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PRESUMPTions of law were mentioned in the preceding chapter to rest on one or other of the following grounds ;-the laws of nature—the first principles of justice—the nature and general incidents of property-the innate principles of self-interest—the dictates of prudence or discretion—the policy of the law—and the motive or intention determining particular actions. Of presumptious referrable to the latter head, it is not here intended to speak more at large. An examination of the cases which have been decided relative to this portion of the subject will be found in subsequent chapters. With this exception, it is purposed, in the present chapter, to adduce examples of the several kinds above enumerated, and at the same time to point out particular cases which they respectively affect.

I. Semel furibundus semper furibundus præsumitur, (1) is a maxim or supposition of law, grounded

(1) The burden of proof lies on him who alleges insanity. Jackson ex dem. Cadwell v. King, 4 Cow. 207. Stevens and wife v. Varcleve, 4 Wash. 262,

of legal

on the essential nature of insanity, and the constant experience that by far the greater number of persons so afflicted never recover the right use of their. mental [*]faculties. This rule, connected with another, which denies to such



power disposition, provides an effectual safeguard, in cases of madness, against imposition and fraud. But the principle is not confined to the permanently deranged: the same rules apply with equal force to lunatics, who, properly speaking, are persons intellectually disordered, but with lucid intervals. It might perhaps be objected, that acts proceeding from persons of this description, which, abstractedly considered, are reasonable, ought not to be regarded as done during a period of mental aberration. But this objection has not been allowed to prevail ; because not only is it possible that a prudent act may be performed, while the will of the agent is not subject to the control of right reason; but the doctrine, if admitted, would operate directly as an encouragement to fraud. It is therefore now settled, that where the fact of lunacy is proved generally, a lucid interval shall not be presumed in support of a particular transaction, although in its character perfectly rational. To sustain the validity of any such transaction, the sanity and competence of the party at the time must clearly and positively appear : the evidence must go to prove not merely a cessation of the violent symptoms of the disorder, but a restoration of the faculties of the mind sufficient to insure the exercise of a sound discretion.(a) It is not enough to show, as Lord Notting

(a) Per Sir W. Grant, M. R. Holyland, 11 Ves. 10 ; White v. 9 Ves. 611; Att. Gen. v. Parn- Wilson, 13 Ves. 88. See also ther, 3 Bro. C. C. 441 ; ex parte i Fonb. 5th edit. 71.

ham [*]observed, that the act is actus sapienti conveniens, for that may happen many ways; it must be proved to be actus sapientis, and to have proceeded from judgment and deliberation (a).

II. The presumption, that a child born in wedlock is legitimate, results from the principles of natural justice: it rests simply on the supposition of the virtuous conduct of the mother; a branch of that equitable rule, which assumes the innocence of a party, until proof be brought of actual guilt (1).

Formerly, the presumption in favor of the legiti. macy of a married woman's offspring, was strict and unyielding to an extreme. Lord Coke, in his commentary on Littleton, lays it down, that, by the common law, if the husband be within the four seas (that is, within the jurisdiction of the King of England,) and his wife have issue, no evidence is admissible to prove the child a bastard; except in the sole case of an apparent impossibility of procreation by the husband, as of his not having attained the age of puberty (6). But in modern times, though the ancient policy of the law remains still unaltered as regards the general principle, the rule of evidence having varied (c), the severity of the application is done away; and the doctrine, conformably with what it appears to have been at a yet earlier period (d), is reduced to the standard of

(a) Co. Litt. 246 b, note 1. (c) Per Sir J. Leach, V. C. in

(6) Ib. 244 a. See also Jenk. Head v. Head, 1 Sim. and Stu. Cent. 10; Regina v. Murrey, 1 151. Salk. 122.

(d) Co. Litt. 126 a, note 2.

(1) Bowles v. Bingham, 2 Munf. 442.

[*]reason and good sense. Although the presumption in favour of legitimacy, therefore, still holds wherever it is not inconsistent with the facts of the case (a); yet if such circumstances be in proof as clearly negative the truth of this presumption, the legal intendment will fail (6). Thus, whatever cause indubitably prevents the intercourse of the married parties; whether distant local separation, though they remain within the kingdom (c); or separation founded on mutual disagreement (d); whether a casual infirmity in the husband (e); or a confirmed physical impotence (f); may be urged as evidence to repel the prima facie legitimacy.

Nor is it necessary, in order to overthrow the legal intendment, that the husband be absent during the whole period of gestation. For in a case, where it appeared, that, until within a fortnight of the wife's delivery, the husband had constantly, for the space of the preceding eighteen months, resided at a distance, the Court of K. B., after expressing their highest disapprobation of the old doctrine, laid down the rule, that where the absence of a husband is shown to have

(a) Head v. Head, 1 Sim. and (d) 2 Selw. N. P. 5th edit. 732, Stu. 150; 1 Turn. 138. S. C. and n; Head v. Head; GoodSee also the answers of the Judges right v. Saul, supra. in the Banbury Peerage case, 1 (e) Co. Litt. 244 a. ; Year Sim. and Stu. 153.

Book, 1 Hen. 6. 3 b ; 8 East, (1) 3 P. Wms. 275; 13 Ves. 205 et seq. 58.

(f) Roll. Abr. 358. 1. 5; Fox(c) Pendrell v. Pendrell, 2 Stra. croft's case, ib. 359 ; 8 East, 925; Goodright v. Saul, 4 T. R. 208, cited S. C. ; Lomax v. Holm356 ; King v. Bedall, 2 Stra. 1076; den, 2 Stra. 940; Andr. 9. cited ; Andrew, 8; Rep. T. Hardwicke, Rep. T. Hardwicke, 380. cited. 379. S. C.

[*]continued until such time, that, from the invariable course of nature, conception and parturition could not have taken place within the interval between his return and the wife's delivery, a child born under such circumstances is a bastard (a).

In cases of separation proceeding from disagreement, a diversity is to be noticed between separations which are compulsory, being decreed by a court of justice ; and where they are voluntary. If a separation be under authority of a divorce a mensa et thoro, and the wife become pregnant, the child primarily is accounted a bastard; for obedience to the decree will be inferred. But if the separation originate simply in consent, there the issue born is, in the first place, taken to be legitimate ; access, on the general principle, being presumed, until the contrary be proved (b). Hence it appears, that it is only in the event of a birth under the latter circumstances, that proof of an actual suspension of intercourse is necessary to establish the incontinency of the mother.

With regard to the nature of the evidence which is competent to prove the fact of non-access, few rules of general application can be given. Where the husband and wife reside at a distance from each other so as to exclude the possibility of sexual intercourse, there, indeed, [*]universally, the presumption of legitimacy is at once rebutted: but in all other cases, the fact must be determined from the particular circumstances. It may, however, be observed, that

(a) King v. Luffe, 8 East, 193. v. Head, supra. See also 3 P.

(6) St. George's v. St. Marga- Wms. 275. ret's, Westm. 1 Salk. 123; Head

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