was settled by Fox’s Libel Act 1792. Coke’s maxim describes in a broad general way the distinction between the functions of the judge and of the jury, but is only true subject to important qualifications. Judges in jury cases constantly decide what may be properly called questions of fact, though their action is often disguised by the language applied or the procedure employed. Juries, in giving a general verdict, often practically take the law into their own hands. The border-line between the two classes of questions is indicated by the “mixed questions of law and fact,” to use a common phrase, which arise in such cases as those relating to “necessaries,” “due diligence,” “negligence,” “reasonableness,” “reasonable and probable cause.” In the treatment of these cases the line has been drawn differently at different times, and two conflicting tendencies are discernible. On the one hand, there is the natural tendency to generalize common inferences into legal rules, and to fix legal standards of duty. On the other hand, there is the sound instinct that it is a mistake to define and refine too much in these cases, and that the better course is to leave broadly to the jury, under the general guidance of the judge, the question what would be done by the “reasonable” or “prudent” man in particular cases. The latter tendency predominates in modern English law, and is reflected by the enactments in the recent acts codifying the law on bills of exchange and sale of goods, that certain questions of reasonableness are to be treated as questions of fact. On the same ground rests the dislike to limit the right of a jury to give a general verdict in criminal cases. Questions of custom begin by being questions of fact, but as the custom obtains general recognition it becomes law. Many of the rules of the English mercantile law were “found” as customs by Lord Mansfield’s special juries. Generally, it must be remembered that the jury act in subordinate co-operation with the judge, and that the extent to which the judge limits or encroaches on the province of the jury is apt to depend on the personal idiosyncrasy of the judge.
2. Judicial Notice.—It may be doubted whether the subject of judicial notice belongs properly to the law of evidence, and whether it does not belong rather to the general topic of legal or judicial reasoning. Matters which are the subject of judicial notice are part of the equipment of the judicial mind. It would be absurd to require evidence of every fact; many facts must be assumed to be known. The judge, like the juryman, is supposed to bring with him to the consideration of the question which he has to try common sense, a general knowledge of human nature and the ways of the world, and also knowledge of things that “everybody is supposed to know.” Of such matters judicial notice is said to be taken. But the range of general knowledge is indefinite, and the range of judicial notice has, for reasons of convenience, been fixed or extended, both by rulings of the judges and by numerous enactments of the legislature. It would be impossible to enumerate here the matters of which judicial notice must or may be taken. These are to be found in the text-books. For present purposes it must suffice to say that they include not only matters of fact of common and certain knowledge, but the law and practice of the courts, and many matters connected with the government of the country.
3. Presumptions.—A presumption in the ordinary sense is an inference. It is an argument, based on observation, that what has happened in some cases will probably happen in others of the like nature. The subject of presumptions, so far as they are mere inferences or arguments, belongs, not to the law of evidence, or to law at all, but to rules of reasoning. But a legal presumption, or, as it is sometimes called, a presumption of law, as distinguished from a presumption of fact, is something more. It may be described, in Stephen’s language, as “a rule of law that courts and judges shall draw a particular inference from a particular fact, or from particular evidence, unless and until the truth” (perhaps it would be better to say ‘soundness’) “of the inference is disproved.” Courts and legislatures have laid down such rules on grounds of public policy or general convenience, and the rules have then to be observed as rules of positive law, not merely used as part of the ordinary process of reasoning or argument. Some so-called presumptions are rules of substantive law under a disguise. To this class appear to belong “conclusive presumptions of law,” such as the common-law presumption that a child under seven years of age cannot commit a felony. So again the presumption that every one knows the law is merely an awkward way of saying that ignorance of the law is not a legal excuse for breaking it. Of true legal presumptions, the majority may be dealt with most appropriately under different branches of the substantive law, such as the law of crime, of property, or of contract, and accordingly Stephen has included in his Digest of the Law of Evidence only some which are common to more than one branch of the law. The effect of a presumption is to impute to certain facts or groups of facts a prima facie significance or operation, and thus, in legal proceedings, to throw upon the party against whom it works the duty of bringing forward evidence to meet it. Accordingly the subject of presumptions is intimately connected with the subject of the burden of proof, and the same legal rule may be expressed in different forms, either as throwing the advantage of a presumption on one side, or as throwing the burden of proof on the other. Thus the rule in Stephen’s Digest, which says that the burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, appears in the article entitled “Presumption of Innocence.” Among the more ordinary and more important legal presumptions are the presumption of regularity in proceedings, described generally as a presumption omnia esse rite acta, and including the presumption that the holder of a public office has been duly appointed, and has duly performed his official duties, the presumption of the legitimacy of a child born during the mother’s marriage, or within the period of gestation after her husband’s death, and the presumptions as to life and death. “A person shown not to have been heard of for seven years by those (if any) who, if he had been alive, would naturally have heard of him, is presumed to be dead unless the circumstances of the case are such as to account for his not being heard of without assuming his death; but there is no presumption as to the time when he died, and the burden of proving his death at any particular time is upon the person who asserts it. There is no presumption” (i.e. legal presumption) “as to the age at which a person died who is shown to have been alive at a given time, or as to the order in which two or more persons died who are shown to have died in the same accident, shipwreck or battle” (Stephen, Dig., art. 99). A document proved or purporting to be thirty years old is presumed to be genuine, and to have been properly executed and (if necessary) attested if produced from the proper custody. And the legal presumption of a “lost grant,” i.e. the presumption that a right or alleged right which has been long enjoyed without interruption had a legal origin, still survives in addition to the common law and statutory rules of prescription.
4. Burden of Proof.—The expression onus probandi has come down from the classical Roman law, and both it and the Roman maxims, Agenti incumbit probatio, Necessitas probandi incumbit ei qui dicit non ei qui negat, and Reus excipiendo fit actor, must be read with reference to the Roman system of actions, under which nothing was admitted, but the plaintiff’s case was tried first; then, unless that failed, the defendant’s on his exceptio; then, unless that failed, the plaintiff’s on his replicatio, and so on. Under such a system the burden was always on the “actor.” In modern law the phrase “burden of proof” may mean one of two things, which are often confused—the burden of establishing the proposition or issue on which the case depends, and the burden of producing evidence on any particular point either at the beginning or at a later stage of the case. The burden in the former sense ordinarily rests on the plaintiff or prosecutor. The burden in the latter sense, that of going forward with evidence on a particular point, may shift from side to side as the case proceeds. The general rule is that he who alleges a fact must prove it, whether the allegation is couched in affirmative or negative terms. But this rule is subject to the effect of presumptions in particular cases, to the principle that in considering the amount of evidence necessary to shift the burden of proof regard
