w^m0mm^:^i^M- UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY moOODTOB Bo-CiXQ^^'^t^ ".\iT, PR^smiPTioiTs OF Mw mD pR^smi^TiajTS of faots, lev? Disputed Questions of Evidence RELEVANCY: PRESUMPTIONS OF LAW AND PRESUMPTIONS OF FACT. By FRANCIS WHARTON, LL.D. REPRINTED FROM THE SOUTHERN LAW REVIEW. ST. LOUIS: G. L JOXES AXI) COMPANY. 1877. T U3 55'54cl 1277 SOME DISPUTED QUESTIONS OF EVIDENCE. I. RELEVANCY. Sir J. F. Stephen, in his Indian Evidence Act of 1872, pro- poses the following rules as to relevancy : " Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue, and of such other facts as are hereinafter declared to be relevant, and of no others. " Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place, or at different times and places. " Facts which are the occasion, cause, or effect, immediate or otherwise, of relevant facts, or facts in issue, or which afforded an opportunity for their occurrence or transaction, are relevant. " Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. " Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference sug- gested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is rele- vant, or fix the tim.e or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact w^as transacted, are relevant in so far as they are necessary for that purpose. " Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done, or written, by any one of such persons in reference to their common inten- tion, after the time when such intentionr was first entertained by any one of them, is a relevant fact as against each of the %^ \S"5^ 4 DISPUTED QUESTIONS OF EVIDENCE. persons believed to be so conspiring, as well for the purpose of proving the existence of the conspiracy, as for the pur- pose of showing that any such person was a party to it. "Facts not otherwise relevant are relevant: (i) if they are inconsistent with an\- fact in issue or relevant fact ; (2) if by themselves, or in connection with other facts, they make the existence or non-existence of any fact in issue or relevant fact highh' probable or improbable. " In suits in which damages are claimed, any fact which, will enable the court to determine the amount of damages which ought to be awarded is relevant. " Where the question is as to the existence of any right or custom, the following facts are relevant: " (a) Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted^ or denied, or which was inconsistent with its existence ; " (d) Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its existence was disputed, asserted, or departed from. " Facts showing the existence of any state of mind — such as intention, knowledge, good-faith, negligence, rashness, ill- will, or good-will towards any particular person, or showing the existence of any state of body or bodily feeling — are relevant w^hen the existence of any such state of mind or body or bodily feeling is in issue or relevant. "Where there is a question whether an act was accidental or intentional, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was concerned, is relevant." To Mr. Whitworth, an English barrister, we are indebted fcr the following modification of Sir J. F. Stephen's scheme : " R^t/c I. — No fact is relevant which does not make the existence of a fact in issue more likely or unlikely, and that to such a degree as the judge considers will aid him in decid- ing the issue. '^ Rule II. — Subject to Rule I, the following facts are rele- vant: DISPUTED QUESTIONS OF EVIDENCE. 5 1. Facts which are part of, or which are implied by, a fact in issue ; or which show the absence of what might be expected as a part of, or would seem to be implied by, a fact in issue. 2. Facts which are a cause, or which show the absence of what might be expected as a cause, of a fact in issue. 3. Facts which are an effect, or which show the absence of what might be expected as an effect, of a fact in issue. 4. Facts which are an effect of a cause, or which show the absence of what might be expected as an effect of a cause, of a fact in issue. "Rule III. — Facts which affirm or deny the relevancy of facts alleged to be relevant under Rule II are relevant. " Rnlc n\ — Facts relev'ant to relevant facts are relevant." Sir J. F. Stephen, in his " Digest of the Law of Evidence," now gives the following as exhibiting his final views, adopt- ing, in part, Mr. Whitworth's phraseology: " P^vidence may be given in any action of the existence or non-existence of any fact in issue, and of any fact rele- vant to any fact in issue, and of no others. * * * Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction or subject-mat- ter, are relevant to the fact w-ith which they are so connected. * * * Facts, whether in issue or not, are relevant to each other when one is, or probably may be, or probably ma}^ have been, "The cause of the other; "The effect of the other; " An effect of the same cause : " A cause of the same effect ; or when the one shows that the other must or cannot have occurred, or probably does or did exist, or not; or that any fact does or did exist or not, which in the common course of events would either have caused, or have been caused, by the other ; provided that such facts do not fall within the exclu- sive rules," before stated, "or the exceptions," afterwards stated. 6 DISPUTED QUESTIONS OF EVIDENCE, These exclusions and exceptions arc afterwards thus speci- fied: "■ SiDiilar but uiicouucitcd facts. The occurrence of a fact similar to, but not specifically connected in, any of the ways hereinbefore mentioned with the facts in issue, is not to be regarded as relevant to the existence of such facts except in the cases specially excepted in this chapter." The excep- tions are : "Acts showing intention, good faith, etc.; " Facts showing system ; " Existence of a particular course of business ; "Acts showing that a particular person assumed to be a public officer." To the analysis just given, however, there are objections which I state in outline in my forthcoming w^ork on Evidence (§ 26), and which I now expand. What is a "cause?" Is not the term open to at least two divergent meanings ; and does not the value of the analysis before us depend upon our assuming one of these definitions to be true, where there are many reasons to regard it as untrue? The "cause" of a phenomenon, according to Mr. Mill, is the sum of all its antecedents. The objection to this, however, as is shown by Trendelenberg, in his acute essay on this topic, is, that as all nature is interdependent, everything thus becomes the cause of everything else ; and, hence, as all things unite in this lateral causation, all evidence is relevant to every issue, and no issue can be narrowed to any particular line of evidence. On the other hand, if we mean by " cause," as I have heretofore argued in this Review, such an interposition, by a responsi- ble moral agent, as produces specifically the particular phenomenon in litigation, then to say that a particular fact is relevant to prove causation is assuming the very point in issue, which is whether the causation flowed from the particu- lar fact. Another criticism I would venture on Sir J. F. Stephen's analysis is, that the distinction made by him between " facts in issue" and "facts relevant to facts in issue" cannot be sustained. An issue is never raised as to an evidential fact ; the only issues the law knows are those which affirm or deny DISPUTED QUESTIONS OF EVIDEN'CE. / conclusions from one or more evidential facts. This is shown by Sir J. F. Stephen's own illustration: "A," he says, w'hen explaining the supposed distinction, " is indicted for the murder of B, and pleads not guilty. The following facts ma}- be issued : the fact that A killed B ; the fact that at a time when A killed B he was prevented by disease froni knowing right from wrong; the fact that A had received from B such provocation as would reduce his offence to man- slaughter. The following facts w^ould be relevant to the issue : the fact that A had a motive for murdering B; the fact that A admitted that he had murdered B; the fact that A was, after B's death, in possession of property taken from B's person." If we scrutinize the group of facts classified in the last quotation as " facts in issue," we will find that, as they are facts which could not be put in evidence, they are not relevant facts, though they might be relevant hypotheses to be sustained by relevant facts. If counsel should ask a wit- ness whether "A killed B," the question would, if excepted to, be ruled out, on the ground that it called, not for "facts," but for a conclusion from facts, and to such conclusions wit- nesses are not permitted to testify. Equally summarily would be dismissed the questions whether " A knew right from wrong," and whether "A had received from B such provocation as would reduce his offence to manslaughter." The only way of proving either of these " fact in issue," as they are called by Sir J. F. Stephen, is by means of what he calls " facts relevant to the issue." Did A kill B ? We cannot say hat it would be relevant to the issue for a witness to say, " A killed B," for a witness would not be permitted so to testify. No facts are relevant which are inadmissible ; and the fact that A killed B, being in this shape inadmissible, is irrelevant. It is, however, admissible — to take up Sir J. F. Stephen's illustration of facts relevant to the issue — to prove that A had a motive for murdering B; the fact that A admitted that he had murdered B ; the fact that A was, after B's death, in possession of property taken from B's person. From such facts, taken in connection with facts which lead to the con- clusion that A struck the blow from which B died, the 8 DlSrUTKO QUESTIONS OF l.VinEN'CE. hypothesis that A murdered 1^^ is to be verified or discarded. The same Hne of observations is apphcable to the second and third of the '"facts in issue" mentioned by Sir J. F. Stephen. The proof of A's inability to distinguish right from wrong, and of the e.xtenuation of his offence through hot blood, can only be made by proving " facts relevant to the issue" from uhich irresponsibilit}' or hot blood can be inferred. We must, therefore, strike out from the category of relevant facts what Sir J. F. Stephen calls " facts in issue," or what may be more properly called pertinent hypotheses, and limit ourselves to the position that all facts relevant to "facts in issue" (or to pertinent hypotlieses) are, as a rule, admissible. If we discard, as ambiguous, the word "fact," and substitute for it the word " condition " (corresponding to the logical " diffctriiha" or incident), then the position we may accept is that all conditions of a pcriiiiciit hypothesis are relevant to the issue, and that such conditions may be either proved or disproved.'^ It may, however, be objected that the definition I now pro- pose is ambiguous in the use of the word "pertinent;" and that, by the introduction of this term, I beg the question at issue. I do not think so. By pertinent hypothesis I mean an hypothesis which, if proved, would logically influence the issue. Suppose, for instance, the question should arise before a duly constituted court, whether ]\Ir. Wells, of the Louisiana Returning Board, was guilt}^ of fraud in the altera- tion of returns. Relevancy in such an issue would be determinable, according to the definition I here propose, by free logic, and not by technical jurisprudence. The hypothesis set up by the prosecution in such a case would be that Mr. Wells, either for money or to gratify party zeal, tampered with the returns. If this hypothesis be sus- tained, the defendant, if the prosecution be properly con- ducted, would be deservedly convicted, and to sustain the hypothesis it would be admissible to prove any of its logical conditions. It would be relevant, for instance, to prove, as a * Note. — The above paragraph (as well as several others in the course of this article) is taken from the work on Evidence to which I have referred. DISPUTED QUESTIONS OF EVIDENCE. 9 ■condition of the hypothesis of corruption, that Mr. Wells took money, or offered to take money, for his action as a return judge; or that he made, personally or through dep- uty, falsifications in the records ; or that by his subsequent conduct he tacitly admitted such falsifications. It will be seen, therefore, from the illustration just given that the conditions of a pertinent hypothesis, which are as such relevant to an issue, are either prior, contemporaneous, or subsequent. A debt, for instance, for goods sold, as is contended, is sued for. Among the prior conditions of the liypothesis (or contention) of indebtedness may be mentioned the possession by the plaintiff of the goods. As contempora- neous conditions are to be classed what we call the res gest(S, or circumstances of the sale. Among the subsequent condi- tions is the conduct of the debtor, more or less effectively admitting the debt. Or damages are claimed in a suit for injuring cattle by running them down on a railroad. Among the prior conditions of the liability are the unfenced condi- tion of the road, and the running of the locomotive at full speed over the unfenced sections. Among the contempora- neous conditions are the irs gcstce. Among the subsequent conditions is an admission of parties entitled to speak for the railroad company. In other cases we may regard as relevant conditions a party's subsequent conduct showing good or bad faith;' the subornation of witnesses to give a false account of a past transaction ; - subsequent acts of adultery to prove a prior act of adultery ;3 subsequent defamatory words to prove the animus of prior defamation.-* Of course, when the conditions of a pertinent hypothesis are relevant, it is relevant to prove conditions fatal to such •an hypothesis. If Mr. Wells were on trial, for instance, it would be relev^ant to prove that he was absent from Louisi- ana at the time of the commission of the frauds on the fran- ' Gerish v. Chaitier, i C. B. 13. 2 Melhuish v. Collier, 15 Q. B. 878. 3 Boddy V. Boddy, 30 L. J. Pr. & Mat. 23. 4 Pearson v. Le Maitre, 6 Scott N. R. 607; 5 M. & Gr. 700; Warwick v. Foulkes, 12 M. & W. 507 ; Simpson v. Robinson, 12 Q. B. 511. lO DISPUTED QUESTIONS OF EVIDENCE. chisc of that state ; or tluit he was himself the ignorant and unsuspecting dupe of others. Or, to turn to adjudicated cases, in a suit against a railroad corporation for negligently firing the plaintiff's farm, it is relevant for the defendant to prove the absence of conditions which would be the prob- able, if not necessary, conditions of such h}'pothesis. So, the defendant may show that his engines were so constructed as to make the profuse emission of fire highly improbable ; that the coals that escaped fell on the bed of the road, on which there was no accumulation of combustible material ; and that the fire by which the plaintiff was injured was traceable to the negligence of other parties. Or, when the hypothe- sis of the plaintiff is that, when A and B perished in the same ship at sea, A survived B, it is admissible for the defend- ant to show that before the shipwreck A was stronger than B ; that at the time of the shipwreck A was in a better place for the prolongation of life than B ; and that after the ship- wreck there were traces of A having escaped the common and immediate death of those remaining in the ship. Or, alibi being the hypothesis set up by the defence, it is admis- sible to prove even independent crimes committed by the defendant, if such proof refutes the hypothesis of alibi.^ One of the most interesting illustrations of the doctrine here laid down arises in cases in which accident or casus is set up as a defence. A forged note is passed, and the defence is : "I passed it ignorantly ; the whole thing was accident." Or a man is knocked down in the street, and his assailant, when put on trial, says: "This was all accident; I was jostled against him in the crowd." Or a carrier fails to comply with a contract made by him to transport goods from point to point, and sets up casus or vis major as his excuse. In each of these cases it is admissible to meet the hypothe- sis of vis major, casus, or accident, set up by the defence, by showing in rebuttal a series of other cases forming part of a system with that in litigation, and to which, as a bod}-, the defence in question would be absurd. The rule in such case 5 R. V. Briggs, 2 M. & Rob. 199; R. v. Rooney, 7 C. & P. 517; and see AVhart. on Ev. I 28. DISPUTED QUESTIONS OF EVIDENCE. 11' is that, when a system is estabhshed, the conditions of other members of the system may be proved to affect the case in court, has been further illustrated in cases in which the cus- toms of one manor are put in evidence to affect other man- ors of the same system. No rule is better established, or more frequently acted upon, than that which precludes the customs of one manor from being given in evidence to prove the customs of another; because, as each manor may have customs peculiar to itself, to admit the peculiar customs of another manor in order to show the customs of the manor in question would be inadmissible as a disconnected fact by the rule above stated, and would put an end to all question as to the peculiar customs in particular manors by throwing them open to the customs of all surrounding manors.^ But whenever a connection between the manors is proved, such customs become admissible. It is not enough, it is true, to show merely that the two lie within the same parish and leet ; nor even that the one was a subinfeudation of the other ; at least, unless it be clearly shown that they were separated after the time of legal memory, since otherwise they may have had different immemorial customs. On the other hand, the customs of manors become reciprocally admissible if it can be proved that the one was derived from the other after the time of Richard the First; and it has been also held, that if the customs in question be a particular incident of the general tenure which is proved to be common to the two manors, evidence may be given of what the cus- tom of the one is as to that tenure for the purpose of show- ing what is the custom of the other as to the same.? On the same principle, w4ien value is in question, and when certain things are proved to belong to a system, then the market value of such other things is relevant for the purpose of determining the market value of whatever is part of the system.^ We must at the same time remember that 6 Anglesey v. Hatherton, lo M. & W. 235. 7 Ibid. ; Stanley v. White, 14 East, 338. 8 Campbell v. U. S., 8 Ct. of CI. 240; Kansas Stockyard Co. v. Couch, 12. Kans. 612; Waterson v. Seat, 10 Fla. 326. 12 DISPUTED QUESTION'S OF EVIDENXE. a remote period, under different conditions, cannot in any view be taken as a standard.^ nor can peculiar associations, likely to give a factitious value, be taken into account.'" Distant markets cannot be consulted in proof of value ;" though it is otherwise if the markets be in any way inter- dependent,'- or sympathetic. '3 Nor is it admissible for things of a different species to be taken into consideration in deter- mining value ;'■♦ nor should much weight be attached to proof that prices had been offered in private negotiations by third parties; such evidence being open to fraud, and, at the best, indicating only private opinion, not the opinion of a market. '^ And while hearsay is admissible to prove the state of a market,"^ the value of an article, or the extent of a party's income, cannot ordinarily be inferred from the record of a tax assessment. This is the act of a third party, who must be called if obtainable. A still more striking illustration of relevancy based upon system is to be found in the admissibility of collateral facts when such facts go to indicate constant natural laws. The seasons, for instance, pursue, in the long run, a regular course ; and we may, therefore, presume that winter is cold and summer is warm ; though this is open to proof that in an exceptional season the w'inter is comparatively mild, and the summer is comparatively cool. It may be that in a particular 9 The Pennsylvania, 5 Ben. 253; White v. R. R. 30 N. H. 18S; French v. Piper, 43 N. H. 439; Paine v. Boston, 4 Allen, 168; Benham v. Dunbar, 103 Mass. 365; Dixon V. Buck, 42 Barb. 70; Columbia Bridge v. Geisse, 38 N. J. L. 39. See Potteiger V. Huyett, 2 Notes of Cas. 690; Abbey v. Dewey, 25 Penn. St. 413; East Brandywine R. R. v. Ranck, 78 Penn. St. 454. ^° Palmer v. Ferrill, 17 Pick. 58; McCracken v. West, 17 Ohio, 16. '^ Davis V. Sherman, 7 Gray, 291; Fowler v. Middlesex, 6 Allen, 92. See,, generally, Kent v. Whitney, 9 Allen, 62; Boston R. R. v. Montgomery, 119 Mass. 114; Freyman v. Knecht, 78 Penn. St. 141 ; Shenango v. Braham, 79 Penn. St. 447: Baber v. Rickart, 52 Ind. 594; McLaren v. Birdsong, 24 Ga. 265. ^^ Harrington V. Baker, 15 Gray, 538; Greeley v. Stilson, 27 Mich. 153. ^3 Siegbert v. Stiles, 39 Wis. 533. '4 Cliquot's Champagne, 3 Wall. 1 14; Kermott v. Ayer, 11 I\Iich. 181 ; . Sisson V. R. R., 14 Mich. 489; Comstock v. Smith, 20 Mich. 338. 15 Gouge V. Roberts, 53 N. Y. 619. ^^ Perkins v. People, 27 Mich. 386. DISPUTED QUESTIONS OF EVIDENCE. 13- winter, even in a northern climate, we may have no snow- storms ; yet we infer that what is usual is continuous, and not only do we take each fall the steps that will enable us to shelter ourselves against snow, but we assume as to any given past winter that there fell in it the usual quantity of snow. So with regard to ice. In New England, for in- stance, ice crops are usually formed each winter, and these may be stored if due diligence be shown ; and on a suit based on lack of diligence in this respect it would be inferred, . until the contrary was shown, that the winter was cold enough to produce the usual quantity of ice. Hence it is that casus, or the extraordinary interruption of apparent physical laws, must be affirmatively shown by the party alleg- ing such interruption ; and, until such proof, that which is usual is deemed to be constant. In order, however, that evi- dence based on the constancy of nature should be received, similarity of conditions should be first established. Thus in an action to recover damages for injury caused by removing stones from a river, resulting in the washing away the plaint- iff's land, it has been held not error to exclude evidence of the effects of the action of the water at another place and time, the forces and surroundings not being first shown to be alike. '7 One of the most difficult questions that arises in this con- nection is that which is presented when, to prove that the negligent dropping of fire by a locomotive was the cause of a particular conflagration by which adjacent property w'as consumed, the effort is made to put in evidence prior fires caused unquestionably by sparks proceeding from engines traveling the same road. Evidence of this class may be offered so as to meet two distinct phases of fact. The first is when a plaintiff, after proving that his house was fired by sparks emitted by engine No. i on the defendant's road, offers to show that on several former occasions sparks were emitted by the same engine in such profusion as to lead to the inference that the engine was either defectively con- ^^ See Hawks v. Inhabitants, no Mass. no. On the general topic, see Mill's Logic, ch. xiv. 14 DISPUTED QUKSTIONS OF EVIDEN'CE. structcd or carelessly driven. In such case we must hold the evidence to be admissible. The fact that the engine has frequently caused damage of this kind indicates defects in its construction which impose upon its owner, if not its condem- nation, at least the exercise of peculiar care both in its repair and its management; and that such care was applied, the burden, after proof of frequent fires caused by the same engine, is on him to show. On the other hand, suppose that, after the plaintiff proves a firing from engine No. i, he offers to show a series of prior firings from engines Nos. 2, 3, 4, 5, and 6, without offering to show that there was such identity of construction of the engines, as a mass, as to make it prob- bable that the defects in engines Nos. 2, 3, 4, 5, and 6 existed in engine No. i. In such case the proof of firing from any other engine than No. i would be as irrelevant as, in an action by A for hurt from a kick of a horse belonging to B, it would be irrelevant to show that on other distinct occa- sions other horses of B had kicked C, D, and E.'^ There is, however, another contingency in which the argu- ment from system does not apply. Suppose, for instance, that when evidence of prior firings by certain specified engines is offered, there is no identification, on the part of the plaintiff, of the engine by w^hich the fire was emitted ; or suppose that, though that particular engine is identified, there is no identification of the engines causing the prior fires, is the evidence relevant ? We have now to touch a question of probabilities which has already been noticed, and we may adduce, in explanation, the same illustration. Although there were one hundred thousand people of a particular class at a particular place at a particular time, yet it is relevant to prove that A was at that place at that time when the ques- tion is whether A did something that could only have been done at that place and time. So, when an offer is made of a series of firings from a series of unidentified locomotives on the same road, such offer is relevant as one of the conditions of an hypothesis which charges a particular locomotive with iS Erie R. R. v. Decker, 78 Penn. St. 293. See Waugh v. Sluink. 20 Penn. ^St. 130; Carson V. Godley, 26 Penn. St. iii. DISPUTED QUESTIONS OF EVIDENCE. I5 the firing. Of weight, if disconnected with other evidence, it cannot be ; relevant, for the reasons just stated, it certainly is. "The third assignment of error," so speaks Mr. Justice Strong, in giving an opinion to this effect in the Supreme Court of the United States in 1876, '9 is "that the plaintiffs were allowed to prove, notwithstanding objection by the defendants, that at various tim.es during the same summer, before the fire occurred, some of the defendants' locomotives scattered fire when going past the mill and bridge, without showing that either of those \\hich the plaintiffs claimed communicated the fire were among the number, and without showing that the locomotives were similar in their make, their state of repair, or management, to those claimed to have caused 'the fire complained of. The evidence was admitted after the defendants' case had closed. But, whether it was strictly rebutting or not, if it tended to prove the plaintiffs' case, its admission as rebutting was within the discretion of the court below and not reviewable here. The question, therefore, is whether it tended in any degree to show that the burning of the bridge and the consequent destruction of the plaintiffs' property was caused by any of the defendants' locomotives. The question has often been considered by the courts in this country and in England, and such evidence has, we think, been generally held admissible as tending to prove the possibility, and a consequent proba- bilit)^ that some locomotive caused the fire, and as tending to show a negligent habit of the officers and agents of the railroad company."-" Or, again, if the defendants should set up the hypothesis of casus, or of one of those occasional mechanical aberrations which due diligence cannot exclude, then it is relevant to show, as militating against this hypothe- ^9 Grand Trunk R. R. v. Richardson, gi U. S. (i Otto) 454. 2° As concurring in this conckision may be cited : Aldridge v. R. R., 3 Man. & G. 515: IMgott V. R. R., 3 M. cS: W. 229; Boyce v. R. R., 42 N. H. 97, 43 N. H. 627; Cleaveland v. R. R., 42 Vt. 449; Sheldon v. R. R., 14 N. Y. 218; Fiekl V. R. R.. 32 N. Y. 339; Westfall v. R. R., 5 Hun (N. Y.), 75; Ilayatt v. R. R., 23 Penn. St. 373; R. R. v. Williams, 42 111. 358; St. Jos. R. R. V. Chase, 11 Kans. 47; Longabaugh v. R. R., 9 Nev. 271; Penn. R. R. V. Stranahan, 32 Leg. Int. 449; 2 Weekly Notes, 215. l6 UISrUTKI) QUESTIONS OF EVIDEN'CE. sis, that other engines, constructed on the same general system as that by which the engine occasioning the fire was constructed, had emitted sparks to an extent from which neghgence in the construction of the engines, if not in the care of them, may be inferred.^' To meet another probable hypothesis such evidence may be relevant. It may be maintained by the defendants that the object fired was beyond the reach of sparks from their engine. In answer to this it has been held relevant for the plaintiff to prove that, a short time before, the defendants' engines, when passing the same point, emitted sparks which fell further than the building for whose firing the plaintiff sues. II. PRESUMPTIONS OF FACT AND PRESUMPTIONS OF LAW. The fallac}^ 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 prccsuuitio, in its classical sense, means exxlu- sively 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 " pre- sumption," already discussed by me, is thus noticed by Mr. Mill : " " To be acquainted with the guilty is a presznnption of guilt; this man is so acquainted, therefore wemay/;r- siivic that he is guilty ; this argument proceeds on the sup- position of an exact correspondence between presmne and presumption, which does not really exist ; for ' presumption ' is commonly used to express a kind of sligJit suspicion, whereas ' to presume ' amounts to absolute belief." Whether Mr. Mill is right in his definition of "presume" and "pre- sumption " need not now be considered. It is enough for the present purpose to say that the words, even if not dis- 2' Ross V. R. R., 6 Allen, 87; Sheldon v. R. R., 14 N. Y. 218; Burke v. R. R., 7 Heisk. 451. See Piggott v. R. R., 10 Jurist, 571 ; 3 Man. Gr. & S.. 229; Aldredge v. R. R., 3 M. & G. 515. 22 Mill's Logic, II, 442. DISPUTED QUESTIONS OF EVIDENCE. 1/ tinguishablc in the way Mr. Mill states, go to a jur}% if left without explanation, open to meanings from which conclu- sions diametrically opposite can be drawn. The term " law " may be used, in connection with presumptions, in three senses: (i) 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 pre- sumption of fact is "legal" — /. i\, 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 abso- lute 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 pre- sumptions in fact is not formal, but real, will be seen by the following analysis : I. A presumption of law derives its force from ///m/;?/- doicc 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 arbi- trarily 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 per- sons 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 con- cealed weapon, there being no statute, does so with an evil intent, is a question of logic — (/. c, probable reasoning, acting on all the circumstances of the case) — with which technical 10 DISPUTED QUESTIONS OF EVIDENCE. 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 legis- lature. 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 pre- sumption of sanity. Presumptions of law, therefore, are uniform and constant rules, binding only generically. Pre- sumptions 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 qucm iiuptiae dcmonstrant. 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 abso- lutely 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 evi- dence 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 DISPUTED QUESTIONS OF EVIDENCE. I9 presumptions of law only as a consequent. Until the evi- dence 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 presump- tions 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 ivitk 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 essen- tial 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 pre- sumption of fact applicable to one case, therefore, is inap- plicable, 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 ^v'hich it is uniformly applicable, in anticipation of the facts developed on trial. Thus, for in- stance, all children born in wedlock are presumed by law to be legitimate until the contrary be proved ; and this pre- sumption 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 ot fact attachable to conditions as to which not two cases pre- sent 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,Jntention, which is eminently a matter 20 DISPUTED QUESTIONS OF EVIDENCE. 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 pctitio 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 infer- ence of fact, in respect to intent, into a presumption of law, may be thus illustrated: "All men who kill do so mali- ciously. A has killed B ; therefore he has done so mali- ciously." This is the argument as to intent put syllogistic- ally. 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 ; there- fore," 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 presump- tions 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, consequentl}- has such intent ; " but it is, "The circum- DISPUTED QUESTIONS OF EVIDENCE. 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, ivhich the publisher knoivs to be false, raises, under the plea of ' Not guilty ' to an action for libel, a con- clusive presumption of malice." ^3 Now, here again is either a mere petitio principii, being equivalent to saying, " A false- hood uttered deliberately and knowingly is a falsehood uttered deliberately and knowingl}-," 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 pub- lication is privileged, then, in order to show malice, facts inconsistent with bo)ia fides must be proved. ^+ Whether there is malice, therefore, even by force of the very line of cases before us, is a question of fact, determined by the evi- dence 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. '^ 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 priiieipii, or it rests on a false pre- mise, 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 23 Taylor's Evidence, g 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. jMaule, L. R. 4 Ex. 232 ; Whitefield v. R. R., i E., B. & E. 115. 25 Tapp V. Lee, 3 Bos. & Pul. 371. See Pontifexv. Bignold, 3 M. & Gr. 63. 22 DISPUTED QUESTIONS OF EVIDENCE. is not proved.''^ 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 assign- able to a certain subject. A presumption of fact is an argu- ment 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 dis- tinguished 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 praesumtiones, probando amicitiam etafifinitatem 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 eo^quod plurimum accidit, ex eo quod fieri solet. ^^ See those cases enumerated in detail in Whart. Cr. Law (7th ed.) II 2118, 2133. DISPUTED QUESTIONS OF EVIDENCE. 23 Quis semper igiiorare praesumitur, nisi scire probetur. Praesumitur ex eo quod plurimum accidit, ex eo quod fieri solet.* Tailored, a Bolognese jurist and ecclesiastic, whose work on the ordo judiciaris was written in 1324, though not pub- lished until 15 15, 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 prejjosterous is the fallacy they con- tain. 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 inten- tional 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 pnvsiinitionihus he discusses at large prczsunitiones juris et de jure and prcesumtioiies juris^ recognizing at the same time as authoritative the Aristotelian distinction between probatio inartijicialis and prohatio artiji- cialis. A presumption juris et de jure, he tells us, is one established by law, and is called de jure because " super tali prsesumtione lex inducit firmum ius et habet eam pro veri- tate." This kind of presumption is the " dispositio legis aliquid prassumentis et super pra^sumto tanquam sibi com- perto statuentis," and is irrebuttable. A prcesunitio 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 sig)io proveniens ; Alciatus properly holding that, to enable a presumption of *NOTE. — See these and others quoted in Burckhardt, Presumtionen, 14-15. 24 DISPUTED QUESTIONS OF EVIDENCE. 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 prov- inces of law as the philosophy of social experience, and of law as jurisprudence, were not clearly distinguished) that ■every probabilis coiijcctura is a pncsimitio juris. As to the prcBsumtio Jiomiiiis he does not discourse ; but among /'r