Probative force of a chain of presumptive proof. as convincing, and in some cases far more convincing, than one arising from direct testimony (o). § 289. The elements, or links, which compose a chain of presumptive proof are certain moral and physical coincidences, which individually indicate the principal fact; and the probative force of the whole depends on the number, independence, weight, and consistency of those elementary circumstances. A number of circumstances, each individually very slight, may so tally and confirm each other as to leave no room for doubt of the fact they tend to establish. "Infirmiora [argumenta] congreganda sunt ****. Singula levia sunt, et communia: universa vero nocent, etiamsi non ut fulmine, tamen ut grandine (p)." Not to speak of greater numbers; even two articles of circumstantial evidence,— though each taken by itself weigh but as a feather,join them together, you will find them pressing on a delinquent with the weight of a mill-stone (q). Thus, on an indictment for uttering a bank-note knowing it to be counterfeit, proof that the accused uttered a counterfeit note amounts to nothing, or next to nothing,-any person might innocently have in his possession, and offer in payment, a counterfeit note: but suppose further proof adduced, that, shortly before the transaction in question, he had in another place, and to another person, offered another counterfeit note of the same manufacture, the presumption of guilty knowledge becomes tolerably strong (r). If, however, all the circumstances proved arise from one source they are not independent of each other, and an increase in the number of the circum (0) 1 East, P. C. 223; per Mounteney, B., in Annesley v. The Earl of Anglesea, 17 Ho. St. Tr. 1430; Paley's Mor. Philos. bk. 6, ch. 9. (p) Quint. Inst. Orat. lib. 5, (9) 3 Benth. Jud. Ev. 242. (r) See R. v. Wylie, or Whiley, 1 N. R.92; 2 Leach, C. L. 983; R. v. Ball, R. & R. C. C. 132; 1 Campb. 324; R. v. Green, 3 Car. & K. 209. stances will not in such a case increase the probability of the hypothesis (s). It is, however, of the utmost importance to bear in mind, that, where a number of independent circumstances point to the same conclusion, the probability of the justness of that conclusion is not merely the sum of the simple probabilities of those circumstances, but is the multiplied, or compound ratio of them (t). Lastly, the circumstances composing the chain (s) Beccaria, Dei Delitti e delle Pene, §7; 1 Stark. Ev. 567, 3rd Ed.; Id. 851, 4th Ed. (t) 1 Stark. Ev. 568, 3rd Ed.; Id. 853, 4th Ed.; 2 Ev. Poth. 342. The position that the degree of assurance of the guilt of an accused person derived from a long and connected chain of presumptive evidence may equal, and in many cases far exceed, that derived from a limited portion, (and in most criminal cases it must necessarily be a very limited portion), of direct testimony, is strongly illustrated by the formulæ of the mathematical calculus of probabilities, to which reference has been made in the Introduction to this work, sect. 2, § 73, n. (z). Suppose 2 persons, A. &. B., are charged with 2 distinct acts equally criminal-say, for instance, 2 distinct murders-and, in order to simplify the question, let us conceive the probability of the principal fact equal in both cases. The evidence against A. is altogether direct, consisting of the positive testimony of two witnesses, of apparently equal credit, E. and F. The probability of the truth of their united testimony depends on the values assignable and me 1 ; or, the mPnP 1000001 probability of truth is to that of error 1000000: 1. Return now to the case of B., all the evidence against whom is purely circumstantial and presumptive. Instead of two witnesses to the fact, there are twenty-four circumstances adduced in evidence. The probability of guilt, resulting from each singly, to that of innocence, we will take as low as 2: 1. We then have m2, n=1, and p=24. Substituting these values as before, mn16777216+1; or, the probability of his guilt is to Presumption. must all be consistent with each other, -a principle sufficiently obvious in itself, and which will be further illustrated presently (u). § 290. The term "presumption," in its largest and most comprehensive signification, may be defined, where, in the absence of actual certainty of the truth or falsehood of a fact or proposition, an inference, affirmative or disaffirmative of that truth or falsehood, is drawn by a process of probable reasoning from something which is taken for granted (x). It is, however, rarely employed that of his innocence in a proportion exceeding sixteen millions to unity. It will, of course, be understood that these numbers are only assumed for the purpose of illustration; but the above expressions clearly shew, that, however high the credit of an eyewitness be taken, circumstances may so accumulate as to give a probability greater than any assignable. (u) Infra, sect. 3, sub-sect. 2. (x) "Præsumptio nihil est aliud, quàm argumentum verisimile, communi sensu perceptum ex eo, quod plerumque fit, aut fieri intelligitur." Matthæus, de Crimin. ad lib. 48 Dig. tit. 15, c. 6. The definition of Huberus, Præl. Jur. Civ. lib. 22, tit. 3, N. 14, is much the same-" Anticipatio judicii, de rebus incertis, ex eo, quod plerumque fit, percepta." See also id. N.3. "Est nihil aliud præsumptio quam opinio ex probabili ratiocinatione concepta." Vinnius, Jurispr. Contr. lib. 4, cap. 36. "Præsumptio est probatio negotii dubii ex probabilibus argumentis." G.A. Struvius, Syntag. Jur. Civ. Exercit. 28, Art. XV. "Præsumptio est probatio per argumenta probabilia facta.” Westenbergius, Principia Juris, lib. 22, tit. 3, § 21. See also id. § 4. Præsumptio est collectio, seu illatio, probabilis ex argumentis per rerum circumstantias, frequenter evenientibus, conjiciens." Strauchius, ad Univ. Jus Privat. &c. Dissert. 25, Aphor. 33. J. Voet, Ad Pand. lib. 22, tit. 3, n. 14, says presumptions are "Conjecturæ ex signo verisimili ad probandum assumptæ ; vel opiniones de re incertâ, necdum penitùs probatâ." "On peut définir la présomption, un jugement que la loi ou l'homme porte sur la vérité d'une chose, par une conséquence tirée d'une autre chose. Ces conséquences sont fondées sur ce qui arrive communément et ordinairement." Pothier, Traité des Obligations, Part. 4, ch. 3, sect. 2, § 839. See also Bonnier, Traité des Preuves, 635. "A presumption of any § fact is, properly, an inferring of pre- Legal significa in jurisprudence in this extended sense. Like " sumptive evidence" (y), it has there obtained a restricted that fact from other facts that are known; it is an act of reasoning; and much of human knowledge on all subjects is derived from this source. * * *. In matters that regard the conduct of men, the certainty of mathematical demonstration cannot be required or expected." Per Abbott, C. J., in R. v. Burdett, 4 B. & A. 161, 162. "Where the existence of one fact so necessarily and absolutely induces the supposition of another, that if the one is true, the other cannot be false, the term presumption cannot be legitimately applied." 2 Evans, Poth. 329. See also Locke on the Human Understanding, B. 4, ch. 14, § 4. The following very different definition is however given in an able treatise on the Law of Evidence. "A presumption may be defined to be an inference as to the existence of one fact, from the existence of some other fact, founded upon a previous experience of their connection. To constitute such a presumption, a previous experience of the connection between the known and inferred facts is essential, of such a nature, that as soon as the existence of the one is established, admitted, or assumed, the inference as to the existence of the other immediately arises, independently of any reasoning on the subject. It also follows, from the above definition, that the inference may be either certain, or not certain, but merely probable, and therefore capable of being rebutted by proof to the contrary. According to some writers, the term presumption is not strictly applicable where the inference is a necessary one, and absolutely conclusive, as where it is founded on the certain and invariable course of nature. Such a distinction appears however to be an unnecessary one; and it may well be doubted whether the distinction be founded on sound principles. The Roman lawyers used the term in the more extensive sense. Their præsumptio juris et de jure was conclusive." 3 Stark. Ev. 927, 3rd edit. With respect to this last observation, it is to be remarked that the præsumptio juris et de jure of the Roman law derived its conclusive effect, not from the supposed force of the inference, but because the law superadded something to its own presumption. That sort of presumption is defined both by Alciatus and Menochius "dispositio legis aliquid præsumentis, et super præsumpto tanquam sibi comperto statuentis." Alciatus, de Præs. Pars 2, N. 3; Menochius, de Præs. lib. 1, quæst. 8, N. 1. "Præsumptio juris et de (y) See Introd. sect. 1, § 27, and supru, § 286. tion. legal signification, and is used to designate an inference, affirmative or disaffirmative of the existence of some fact, jure," says Vinnius, Jurisp. Contract. lib. 4, cap. 36, “dicitur, cum lex ipsa præsumit et simul disponit si modò præsumptio, ac non potiùs juris quædam constitutio dicenda est." And the same may be said of the conclusive presumptions of our own law, in which "the rule of law merely attaches itself to the circumstances, when proved; it is not deduced from them. It is not a rule of inference from testimony; but a rule of protection, as expedient, and for the general good." 1 Greenl. Ev. § 32, 4th Ed. This use of presumption as a generic term, applicable to certain as well as to contingent inferences, is indeed justified by the example of some other distinguished writers (Menoch. de Præs. lib. 1, quæst. 3 & quæst. 7, NN. 2 & 3; Titius, Jus Privat. lib. 2, c. 11, § 14, &c.); but their authority is overborne by those collected above, the number of which might easily be increased. Try the question by this test. Would it be correct to say that sexual intercourse is presumed from parturition; or that innocence is presumed from proof of an alibi? Nor does the quality above attributed to presumptions as their essential ingredient, namely, that the inference is made without any exercise of the reasoning faculties, rest on a much better foundation. The inferring one fact from another must ever be an act of reasoning, however rapid the process, or however obvious the inference; and although the law has in some cases added to particular facts an artificial weight beyond their natural tendency to produce belief, still many legal presumptions are only natural presumptions of fact recognized and enforced by law. An attentive examination of the subject will shew that the English "presumption," and the Latin "præsumptio," are used by jurists and lawyers in several different senses. They will be found:-1. In the original or primary one stated in the text. 2. In the strict legal sense there explained. 3. As a generic term including every sort of rebuttable presumption; i. e., rebuttable presumptions of law, strong presumptions of fact, mixed presumptions or masses of evidence, direct or presumptive, which shift the burden of proof to the opposite party. It is only in this sense that the well known maxim, "Stabitur præsumptioni donec probetur in contrarium," holds good. And here it will be necessary to advert to the language of L. C. B. Gilbert, who says, that presumption is defined by the civilians, "Conjectura ex certo signo proveniens, quæ alio (non) adducto pro veritate habetur." Gilb. Ev. 157, 4th Ed. This is far from correct-the above definition seems taken from a somewhat similar |