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third person.

facts are attributable to, or result from, deliberation, actions are to be explained by the existing state of the mind. A prisoner's conversation Conversation connected, though by implication or collaterally connected with only, with the subject of enquiry, may be inquiry. received as indicative of the bias or propensity of his mind. Expressions sometimes afford the only just criterion or index by which to judge of intention and design ; and intention and design, forming the very gist or essence of some crimes, the importance of hearsay, and the necessity of admitting it in certain cases, must be evident.

What a third person has said, or written, is Converantlon admissible in many cases, as amounting to an act done by him, or as showing his knowledge, or as evidence of his conduct. If, for instance, it is material to enquire whether a certain person gave a particular order on a certain subject, what he has said or written may be evidence of the order; or, where it is material to enquire whether a certain fact, be it true or false, has come to the knowledge of a third person, what he has said or written may as clearly show his knowledge, as what he has done. So, where it is relevant and material to enquire into the conduct of rioters, (or mutineers,) what has been said by any of the party, in the act of rioting, must manifestly be admissible in evidence, as showing the design and intentions.

(1) 1 Phil. 278.

(2) Ib. 280. See confessions of prisoners, infra.


Presumptive ovidence,

Proof may be either positive or presumptive and circumstantial. Positive proof arises from a deposition to facts within the knowledge of the witness. Presumptive proof does not depend on direct testimony; it is an effect produced by the concurrence of circumstances given in evidence, which common sense points out as tending to a probable result: it is an inference that a particular fact has taken place; a consequence or conclusion, to which the mind is led, from the ordinary or probable effects resulting from certain causes; or which the mind arrives at by a comparison of results with causes. As there are necessarily many shades of presumptive evidence, the degree of confidence to be placed on it depends on the degree of probability of the occurrence, as arising from, or taken in connection with, the imputed cause, and on the number of facts, not depending on each other, but, though distinct, concurring to render the event likely. Beccaria has accurately remarked that when all the proofs of a fact are dependent on one, the number of proofs neither increase nor diminish the probability of the fact; for the value of the whole is reduced to the value of that on which they depend ; and if this fail, they all fall to the ground. But when the proofs are distinct and independent of each other, the probability of the fact increases in proportion to the number of proofs ; for the falsehood of one does not influence the other.

Beveral proofs dependent on a particular proof, derive Eneir weight from it alone;

(1) Dei delitti e delle pene di Cesare Beccaria, s. 14.

The value of presumptive evidence may be prepump said to depend on, and be proportionate to, the evidence ; number and strength of the links by which it is connected with the main fact in issue. The value of a multiplied series of consequences, or a variety of chains, if connected only with an individual link, and not carried separately home to the facts in issue, can be derived from that particular link alone; and if it fail, or its connection with the facts in issue be broken, the value of the chain of evidence must obviously be entirely destroyed.

It has been well observed, by the author before Moral certainty: quoted, that moral certainty is nothing more than probability, but probability such as is termed certainty, because every man of sense assents to it necessarily, from habit springing from the necessity of action and preceding all speculative theory. Thence he argues, that the certainty which is required to convict an offender, is precisely that which influences or determines every man in the most important acts of his life: he remarks, that this moral certainty is more easy to feel than accurately to define; and so completely does he consider that moral certainty is the effect of feeling rather than the result of study or the application of acquired theories, that he prefers, as less fallible, ignorance judging from feeling, than science deciding from thought and reflection.

A concurrence of well authenticated incidents Presumptive may, in some cases, carry as clear, or even a shnuld be clearer, conviction to the mind, than positive cautiously : testimony, unconfirmed by circumstances, could

(1) Beccaria, Sic. 14.


Presumptions of law.

have done. Circumstances cannot lie. Presumptive evidence must, notwithstanding, be ever held as a secondry kind of proof, and only to be allowed when the fact cannot be proved directly; it should be admitted cautiously, and, when received, should be such as to exclude a rational probability of innocence. When the nature of the case justifies the admission of presumptive evidence, the rule of law, that evidence must be confined to the points in issue, must necessarily be relaxed, as before remarked, when referring to this maxim.

There are presumptions of law, as well as presumptions of fact. A presumption of law will stand good till the contrary is proved, stabitur præsumptioni donec probetur in contrarium. The law presumes that every man is innocent, until the contrary is proved ; that a man may be induced to confess himself guilty when innocent, by the hope and promise of pardon; that children born in wedlock are legitimate, and the like.

A receipt for subsequent rent is presumptive proof that rent, for a former period for the same premises, has been paid. Proof of the settlement of a soldier's accounts, for a particular month, would, in the absence of contrary evidence, be presumptive proof that he had been settled with for any previous month, since the

orders of the army direct that a soldier should be of the existence settled with monthly. Proof of the existence

of an order in an orderly book, it being shewn that it is the duty of the party daily to inspect the same, is presumptive proof of notice or the delivery of an order, but obviously admits

(1) Phil. 171.

Presumptive proof of the payment of money s



of contrary proof. Proof that a soldier belong- desertion" ing to a draft which embarked to join the service companies of a regiment abroad, and that he was apprehended after the transport had sailed, and at a distance from the port of embarkation, has been held by the highest authority sufficient to justifiy a conviction for desertion, the prisoner not offering any explanation of his absence. On of wiltuary a charge for disgraceful conduct in wilfully maiming or injuring with intent to render unfit for the service, the intent must be collected from circumstances, and in default of other evidence, it may be presumed or inferred from the act of maiming or injuring. Examples might readily be multiplied, but it is unnecessary.

A presumption of fact is sometimes made a Presumption of presumption of law. Thus, in the law of treason, por een an intention to kill the king may be reasonably inferred from a conspiracy to seize his person and imprison him; entering into measures in concert with foreigners, in order to effect an invasion of the kingdom, is also an act of compassing the king's death. It is a presumption of fact so obvious and so undeniable, that the law has adopted it, and made it a presumption of law.?



Witnesses at courts martial are invariably Witnobela examined in open court in the presence of each open court, member and of the parties to the trial. The court is thereby enabled to observe their demeanour, inclination, and understanding ; points essential to the formation of a correct judgment

(1) 77 Art. War. (2) Gilbert, 161. (3) See page 248.

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