PRESUMPTION. A presumption is variously defined. The following is a definition :—" A presumption may be de fined to be a belief as to the existence of a fact not actually known, arising from its necessary or usual connection with others which are known." (Starkie, Law of Evidence, i. 23.) In another passage (p. 1234) the same definition is given in substance, with the word "inference" substituted for " belief." A fact may be proved by the immediate knowledge of the witnesses to it, which is called direct evidence. If it cannot be so proved, some other fact may generally be proved by direct evidence, from which the fact in question may often he inferred. If such other fact can be proved, and the existence of the fact in question can be inferred, such inference is a presumption. The inference may be either strictly lo gical or necessary, or it may be only pro bable, that is, the fact inferred may be true or it may not be true. If we cannot infer from the fact proved that the fact in question may be true, there can be no presumption at all as to such last fact. In all cases, then, in order to establish a presumption, there must necessarily be an inference from a fact or facts ; but the inference may be either necessary or pro bable. If necessary, it cannot, by the supposition, be disproved ; if probable, it may either be disproved by evidence, or it may not be possible to disprove it for want of evidence, and yet the inference will still only be probable.
Presumptions which are necessary can hardly ever be considered as not con clusive in any system of law. Presump tions which are only probable may by positive law be made as conclusive as necessary presumptions, that is, it may not be permitted to disprove them when they could be disproved; or where such disproving evidence is wanted, and yet the inference is only probable, positive law may give it the same conclusive force as a necessary presumption.
A presumption, when established. that is, a fact when presumed, is legally the same as a fact proved in such manner as the particular system of law requires such fact to be proved. If, then, the law an nexes any legal consequence to a given fact when proved, it annexes the same to it when the fact is legally presumed. It
is only by virtue of legal consequences being annexed to facts that they become objects of jurisprudence. The establish ment then of a presumption, in a legal sense, is only the establishment of a fact to which certain legal consequences are annexed.
In our own system, the presumption is sometimes made by a judge or a number of judges, and sometimes by a jury, but the consequences are the same. Some writers say that presumptions are either "legal and artificial" or " natural." They divide "artificial or legal presump tions" into two kinds, immediate and mediate. " Immediate are those which are made by the law itself directly and without the aid of a jury. Mediate pre sumptions are those which cannot be made but by the aid of a jury." " Pre sumptions may therefore be divided into three classes : 1, Legal presumptions made by the law itself, or presumptions of mere law ; 2, Legal presumptions to be made by a jury, or presumptions of law and fact ; 3, Mere natural presump tions, or presumptions of mere fact." (Starkie, p. 1241.) The first class of presumptions, it is said, are either absolute and conclusive, or they may be rebutted by evidence to the contrary. The presumption of law that a bond was executed upon a good consideration cannot be rebutted by evi dence, so long as the bond is unimpftched, that is, so long as it is admitted to be a bond. But though the law presumes that a bill of exchange was accepted on good consideration, it admits evidence to show that such was not the fact. Now this presumption of mere law is nothing more than a fact presumed by a judge or judges, to which fact so presumed, that is, so taken to be true, certain legal con sequences are annexed or belong. It is, however, a very inaccurate expression to speak of a presumption of mere law ; for, as the same writer says (p. 1242), "when the law presumes or infers any fact to which a legal consequence is annexed from any defined predicament of facts, the law in effect indirectly annexes to that predicament the legal consequence which belongs to the presumed fact." One presumption of mere law may be opposed by another, and the law, that is, the court, must then decide which is the stronger.