"18. That all matters, within an issue, were laid before the jury, and passed upon by them, and in like manner, that all matters, within a submission to arbitration, were laid before the arbitrators, and passed upon by them.

"19. That private transactions have been fair and regular.

"20. That the ordinary course of business has been followed. "21. That a promissory note or bill of exchange, was given or endorsed for a sufficient consideration.

"22. That an endorsement of a negotiable promissory note or bill of exchange, was made at the time and place of making the note or bill. "23. That a writing is truly dated.

"24.

That a letter duly directed and mailed, was received in the regular course of the mail.

25. Identity of person, from identity of name.

"26. That a person not heard from in seven years is dead.

"27. That an obligation under seal, to pay money more than twenty years past, has been extinguished.

"28. That acquiescence followed from a belief, that the thing acquiesced in was conformable to the right or fact.

"29. That things have happened, according to the ordinary course of nature, and the ordinary habits of life.

"30. That persons acting as co-partners, have entered into a contract of co-partnership.

"31.

That a man and woman, deporting themselves as husband and wife, have entered into a lawful contract of marriage.

"32. That a wife, acting with her husband, in the commission of a felony other than murder, acted by coercion and without guilty intent.

"33. That a child born in lawful wedlock, there being no divorce from bed and board, is legitimate.

"34. That a thing once proved to exist, continues as long as is usual with things of that nature.

"35. That the law has been obeyed.

"36. That a document or writing, more than thirty years old, is genuine when the same has been since generally acted upon as genuine, by persons having an interest in the question, and its custody has been satisfactorily explained.

"37. That a printed and published book, purporting to be printed or published by public authority, was so printed or published.

"38. That a printed and published book, purporting to contain reports

of cases, adjudged in the tribunals of the State, or country where the book is published, contains correct reports of such cases.

"39. That an uninterrupted, adverse possession of real property for twenty years, or more, has been held pursuant to a written conveyance.

"40. That a trustee or other person, whose duty it was to convey real property to a particular person, has actually conveyed to him, when such presumption is necessary to perfect the title of such person, or of his successor in interest.

"41. The uninterrupted use by the public, of land, for a burial ground, for 10 years, with the consent of the owner, and without a reservation of his rights, is presumptive evidence of his intention to dedicate it to the public, for that purpose.

"42. Every sale of personal property, capable of immediate delivery to the purchaser, and every assignment of such property, by way of mortgage or security, or upon any condition whatever, unless the same be accompanied by an immediate delivery, and be followed by an actual and continued change of possession, creates a presumption of fraud, as against the creditors of the seller or assignor, during his possession, or as against subsequent purchasers in good faith, disputable only by making it to appear on the part of the person claiming under such sale or assignment, that the same was made in good faith, and without intent to defraud such creditors or purchasers.”

CHAPTER XLI.

NATURAL PRESUMPTIONS.

§ 718. The other great branch of the presumptions has been defined natural presumptions; (see ante, 676.) Those namely which are not artificial. Hitherto, we have been considering the latter class both conclusive and irrebuttable. In the class at present under consideration, the Law draws no reference necessarily, nor directs any such to be drawn: but the force of the class arises naturally from the effect of the testimony upon the mind of the Judge: who, though he is not bound to draw the inference in any particular case, doubtless would not only be warranted, but would be bound to do so according to the dictates of sound, and indeed of common sense; the common sense of mankind based upon the experience of a multiplicity of

instances which justify the presumption that the same connection exists between the facts in the particular case under consideration as have been proved to have existed in the many cases which preceded it.

§ 719. On this point, we should read Starkie, page 751.

Natural presumptions, or presumptions of mere fact.-These depend upon their own natural force and efficacy in generating belief or conviction in the mind, as derived from those connections which are pointed out by experience; they are wholly independent of any artificial legal relations and connections, and differ from presumptions of mere law in this essential respect, that those depend upon, or rather are, a branch of the particular system of jurisprudence to which they belong; but mere natural presumptions are derived wholly by means of the common experience of mankind, from the course of nature and the ordinary habits of society. Such presumptions are, therefore, wholly independent of the system of laws to be applied to the facts when established; they remain the same in their nature and operation, whether the law of England, or the Code of Justinian, is to decide upon the legal effect and quality of the facts when found."

And also page 743, note f.

"As artificial or legal presumptions are founded partly upon principles of policy and utility, independently of the real existence of the fact inferred, and consequently, as such presumptions must occasionally, at least, be made contrary to the real truth, it follows that these presumptions cannot, consistently with just principles, be established, unless either the real fact be immaterial, as where the presumption is made merely for the purpose of annexing a legal consequence to the fact on which the presumption is founded; or where the fact to be presumed being material, but its investigation difficult and remote, a general rule of presumption can be established of practical convenience, and consistent with justice, although it may occasionally operate contrary to the truth.

"It has been said, that the presumption of the law is better than that of man, (Esprit des Loix, I. 29, c. 16). A position much too large, if it be not limited to general rules of the nature above alluded to. For artificial presumptions, although beneficial, as general and practical rules, are usually very uncertain and precarious instruments for the investigation of truth in particular instances; they are, therefore, unfit to be employed where any application of the law, contrary to the real fact, would be attended with positive injustice, as in criminal cases. Where facts are not necessarily connected, the connecting of them by means of artificial presumption must sometimes lead to error in fact. Where facts are necessarily or usually connected, technical presumptions are unnecessary; the common sense and experience of mankind will lead them to the proper conclusions, giving to such natural presumptions such weight as experience warrants, confirmed

as they are on the one hand, or impeached on the other, by the whole context of circumstances belonging to the case. It is also to be observed, that presumptions which tend to the actual investigation of such facts as are usually the subject of litigation in Courts of Justice, are of a very general nature, and seldom, if ever, conclusive. Thus presumptions, and strong ones, are constantly founded on a knowledge of mankind; a man's motives are inferred from his acts, and his conduct from the motives by which he was known to be influenced; it is presumed, that a rational agent intended, that consequence which his acts naturally tended to accomplish; that he consults his own interests; that if he pays or acknowledges a debt, it is really due; that if he admits himself to be guilty of a crime, the admission is true; that he does not commit a crime, or do any other acts which tends to his prejudice, without a motive. Presumptions of this nature, in almost every case of circumstantial evidence, affords a light which may be considered to be abso lutely essential to the discovery of truth; but then they operate simply by their own intrinsic efficacy, as ascertained by experience and never so conclusively as to form the basis of an artificial rule which is to operate invariably. All natural presumptions are founded in experience; but so infinitely are the transactions of mankind complicated and varied, that such an experience of the necessary or even ordinary connection between particular facts as will serve for the basis of a primâ facie presumption, still less of a conclusive inference, is unattainable, even in the most simple instances. So far is experience from warranting such presumptions, that it evinces their inefficacy by showing that a general presumption would frequently be a fallacious one. There is no subject for presumption of more ordinary occurrence than is afforded by the prisoner's recent possession of stolen goods, on prosecutions for larceny; no facts, perhaps, are more closely and usually combined, in legal experience, than is the fact of such recent possession of the property by the prisoner, with the fact that he stole it; yet this connection, although usual, is by no means necessary, as experience proves; no artificial presumption can therefore be founded on such a connection; the law, it is true, recognizes it, and the Judge usually comments upon its nature and force; but no artificial weight or impor tance is annexed to it, and juries do not convict, unless they are fully satisfied and convinced of the actual guilt of the prisoner. Artificial presumptions, therefore, can never be safely established as a means of proof in a criminal case. To convict an innocent man is an act of positive injustice, which, according to one of the best and most humane principles of our law, cannot be expiated by the conviction of a hundred criminals who might otherwise have escaped; Hale, 289. From such presumptions the common law is justly most abhorrent; and happily our statute book has not been disgraced by many violations of the humane principles of the common law in this respect. The abominable and sanguinary enactment of the statute

of James the First (21 Jac. I, c. 27,) which made the concealment of a bastard child by the mother, evidence that she murdered it, no longer exists. But it is impossible, without a feeling of indignation, to recollect that such a statute did exist as the law of this country for nearly two centuries; the natural effect of which was to leave a Court and Jury no other alternative than either to violate their oaths, or to execute one for murder, whom in their consciences they believed to be innocent."

§ 720. These presumptions are of most ordinary and striking occurrence in criminal cases, where the party accused is not connected with the crime charged, by his own confession or by the direct evidence of witnesses. When this is not the case, he must be so connected by one of three ways:

1st. By evidence derived from things; which is called real evidence.

2nd. By his own antecedent conduct.

3rd.--By his own subsequent conduct.

1. Things, or real evidence; and the presumptions arising from them.

§ 721. Things sometimes, though rarely, are in themselves conclusive. For example, a woman murdered, with a bloody mark of a left hand on her left arm. Here is conclusive evidence of the presence of some third party at or after the murder. So, a dead man with a discharged pistol lying by his side: the bullet causing death being found too large for the pistol, is conclusive against suicide.(1) So an alibi is conclusive of innocence.

So in Corder's case.(m)

"A man was tried at Bury St. Edmund's summer assizes, 1828, for the murder of a young woman, who had borne a child to him, and was taken by him from her father's house under the pretence of conveying her to Ipswich to be married. The prisoner having represented that the parish officers meant to apprehend the deceased, she left her house on the 18th of May in disguise, a bag containing her own clothes having been taken by the prisoner to a barn belonging to his mother, where it was agreed that she should change her dress. The deceased was never heard of afterwards; and the various and contradictory accounts given of her by the prisoner having