily ashamed. (See Huberus, Præl. J. C. lib. 22, tit. 3, n. 2.) But although the Roman law would not act on the unsupported testimony of one witness, it never required two witnesses, or even one, to testify directly to the fact in issue; the evidence of a single witness to that fact, corroborated by circumstances proved aliundè, or even a strong body of evidence altogether presumptive, was sufficient, both in civil and criminal cases. (Poth. Oblig., art. 816; Huberus, Præl. J. C., lib. 22, tit. 3, n. 3 and 16.) The expression, "indicium," retained in the French law under the name of "indice," answers very nearly to the term "circumstantial evidence" in our own, and was used to designate the facts giving rise to the indirect inference, rather than the inference itself. As, for instance, the possession of goods recently stolen, vicinity to the scene of crime, sudden change in circumstances or conduct, &c. Mascardus de Probat., lib. 1, quæst. 15; Encyclopédie Méthodique, tit. Juris prudence, art. Indices.) By "signa" were meant those species of indicia which come more immediately under the cognisance of the senses, such as stains of blood on the person of the accused, indications of terror at being charged with the offence, &c. (Quintil. Inst. Orat., lib. 5, c. 9.) "Conjectura" and "suspicio" were not so much modes of proof, as expressions indicative of the strength of the persuasion generated in the mind by evidence. The former is well defined, "Rationabile vestigium latentis veritatis, unde nascitur opinio sapientis;" (Mascard. de Prob., vol. 1, quæst. 14, n. 14;) or a slight degree of credence arising from evidence too weak or too remote to produce belief. "Suspicio" is a stronger term, and is called "passio animi aliquid firmiter non eligentis;" (Menoch. de Præs., lib. 1, quæst. 8, n. 41 :) e. g. A. B. is found murdered; C. D., a man of bad character, is known to have a strong interest in his death; this might give rise to a conjecture that he was the murderer; and if, in addition to this, he had been seen within a short distance of the spot where the body was found, a short time before the murder was committed, the feeling in favour of his guilt would amount to suspicion. "Adminiculum," as its etymology implies,

* 12. The word "presumption," is seldom used in our [ *14 ] books in its popular signification of presumptuousness, arrogance, blind and adventurous confidence, or unwarrantable assumption, although it is to be found in this sense in some modern acts of parliament, (g) and occasionally in the civil and canon law.(h)

13. Facts have been rightly divided into physical and psychological. By physical facts is meant such as either have their seat in some inanimate being, or if in an animate, then not by virtue of those qualities which constitute it such; while psychological facts are those which have their seat in an animate being, by virtue of those qualities by which it is constituted animate. (i) *Thus, the existence

[ *15 ] of visible objects, the outward acts of intelligent agents, the res gestæ of any suit, &c., range themselves under the former class while to the latter belong such as only exist in the mind of an individual; as, for instance, the sensations or recollections of which he is conscious, his intellectual assent to any proposition, the desires or passions, by which he is agitated, his animus or intention in doing particular acts, &c. Psychological facts are obviously incapable of direct proof, except when confessed, and can only be arrived at by presumptive inference from facts of the physical kind.(k)

§ 14. It is clear, that presumptive evidence, and the presumptions or proofs to which it gives rise, are not indebted for their probative force to any rules of positive law. When inferring the existence of a fact from others which have been already established, courts of justice (assuming the inference properly drawn) do nothing more than apply, under the sanction of the law, a process of reasoning which the mind of any intelligent reflecting being would have applied for itself under similar circumstances; and the force of which, when the inference is not of a conclusive kind, rests altogether on experience and observation of the ordinary course of nature, the constitution of the human mind, the usual springs of human action, the usages and habits of society, &c.(1) All such inferences are called by jurists, presumptions of fact, or natural presumptions; and, also by the civilians, [ *16 ] præsumptiones hominis, (m) in order to distinguish them from others of a technical kind, of which more or less are to be found in every system of jurisprudence, and are known by the name of præsumptiones juris, or presumptions of law. To these two classes may be added a third, which, as partaking in some degree of the nature of both the former, may be called præsumptiones mixtæ, or

was a phrase used to designate any species of evidence not conclusive in itself, but becoming so when conjoined with other proofs. These distinctions may appear subtilties to us, but were not without their use under a system where the decision of all questions of law and fact was entrusted to a single individual; one of the few limitations to whose power was, that the accused could not be put to the torture unless there was a certain quantity of evidence against him.

(g) 19 Geo. 3, c. 56, s. 3; 6 & 7 Will. 4, c. 76, s. 8; 4 & 5 W. & M. c. 23, s. 10.
(h) Mascardus de Prob., quæst. 10, n. 5; Alciatus de Præs. pars 2, n. 1.
(i) 1 Bentham's Jud. Ev. 45.
(k) 3 Benth. Jud. Ev. 5.

(1) The presumption of a malicious intent to kill, from the deliberate use of a deadly wea pon, and the presumption of aquatic habits in an animal found with webbed feet belong to the same philosophy; differing only in the instance, and not in the principle of its application. (Greenleaf on Evidence, part 1, c. 4.)

(m) The expression "natural presumptions" is restricted by some authors to presumptions derived from the ordinary course of nature. (Mascardus de Prob., conclusio 1226, n. 2.)

presumptions of mixed law and fact. And as presumptions of fact are both unlimited in number, and from their very nature not so strictly the object of legal science as presumptions of law,(n) we purpose, in accordance with the example of most writers on evidence, to treat of the latter first.

*CHAPTER II.

ON PRESUMPTIONS OF LAW AND FICTIONS.

[ *17 ]

§ 15. PRESUMPTIONS or, as they are sometimes called, intendments of law, and by the civilians præsumptiones seu positiones juris, are inferences or positions established for the most part by the common, but occasionally by statute law, and are obligatory alike on judges and juries. They differ from presumptions of fact and mixed presumptions in two most important respects. 1st. That, in the latter, a discretion, more or less extensive, as to drawing the inference, is vested in the tribunal, while, in those now under consideration, the law peremptorily requires a certain inference to be made, whenever the facts appear which it assumes as the basis of that inference. If, therefore, a judge direct a jury contrary to a presumption of law, a new trial is grantable ex debito justitiæ;(a) and if a jury, or even a succession of juries, disregard such a presumption, new trials will be granted, toties quoties, as matter of right.(b) But when any other species of presumption is overlooked or disregarded, the granting a new trial is matter for the discretion of the court; which will be more

or *less liberal in this respect, according to the nature and [ *18 ] strength of the presumption.(c) But 2nd, (and it is here

that the difference between the several kinds of presumptions is so strongly marked), as presumptions of law are, in reality, rules of law, and part of the law itself, the court may draw the inference whenever the requisite facts are developed in pleading, (d) while all other presumptions, however obvious, being only inferences of fact, cannot be made without the intervention of a jury. Thus, in a declaration in slander for words imputing felony, it is unnecessary to aver the plaintiff's innocence of the felony imputed; for the law presumes his innocence, and the court will notice the presumption.(e) But, on the other hand, although there is perhaps no mixed presumption stronger, or one which the courts are more anxious to uphold, than that by which the existence of a modus decimandi from time immemorial, is inferred from a small payment made in lieu of tithes, as far back as the living memory of man will reach; still, as it is not technically a presumption (n) 1 Phillips & Amos, E. 457.

(a) Phil. Ev. 464, 8th ed. See, also, Haire v. Wilson, 9 B. & C. 643. (17 Eng. Com. Law Reps.)

(b) Phil. Ev. 459; Tindal v. Brown, I T. R. 167. There is an exception to this rule in the case of certain estoppels and admission, which are obligatory on the parties to the suit, but not on the jury. (1 Stark. Ev. 542, 3rd ed.)

(c) Infra, Chap. III.

(d) Steph. Pleading, 382, 4th ed.; 1 Chitty, Pleading, 221, 6th ed.

(e) Ib. See, also, Chapman v. Pickersgill, 2 Wils. 149.

JANUARY, 1845.3

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