them there. Consequently the recent possession of stolen property __CHAP. I. would be so far an inference of guilt that, when proved as a fact, there would arise from it a presumption to be submitted to the court, as a matter of evidence on the trial. Yet this presumption, strong as it may be, is one only of the general array of facts on the whole, and the whole alone, of which the conclusion of the court has to be founded. This particular presumption indeed so far approximates to one of law,-nay, may almost in a sense be said to be one, that, from the universality of its recognition, the Court has come to treat it as sufficient to put the party affected by it on his defence. Yet it is a presumption rather for trial, than, save as a fact in the case, for conviction; and, beyond this point, the law assigns to it no artificial value.

with

Of course the strength of all such presumptions must neces- Force of— dependent on sarily vary with the degree of the established uniformity of their consistence deductions; and it is from the observation and experience of a experience. mutual connection between other facts, and those the subject of investigation, that the force of such presumptions is derived. In the ratio of the constancy of the connection, is the strength of the presumption.

presumptions

Though Presumptions of Fact occupy a prominent place in View, that most books on evidence, some writers have but reluctantly con- mere arguments ceded them a place under the head of evidence, in the legal sense only, not proof. of the term, at all.

Thus Professor Greenleaf observes; " Presumptions of Fact, usually treated as composing the second general head of presumptive evidence," [he puts presumptions of law as the first] "can hardly be said, with propriety, to belong to this branch of the law. They are in truth but mere arguments, of which the major premise is not a rule of law; they belong equally to any and every subject-matter; and are to be judged by the common and received tests of the truth of propositions and the validity of arguments. They depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections, which are shown by experience irrespective of any legal relations. They differ from presumptions of law in this essential respect, that while those are reduced to fixed rules and constitute a branch of the particular system of jurisprudence to which they belong, these merely natural presumptions are derived, wholly and directly from the circumstances of the particular case, by means of the common experience of mankind,

CHAP. I. without the aid or control of any rules of law whatever. Such for example, is the inference of guilt, drawn from the discovery of a broken knife in the pocket of the prisoner, the other part of the blade being found sticking in the window of a house, which, by means of such an instrument, had been burglariously entered. These presumptions remain the same in their nature and operation, under whatever code the legal effect or quality of the facts when found is to be decided" (1).

To which Mr. Taylor adds in continuation of the passage:"These presumptions embrace all the relations between the fact requiring proof and the fact or facts actually proved, whether such relations be direct or indirect, and whether they be physical or moral. A single circumstance may raise the inference, as well as a long chain of circumstances. For instance, the decision of King

Solomon as to which of the two harlots was the mother of the living child, rested on the general presumption in favor of maternal affection, and on the sole fact that the bowels' of the real mother 'yearned upon her son,' and she would in no wise consent to his being slain. So-to pass from history to fiction-the famous judgment of Sancho Panza acquitting the herdsman charged with rape, was founded on the ascertained fact, that the prosecutrix successfully resisted the attempt to take her purse which the accused made by order of the court. Sister of mine,' said honest Sancho, to the forceful but not forced damsel, 'had you shown the same, or but half as much, courage and resolution in defending your chastity, as you have shown in defending your money, the strength of Hercules could not have violated you' " (2).

Mr. Taylor appends in a note, the anecdotes,-one given by Suetonius, in his life of the Emperor Claudian,-that the monarch discovered a woman to be the real mother of a young man, whom she refused to acknowledge, by commanding her to marry him, for rather than commit incest, she confessed the truth; and the other that related by Diodorus Siculus of a certain King of Thrace, who discovered which of three claimants was the son of a deceased King of the Cimmerians, by ordering each of them to shoot an arrow into the dead body. Two obeyed without hesitation, but the other refused.

(1) Greenleaf on Evidence (5th Ed.), p. 54.

(2) Taylor on Evidence, Vol. I, p. 210.

We may observe, however, with reference to the view taken by Professor Greenleaf, that notwithstanding his use of the expression "natural presumptions" we should infer from his illustration of the broken blade, that what he had in his mind was, not so much the class of presumption deducible from the laws of nature as the coincidences (and thence the inferences) presented by individual cases, just indeed such as that of the illustration he cites. Inferences of this latter class may in a sense be characterized as argumentative, rather than evidentiary. But even if the view that a presumption is an argument only is to be conceded to this extent, it is submitted that concession should go no further. Let a presumption founded on some law of nature, or extensive human experience, have but once acquired a universality and stability sufficient to entitle itself to be received as a material of proof proprio vigore, that is,―by its own inherent recommendation,— it would seem to advance from the point of matter of argument to become matter of evidence, or equivalent to it. Such it is apprehended are those general presumptions of which we are here treating.

CHAP. I.

distinction of,

from

A Presumption of Law is so far analogous in its character to Presumptions one of fact, that it is founded, in the main, on the like broad of Law deductions from human experience, and the like dictation of a Presumptions general probability. It differs however in this (and this is the of Fact. great distinction between the two) that it assumes the form of a rule of law, carrying with it the weight of an artificial value, and not that of a mere element of proof; and it will be seen that there is a class of presumptions which it is forbidden to dispute, albeit by even actual proof to the contrary. Indeed the law sometimes adopts as conclusions matters not being of the nature of evidence at all, and as the mere assumption of a legal policy. In any suggested cases of presumption of fact it is open to the Tribunal before which it is laid (Jury or Judge as the case may be) to determine for itself whether the presumption ought to prevail, and by the exercise of its own judgment. But in the instance of a presumption of law, the fact in which the assumed presumption arises having been established, the Court draws the inference for itself; and, as it were, stamps the legitimacy of the presumption with its own judicial seal. A presumption of law is in truth a judicial hypothesis, which it is forbidden to controvert.

"Presumptions of Law," says Professor Greenleaf, "consist of those rules which, in certain cases, either forbid or dispense with

CHAP. I.

Illustration.

Sub-division of Legal

any ulterior inquiry. They are founded, either upon the first principles of justice, or the laws of nature, or the experienced course of human conduct and affairs, and the connection usually found to exist between certain things.

"The general doctrines of presumptive evidence are not therefore peculiar to municipal law, but are shared by it in common with other departments of science. Thus the presumption of a malicious intent to kill, from the deliberate use of a deadly weapon, 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 their application. The one fact being proved or ascertained, the other, its uniform concomitant, is universally and safely presumed. It is this uniformly experienced connection which leads to its recognition by the law without other proof, the presumption, however, having more or less force in proportion to the universality of the experience" (1).

Thus the Court having laid down that crime is an act of the will, and having at the same time by a course of natural observation arrived at the conclusion that infants of tender years are not imbued with the requisite judgment to constitute volition, it has been established as a presumption of English law, that, under seven years of age, an infant cannot be an agent of crime; that a child under seven cannot commit a felony. So it has been determined as a matter of policy that persons in general, in all their acts, must intend their consequences, and, though certainly with little foundation of fact, that no member of the State should be held ignorant of its laws. Hence from the discharge by one of a loaded fire-arm pointed at another, the court would presume the intent to inflict bodily harm; and a presumed knowledge of the law has even been ascribed to a foreigner, though the law in question were different from that of his own country.

The law abounds in legal presumptions, and we devote a chapter (2) hereafter to their more detailed investigation. Here we are only dealing with principles in their generality; and we therefore abstain, here, from citing further examples.

Legal presumptions are alternately termed Intendments of law Presumptions and, by the Civilians, Presumptiones Juris; and they are again sub-divided into, 1st, the higher class, Presumptions Absolute, or

into

Presumptions

Conclusive, or Irrebuttable; and 2nd, the lower one, Presumptions CHAP. I. Conditional, Inconclusive, or Rebuttable. The former are termed Absolute and Presumptions by the Civilians Presumptiones juris et de jure; the latter, Pre-Conditional. sumptiones juris tantum, or simply Presumptiones juris.

of terms

tiones Juris'

tiones

By Presumptiones juris' are meant merely presumptions of Explanation law-by 'presumptiones juris tantum' are intended presump- Presumptions of law simply when put in apposition to Presumptiones and 'de jure' juris et de jure :'-and by this last class is meant not only pre- and Presumpsumptions which the law draws, but to which it ascribes a certain tantum.' truth. "It is," says the learned commentator, "called 'presumptio juris, because it is a presumption made by law; and de jure, because the law holds for truth the presumption thus made and establishes a fixed right upon it" (1).

The instances we have quoted, those touching infancy, assumed Illustrations of Presumptions intention, and knowledge of the law, belong to, and will illus-Absolute. trate, the higher class, that is Presumptions Absolute, and to these we may add such cases as those in which, from the solemnity of the seal, the law in England (contrary as we shall hereafter see to Indian law (2)) forbids to dispute that a deed or bond is founded on a previous consideration; those in which it ascribes to instruments of a given age, all of thirty years and upwards coming out of a rightful possession, and without obliteration or erasure, a presumption of genuineness, without proof of their execution; and those in which, under the head of judicial notice, it admits as proved things theoretically ascribed to the personal knowledge of the Judge, but who perchance may be practically ignorant of them.

So conclusive are legal presumptions of this higher class that Conclusiveness of Legal the Court does not allow their contradiction, even by proof the Presumptions. most conclusive of their being opposed to the actual fact; indeed it would not permit evidence to be received for the purpose.

Startling illustrations of the principle are to be found in the records of Criminal Jurisprudence, as we shall hereafter see; and in civil proceedings, in any case of a trial by Jury, in which the presumption had been set at nought or passed over by the verdict; according to English law the court would, as a matter of course, ex debito Justitie simply direct a new trial and that toties quoties, that is more than once, indeed as often as the case required (3).

(1) Manochius, Lib. I. quæst. 3, No. 17.

(2) Post, Chapter XVIII.

(3) See Best on Evidence, p. 415.