EVIDENCE. 



115 



therefore, tliat evidence may be competent to be pro- 

 duced before a jury, when it may, nevertheless, not 

 amount to credible proof, so as to satisfy the minds of 

 the jury ; and, on the other hand, it may be such, as, 

 if before them, would satisfy their minds of the truth 

 of the fact, but yet, by the rules of law, it is not ad- 

 missible. Whether there is any evidence of a fact, is 

 a question for the court, whether it is sufficient, is a 

 question for the jury, when the cause is tried by a 

 jury. 



Evidence is, in its nature, divisible into two sorts : 

 first, that which is direct and positive proof of any 

 fact ; and, secondly, that which is presumptive and 

 circumstantial. It is again divisible, in respect to 

 the mode or instruments of proof, into two sorts : 

 first, written evidence ; and, secondly, unwritten or 

 oral evidence. We are accustomed to consider that 

 as direct and positive evidence, which is proved by 

 some writing containing- a positive statement of the 

 facts, and binding the party whom it affects ; or that 

 which is proved by some witness, who lias, and avers 

 himself to have, positive knowledge thereof, by 

 means of his senses. Whenever the fact is not so 

 directly and positively established, but is deduced 

 from other facts in evidence, it is presumptive and 

 circumstantial only. Perhaps, in a strictly philoso- 

 phical sense, much of the evidence usually denomi- 

 nated positive is but presumptive ; for there is an ad- 

 mixture in it of some circumstances of presumption, 

 though the presumption may usually be deemed ir- 

 resistible proof. For instance, a promissory note is 

 offered in evidence, as signed by the defendant ; a 

 witness, who attested it, swears to the execution and 

 signature of the defendant. This is usually deemed 

 positive proof; and yet it will be at once perceived, 

 that it rests on the credibility of the witness, and the 

 presumption that he has sworn what is true, which is 

 a fact, that, in its nature, is not capable of absolute 

 proof. But, however this may be, in a practical 

 sense, the distinction above stated is sufficiently 

 intelligible and well-settled for all the purposes of 

 human life. 



I. As to presumptive evidence. It must be obvious 

 that in a very great proportion of the questions of 

 fact arising in the litigations before judicial tribunals, 

 the proofs must be of a merely presumptive nature. 

 The want of written proofs ; the death, or defect of 

 memory, or treachery, of witnesses ; the temptations 

 to suppress evidence ; the very nature of the tran- 

 saction itself, founded in fraud, or in secret contriv- 

 ances, or in personal confidence ; all these, and many 

 other considerations, require us to recur perpetually 

 to presumptive evidence. And especially is this true 

 in respect to public crimes ; for these are rarely com- 

 mitted under such circumstances as lead to positive, 

 unequivocal evidence of them. All presumptions are 

 necessarily founded upon the connexion which human 

 experience demonstrates usually to exist between a 

 certain fact or circumstance, and other facts and cir- 

 cumstances. When the one occurs, the others are 

 presumed to accompany them. Some presumptions 

 of this nature are so strong and irresistible, that the 

 law adopts them as presumptiones juris et de jure. 

 Others, again, are left to be judged of according to 

 the weight which the court and jury may think them 

 entitled to, taken in connexion with all the other 

 circumstances of the particular case. There are 

 other presumptions, or rather circumstances of pre- 

 sumption, which are so uncertain and unsatisfactory 

 in their own nature, that the law rejects them, as 

 unworthy of any credit, and too unsafe to found any 

 judgment upon. And presumptions, favourable or 

 unfavourable, often arise from the conduct, or mo- 

 tives, or want of motives, or character, or habits of a 

 party, and may justly influence the decision of a case. 



But it would lead us too far to enter upon a full illus- 

 tration of these remarks. The common law has laid 

 down many rules on the subject of presumptions, a 

 few of which it may not be improper to enumerate. 

 One is, that a man naturally intends the end and 

 result, which must be the immediate consequence of 

 his act. This is often applied to criminal cases. If 

 a man strikes another with a dangerous weapon, and 

 the effect of the blow would naturally produce death, 

 lie is deemed to intend to kill ; and, under such cir- 

 cumstances, he will not be permitted to set up as a 

 defence, that it was beside his intention. If a man 

 strike another on the head with a heavy axe, so that 

 his head is split open, and he instantly dies, the 

 offender will not be permitted to excuse himself by 

 pretending that he had no intention to kill. In our 

 law, malice is a necessary ingredient in the crime of 

 murder ; and if a man kill another upon slight pro- 

 vocation, or use weapons, which are necessarily 

 dangerous to Me, or conduct himself in a very cruel 

 and brutal manner, the presumption of the law is, 

 that the act is malicious, and this presumption will 

 prevail against any evidence of mere private inten- 

 tion to the contrary. Another presumption of law 

 is, that a man is innocent, until some proof is offered 

 that he is guilty of a crime. He is not bound, in the 

 first instance, to show his innocence, for the law im- 

 putes no wrong to him without some proof. But as soon 

 as such proof is offered against him, the presumption 

 disappears, and, under particular circumstances, the 

 burden of proof is on him to establish his innocence. 

 For instance, if one man is proved to have killed an 

 other, the law presumes the act malicious, unless cir- 

 cumstances arising from the evidence produced against 

 him repel that conclusion ; and therefore he is re- 

 quired satisfactorily to establish all the circumstances 

 of accident, necessity, or infirmity, on which he relies 

 for his defence These are instances in criminal 

 cases. And there are many rules of presumption of 

 a like nature in civil cases ; some of which are con- 

 clusive, and others, again, which are liable to be re- 

 butted by counter evidence ; some founded on natural 

 reasoning, and others, again, upon artificial grounds. 

 Among these are the following : Every person is 

 presumed to have done an act, the omission of which 

 would be criminal in him, until the contrary is shown. 

 Fraud is not to be presumed. A party is to be pre- 

 sumed to continue in life until the contrary is made 

 probable. Where the principal act or title is proved, 

 all the collateral circumstances to give it effect will 

 also be presumed. A debt will be presumed paid 

 after a long, unexplained lapse of time. Some pre- 

 sumptions of this nature are artificial. Thus, in our 

 law, a bond will be presumed to be wholly paid after 

 twenty years, where there have been no intermediate 

 payments or recognitions of the debt. A man will 

 be presumed to be dead after an absence of seven 

 years, unexplained. An heir will be presumed to be 

 in possession of land, of which his ancestor died 

 seised. After twenty years enjoyment of an easement 

 or servitude, a title will be presumed. OH the other 

 hand, there are certain presumptions, which the law 

 rejects (as has been already stated), because of their 

 uiisatistacio. y nature and tendency. Thus, it is a 

 general rule, that hearsay, or mere report and repu- 

 tation of a fact, is not evidence, for this amounts to 

 no more than the mere declarations of third persons, 

 not under oath, and of f;;cts of which they may have 

 no certain knowledge. Our law generally requires, 

 that every fact to be substantiated against a person, 

 should be proved by the testimony of a witness (when 

 it is to be proved orally), who is sworn to speak the 

 truth ; or, if it is dependent upon written evidence, 

 it must be proved by evidence that is sanctioned by 

 him, or by which he ought to be bound, as importing 



