SECTION II.

PRESUMPTIONS OF LAW AND FACT USUALLY MET IN PRACTICE.

§335. It is proposed, in this section, to consider the principal presumptions of law and fact usually met with in practice, which will be treated in the following order:

1. Presumption against ignorance of the law.

2. Presumptions derived from the course of nature.

3. Presumptions against misconduct.

4. Presumptions in favor of the validity of acts.

5. Presumptions from possession and user.

6. Presumptions from the ordinary conduct of mankind, the habits of society, and the usages of trade.

7. Presumption of the continuance of things in the state in which they have once existed.

8. Presumptions in disfavor of a spoliator.

9. Presumptions in international law.

10. Presumptions in maritime law.

11. Miscellaneous presumptions.

§336. THE law presumes conclusively against ignorance of its provisions.1 It is a præsumptio juris et de jure, that all persons, even foreigners (k), subject to any law which has been duly promulgated, or which derives its efficacy from general or immemorial custom, must, for the reasons stated in the Introduction to this work (1), be supposed to be acquainted with its provisions, so far

(k) R. v. Esop, 7 C. & P. 456.

1 See § 296, n. 1, B. VII. (3), supra.

(1) Part 2, § 45.

as to render them amenable to punishment for their violation, and to have done all acts with a knowledge of their legal effects and consequences (m): "Ignorantia juris, quod quisque tenetur scire, non excusat" (n). It is on this principle that money paid under a mistake of law cannot be recovered (o), whereas money paid under a mistake of fact can (p).1

Acts of Parliament take effect on the day on which they receive the royal assent, unless, as frequently happens, the act itself provides otherwise (), in which case they take effect on the day so provided. In early times, they were frequently promulgated by proclamation ; in modern times, they have been always printed by the government printer. But there is no legal duty on any person to procure them to be printed, nor is a government printer's copy evidence of the contents of a public act, though it is of a local one (r). The only evidence of the contents of a public act is the Parliament roll, and the communication of the royal assent to Parliament is sufficient promulgation to make it legally binding, without any further publication.

Very many public bodies have, by charter or statute, power to make by-laws, rules, regulations or orders. For these to take effect, the mere resolution of the body making them is not sufficient. There must be some publication to the outside world (s), and the mode of publication is frequently, but by no means universally, prescribed by the charter or statute from which the power to make the by-law, &c. is derived. If this mode of publication be followed, the by-law, &c. would seem to be binding (t), whether it is in fact known of or not.2 If this mode of publication be disregarded, the by-law, &c. would seem not to be binding, although it be in fact known of. If no mode of publication be prescribed, it is difficult to say what mode will make the by-law binding. Blackstone says, speaking of the promulgation of laws generally, "Whatever way is

(m) Doct. & Stud., Dial. 1, c. 26; Dial. 2, cc. 16, 46; Plowd. 342, 343; 1 Co. 177 b; 2 Co. 3 b; 6 Co. 54 a.

(n) 4 Blackst. Comm. 27.

(0) Bilbie v. Lumley, 2 East, 469. (p) Milnes v. Duncan, 6 B. & C. 671. (g) 33 Geo. 3, c. 13. Before this act, by an absurd and unjust fietion, statutes "related back" to the first day of the session on which they were passed. Latless v. Holmes, 4 T. R. 660.

(r) 8 & 9 Vict. c. 113, s. 3.

(s) See Lumley on By-laws, where a very full list of statutes authorizing bylaws is given.

(t) See Motteram, app., Eastern Counties Rail. Co., resps., 7 C. B., N. S. 58, in which the Court, diss. Williams, J., took a liberal view of the statute (8 Vict. c. 20) prescribing public action.

1 See also Hart v. Roper, 6 Ired. Eq. 349; Butler v. Livingston, 15 Ga. 565. 2 Boyers v. Pratt, 1 Humph. 90, acc.

made use of, it is incumbent on the promulgators to do it in the most public and perspicuous manner; not like Caligula, who (accord ing to Dio Cassius) wrote his laws in a very small character, and hung them upon high pillars, the more effectually to ensnare the people." It is submitted, that whether the promulgation was sufficient to bind is a question of law, not of fact, and that the question whether a particular individual, proceeded against under the by-law, had notice in fact of it, ought not to be considered; but the point is bare of authority, and a very difficult one.

§ 337. Courts of justice are also presumed to know the law, but in a different sense. Private individuals are only taken to know it sufficiently for their personal guidance; but tribunals are to be deemed acquainted with it, so as to be able to administer justice when called on (u): for which reason it is not necessary, in pleading, to state matter of law (x).

The Sovereign is also presumed to be acquainted with the law, "Præsumitur rex habere omnia jura in scrinio pectoris sui" (y): still it is competent, in certain cases, to show that grants from the Crown have been made under a mistake of the law (2).

§ 338. PRESUMPTIONS derived from the course of nature have

been already noticed as in general entitled to more weight than

(u) See the judgment of Maule, J., in Martindale v. Falkner, 2 C. B. 719, 720; and the argument of the Atty.-Gen. in Stockdale v. Hansard, 9 A. & E. 1, 131.

(x) Steph. Plead. 383, 5th ed.; 1 Chit. Plead. 216, 6th ed.

(2) Co. Litt. 99 a.

(z) Plowd. 502; 2 Blackst. Comm. 348; R. v. Clarke, 1 Freem. 172. See Legat's case, 10 Co. 109.

1 See § 253, n. 1, supra.

such presumptions as arise casually (a), -" Naturæ vis maxima" (b), -and they may be divided into physical and moral. As instances of the first, the law notices the course of the heavenly bodies, the changes of the seasons, and other physical phenomena, according to the maxim, "Lex spectat naturæ ordinem "(y). "If," says Littleton (2), "the tenant holds of his lord by a rose, or by a bushel of roses, to pay at the feast of St. John the Baptist; if such tenant dieth in winter, then the lord cannot distrain for his relief until the time that roses by the course of the year may have their growth." So the law presumes all individuals to be possessed of the usual powers and faculties of the human race; such as common understanding, the power of procreation within the usual ages (a), &c.; for which reason, idiocy, lunacy, &c. are never presumed. And the usual incapacities of infancy are not overlooked. It is a prœsumptio juris et de jure, that children under the age of seven years are incapable of committing felony (b); that males under fourteen are incapable of sexual intercourse (c); and that males under fourteen years, and females under twelve, cannot consent to marriage (d). So, between the ages of seven and fourteen, an infant is presumed incapable of committing felony; but this is only præsumptio juris; and a malicious discretion in the accused may be proved, in which case it is said, "Malitia supplet ætatem" (e).

§ 339. Under this head come the important and difficult questions of the maximum and minimum term of gestation of the

(a) Supra, sect. 1, subsect. 3, § 334. (b) 2 Inst. 564; Plowd. 309.

(y) Co. Litt. 92 a, 197 b. (z) Sect. 129.

(a) Huberus, Præl. Jur. Civ. lib. 22, tit. 3, n. 17. In the case of gifts in tail, the tenant is presumed never too old to be capable of having issue to inherit by force of the gift. Phill. & Am. Ev. 462. See also Reynolds v. Reynolds, 1 Dick. 374, and Leng n. Hodges, 1 Jac. 585. Several instances are given in Beck's Med. Jurisp. 148, 7th ed., of females having borne children above the ages of fifty, and even sixty years; and see the celebrated Douglas cause, given by him at page 402. Under the feudal system, if a guardian in chivalry married the heir to a woman past the age of child-bearing, it was deemed by

law a disparagement. Litt. sect. 109; Co. Litt. 80 b. In Croxton v. May, 9 Ch. D. 380, the Court of Appeal refused to treat as past child-bearing a woman aged fiftyfour and a half years, who had never had any children, but had been married only three years. In the case of single women, or women long married without having children, the limit seems to be from fiftythree to fifty-five years. See Ib., Haynes v. Haynes, 35 L. J., Ch. 303.

(b) 1 Hale, P. C. 27; 4 Blackst. Comm. 23.

(c) 1 Hale, P. C. 630; R. v. Phillips, 8 C. & P. 736; R. v. Brimilow, 9 Id. 336.

23.

(d) 1 Blackst. Comm. 436.

(e) 1 Hale, P. C. 26; 4 Blackst. Comm.

1 See § 43, n. 1, (ƒ), supra.

human fœtus, — questions replete with importance and delicacy, and an erroneous decision on which may not only compromise the rights of individuals, but destroy female honor and jeopardize the peace of families. These are medico-legal subjects, on which, where we are not tied up by any positive rule of law, the opinions of physiologists and physicians must necessarily have great weight. As to the maximum term of gestation, according to Sir Edward Coke, the "legitimum tempus appointed by law at the furthest is nine months, or forty weeks"; for which he cites an old case of Robert Radwell, in the reign of Edward I. (ƒ), and endeavors to fortify his position by a passage from the Book of Esdras (g). But this doctrine is not clear, even upon the ancient authorities (h); while it is denied by the modern (), and is contrary to experience. According to many eminent authorities, the usual period of gestation is nine calendar months (); but others fix it at ten lunar months, being 280 days, or nine calendar months and about a week over (). Another says that "according to the testimony of experienced accoucheurs, the average duration of gestation in the human female is comprised between the thirty-eighth and fortieth weeks after conception" (m). It is, however, conceded on all hands, that a delay or difference in the time may take place, of a few days, or perhaps even weeks; as there are numerous causes, both physical and moral, by which delivery may be accelerated or retarded. But whether the laws of nature admit of such a phenomenon as the protraction of the term of gestation for a considerable number of weeks or months beyond the accustomed period, is an unsettled point (n). It is incontestable that there are to be found on record a great many cases, true or false, of gestation protracted considerably beyond the usual time. There are old instances of children declared legitimate by foreign tribunals, after a gestation, real or alleged, of ten, eleven, twelve, thirteen, and

(f) Co. Litt. 123 b.

(g) 2 Esdras iv. 40, 41. "Go thy way to a woman with child, and ask of her, when she hath fulfilled her nine months, if her womb may keep the birth any longer within her. Then said I, 'No, Lord, that can she not.'"

(h) See them collected and ably commented on by Mr. Hargrave, in his edition of Co. Litt. 123 b, n. (2).

seq.

(k) Harg. Co. Litt. 123 b, n. (2); Chitty's Med. Jurisp. 405.

(1) Beck's Med. Jurisp. 356, 7th ed.; who remarks that it is very important to recollect the distinction between lunar and calendar months. Nine calendar months may be from 273 days to 275 days, but ten lunar months are 280 days.

(m) Tayl. Med. Jurisp. 606, 607, 7th ed. (n) Beck's Med. Jurisp. chap. 9, 7th

(i) Runnington on Ejectment, 383 et ed.; Chitty, Med. Jurisp. 405, 406; Tayl

Med. Jurisp. 525, c. 54, 7th ed.