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not always possible for man to arrive at a perfect know-
§§ 659, 660. "Il n'est pas toujours possible à l'homme d'arriver à la connaissance parfaite de la vérité dans chaque cas particulier, et cependant les nécessités sociales ne lui permettent pas toujours de suspendre son jugement et de s'abstenir. La stabilité de l'état des personnes, celles des propriétés, enfin le besoin de calme et de sécurité pour une foule d'intérêts précieux, obligent le législateur à tenir pour vrais un grand nombre de points, qui ne sont pas démontrés, mais dont l'existence est établie par une induction plus ou moins puissante. L'ordre politique, comme l'ordre social, ne repose que sur des présomptions légales. L'aptitude à exercer certains droits, à remplir
certaines fonctions, ne se recon-
Les motifs qui ont déterminé le
chiefly considers is, not if the known fact combines all the characteristics requisite to render the unknown fact probable, but only if social interest requires that from the proof of one the existence of the other ought to be inferred." And an eminent living judge of our own observed in one case (e), "The laws of evidence, as to what is receivable or not, are founded on a compound consideration of what abstractedly considered is calculated to throw light on the subject in dispute, and of what is practicable. Perhaps if we lived to the age of a thousand years instead of sixty or seventy, it might throw light on any subject that came into dispute if all matters which could by possibility affect it were severally gone into, and inquiries carried on from month to month as to the truth of everything connected with it. I do not say how that would be, but such a course is found to be impossible at present."
Two kinds of legal presump
§ 43. These legal presumptions (f) are of two kinds. In most of them the law assumes the existence of something until it is disproved by evidence-called by the civilians præsumptiones juris, or præsumptiones juris tantùm; and likewise, by English lawyers, inconclusive or rebut- Rebuttable. table presumptions. In others, although these are much fewer in number, the presumption is absolute and con- Conclusive. clusive, so that no counter-evidence will be received to displace it. These are called præsumptiones juris et de jure a species of presumption correctly defined, "Dispositio legis aliquid præsumentis, et super præsumpto, tanquam sibi comperto, statuentis (g)." To this class belong the promise to pay which the law implies from
(e) Rolfe, B., in The AttorneyGeneral v. Hitchcock, T., 10 Vict. 11 Jurist, 482.
(f) There are presumptions of fact as well as presumptions of law. See supra, sect. 1, §§ 7 and
27, and infra, Part 3, b. 2, ch. 1.
(g) Alciatus de Præsumptionibus, pars 2, n. 3; Menochius de Præsumptionibus, lib. 1, Quæst. 3, n. 17; Poth. Obl. § 807, Ed. by Evans.
the purchase of goods; the intent to kill or do grievous bodily harm implied from the administration of poison, using deadly weapons, &c. Some may be considered as belonging to universal jurisprudence; the principal of which are the presumption of right derived from the continued and peaceable possession of property, and the presumption upholding the decisions of courts of competent jurisdiction. We have already alluded to the maxim “Interest reipublicæ ut sit finis litium;" to which must be added, "Vigilantibus et non dormientibus jura subveniunt (h)," and "Ex diuturnitate temporis omnia. præsumuntur solenniter esse acta (i)." Possession is at all times primâ facie evidence of property; but if undisturbed possession for a very long time had not a conclusive effect, the most valuable rights would not only be made the continual subject of dispute, but be liable to be divested or overthrown when the original evidences of the title to them become lost or decayed by time (k): accordingly, among the various ways in which property may be acquired, we find both writers on natural law and the positive codes of most nations recognizing that of " prescription," or uninterrupted user or possession for a period longer or shorter (1).
(h) 2 Co. 26 b; 4 Id. 10 b, 82b; Hob. 347; 2 B. & P. 412. (i) Co. Litt. 6 b; Jenk. Cent. 1, Cas. 91.
(k) "If time," says Lord Plunkett, "destroys the evidence of title, the laws have wisely and humanely made length of possession a substitute for that which has been destroyed. He comes with his scythe in one hand to mow down the muniments of our rights; but in his other hand the lawgiver has placed an hourglass, by which he metes out incessantly
those portions of duration which render needless the evidence that he has swept away."- Lord Brougham's Historical Sketches -Life of C. J. Bushe.
(1) Pufendorf, De Jur. Nat. &c. lib. 4, c. 12; Dig. lib. 41, tit. 3, 1. 3; Cod. lib. 7, tit. 33; 2 Blackst. Comm. ch. 17; Co. Litt. 113, 114; 1 Greenl. Ev. § 17, 4th Ed.; Grand Coustumier de Normandie, fol. 152; Poth. Obl. part. 3, ch. 8; Cod. Civil. liv. 3, tit. 20.
§ 44. So, it would be productive of the greatest incon- Authority of venience and mischief if after a cause, civil or criminal, rts judicata. has been solemnly determined by a court of competent and final jurisdiction, the parties could renew the controversy at pleasure, on the ground either of alleged error in the decision, or the, real or pretended, discovery of fresh arguments or better evidence. The slightest reflexion will show that if some point were not established at which judicial proceedings must stop, no one could ever feel secure in the enjoyment of his life, liberty or property; while unjust, obstinate and quarrelsome persons, especially such as are possessed of wealth or power, would have society at their mercy, and soon convert it into one vast scene of litigation, disturbance and ill will. The great principle of the finality of judicial decision is universally recognized, and has been expressed in the various forms-"Res judicata pro veritate accipitur (m);" "Judicium pro veritate accipitur (n); "Interest reipublicæ res judicatas non rescindi (o);" "Præsumitur pro justitiâ sententiæ (p);" "Infinitum in jure reprobatur (q);" "Nemo debet pro unâ causâ bis vexari (r)," &c.
law no excuse
§ 45. We will just add one other instance, which places this matter in the strongest light. If the abstract ques- for crime. tion were proposed, "What is the most unjust thing that could be done?" the answer probably would be, "The punishing a man for disobeying a law with the existence of which he was not acquainted." And yet that occurs everywhere every day; there being no rule
(m) Dig. lib. 50, tit. 17, 1. 207; Mascard. de Prob. Concl. 1237, n. 13; Poth. Obl. part. 4, ch. 3, art. 3, § 37; Co. Litt. 103 a.
(n) Co. Litt. 39a, 168 a, 236b;
2 Inst. 380.
(o) 2 Inst. 360.
(p) Mascard. de Prob. Concl.
1237, n. 2. See 3 Bulst. 42, 43.
(q) 2 Inst. 340; 6 Co. 45 a; 8 Id. 168 b; Hob. 159; Jenk. Cent. 4, Cas. 46; Id. Cent. 8, Cas. 29.
(r) Jenk. Cent. 1, Cas. 38; 5 Co. 61 b.
Abuse of arti
of jurisprudence more universal than this, that every inhabitant of a country must be conclusively presumed to know its laws, sufficiently to be able to regulate his conduct by them (s),—“ Ignorantia juris, quod quisque tenetur scire, non excusat." Hard as this may seem, it is indispensably necessary in order to prevent infinitely greater evils; for the allowing violations of the criminal or contraventions of the civil code to pass without punishment or inconvenience, under the plea of ignorance of their provisions, would render the whole body of jurisprudence practically worthless. If those only should be amenable to the laws who could be proved acquainted with them, not only would that ignorance be continually pleaded, in criminal cases especially, but persons would naturally avoid acquiring a knowledge which carried such dangerous consequences along with it.
§ 46. But if artificial presumptions have their use, they ficial presump have likewise their abuse. In unenlightened times, or in the hands of a corrupt tribunal, they are most dangerous instruments; and even in the best times, and by the best tribunals, require to be handled with discretion. Some very absurd and mischievous presumptions of this kind are to be found in the works of the civilians (t), as well as in the laws of modern France (u); and in this country juries have been frequently advised, if not directed, by judges to presume the grossest absurdities under colour
(s) 4 Blackst. Comm. 27; Dig. lib. 22, tit. 6, 1. 9; Heinec. ad Pand. Pars 4, § 146; Sext. Decretal. lib. 5, tit. 12, De Reg. Jur. R. 13; Doctor and Student, Dial. 1, c. 26; Dial. 2, cc. 16, 46; 1 Co. 177 b; 2 Co. 3b; 6 Co. 54 a, &c. &c.
(t) See Struvius, Syntagma Juris Civilis, by Müller, Exercit.
28, tit. 18, note (?). "Idem