in Mascard. de Prob. quæst. 10; and Müller's note (a) to Struvius's Syntag. Jur. Civ. Exercit. 28, § XV. The confusion necessarily consequent on so many meanings for the same word, joined to the great importance and natural difficulty of the subject of judicial presumptions, fully justifies Alciatus (s) in speaking of it as "Materia valde utilis et quotidiana in practica, sed confusa, inextricabilis fere."

§ 301. Before proceeding farther, it seems advisable to advert to certain expressions, used by the civilians and canonists to indicate different kinds of proof, and the degrees of conviction resulting from them, which, although in a great degree obsolete, are not undeserving of notice. These are "Argumentum," "Indicium," "Signum,” Conjectura," "Suspicio," and "Adminiculum." The term "Argumentum" included every species of inference from indirect evidence, whether conclusive or presumptive (t). "Indicium" "Indice " in the French law answers to that form of circumstantial evidence in ours, where the inference is only presumptive; and was used to designate the fact giving rise to the inference, rather than the inference itself. Under this head were ranked the recent possession of stolen goods, vicinity to the scene of crime, sudden change of life or circumstances, &c. (u). By “Signum" was meant indirect evidence, coming under the cognizance of the senses such as stains of blood on the person of a suspected murderer, indications of terror on being charged with an offence, &c. (v). "Conjectura" and "Suspicio" were not so much modes of proof, as expressions denoting the strength of the persuasion generated in the mind by evidence. The former is well defined, "Rationabile vestigium latentis veritatis, unde nascitur opinio sapientis" (w); or a slight degree of credence, caused by evidence too weak or too remote to produce belief, or even suspicion. ́ It is only in the character of "indicative" evidence that this has any place in English law (x). "Suspicio" is a stronger term, — "Passio animi aliquid firmiter non eligentis" (y). E. g. A. B. is found murdered; and C. D., a man of bad character, is known to

(s) Alciat. de Præs. pars 1, N. 1. (t) See Matthæus de Crimin. ad lib. 48 Dig. tit. 15, cap. 6, N. 1; and Vinnius, Jurisp. Contr. lib. 4, cap. 25 & 36.

(u) Mascard. de Prob. lib. 1, quæst. 15; Menochius de Præs. lib. 1, quæst. 7; Encyclopédie Méthodique, tit. Jurisprudence, Art. Indices; Bonnier, Traité des Preuves, §§ 14 & 636.

(v) Quintil. Inst. Orat. lib. 5, c. 9; Menoch. de Præs. lib. 1, quæst. 7, NN. 31-37.

(w) Mascard de Prob. quæst. 14, N. 14. (x) See bk. 1, pt. 1, § 93.

(y) Menochius de Præs. lib. 1, quæst. 8,

N. 41.

"

have had an interest in his death: this might give rise to a conjecture that he was the murderer; and if in addition to this he had, a short time before the murder, been seen near the spot where the body was found, the feeling in favor of his guilt might amount to suspicion. Adminiculum" meant any sort of evidence, which is useless if standing alone, but useful to corroborate other evidence (2). These distinctions may appear subtilties to us, but for many reasons they were not without their use in the systems where they are found. The decision of all questions of law and fact was there intrusted to a single judge, one of the few limitations to whose power was, that the accused could not be put to the torture in the absence of a certain amount of evidence against him (a).

§ 302. In dealing with this important subject, we propose to treat it in the following order :

1. Presumptive evidence, presumptions generally, and fictions

of law.

2. Presumptions of law and fact, and of mixed law and fact, usually met in practice.

3. Presumptions and presumptive evidence in criminal law.

(z) Menoch. de Præs. lib. 1, quæst. 7, NN. 57, 58, 59.

(a) Decret. Gratian. lib. 5, tit. 41, cap. 6; Matth. de Prob. cap. 2, N. 80.

SECTION I.

PRESUMPTIVE EVIDENCE, PRESUMPTIONS GENERALLY, AND FICTIONS OF LAW.

§ 303. Ir is clear that presumptive evidence, and the presumptions to which it gives rise, are not indebted for their probative force to positive law. When inferring the existence of a fact from others, courts of justice (assuming the inference properly drawn) do nothing more than apply, under the sanction of law, a process of reasoning which the mind of any intelligent being would, under similar circumstances, have applied for itself; and the force of which rests altogether on experience and observation of the course of nature, the constitution of the human mind, the springs of human action, and the usages and habits of society (b). All such inferences are called by our lawyers " presumptions of fact," or "natural presumptions," and by the civilians, " præsumptiones hominis" (c); in order to distinguish them from others of a technical kind, more or less of which are to be found in every system of jurisprudence, and which are known by the name of "præsumptiones juris," or "presumptions of law" (d). To these two classes may be added a third, which, as partaking in some degree of the nature of each of the former, may be called “ præsumptiones mixtæ," "mixed presumptions," or presumptions of mixed law and fact." And—as presumptions of fact are both unlimited in number, and from their very nature are not so strictly the object of legal science as presumptions of law (e) we purpose, in accordance with the example of other writers on evidence, to deal with the latter first, together with the kindred subject of fictions of law. We shall then treat of the former, together with mixed presumptions; and the present section will conclude with a notice of conflicting presumptions.

(b) "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 its application." 1 Greenl. Ev. § 14, 7th ed.

(c) Mascardus de Prob. Conclus. 1226, however, restricts the expression "naturæ præsumptio" to presumptions derived from the ordinary course of nature.

(d) See Introd. pt. 2, §§ 42 & 43. (e) Phil. & Am. Ev. 457.

§ 304. PRESUMPTIONS, or, as they are also called, "intendments of law, and by the civilians, " præsumptiones seu positiones juris," are inferences or positions established by law, common or statute; and have been shown in the Introduction to this work (f), for reasons which it is unnecessary here to repeat, to be indispensable to every well-regulated system of jurisprudence. They differ from presumptions of fact and mixed presumptions in two most important respects. First, 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 directed a jury contrary to a presumption of law, a new trial was, at common law, grantable ex debito justitiæ (g); and if a jury, or even a succession of juries, disregard such a presumption, a new trial will still be granted, toties quoties, as matter of right (h). But when any other

(f) Introd. pt. 2, §§ 42 & 43.

(g) Phill. & Am. Ev. 464; Haire v. Wilson, 9 B. & C. 643. Under the Rules of the Supreme Court, Ord. XXXIX. rule 3, a new trial would not be granted in such a case, unless, in the opinion of the court,

the alleged misdirection had occasioned some substantial wrong or miscarriage in the trial of the action.

(h) Phill. & Am. Ev. 459; 1 Phill. Ev. 467, 10th ed.; Tindal v. Brown, 1 T. R. 167–171.

1 As has been said supra (§ 296 A. b), when conflicting evidence is gone into a presumption of law has simply the evidentiary force of the presumption of fact upon which it is founded. When, therefore, other evidence beside the presumption of law is introduced, the question becomes one entirely of fact, and within the province of the jury, who will usually be permitted to give such force as they think fit to evidence of fact, without reversal of their verdict by the court. Crane v. Morris, 6 Peters, 598; Catlin v. Gilders, 3 Ala. 536; The Jane v. U. S., 7 Cranch, 363; U. S. v. Wiggins, 14 Peters, 334.

species of presumption is overlooked or disregarded, the granting of a new trial has always been held to be a matter for the discretion of the court, which will be more or less liberal in this respect, according to the nature and strength of the presumption. Second, (and here it is 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 before it (2); while other presumptions, however obvious, being inferences of fact, could not, at common law, be made without the intervention of a jury.

§305. The grounds of these præsumptiones juris are various. Some of them are natural presumptions, which the law simply recognizes and enforces. Thus the legal maxim, that every one must be presumed to intend the natural consequence of his own act (k), — and, therefore, that he who sets fire to a building intended injury to its owner, and that he who lays poison for, or discharges loaded arms at another, intended death or bodily harm to that person, merely establishes as law, a principle to which the reason of man at once assents. But in most of the presumptions which we are now considering, the inference is only partially approved by reason,the law, from motives of policy, attaching to the facts which give rise to it an artificial effect beyond their natural tendency to produce belief. Thus, although a receipt for money under hand and seal, naturally gives rise to a presumption of payment, still it does not necessarily prove it; and the conclusive effect of such a receipt is a creature of the law (). So, the maxim by which a party who kills another is presumed to have done it maliciously, seems to rest partly on natural equity and partly on policy. To these may be added a third class, in which the principle of legal expediency is carried so far as to establish inferences not perceptible to reason at all, and perhaps even repugnant to it. Thus, when the law punishes offences, even mala prohibita, on the assumption that all persons in the kingdom, whether natives or foreigners, are acquainted with the common and general statute law, it manifestly assumes that which has no real existence whatever, though the arbitrary inference may be dictated by the soundest policy.

§ 306. A very important distinction exists among presumptions

(2) Steph. Plead. 391, 392, 5th ed.; 1 R. v. Sheppard, R. & R. 169; R. v. FarChitty, Plead. 221, 6th ed. rington, Id. 207.

(k) 3 M. & Selw. 15; 9 B. & C. 645;

(7) Gilb. Ev. 158, 4th ed.