39, 40 G. 3, c. 93. Collateral facts. Rule in courts of equity. ness to one overt act, and another to another overt act of the same species of treason, were two sufficient witnesses within the statute. From that time the rule has been considered as completely settled; and on many occasions, which occurred before the act of the 7th of William, it was strictly followed. (1) Some alteration has been since made in the worst species of high treason, where an attempt is made on the king's person; and in that case the principle and mode of proceeding at common law are restored. The stat. 39, 40 G. 3, c. 93, enacts, that "in all cases of high treason, when the overt act alleged in the indictment is the assassination of the king, or any direct attempt against his life, or against his person, the prisoner shall be tried according to the same order of trial, and upon the like evidence, as if he stood charged with murder." A conviction, therefore, in such a case, may proceed on the testimony of a single witness. The language of the statutes of Edward 6, is, that "the offenders are to be accused by two witnesses," that is, two witnesses are required to prove the offence or overt act of treason; and the stat. of W. 3, expressly confines itself to the proof of the overt acts. With respect to all other acts, therefore, which are merely collateral and not conducive to the proof of the overt acts, the rule of the common law is not altered, and one witness is still sufficient. (2) It is an established principle in courts of equity, that on a bill praying relief, when the facts charged by the plaintiff, as the ground for obtaining a decree, are proved only by a single witness, and are clearly and positively denied by the answer of the defendant, the Court will not graut a decree against the defendant. (3) (0) But where the evidence produced by the plaintiff is so far supported and corroborated by proof of concurring circumstances, as to outweigh the denial in the defendant's answer, (4) (1) See Fost. Cr. L. 286, and Sir W. Parkyns' case, 4 St. Tr. 650, 651, fol. ed. S. C. 13 Howell's St. Tr. 114. (2) Smith's case, Fost. 242. (3) L'Neve v. L'Neve, 1 Ves. 61, 66. 3 Atk. 646, S. C. 1 Ves. 97, 125. 2 Ves. jun. 243. East India Comp. v. Donald, 9 Ves. 282, 283. (4) Walton v. Hobbs, 2 Atk. 19. Janson v. Rany, ib. 140. Pember v. Mathers, 1 Bro. Ch. Ca. 52. Toole v. Medlicott, 1 Ball & Beattie, 403. Biddulph v. St. Jolin, 2 Scho. & Lef. 521. (abstracting from the mind, that the evidence on the part of the plaintiff comes from a disinterested witness,) (1) the former rule will not apply; and the evidence of a single witness, so strengthened and confirmed, will enable the court to decree against the answer. (p) And there are many cases in which the court has granted a decree against the defendant on the testimony of a single witness, when his testimony has not been clearly and positively contradicted by the answer. (2) (q) By the civil law, as was before observed, two witnesses are re- Rule in ecclequired for the proof of a fact; and such is the rule in ecclesias- siastical courts. tical courts, whose practice is founded upon that law. But even in those courts, if a matter cognizable at common law arises incidentally in an ecclesiastical suit, (as, where a revocation of a will is pleaded, or payment of a legacy, or plene administravit, and the like,) the proof ought to be according to the principles and course of the common law; and if they disallow the plea, because it is proved only by a single witness, they may be controlled by a prohibition. (3) SECT. II. Of the Nature of Presumptive Evidence. EVIDENCE Consits either of positive or of presumptive proof. (r) Presumptive The proof is positive, when a witness speaks directly to a fact from proof. his own immediate knowledge; and presumptive, when the fact itself is not proved by direct testimony, but is to be inferred from circumstances, which either necessarily or usually attend such facts. (4) This latter is also called circumstantial evidence. It is obvious, that a presumption is more or less likely to be true, according as it is more or less probable, that the circumstances would not have existed, unless the fact, which is inferred from them, had also existed: and that a presumption can only be relied on, until the contrary is actually proved. (s) In order to raise a presumption, it cannot be necessary to con (1) 9 Ves. 283. (2) 3 Atk. 650. 1 Ves. 66, 97. 12 Ves. 80. 3 Ves. & Beam. 59. (3) Sir W. Juxon v. Lord Byron, 2 Lev. 64. Richardson V. Disborow, 1 Ventr. 291. Shotter V. Friend, (p) See Note 293, p. 287. (q) See Note 294, p. 287. (r) See Note 295, p. 288. (s) See Note 296, p. 288. fine the evidence to such circumstances alone, as could not have happened, unless they had been also attended by the alleged factfor that in effect would be to require in all cases evidence amounting to positive proof;-but it will be sufficient to prove those circumstances, which usually attend the fact. (t) The definition of the civilians is most correct," presumptio nihil aliud est, quam argumentum verisimile, communi sensu perceptum, ex eo quod plerumque fit aut fieri intelligitur." A presumption is a probable inference, which our common sense draws from circumstances usually, occurring in such cases. (u) The slightest presumption is of the nature of probability; and there are almost infinite shades from the lightest probability to the highest moral certainty. (v) If the circumstantial evidence be such as may afford a fair and reasonable presumption of the facts to be tried, it is to be received and left to the consideration of the jury, to whom alone it belongs to determine upon the precise force and effect of the circumstances proved, and whether they are sufficiently satisfactory and convincing to warrant them in finding the fact in issue. (1) (w) However, for the purpose of trying the weight and effect of such presumptive proofs, it will often be of the utmost consequence to consider, whether any other fact happened, which might have been attended by the same circumstances, and with which of the facts they are most consistent. (x) "A presumption of any fact is, properly, an inferring of 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. A fact must not be inferred without premises that will warrant the inference; but if no fact could thus be ascertained by inference in a court of law, very few offenders could be brought to punishment. In a great portion of trials, as they occur in practice, no direct proof, that the party accused actually committed the crime, is or can be given; the man who is charged with theft, is rarely seen to break the house or take the goods; and in case of murder, it rarely happens that the eye of any witness sees the fatal blow struck, or the poisonous ingredients poured into the cup. In drawing an inference or conclusion. (1) See Note 297, p. 289. (1) 2 H. Black. 297. (u) See Note 298, p. 289. (v) See Note 299, p. 307. from facts proved, regard must always be had to the nature of the particular case, and the facility that appears to be afforded either of explanation or contradiction. No person is to be required to explain or contradict, until enough has been proved to warrant a reasonable and just conclusion against him, in the absence of explanation or contradiction; but when such proof has been given, and the nature of the case is such as to admit of explanation or contradiction, if the conclusion to which the proof tends be untrue, and the accused offers no explanation or contradiction, human reason cannot do otherwise than adopt the conclusion to which the proof tends." (1) It has been very justly observed, (2) that when the proofs are dependent on each other, or when all the proofs are dependent upon one, the number of proofs neither increase nor diminish the probability of the fact: for the force of the whole is not greater than the force of that on which they depend; and if this fails, they all fall to the ground. (y) But when the proofs are distinct and independent of each other, the probability of the fact increases in proportion to the number of the proofs: for the falsehood of one does not diminish the veracity of another. (z) of law. There are presumptions of law, as well as presumptions of fact. Presumption Some presumptions of law are considered so strong and conclusive, as not to admit of contrary proof; but there are few instances of this, and much fewer in the present day than formerly, the doctrine of conclusive presumptions applying principally, if not exclusively, to estoppels. That innocence is to be presumed, till the contrary is proved, may be called a presumption of law, founded on the universal principles of justice. That a child born during marriage shall be presumed to be legitimate, is another presumption of the same description. The grants and deeds are to be presumed in support of long undisturbed possession, is also a presumption of (1) By Lord Tenterden, in R. V. Sir F. Burdett, 4 Barn. & Ald. 161. (2) Beccaria ch. xiv. The reader will find many sensible observations, on the subject of Presumption and Presumptive evidence, in Evans' Appendix to his edition of Pothier on Contracts, Numb. (y) See Note 302, p. 313. (z) See Note 303, P. 313. Presumption of legitimacy. Rebutted by proof of non access. Proof of non access. law, founded on principles of public policy and convenience. Something will be said, in the course of this section, on each of these presumptions. Children, born during a lawful marriage, are presumed to be legitimate; but this presumption may be removed by competent proof of their illegitimacy. Formerly the rule was so strict in favor of legitimacy, that any proof of the contrary would not be admitted, unless the husband had been out of the kingdom during the whole time of gestation; (a) but this doctrine has been long exploded. The general principle, to be deduced from the authorities on this subject, as it was laid down and confirmed by the case of The King v. Luffe, (1) appears to be this-that where there are circumstance, which show an impossibility that the husband could be the father, whether arising from his being under the age of puberty, or from his laboring under disability occasioned by natural infirmity, or from the length of time elapsed since his death, or from his continued absence, the presumption is at an end, and the child will be deemed illegitimate. cess. In an earlier case, (2) the court of king's bench held, that there was no necessity to prove the impossibility, if the other circumstances of the case tended strongly to repel the presumption of acAnd this point has been since established by the opinion of the judges in the case of the Banbury claim of peerage, (3) in which it was held, that where the husband and wife are not proved to be impotent, and have had opportunity of access to each other during the period, in which a child could be begotten and born in the course of nature, the presumption of legitimacy, arising from the birth of the child during wedlock, may be rebutted by circumstances inducing a contrary presumption: and the fact of non-access (that is, the non-existence of sexual intercourse,) as well as the fact of impotency, may always be lawfully proved by means of such legal evidence, as is strictly admissible in every other case, where a physical fact is to be proved. (1) 1 East, 193, 206. (2) Goodright, dem. Thomson, v. Saul, 4 T. R. 356. (3) 2 Selw. N. P. 731, S. P. report ed in Simon's & Stuart's Rep. vol. i. 153. And see Head v. Head, 1 Turner's Ch. R. 140. 1 Sim. & Stuart's Rep. 150, S. C. |