Corpus Juris, but probably a Roman jurist would have accepted the definition of the French Code Civil, § 1349, les présomptions sont des conséquences que la loi ou le magistrat tire d'un fait connu ou inconnu. The connection of a theory of presumption with the law of evidence is shewn by the title of the Digest in which much of the law is contained, De Probationibus et Præsumptionibus.* This title contains only two examples of presumption, both arising in contract. The production of a cancelled chirographon raised a presumption, rebuttable by the creditor, of the satisfaction of the debt. There was a presumption in favour of the creditor in a condictio indebiti if he acknowledged the receipt but said the money was owing. Almost all the other instances of presumption in Roman Law are found in the law of succession,§ especially where it became important to determine which of two persons in a case of apparently simultaneous death in shipwreck or battle survived the longer. Where there was no difference in age, one was not presumed to have survived the other. This was also the case where a parent and a child above the age of puberty perished together, ¶ or a husband and wife.** But where the child was under the age of puberty, it was presumed to have died first.†† In certain cases a presumption was made rather on grounds of humanity than in accordance with strict law. If a mother and a son above the age of puberty perished together in shipwreck, the son was presumed to survive. Where a father and son were killed in battle, the son was presumed to have * Dig. xxii., 3. ↑ Dig. xxii., 3, 24. Ib., 25. § Another remarkable one in contract was that in the sale of a slave his character was presumed from his nationality, Dig. xxi., 1, 31, 21. survived the father in order that the mother and not the agnates might succeed to the father's estate.* The reverse was the case where the father was a freedman, in order that the patron's rights of succession might be preserved.t A fideicommissum attached on condition of the trustee dying without children. If he and his child perished at the same time, it was presumed in favour of the trust that the child died first. In accordance with the favour shewn by Roman Law to freedom,§ it was held that if a female slave were promised freedom on condition of her first child being a boy, and she became the mother of twins, a boy and a girl, it would be presumed that the son was born first. In reference to freedom, the counter-presumption was to be taken into consideration, viz., that in favour of the status in which the person whose freedom was in question occupied at the time of the commencement of litigation. In a dispute as to the source of a wife's property, it was presumed, on the authority of Quintus Mucius Scævola, to have come from the husband. This presumption was called by the commentators præsumptio Muciana. Presumptions were almost wholly the creation of the jurists,** as in England fictions were the creation of the judges; the only instance of anything like a recognition of them in an imperial constitution appears to be in one of Justinian's, allowing 9, I. + Ib., 9, 2. Dig. xxxvi., 1, 17, 7. * Dig. xxxiv., § E.g., quoties dubia interpretatio libertatis est, secundum libertatem interpretandum est, Dig. 1., 17, 20. The same principle is continually repeated in other passages of the Digest. || Dig. xxxiv., 5, 10, I. Dig. xxiv., I, 51. ** This is not inconsistent with what was said above as to presumptions arising from the distrust of the judex by the prætor. Much of the judge-made law of Rome was really jurist-made in the first instance, then adopted and sanctioned by the Judge. the widow of a soldier to act on the presumption of his death and marry again if nothing had been heard of him for a year after the end of the expedition on which he had been engaged.* It should be noticed that some of the English rules as to presumptions, nominally derived from Roman Law, are really not to be found in the texts in their modern form. For instance, omnia præsumuntur rite et solenniter esse acta does not occur in those words, although similar ones appear in more than one place.t The "maxims" of English Law as to presumptions are comparatively few in number; the same result has been attained by a different process, the theory of irrebuttable fictions. The line of division between a presumption and a fiction is sometimes a narrow one; it is a matter of historical rather than of practical interest which of the two a particular legal system uses as a means of evidence, or perhaps, to put it more strictly, as a means of dispensing with evidence. The Roman Law of presumptions was followed and extended by the Canon Law.‡ The term violenta or vehemens præsumptio seems to have been invented by the Canonists. As in other parts of the system, the illustrations are often derived from Scripture. Thus an example of vehemens præsumptio is the action of the mother in the judgment of Solomon. The rule qui ex duobus illatis alterum negat reliquum affirmare præsumitur is illustrated by St. John, VIII., 48: "Say we not well that thou art a * Nov. cxvii., II. The nearest approach is Sciendum est generaliter quod si quis se scripserit fideijussisse videri omnia solenniter acta, Dig. xlv., 1, 30. The same principle occurs in Dig. xxii., 3, 5, 1. Latin maxims as adopted in English text-books have frequently only a specious resemblance to those actually used in the Corpus Juris. Thus the well-known English rule falsa demonstratio non nocet quum de corpore constat is a combination of falsâ demonstratione legatum non perimi (Inst. ii., 30, 20,) and nihil facit error nominis quum de corpore constat (Dig. xviii., 1, 9, 1.). Decretals, ii., 23, De Præsumptionibus. Samaritan and hast a devil?" Jesus answered, "I have not a devil." A maxim very like that called by logicians the rule of the uniformity of nature is ex præteritis præsumitur circa futura. This is not, however, of universal application. One guilty of incontinence in youth, especially if he be literatus, is not necessarily to be presumed to be so in age. * By secular jurists a considerable amount of writing was devoted to the subject. Among others may be mentioned Mantica, Alciatus,† Mascardus, ‡ Menochius,§ Voet,|| and Matthæus the younger. By Mantica conjectura and præsumptio are identified and analysed in the same way. Voet defines præsumptio by conjectura.** Alciatus lays down three rules which are in general agreement with those of other writers. They are as follow:-Prima regula sit quod qualitas quæ naturaliter inest homini semper adesse præsumitur. Secunda principalis regula est quod mutatio non præsumitur. Tertia principalis regula est quod semper sit præsumptio in meliorem partem. Many curious cases from Menochius, Zacchias, and others, are to be found in Hubback on the Evidence of Succession. Farinaccius also contains much on the subject, laboured with his usual minuteness. In Scotch Law presumptions have been the subject of legislation. A well-known instance is the Act 1690, c. 21 (repealed in 1803), passed in consequence of the increase of infanticide. Under its provisions the jury were to be directed to receive as presumptions of the guilt of the panel certain facts, e.g., that the panel had concealed her * De Conjecturis Ultimarum Voluntatum. Lyons, 1590. † De Præsumptionibus Tractatus. Works, vol. iv., 575, Frankfort, 1617. De Probationibus. Frankfort, 1619. § De Præsumptionibus. Geneva, 1724. || Ad Pandectas. 6th Ed., The Hague, 1734. ¶ De Probationibus. Leyden, 1678; Groningen, 1739. **Præsumptiones sunt conjecturæ ex signo verisimili ad probandum assumptæ, vel opiniones de re incerta necdum penitus probatâ. Ad Pand., xxii., 3, 14. pregnant condition. It was under this Act that, as readers of the Heart of Midlothian will remember, Effie Deans was condemned. The recent Presumption of Life Limitation Act, 1891, has no counterpart in legislation relating to England or Ireland. In one or two English cases presumptions have been distinctly based by judges on Roman originals. Thus, in Hooley v. Hatton,* Lord Bathurst explained the English presumption against double portions by reference to the passages in the passages of the Digestt where a similar rule is contained, though not under the express name of a presumption. In fact, at any rate in one of the passages, the rule does not attain the dignity of a presumption, for the claimant of a repeated legatum of a quantitas, not a corpus, in the same instrument could only succeed in his claim by evidentissimæ probationes that the double gift was intended by the testator.‡ If the gift were of a specific thing, it could be claimed only once if the gift were in the same instrument, but twice (i.e., the thing itself in addition to its value) if the gift were repeated in different instruments.§ In some other cases English Law appears to recognise a presumption where Roman Law proper did not, however it may have been extended by the commentators. For instance, erasures, alterations, or interlineations in a will are presumed to have been made after execution, though this presumption may be rebutted by evidence. In Roman Law they seem to have been regarded as evidence of an intention to revoke the will. Registration. The low Latin registrum is a corrupt form of regestum, which is found in the plural participial form in both the 1 Brown, Chancery Cases, 390; 1 Dickens, 462 (1773). † xxii., 3, 12, et al. 8 Dig. xxx., 34, 1 and 2. Dig. xxx., 34, 3. Cod. vi., 23, 12. |