drawn by a judicial tribunal, by a process of probable reasoning, from some matter of fact, either judicially noticed, or admitted, or established by legal evidence to the satisfaction of the tribunal (2). cation. § 291. "Presumption" is not commonly used in Eng- Popular signifilish law in its popular signification of presumptuousness, arrogance, blind adventurous confidence, or unwarrantable assumption. It is, however, sometimes found in this sense in our books and statutes (a). one given by Alciatus and Menochius, of presumptions of law, Alciat de Præs. Pars 3, N. 1; Menoch. de Præs. lib. 1, quæst. 8, N. 1; but is wholly inapplicable either to præsumptiones juris et de jure, whose very nature is to exclude all proof against what they assume as true, or to those presumptions of fact which are too slight to shift the burden of proof. 4. On the other hand, the word presumption has even been used in the sense of irrebuttable presumption. Thus in the work entitled "Grounds and Rudiments of the Law, p. 186, A.D. 1751," we find it stated, "Law will admit no proof against that which the law presumeth." 5. In its popular sense of presumptuousness, arrogance, blind adventurous confidence, or unwarrantable assumption. See note (a) to § 291. 6. The Latin "præsumptio" had, at one time at least, another signification. In the Leges Hen. I. c. 10, § 1, we find the expression "Presumpcio terre vel pecunie regis," where "presumptio" is used in the sense of "invasio" or usurpatio." See the Ancient Laws and Institutes of England, A.D. 1840, Vol. 1, p. 519, note (b), and Glossary. Some others will be found in Mascard. de Prob. quæst. 10, and Müller's note (a) to Struvius' 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 justify Alciatus in speaking of it as "materia valde utilis et quotidianâ in practicâ, sed confusa, inextricabilis ferè." Alciatus de Præs. P. 1, N. 1. (z) See Domat, Lois Civiles, P. 1, liv. 3, tit. 6, Preamb. & sect. 4; 2 Ev. Poth. 332. (a) Doct. & Stud. c. 26; Litt. R. 327; Hargr. Co. Litt. 155 b, note (5); 4 & 5 Will. & M. c. 23, s. 10; 1 Geo. I. c. 13, s. 17, stat. 2; 19 Geo. III. c. 56, s. 3; 11 Geo. IV. & 1 Will. IV. c. 23, s. 5; 6 & 7 Will. IV. c. 76, s. 8. The Latin "præsumptio" is frequently used in this sense by Division of presumptions. § 292. It is clear that presumptive evidence, and the presumptions to which it gives rise, are not indebted for Bracton (see fol. 1 b, §§ 7 and 8; 6 a, § 5; 221 b, § 2), as also by the civilians and canonists. See Mascard. de Prob. quæst. 10, NN. 1, 5 & 6; Alciat. de Præs. Pars 2, N. 1, &c. The term “Evidence,” as used in our jurisprudence, is almost peculiar to the English law and language; and all relating to what we call the admissibility, the weight, &c. of evidence, must be sought for in the works of the civilians and canonists under the head "probatio," and in those of the French lawyers under that of “ preuve." But in addition to " probatio" and "præsumptio," the two former had several expressions to indicate the different kinds of proof, and the degrees of conviction resulting from them, which, although in a great degree obsolete, are not altogether undeserving notice. The most remarkable are 66 plena probatio" and "semiplena probatio," which have been already explained in the Introduction, sect. 2, § 69; the others are, "Argumentum," "Indicium," "Signum," "" Conjectura," "Suspicio," and "Adminiculum." The term "Argumentum" included every species of inference from indirect evidence, whether conclusive or presumptive. See Matthæus de Crimin. ad lib. 48 Dig. tit. 15, cap. 6; and Vinnius, Jurispr. Contr. lib. 4, cap. 25 & 36. "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. See Mascard. de Prob. lib. 1, quæst. 15; Meno. chius de Præs. lib. 1, quæst. 7; Encyclopédie Méthodique, tit. Jurisprudence, Art. Indices; Bonnier, Traité des Preuves, §§ 14 & 636. By "Signa" was meant indirect evidence coming under the cognizance of the seuses: such as stains of blood on the person of a suspected murderer, indications of terror on being charged with an offence, &c. Quintil. Inst. Orat. lib. 5, c. 9; Menoch. de Præs. lib. 1, quæst. 7, NN. 31-37. "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," Mascard. de Prob. quæst. 14, N. 14; 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 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 the law, a process of reasoning that the mind of any intelligent reflecting being would have applied for itself under similar circumstances; 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, the usages and habits of society, &c. (b). All such inferences are called by our lawyers presumptions Presumptions of 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, known by the name of præsumptiones juris, or presumptions of Presumptions "Sus (see Part 1, ch. 1, § 93). not without their use in the sys- (b) "The presumption of a (c) Mascardus de Prob. Conclus. 1226, however, restricts the expression "naturæ præsumptio❞ to presumptions derived from the ordinary course of nature. fact. of law. Mixed presumptions. 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 not so strictly the object of legal science as presumptions of law (e), we purpose, in accordance with the example of most writers on evidence, to treat of the latter first. Mixed presumptions naturally follow both; and the present section will conclude with a notice of conflicting presumptions. Presumptions of law. SUB-SECTION I. PRESUMPTIONS OF LAW, AND FICTIONS OF LAW. § 293. Presumptions, or, as they are sometimes 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 shewn, in the Introduction to this work, for reasons which it is unnecessary here to repeat, to be indispensable to every well regulated system of jurisprudence (ƒ). 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 (g); and if a jury, or even a succession of juries, (d) See Introd. sect. 2, §§ 42 & 43. (e) Phil. & Am. Ev. 457. (f) Introd. sect. 2, §§ 42 & 43. (g) Phil. & Am. Ev. 464; Haire v. Wilson, 9 B. & C. 643. disregard such a presumption new trials will be granted, toties quoties, as matter of right (h). 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 strength of the presumption. But 2nd, (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 developed in pleading, &c. (i), while all other presumptions, however obvious, being only inferences of fact, cannot be made without the intervention of a jury. § 294. The grounds of these præsumptiones juris are Grounds of. 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 (1), and that he who lays poison for, or discharges loaded arms at another (m), intended death or bodily harm to that person; merely establishes for law a principle to which the reason of man at once assents. But in most of the presumptions 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 (h) Phil. & Am. Ev. 459; 1 Ph. Ev. 467, 10th Ed.; Tindal v. Brown, 1 T. R. 167. (i) Steph. Plead. 392, 5th Ed.; 1 Chitty, Plead. 221, 6th Ed. (k) 3 M. & Selw. 15; 9 B. & C. 645; R. v. Sheppard, R. & R. C. C. 169; R. v. Farrington, Id. (1) R. v. Farrington, R. & R. (m) R. v. Mazagora, R. & R. C. C. 291. |