scales of justice even with blind impartiality. We are now entering upon the consideration of inferences and presumptions which lead us out of the drier subject of our study into what has been called the romance of evidence.

§ 674. Some indirect evidence is by its very nature conclusive; as where a man accused of murder proves that at the time the crime was committed, he was at a distant place or in technical terms establishes an alibi: but] generally speaking, indirect or circumstantial evidence only affords the material from which the mind of the judge will draw inferences.

§ 675. There are some inferences which the law appoints as necessarily to be drawn from certain given facts; consequences attaching to them; presumptions arising upon them. These presumptions (by which name we will call inferences drawn from facts) are clearly artificial. As for instance, the presumption of satisfaction of a bond after a lapse of twenty years. Why twenty years? Why not nineteen, or twenty-one? Here it is clear that an artificial effect is given to an established fact, going beyond its necessary effect. And these presumptions are of two classes; first, such as the law says are in themselves conclusive; secondly, such as the law says shall be drawn, but may be rebutted. These two classes are called præsumptiones legis, or, juris.

§ 676. There is another class of presumptions which the law indeed does not say shall be drawn, but which the mind of an intelligent man will naturally draw from given facts before him. They are as various as the whole round of human action. There is nothing artificial, or technical about them. They are not the creatures of the law like the presumptions described in § 675. They are called præsumptiones hominis; or facti. Presumptions of fact, or natural presumptions.

§ 677. The probative force of a presumption arises from the known connection between the fact to be proved (factum probandum) and the facts which are established by the party on whom rests the burthen of supplying the evidence. (See ante § 97.) If experience assures us that there is ordinarily such a connexion between them, it is only reasonable to presume that a similar coincidence exists in the case immediately under consideration: that the case presents an example of, not an exception to, the ordinarily existing connexion. At the same time, as it is always possible that the connexion may not exist in any particular instance, and that the case before the Court may be

LORD COKE'S INSTANCE EXAMINED.

353

an exception to, and not an illustration of the general rule; it is (except in those cases in which the law directs that the presumption shall be conclusive) open to the party against whom such presumption operates, to show, that in point of fact, in his particular case, the inference does not fairly arise, because the supposed connexion does not exist. Let us examine the instance given by Lord Coke, of a man found in a room suddenly dead of a sword-wound, and another seen running out of that room with a bloody sword in his hand. Here the presumption is very strong that the deceased was murdered by the man so met; because death by a sword-wound is connected with a sword, and the commission of crime is connected with an attempt of the criminal to escape detection. Yet here it would be monstrous to hold that the presumption was irrebuttable; for the connexion between commission of crime, and flight depends upon the adaptation of the flight to escape notice. Thus, if the man were seen running out in the open day into a crowded street, the presumption that he was attempting escape might not arise; at any rate with the same force as if he were skulking away at night. He might have run out, seized with horror at having discovered the body, to give the alarm, or to procure assistance. And as to the connexion between the wound and the weapon in his hand, he might have drawn it out of an existing wound, rather than himself have plunged it in. He might have killed the deceased in self-defence: the deceased might have committed suicide, and any one of these hypotheses he might reasonably prove, by such evidence as was in his power. Thus he might show that the deceased had threatened suicide that the wound was in a place and direction rendering it probable that it was inflicted by the hand of the deceased; that the weapon was the deceased's: that he had purchased it under circumstances tending to raise a belief that he meditated some such use of it as selfdestruction or that the deceased had attacked the accused, and so pressed him, that in self-defence it was necessary to slay him or he might show that there were marks about the room indicative of murder by some third person, such as bloody hand marks not corresponding with his own hands: opened windows and bloody marks on the sill, as of an escaping murderer; foot-marks outside, and the like. A consideration of these circumstances should suffice to teach the great circumspection necessary in dealing with presumptive evidence. (y)

(y) There is a division of presumptions, now obsolete, into violent, probable and light; which is of no service, for it is impossible to say where the one begins and the other ends. And it is singular that Lord Coke should have given the instance in the text as an illustration of violent presumption.

CHAPTER XL.

I. PRESUMPTIONS OF LAW.

§ 678. 1st. Irrebuttable.-The tendency of modern authority is to restrict rather than increase the number of irrebuttable presumptions; and with some few exceptions, the class might still advantageously be narrowed. This class of presumptions was unknown to the Roman Law. See Best, § 46.

"But if artificial presumptions have their use, they have likewise their abuse. In unenlightened times, or in the hands of a corrupt tribunal, they are most dangerous instruments; and even in the best times, and by the best tribunals, require to be handled with discretion. Some very absurd and mischievous presumptions of this kind are to be found in the works of the civilians, as well as in the laws of modern France; and in this country juries have been frequently advised, if not directed, by judges to presume the grossest absurdities under colour of advancing justice. A well known instance of an extremely violent and harsh presumption is to be found in the statute 21, Jac. I. c. 27; by which it was enacted, that every woman delivered of bastard issue, who should endeavour privately, either by drowning or secret burying, or in any other way, to conceal the death thereof, so that it might not come to light, whether it were born alive or not, should be deemed to have murdered it, unless she proved it to have been born dead. This cruel enactment, which seems to have been copied from an edict of Hen. II. of France in 1556, the principle of which is also to be found in the laws of some other countries, has been repealed by the 43 Geo. III. c. 58, s. 3. The conclusive effect formerly ascribed to the confessions of accused persons, and to attempts by flight to escape judicial inquiry, are likewise among the most general instances.”

We must however enumerate these irrebuttable presumptions as shortly as may be.

§ 679. A person under fourteen in England is conclusively presumed to be incapable of committing a rape. But in this country such a presumption would not arise.

§ 680. A child under seven years of age cannot commit a felony. § 681. A sane man of years of discretion is conclusively presumed to contemplate the natural and probable consequences of his own acts, and therefore the intent to kill is presumed from the deliberate violent use of a deadly weapon. So on an indictment for cutting with intent to do the prosecutor some bodily harm, the judges held that

the prisoner was rightly convicted, though it appeared that his real intent was to wound another; so of intent to defraud. Thus in Reg. v. Hill. (*) it was held that "Knowingly uttering a bill of exchange, all the names on which are fictitious, is within the forgery statutes, though the party uttering intended to provide for the payment of the bill, the fact of the parties not being real, being unknown to the per. son taking the bill." (See ante § 97 and 98.)

§ 682. This doctrine of intention is one of peculiar interest to the student; because the decided cases in the various Company's Courts, whether from a leaning in favorem vitæ, a disinclination to press the extreme penalty of the law, or from a misconception of the doctrine itself, do indubitably evince most extraordinary miscarriages of justice arising from a misapplication of the law as to intention. In Woodfall's case,(a) Lord Mansfield lays down the law in such clear terms, as once understood, ought to prevent the possibility of error in this respect. He there says " When an act in itself indifferent, if done with a particular intent, becomes criminal, then the intent must be proved and found; but where the act is itself unlawful, that is primâ facie and unexplained, the proof of justification or excuse lies on the defendant, and in failure thereof, the law implies a criminal intent."

Thus, where words affecting a person's reputation are spoken or written on a justifiable occasion, as for instance, where an enquiry is made of a late master as to his servant's character, by one to whom the servant has applied for employment; here, as the occasion for using the defamatory language was lawful, the law will not presume that the bad character was given with a malicious intent; and the plaintiff must prove that the defendant was actuated by actual malice.(b) But where

(z) 2 Moo. C. C. p. 30.

(a) 5 Barr. 2661.

(b) It may be useful to have a clear understanding of the distinction between legal and actual malice, because, as pointed out in text, in trials of actions for slander the distinction constantly arises. If the occasion on which the defamatory matter is published is not lawful, and therefore not privileged, there is no necessity for the plantiff to prove that the defendant was actuated by malice; because as the act was not "indifferent," the law implies malice (which is styled legal malice) and the plaintiff need only show that the libellous matter is false in fact: as if a scurrilous libel affecting private character be published in a newspaper; but when the occasion is justifiable, for instance a criticism of a volume of poems, as the occasion is lawful, express or actual malice must be proved.

The leading case on this distinction between legal and actual, implied and express malice, is Bromage v. Prosser, 4 B. and C. 247, where Bayley, J says '—

"Malice in common acceptation means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death I do it of malice, because I do it intentionally and without just cause or excuse. If I maim cattle, without knowing whose they are, if I poi son a fishery, without knowing the owner, I do it of malice, because it is a wrongful act, and done intentionally. If I am arraigned of felony, and wilfully stand mute, I am said to do

a man kills another under the circumstances mentioned in § 681, here as the act itself is unlawful, the onus of showing justification or excuse lies on the prisoner, and he must show that the death was the consequence of accident, misadventure, or the like; and if he fail to do this, the law conclusively implies the intention, on the presumption that every one intends the natural consequences of his acts. The absence of intention to produce that result which naturally follows on certain acts, is not to be got rid of by bare denials or protestations on the part of the prisoner, or by fanciful arguments on the part of the vakeel or judge; it is very true that as the law maxim expresses it, non culpa nisi mens sit rea,' there is no guilt unless there be a guilty intention; but as another maxim teaches, animus ex qualitate facti præsumitur; the intent is presumed from the quality of the act.

§ 683. Tried by these lights, how extraordinary appear the following decisions. See Government v. Dumga and others, page 113 of the Criminal Reports of the Foujdaree Ud. for 1851.

And a case reported in the Englishman of 10th March, 1853.

"Nurst Jerghia was tried by Mr. Garstin, the session judge of Sarum, for the murder of an infant named Tughroo, aged four months.

"The facts are as follows:-On the 22nd of December last, the prisoner desired the prosecutrix, her sister-in-law, the mother of the child, to take some rice to her brother in the fields. She did so; leaving the infant in prisoner's charge. On her return she found the child in the prisoner's arms much scratched, and swollen about the neck. The child died at eight o'clock on the eve of the same day. The prisoner admitted that she had squeezed the child's throat, and that it was her fate to destroy it. The evidence of the surgeon showed that the child had died by pressure, strangulation. The prisoner's father-in-law deposed to the woman having had frequent quarrels, and to the prisoner's threatening to kill the child if the mother did not leave the house.

it of malice, because it is intentional and without just cause or excuse. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? And I apprehend the law recognizes the distinction between these two descriptions of malice, malice in fact and malice in law, in actions of slander In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely, it is not necessary to state that they were spoken maliciously. This is so laid down in Styles 392, and was adjudged upon error in Mercer v. Sparks. The objection there was, that the words were not charged to have been spoken maliciously, but the Court answered, that the words were themselves malicious and slanderous, and, therefore, the judgment was affirmed. But in actions for such slander as is prima facie excusable on account of the cause of speaking or writing it, as in the case of servant's characters, confidential advice, or communications to persons who ask it, or have a right to expect it, malice in fact must be proved by the plaintiff, and in Edmon son v. Stevenson, Lord Mansfield takes the distinction between these and ordinary actions of slander."