CHAPTER IV.

ON PRESUMPTIVE EVIDENCE.

EVIDENCE is said to be Presumptive or Circumstantial as distinguished from Direct Evidence, when an inference as to a disputed fact is drawn from the proof or assumption of a collateral fact. It is true that the judgment acts even in the case of Direct Evidence; and the testimony, which purports to be derived immediately from the senses, comes to the witness distorted by their imperfections, and is stated by him under the manifold and insuperable influences of infirmity and misapprehension. But the senses are still the original media of knowledge; and the operations of the judgment are too rapid and imperceptible to permit even their recipient to define the line of separation. Distance and space appear to be intuitions of the perception; but the most superficial investigation proves them to be logical deductions of the reason.1 If the senses could act without the intervention and assistance of the judgment, external objects might still be painted on the retina of the eye; and possibly be communicated to, and retained in, the memory of the subject; but, unless the reasoning faculty interposed to distinguish, to arrange, and to methodise, the evidence of the senses would amount to no more than Cassio's drunken vision-"a mass of things, but nothing distinct." It would serve only to perplex and misguide those who sought it as a means of information.

1 Locke on the Understanding.

But there is still a broad and palpable distinction between Direct and Presumptive Evidence. In the former we credit the language of the senses as translated through the judgment of the witness, and certified by his solemn asseveration. The question then for decision is not one of inference but of credibility. It is true that the credibility of the witness is itself a matter of inference, which must be gathered from his demeanour and surrounding circumstances. But when we are satisfied as to his veracity and judgment the adoption of his statements follow as an included consequence.

It is different in Presumptive Evidence. The same question of credibility occurs at the outset ; and the judge or jury has to decide a similar and preliminary inquiry into the veracity and accuracy of the witness. But this is only a first and easy stage of reasoning. When the reality of the collateral fact has been established, it is then that the judgment has to trace its relation to the matter in issue. It must not disdain to weigh remote analogies, distant affinities, nor even improbable possibilities. On the other hand it must avoid scrupulously the tendency to over-refinement, which vitiates many subtle and imaginative minds. Only knowledge of the world, and an extensive experience of human nature, can enable men to determine, and that only in their own minds, what is the distinction between that proximate or recondite circumstance, which suggests irresistibly the truth or falsehood of a proposition: and that irrelevant, obscure, and suspicious form of hypothesis, which checks us as irresistibly in making it the basis of affirmation or negation.1

In The King v. Burdett,2 Abbott, C.J. said :— "A presumption of any fact is properly an inference of that fact from other facts that are known; it is an act of reasoning and much of human knowledge on all

1 See this subject fully discussed in Bentham's Rationale of Judicial Evidence, vol. 3, page 7, et seq.

2 4 B. & Ald. 161.

:

subjects is derived from this source. A fact must not be inferred without premises that will warrant the inference but if no fact could thus be ascertained by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof that the party accused actually committed the crime, is or can be given the man who is charged with theft is rarely seen to break the house or take the goods; and in cases of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonons ingredients poured into the cup. In drawing an inference or conclusion from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, can human reason do otherwise than adopt the conclusion to which the proof tends? The premises may lead more or less strongly to the conclusion, and care must be taken not to draw the conclusion hastily; but in matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected; and it is one of the peculiar advantages of our jurisprudence, that the conclusion is to be drawn by the unanimous judgment and conscience of twelve. men, conversant with the affairs and business of life, and who know that where reasonable doubt is entertained it is their duty to acquit; and not of one or more lawyers, whose habits might be suspected of leading them to the indulgence of too much subtlety and refinement."

In the same case his Lordship recognised a principle which, although laid down by Lord Hale, and correct

to a large extent, does not appear, according to other cases, to be true universally. The rule is-Never to convict where the corpus delicti, the substantial crime, is not established. An illustration of this rule has been already mentioned.1

In Evans v. Evans 2 Lord Stowell said: "It has been asked, and very properly asked, Do not courts of justice admit presumptive proof? Do you expect

ocular proof in all cases? I take the rule to be this: -If you have a criminal fact ascertained, you may then take presumptive proof to show who did it: to fix the criminal, having then an actual corpus delicti. But to take presumption in order to swell an equivocal fact, a fact that is absolutely ambiguous in its own nature, into a criminal fact, is a mode of proceeding of a very different nature, and would, I take it, be an entire misapplication of the doctrine of presumption." But the same learned judge, in a later case, stated luminously the evidence which is required in cases of adultery; and his judgment there seems to contain a more comprehensive statement of this rule.

3

"It is a fundamental rule that it is not necessary to prove the direct fact of adultery; because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely indeed that parties are surprised in the direct fact of adultery. In every case almost, the fact is inferred from circumstances that lead to it by a fair and necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which

lead to such a conclusion cannot be laid down universally... because they may be infinitely diversified by the situation and character of the parties, by the state of general manners, and by many other incidental circumstances, apparently slight and delicate in them

Supra.

21 Hagg. Cons. Rep. 105. 32 Hagg. Cons. Rep. 2.

selves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations. Neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature, they are facts determinable upon common grounds of reason; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtilties and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same."

It would therefore appear from this case that the rule laid down in the two previous cases, must be confined to criminal proceedings, and that it does not extend to civil proceedings.

Presumptions are said to be either presumptions of law or of fact. But as this distinction appears to be more technical and artificial than real, it will not be attempted to define it. Some presumptions are conclusive, and others are disputable. We proceed to give prominent examples of both classes.

XXIII. The law presumes innocence.

Thus the proof of guilt lies generally on the prosecutor, and where that is deficient, the prisoner must be acquitted; and this is so, even where the act charged is only one of omission. Where any act is required to be done on the one part, so that the party neglecting it would be guilty of a criminal neglect of duty in not having done it; the law presumes the affirmative, and throws the burthen of proving a negative on the other