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$ 31. The utility of the classification of presumptions into violent, probable, and slight, is very questionable ;( f ) but lest it should be Thought desirable to retain it, the following good illustration is added from a recent work on criminal law. “If, upon an indictment for *90 stealing in *a dwelling-house, the accused were appre

Jhended a few yards from the door with the stolen goods in his possession, it would be a violent presumption of his having stolen them; but if they were found in his lodgings some time after the larceny, and he refused to account for his possession of them, this, together with proof that they were actually stolen, would amount to a probable presumption merely; but if the property were not found recently after the loss, as, for instance, not until sixteen months after, it would be but a light or rash presumption, and entitled to no weight.”(g)

$32. A division of presumptions of fact, more accurate in principle and more useful in practice, is obtained by considering them with reference to their effect on the onus probandi, or burden of proof. The principle, that the party who asserts the affirmative in any controversy ought to prove his assertion, and that he who only denies an allegation may rest on his denial, until, at least, the probable truth of the matter asserted has been established, is one to which the common sense of mankind at once assents, and which, however occasionally violated in practice, has ever been recognized in jurisprudence.(h) The reason is obvious: to all propositions, which are neither the subject of intuitive or sensitive knowledge, nor probabilized by experience, the mind suspends its assent until proof of them is adduced; or as it

has been well expressed by an able *writer on the law of

evidence, “ Words are but the expression of facts; and therefore, where nothing is said to be done, nothing can be said to be proved;") which is probably what the Roman lawyers meant by the expression, “per rerum naturam, factum negantis probatio nulla est."(k) But in order to determine the burden of proof, we should look for the affirmative in substance of the issue or matter in dispute, and not the affirmative in form. Allegations, essential to the support of a party's case, although negative in form, may be affirmative in reality; and the nature of language is such, that the same proposition may, in general, be expressed at pleasure in an affirmative or negative shape.(l)

§ 33. Now præsumptiones hominis, or presumptions of fact, are

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divided into slight and strong, according as they affect the burden of proof. Slight presumptions, although sufficient to excite suspicion, or produce an impression in favour of the truth of the facts they indicate, do not, when taken singly, either amount to proof, or shift the burden of proof.(m) Thus, stolen property found in the posses-. sion of the supposed criminal a very *long time after the

[ 41 ] theft, although well calculated to excite suspicion against him, is, when standing alone, insufficient even to put him on his defence.(n) So, when a large sum of money has been stolen, and a person in humble station of life is seen shortly after in possession of a similar sum, but there is no other evidence against him.(0) And in the civil law, where a guardian, who originally had no estate of his own, became opulent during the continuance of his guardianship, this fact, standing alone, was deemed insufficient to raise even a primâ facie case of dishonesty against him ;(p) the code justly observing, “nec enim pauperibus industria vel augmentum patrimonii, quod laboribus et multis casibus quæritur, interdicendum est."(9) To this class also belong the presumptions of guilt derived from footmarks on the snow or ground near the scene of crime,(r) the presumption of homicide from previous quarrels,(s) or from the accused having a pecuniary interest in the death of the deceased.(t)

$ 34. But although presumptions of this kind are not entitled to any weight when standing alone, still they not only form important links in a chain of evidence, and frequently render complete a body of proof which would otherwise be imperfect; but the concurrence of a large number of them may (each contributing its individual share of probability), not only shift the onus probandi, but amount to proof of the most convincing kind, even in capital cases.(u) Several instances of this will be *found in the third part of this work; and

[*42 ] the following good illustration, in a civil case, is given by L Pothier from the text of the Roman law :-"A sister was charged with the payment of a sum of money to her brother; after the death of the brother there was a question, whether this was still due to his personal representative. Papinian held that it ought to be presumed that the brother had released it to his sister; and he founded the presumption of such release on three circumstances ;-1st, The harmony which subsisted between the brother and sister; 2nd, The brother having lived a long time without demanding it; and 3rd, From a great number of accounts being produced between the brother and sister upon their respective affairs, in none of which was there the

(m) Præsumptio hominis rectè dividitur in leviorem et fortiorem. Levior movet suspi. cionem et judicem quodammodo inclinat, sed per se nullum habet juris affectum, nec onere probandi levat. (Huberus, Præl. J. C., lib. 22, tit. 3, n. 15; Matth. de Prob., c. 2, n. 1, p. 77; Westenbergius, Principia Juris, lib. 22, tit. 3.)

(n) See Part 3, Chap. II. (0) 1 Stark. Ev. 569, 3rd ed.

(p) Voet ad Paod., lib. 22, tit. 3, n. 14. c) Cod. lib. 5, tit. 51, 1. 10; 2 Evans's Poth. 345. (0) Mascardus de Probat., quæst. 8, n. 21, c. 22.

(s) Domat. liv. 3, tit. 6. (1) 3 Benth. Jud. Ev. 188.

(u) Pothier, Obl. art. 815, 816; Huberus, Præl. J. C., lib. 22, tit. 3, n. 4 & 16; Ib. Posi. tiones Juris, part 2, p. 259; Matth. de Criminib, in lib. 48. Dig. tit. 15, c. 6; Voet ad Pand., lib. 22, tit. 3, n. 9 & 18; 1 Stark. Ev. 570, 3rd ed. "A man having observed the ebb and flow of the tide to-day, affords some sort of presumption, though the lowest imaginable, that it may happen again to morrow ; but the observation of this event for so many days and months and ages together, as it has been observed by mankind, gives us a full assurance that it will." (Butler's Analogy of Religion, Introduction.)

slightest mention made of it.” Each of these circumstances, taken singly, would only have formed a simple presumption, insufficient to establish that the deceased had released the debt, but their concur. rence appeared to Papinian to be sufficient proof of such release.(x)

§ 35. Strong presumptions of fact, on the contrary, shift the burden [ 43 ]

qof proof, even though the evidence to *rebut them involve

' 'the proof of a negative.(y) Thus, possession is primâ facie evidence of property; and the recent possession of stolen goods is sufficient to call on the accused to shew how he came by them, and, in the event of his not doing so satisfactorily, to justify the conclusion that he is the thief who stole them.(z) So, a receipt for rent accrued due subsequently to that sued for is primâ facie evidence of payment, for it is unlikely that a landlord would not take in the debt of longest standing first; (a) and a beautiful instance of this species of presumption is afforded by the celebrated judgment of Solomon, who, with the view of ascertaining which of two women who laid claim to a child was really the mother, gave orders, in their presence, for the child to be cut in two, and a part given to each, on which the mother's natural feelings interposed, and she offered rather to abandon her right to the child than suffer it to be put to death.(6)

§ 36. Presumptions of this nature are entitled to great weight, and, where there is no other evidence, are generally decisive in civil cases.(c) In criminal, and more especially capital ones, a greater degree of caution is, of course, requisite, and the technical rules regulating the burden of proof cannot be always so strictly adhered to. (d)

, *$ 37. The resemblance between presumptions of law *** J and strong presumptions of fact cannot have escaped notice—the effect of each being to assume something as true until rebutted; and, indeed, in the Roman law, and all other systems where the decision of law and fact is intrusted to a single judge, the distinction between them becomes almost imperceptible in practice.(e) But it must never be lost sight of in the common law, where the functions of judge and jury should cver be kept distinct. Where a presumption of law is disregarded by a jury, a new trial will be granted ex debito justitiæ; but where the presumption is only one of fact, however strong and obvious, the granting a new trial is at the discretion of the court in banc. Unfortunately, however, the line of demarcation between these different sorts of presumptions has not always been observed with the requisite precision. We find the same presumption spoken of by judges, sometimes as a presumption of law, sometimes as a pre

(2) Poth. Obl, art. 816; Dig. lib. 22, tit. 3, 1. 26. Sir D. Evans, in his valuable edition of Pothier, observes on this passage, that it does not sufficiently appear from the law, as given in the Digest, that the brother had lived any great length of time, or that any great harmony had existed between him and his sister. The learned translator seems to have overlooked. the phrase quamdiu vixit, and the peculiar expression desideratum.

(4) Præsumptio fortior determinat judicem, ut credat rem certo modo se habere, non tamen quin sentiat, eam rem aliter se habere posse. Ideoque ejus hic est affectus, quod transferat onus probandi in adversarium, quo non probante, pro veritate habetur. (Huberus, Præl. J.C., lib. 22, tit. 3, n. 16. See, also, Westenbergius, Principia Juris, lib. 22, tit. 3, n. 27.) (z) See Part 3, Chap. II. (@) Gilb. Ev. 157. (6) 1 Kings, iii. 16. c) Huberus, Præl. J. C., lib. 22, tit. 3, n. 16.

(d) Ib. (e) Quælibet exempla fortiorum, quas diximus, præsumptionum, quatenus legibus prodita sunt, ad classem præsumptionum juris non male referentur, si hac distinctione placeat uti. (Huberus, Præl. J. C., lib. 22, tit. 3, n. 18.) See, also, Gresley on Evidence in Equity, p. 372.

sumption of fact; sometimes as a presumption which juries should be advised to make, sometimes as one which it was obligatory on them to make, &c.(5) *$ 38, We now come to the consideration of mixed pre

[ *45 ] sumptions, or, as they are sometimes called, presumptions of mixed law and fact, or presumptions of fact recognized by law. These consist chiefly of certain presumptive inferences which, from their strength, importance, or frequent occurrence, attract, as it were, the observation of the law, and, from being constantly recommended by judges, and acted on by jurius, become in time as familiar to the courts, and occupy nearly as important a place in the administration of justice, as the presumptions of the law itself. They are, in fact, a sort of quasi præsumptiones juris, and, like the strict legal presumptions, may be divided into three classes :- 1st, Where the inference is one which common sense would have made for itself; 2nd, Where an artificial weight is attached to the evidentiary facts beyond their mere natural tendency to produce belief; 3rd, Where, from motives of policy, juries are recommended to draw inferences which are purely artificial. The two latter chiefly occur where long established rights are in danger of being defeated by technical objections, or want of strict proof of what has taken place a great while ago, in which cases it is every day's practice for judges to recommend to juries to presume, without proof, the most solemn instruments, such as charters, grants, and other public documents, together with all sorts of private conveyances.(g)

$ 39. Artificial presumptions of this kind require to be made with caution, and it must be acknowledged *that the legitimate limits of the practice have often been very much over. L

[ 46 ] stepped.(h) There are many cases in the books on this subject, which cannot now be considered as law, and some of which even border on the ridiculous. In one case, in particular, which was an action on the game laws, it was suggested that the gun with which the defendant fired was not charged with shot, but that the bird might have died in consequence of the fright, and the jury having given a verdict for the defendant, the court refused a new trial ;(i) and, in another case, Lord Ellenborough is reported to have cited, with approbation, an expression of Lord Kenyon, that, in favour of modern enjoyment, where no documentary evidence existed, he would presume two hundred conveyances, if necessary.(k) So, in Wilkinson v. Payne,(1)

) Phil. Ev. 460, 8th ed. When such language is to be found in the judgments of the superior courts, it is not surprising that the proceedings of inferior tribunals should exhibit even greater inaccuracy and confusion. Nothing, for instance, is more common than 10 hear a jury told from the bench, that when stolen property is found in the possession of a party shortly after a theft, the law presumes him to be the thief ;-a direction both wrong and mischievous, as calculated to convey to the minds of the jury the false impression, that when the possession of the stolen property has been traced to the accused, their discretionary functions are at an end. Our ablest judges tell juries in such cases that they ought, as men of common sense, to make the presumption, and act upon it, unless rebutted either by the evidence or explanation of the prisoner, or by the facts themselves as they appear in the evidence for the prosecution.

(g) See infra, Pt. 2, Chaps. II. & III. (h) Per Lord Tenterden in Doe d. Fenwick v. Reed, 5 B. & A. 232, (7 Eng. Com. Law Reps.) See, also, Day v. Williams, 2 C. & J. 461; and Doe d. Shewen v. Wroot, 5 East, 132."

(i) Cited by Lord Kenyon in Wilkinson v. Payne, 4 T. R. 469. (b) Counteas of Dartmouth v. Roberts, 16 East, 334.

(1) 4 T. R. 468.

which was an action on a promissory note, given to the plaintiff in consideration of his marrying the defendant's daughter, to which the defence set up was, that the marriage was not a legal one, as the parties were married by license when the plaintiff was under age, and there was no consent of his parents or guardians; it appeared in evidence that both his parents were dead when the marriage was solemnized, and there was no legal guardian; but the plaintiff's mother, who survived the father, on her deathbed desired a friend to become guardian to her son, with whose approbation the marriage was had. It also appeared that, when the plaintiff came of age, his wife was lying in extremis on her deathbed, and died three weeks afterwards; but in

her lifetime she and the *plaintiff were always treated by L 31 J the defendant and his family as man and wife. Upon these facts, Grose, J., left it to the jury to presume a subsequent legal marriage, which they accordingly did, and found a verdict for the plaintiff, and the court refused a new trial.(m) This case has been severely commented on by Sir D. Evans;(n) and indeed, it is impossible not to assent to the observation, that rulings of this kind afford a temptation to juries to trifle with their oath, by requiring them to find, as true, facts which are probably, if not obviously, false.(o) Still, when restrained within their legitimate limits, presumptions of this kind are not without their use. The supposing absurdities, in order to meet the exigency of a particular case, must ever be fraught with mischief; but it is evidently different when, in conformity to a settled rule of practice, juries are directed to presume the existence of ancient documents, or the destruction of formal ones, or to make other presumptions on subjects necessarily removed from ordinary comprehension, but which the rules of law require to be submitted to and determined on by them instead of the court, within whose province they would, perhaps, more properly come. Both judges and juries are frequently compelled, in obedience to the statutes of limitations

and *the strict presumptions of law, to assume as true facts

3 which in reality are not so; and the ends of justice may render a similar course necessary, in the case of those mixed presumptions which, although not technically, are virtually made, by law.(p)

§ 40. The terms in which presumptions of fact and mixed presumptions should be brought under the consideration of juries by the presiding judge, depend on their weight, either natural or technical. Where the presumption is one which the policy of law and the ends of justice require to be made, such as the existence of moduses, and other immemorial rights, from uninterrupted modern usage, the jury should be told that they ought to make the presumption, unless some evidence be given to the contrary; it should not be put to them as a

(m) These are not the only instances which might be cited. See the case of Powell v. Milbanke, Cowp. 103 (n.), where Lord Mansfield advised a jury to presume a grant from the crown, on the strength of enjoyment under two presentations stolen from the crown. That case was condemned by Lord Eldon in Harmood v. Oglander, 8 Ves. 130, and was spoken of by Eyre, C. B., as "presumption rin mad.” (Gibson v. Clarke, 1 Jac. & W. 161, note.) See, also, Doe d. Bristowe v. Pegge, 1 T. R. 758 (n); and Lade v. Holford, B. N. P. 110.

(n) 2 Evans's Poth. 330. See, also, Gresley on Evid. 374. (0) 3 Stark. Ev. 934, 3rd ed. ; 2 Evans's Poth. 331.

(p) Several important presumptions of this kind have been erected by the legislature into fixed rules of law. See 3 & 4 Will, 4, c. 42, s. 3; 2 & 3 Will. 4, c. 71 and 100.

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