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The Pamphlet Collection of Sir Robert Stout: Volume 43

II. Presumptions of Fact and Presumptions of Law

II. Presumptions of Fact and Presumptions of Law.

The fallacy which logicians call "confusion of terms" has had a peculiarly mischievous influence in dealing with the doctrine of Presumptions. I have taken occasion, in my discussion of this topic in my work on Evidence, to show that the term prœsumtio, in its classical sense, means exclusively a rule of law adopted for the purpose of determining the burden of proof. In the course of time, however, it has received meanings so various that it would be well if the term could be dropped. The ambiguity in the term "presumption," already discussed by me, is thus noticed by Mr. Mill:22 "To be acquainted with the guilty is a presumption of guilt; this man is so acquainted, therefore we may presume that he is guilty; this argument proceeds on the supposition of an exact correspondence between presume and presumption, which does not really exist; for 'presumption' is commonly used to express a kind of slight suspicion, whereas 'to presume' amounts to absolute belief." Whether Mr. Mill is right in his definition of "presume" and "presumption" need not now be considered. It is enough for the present purpose to say that the words, even if not dis- page 17 tinguishable in the way Mr. Mill states, go to a jury, if left without explanation, open to meanings from which conclusions diametrically opposite can be drawn. The term "law" may be used, in connection with presumptions, in three senses: (1) A presumption of law, in its technical sense, is, as we have seen, a presumption which jurisprudence itself applies, irrespective of the concrete case, to certain general conditions whenever they arise. (2) But a presumption of law may be also a presumption of fact which jurisprudence permits; and it is the practice of judges to say that a presumption of fact is "legal"—i. e., that it is one the law will sustain. (3) "Law," as we have already seen, may be used as including the laws of nature and of philosophy, as well as those of formal jurisprudence. Juries are constantly told, for instance, that certain conclusions of mental or physical science are presumptions of law; and in this way they are led to suppose that such conclusions bind, as absolute rules of jurisprudence, the particular case, no matter what may be the phases the evidence may assume.

That the difference between presumptions in law and presumptions in fact is not formal, but real, will be seen by the following analysis:

1. A presumption of law derives its force from jurisprudence as distinguished from logic. A statute, for instance, may say that a person not heard of for ten years is to be counted as dead. This is a presumption of law, and is arbitrarily to be applied to all cases where parties have been absent for such period without being heard from. If there be no such statute, then logic, acting inductively, will have to establish a rule to be drawn from all the circumstances of a particular case. Or a statute may prescribe that all persons wearing concealed weapons are to be presumed to wear them with an evil intent. This would be a presumption of law, with which logic would have nothing to do. On the other hand, whether a particular person, who carries a concealed weapon, there being no statute, does so with an evil intent, is a question of logic—i. e., probable reasoning, acting on all the circumstances of the case)—with which technical page 18 jurisprudence has no concern. It is not necessary, however, to a presumption of law that it should be established by statute, in our popular sense of that term. Statute, in its broad sense, includes juridical maxims established by the courts as much as juridical maxims established by the legislature. To make, however, a maxim established by the courts in this sense a statute, it must be not only definitely promulgated by judicial authority, but finally accepted; such maxims being, to adopt Blackstone's metaphor, statutes worn out by time, the maxim remaining, though the formal part of the statute has disappeared. The prominent maxims of this kind are the presumption of innocence and the presumption of sanity. Presumptions of law, therefore, are uniform and constant rules, binding only generically. Presumptions of fact, on the other hand, are the conclusions drawn by free logic, binding only specifically.

2. To a presumption of law probability is not necessary, but probability is necessary to a presumption of fact. Pater est quem nuptiae demonstrant. This is a presumption of law; and this presumption holds good even in cases where such paternity is highly improbable, if it should be possible. So we can conceive of cases in which it is highly improbable that an accused person should be innocent of the crime with which he is charged; yet probable or improbable as guilt may antecedently appear, he is presumed to be innocent until he is proved to be guilty. On the other hand, without probability there can be no presumption of fact. A man is not presumed to have intended an act, for instance, unless it is probable he intended it.

3. Presumptions of law relieve either provisionally or absolutely the party invoking them from producing evidence; presumptions of fact require the production of evidence as a preliminary. The presumption of innocence, for instance, makes it provisionally unnecessary for me to adduce evidence of my innocence. On the other hand, until I am proved to have done a thing there can be no presumption against me of intent. Evidence, therefore, which is the necessary antecedent to presumptions of fact, is attached to page 19 presumptions of law only as a consequent. Until the evidence is adduced there can be no presumption of fact; there is no presumption of law that is not applicable before the evidence is adduced.

4. The conditions to which are attached presumptions of law are fixed and uniform; those which give rise to presumptions of fact are inconstant and fluctuating. For instance, all persons charged with crime are presumed to be innocent. Here the condition is fixed and uniform; it involves but a single, incomplex, unvarying feature, charged with crime; it is true as to all persons embraced in the category. On the other hand, the presumption of fact, that doing presumes intending, varies with each particular case, and there are no two cases which present the same features. Persons charged with crime may be sane or insane, may be adults or infants, may be at liberty or under coercion; in each case, so far as concerns the presumption of law, they are persons charged with crime, and the presumption applies equally to each. But whether a person doing an act is sane or insane, is an adult or an infant, is at liberty or under coercion, is essential in determining intent. Presumptions of fact, in other words, relate to unique conditions, peculiar to each case, incapable of exact reproduction in other cases; and a presumption of fact applicable to one case, therefore, is inapplicable, in the same force and intensity, to any other case. But a presumption of law relates to whole categories of cases, to each one of which it is uniformly applicable, in anticipation of the facts developed on trial. Thus, for instance, all children born in wedlock are presumed by law to be legitimate until the contrary be proved; and this presumption applies to all children so born, no matter who they may be. On the other hand, whether a bastard is born of a particular father is determinable usually by presumptions of fact attachable to conditions as to which not two cases present precisely the same type.

Both the fallacy and the mischief of the doctrine I am contesting are signally illustrated by the way in which, by force of this doctrine, intention, which is eminently a matter page 20 of fact, has been turned into a matter of law. We are told that it is a presumption of law that intentional hurt done to another is malicious. Now, this is either a petitio principii, in telling us that something is malicious because it is malicious, or the argument rests on the major premise, that all hurts are malicious, which is untrue in fact. The only legitimate presumption we can draw in such cases is a presumption of fact, viz., that it is probable, from the circumstances of the case, that malice existed. The fallacy of turning an inference of fact, in respect to intent, into a presumption of law, may be thus illustrated: "All men who kill do so maliciously. A has killed B; therefore he has done so maliciously." This is the argument as to intent put syllogistically. But this may be indefinitely varied; and of these variations we may take the following, some of which have been sanctioned by the courts: "Men who fly when accused are guilty. A flies when accused; therefore," etc. Or, "Accused parties who fabricate evidence are guilty of the offence they thus attempt to cover. A has done this; therefore," etc. Or, "He who has a motive to commit a crime commits it. A had a motive to commit a particular crime; therefore A," etc. Or, "He who was in the neighborhood at the time of the crime committed it. A was in such neighborhood; therefore A," etc. Now, no one doubts that it is admissible, as a series of facts from which guilt may be logically inferred, to prove that the defendant had a motive to commit the crime, and that he was in the neighborhood at the time the crime was committed; nor can it be disputed that the inference of guilt in the latter case is the same in kind, the inference of guilty intent from the mere fact of firing a shot. We must, therefore, either treat all presumptions of fact as presumptions of law, or we must remand the presumptions of malice and of intent to their proper place among presumptions of fact. Our office, in other words, in all questions of motive and purpose, is, as has been said, not deduction, but induction. It is not, "All acts of class A have a specific intent, and this act being of class A, consequently has such intent; "but it is," The circum- page 21 stances of the case before us make it probable that the act was done intentionally." The process is one of inference from fact, not one of predetermination by law.

The fallacy which has just been noticed pervades the civil as well as the criminal side of our law. Thus we are told by an authoritative writer that "the deliberate publication of a calumny, which the publisher knows to be false, raises, under the plea of 'Not guilty' to an action for libel;a conclusive presumption of malice."23 Now, here again is either a mere petitioprincipii, being equivalent to saying, "A falsehood uttered deliberately and knowingly is a falsehood uttered deliberately and knowingly," or we have exhibited to us, not a "conclusive," but a rebuttable, presumption of malice. Undoubtedly the fact that a document, attacking the character of another, is published by a mere volunteer, is ground from which malice may be inferred. But this fact is not always enough to make out malice, for, when the publication is privileged, then, in order to show malice, facts inconsistent with bona fides must be proved.24 Whether there is malice, therefore, even by force of the very line of cases before us, is a question of fact, determined by the evidence in the particular case. Another illustration of the same error may be noticed in an English ruling, that fraud is to be inferred wherever one man tells an untruth to another for the purpose of obtaining the latter 's goods.25 Here, again, we have the same dilemma. Either the ruling, if it means that he who intends to cheat has the intention of cheating, is a bare petitio principii, or it rests on a false premise, namely, that a man, who by means of an untruth obtains another's goods, intends to cheat, in the teeth of the fact that there are innumerable cases in which untruths are uttered unconsciously, or as mere brag, or as matters of opinion, in which cases it is held that the intention to cheat page 22 is not proved.26 In this case, also, we have the process of deduction erroneously substituted for induction, by which alone, as we have seen, conclusions as to intent can be reached.

It will be seen, therefore, that a presumption of law is a judicial postulate that a certain predicate is universally assignable to a certain subject. A presumption of fact is argument from a fact to a fact. That the scholastic jurists should have overlooked this important distinction is natural. They were mostly casuists, proficients in realistic philosophy, framed to construct endless groups of hypothetical cases, and to conceive of each group as having a real existence. Such groups it was their office to classify, and to each group to attach certain judicial differentia. In addition to this, at a time when judges were comparatively untutored, and when they had control over facts as well as law, it seemed desirable to limit as far as possible their discretion by attaching to specific combinations of facts certain fixed legal attributes. To understand how completely the prevalent classification of presumptions has been borrowed from scholastic, as distinguished from classical, authorities, it is proper to examine specifically the authors on whom our most authoritative text writers, when treating of presumptions, rely.

Of the scholastic jurists, the earliest to whom our text writers appeal is Accursius (1180-1260). Most of the probable reasons which come in the way of this learned glossarist are treated by him as presumptions of law. Among these we may notice the following:

Intent to be presumed on proof of killing, but it may be rebutted by presumptions, probanda amicitiam et affinitatem et qualitatem occidentis.

Constancy of disposition is a presumption of law because praesumitur quis remanere in eadem voluntate.

Due execution of an instrument is presumed as matter of law because praesumitur solemnitas.

Praesumitur ex eoquod plurimum accidit, ex eo quod fieri solet.

page 23

Quis semper ignorare praesumitur, nisi scire probetur.

Praesumitur ex eo quod plurimum accidit, ex eo quod fieri solet.*

Tancred, a Bolognese jurist and ecclesiastic, whose work on the ordo judiciaris was written in 1324, though not published until 1515, is also frequently cited by our text writers to sustain their acceptance of the dominant view. Tancred rests his numerous conclusions on the following axioms: Omne bonum factum recte praesumitur actum; omne malum factum prave praesumitur actum. It is astonishing that English judges and jurists should quote such maxims without noticing how preposterous is the fallacy they contain. Putting them into plain English, Tancred 's maxims are a vicious circle of the coarsest texture. They are simply this: "All good acts are good; all bad acts are bad." Yet, as we have seen, this is no worse than saying, "All intentional acts are intentional; all malicious acts are malicious."

Alciat, or Alciatus, who is prominently cited by Mr. Best, in his treatises on Presumptions and on Evidence, was an Italian jurist (1492-1550), renowned as the founder of a school of jurisprudence which united literary elegance with judicial research. In his treatise de prœsumtionibus he discusses at large prœsumtiones juris et de jure and prœsumtiones juris, recognizing at the same time as authoritative the Aristotelian distinction between probatio inartijicialis and probatio artificialis. A presumption juris et de jure, he tells us, is one established by law, and is called de jure because "super tali prœsumtione lex inducit firmum ius et habet eam pro veritate." This kind of presumption is the "dispositio legis aliquid prsesumentis et super pœsumto tanquam sibi comperto statuentis," and is irrebuttable. A prœsumtio juris, however (rebuttable presumption of law), is a "probabilis conjectura ex certo signo proveniens, quae alio non adducto pro veritate habetur." It must be probable, and with its probability increases its force; it must be a conjectura, and not absolute proof; it must be ex certo signo proveniens; Alciatus properly holding that, to enable a presumption of

* Note.—See these and others quoted in Burckhardt, Presumtionen, 14-15.

page 24 law to operate, it must rest upon a stable base of fact. But at this point Alciat opens the way to subsequent errors by holding (naturally enough to him, at an era when the provinces of law as the philosophy of social experience, and of law as jurisprudence, were not clearly distinguished) that every probabilis conjecture is a prœsumtio juris. As to the prœsumtio hominis he does not discourse; but among prœsumtiones juris he enumerates certain probabiles conjectures which are based, not upon jurisprudence, but upon social science. These he seeks to subordinate to three rules: "prima regula, quod qualitas, quae naturaliter inest homini, semper adesse prœsumitur; secunda, quod mutatio non prœsumitur; tertia, quod semper fit prsesumtio in meliorem partem." Among the illustrations of the first rule he mentions parental love, as a result of which it is to be presumed that the disinheritance of a child is intended bona mente, and that the education given by a parent to a child is gratuitous. As an illustration of the second rule he announces it to be a presumption that every man cares more for his own business than that of another entrusted to him, and that when two persons perished together the strongest will be presumed to have survived. In applying the rule mutatio non prasumitur he specifies as presumptions of law "semel malus, semper malus," "olim obligatus, hodie obligatus," "olim dominus, hodie dominus." Undoubtedly these are presumptions of fact, to be drawn more or less convincingly from the circumstances of each particular case. They are, therefore, presumptions we are led to make from our observation of society, and, in practical life, business would be at a standstill unless they were employed. Mutatio non prœsumitur, so Alciat correctly tells us; but the base from which this presumption starts has none of the fixedness and constancy necessary to the support of a presumption of law, defining law as jurisprudence. On the contrary, mutatio non prœsumitur varies with each case, because susceptibility to change is a quality which is possessed to the same degree by scarcely any two objects we can enumerate. Mutatio non prœsumitur we may say as to the procession of the seasons page 25 In order, but not as to any particular kind of weather in a particular season.

Menoch (Menochius), born in Paris in 1532, afterwards senator and counsellor in Milan, dying in 1607, is the author of a copious treatise, in six books, "de prœsumptionibus, conjecturis, signis, et indiciis." From Menoch has been drawn no small part of the English law on this branch of evidence. His first book treats of the general principles of presumption, filling with these a folio of large size. The remaining four books classify presumptions as follows; quae versantur (1) circa judicia; (2) circa contractus; (3) circa ultima disposition's et volitates morientium; (4) circa delicta et maleficia. The last book is devoted to miscellaneous presumptions which cannot de included within this classification. He adopts the Aristotelian divisions, as applied by Quintilian, between artificial and inartificial proof; and he holds that this division is substantially recognized in the classification, which he adopts, of prœsumptions as juris et de jure, juris, and hominis. The prœsumtio juris et de jure he defines as a necessary conclusion from a fixed state of facts; the prœsumtio juris, and the prœsumtio hominis, as each a probable conclusion from a fixed state of facts. The prcesumtio juris is distinguished from the prœsumtio hominis in this, that the first is, and the second is not, expressly established by statute. As, however, the statutes cannot embrace all possible cases, then, when a presumption is not included in the letter of the statute, but is analogous to one so included, it is to be treated as within the statute; a concession which, as Burckhardt remarks,* obliterates the distinction between the prœsumtio juris and the prœsumtio hominis. As to the interesting question as to the seats or bases from which presumptions may be drawn, he enumerates the following six as exhaustive: (l) persona; (2) causa; (3) factum; (4) dictum; (5) non-factum; (6) non-dictum. That this division embraces social and physical science under the term "law" is plain from the illustrations which are appended.

* Note—Civilistisclie presumption, 33, to which work I am indebted for part of the above analysis.

page 26

It is presumed, we are told, a persona qualitate, that an old' person dies before a youth; that a woman is less resolute than a man; that the weaker of two combatants did not begin the fight, that semel malus, semper malus (a maxim that, is reproduced by Rochefoucault). Under the head of causa are enumerated a series of conclusions based on the science of psychology; and the probable results of amor, spes, and metus are detailed. As to metus, we have announced the presumption that a young woman loses her chastity only by force. Ex facto come the following: factum sequens declaret voluntatem pracedentem; a prasenti ad prceteritum et futurum prcesumitur; and even a futuro ad prcesens el prceteritum prœsumitur.*

The following psychological inference is introduced by Menoch as a presumption of law: non prœsumendus est quis quam dicere quod non prius mente agitaverit; a proposition which has been the cause of much confusion in our later Anglo-American jurisprudence. It is sufficient here to say that the term "law" is so defined by Menoch as to include sociology, psychology, and physical science, and that, as presumptions of law, he treats psychological, social, and physical inductions. No doubt a statute may take an induction so borrowed, and, in order to relieve the parties from proving that which is reasonably settled, make it a presumption of law. When two persons are exposed on one plank to the dangers of the sea, and both die, the probability is, so we infer, that the stronger survives the weaker. We may base this probability on the instinctive love of life, which leads the stronger to use his superior strength to secure his-survivorship; or on the physical laws of the human frame, which generally give longer endurance to the strongest. These, however, are presumptions of fact, which vary with each particular case. The legislature, however, in order to simplify litigation, and to give an arbitrary test by which something like uniformity of result may be reached, may enact by statute that in such cases the survivorship is to be

* Note.—Menoch, qu. 19.

page 27 determined by certain fixed rules. The presumption in such case is one, not of fact, but of law. The law may be very absurd, and may conflict with the conclusions of those sciences which are most capable of judging such issues; but, whether absurd or not, it is binding. Here, then, is the distinction which escaped Menoch, from the fact that he embraced all science and experience under the term "law." A presumption of law, in its true sense, is a presumption which, whether probable or improbable, is applied by statute, or by that which is equivalent to statute, to a fixed and constant condition of facts. A presumption of fact is a presumption applied by logic, aided either by common experience or by scientific research, to the exceptional and unique facts of each particular case.

If it be objected that I have exhibited in too great detail the views of the scholastic jurists from whom our prevalent classification of presumptions is taken, the answer is that it is only by such an exposition that the true character of the scholastic system can in this relation be known. Eminent English text writers, for instance, cite Menoch and Alciat as authority for the proposition that intent is a presumption of law; and, in fact, when we go back to the earlier English cases announcing this maxim, we find that its sole authorities are the scholastic commentators to whom I have just referred. We are led, therefore, to suppose (i) that maxims such as these have the authority of the Roman law, and (2) that they are part of a symmetrical system of jurisprudence based, as all practical jurisprudence must be, on the recognition of the coordinate power of the factors of law and of fact. But (1) the maxims in question, and the classification of presumptions to which they relate, are unknown to the Roman law, and are the creatures of the speculative scholasticism of the middle ages; and (2), what is more important, they are part of a false system which ignored reason as a coordinate factor in concrete adjudication, and which undertook to decide by a pre-announced rule of law every possible contingent question of fact. To these errors are attributable the multitudinous "presumptions of law" of the scholastic jurists; to page 28 this we owe those immense volumes of judicial casuistry which have done so much to mislead English writers on evidence.

The restoration of the classical and philosophical doctrine in this respect is by a process not unlike the restoration, under Niebuhr's auspices, of the treatise of Gaius, of which so much was used in the Justinian compilation. The parchment on which the full text of Gaius was written had been covered by monkish legends, while the original writing had been apparently obliterated. By diligent and skilful labor, however, the monkish legends have been removed and the text of Gaius restored. If we are bound by authority, then our duty is to perform the same office with the mediaeval text books by which, in this branch of law, our conclusions have been so long perverted. We must get rid of the crust of false scholasticism by which the true authorities have been hidden, and restore those authorities in the purity of their text. If we are not bound by authority, then let us toss away the mediaeval as well as the classical jurists; but let us, at least, regain our logic. If there is no technical jurisprudence fettering us to a particular theory of presumptions, then we must fall back on reason, and hold that only is a thing presumed to be true when its truth can be proved.

Francis Wharton.

Cambridge, Mass.

22 Mill's Logic, II, 442.

23 Taylor's Evidence, & 71, citing Haire v. Wilson, 9 B. & C. 643; R. v. Shipley, 4 Doug. 73, 177; Fisher v. Clement, 10 B. & C. 475; Baylis v. Lawrence, 10 A. & E. 925.

24 Bromage v. Prosser, 4 B. & C. 247; Spill v. Maule, L. R. 4 Ex. 232; Whitefieltl v. R. R., 1 E., B. & E. 115.

25 Tapp v. Lee, 3 Bos. & Pul. 371. See Pontifex v. Bignold, 3 M. & Gr. 63.

26 See those cases enumerated in detail in Whart. Cr. Law (7th ed.)' §§ 2118, 2133.