"[45]
The modern writers on the Civil Law have likewise much matter on this
subject, and have introduced a strictness with regard to personal
testimony which our particular jurisprudence has not thought it at all
proper to adopt. In others we have copied them more closely. They divide
Evidence into two parts, in which they do not differ from the ancients:
1st, What is Evidence, or Proof, by itself; 2dly, What is Presumption,
"which is a probable conjecture, from a reference to something which,
coming from marks and tokens ascertained, shall be taken for truth,
until some other shall be adduced." Again, they have labored
particularly to fix rules for presumptions, which they divide into, 1.
Violent and necessary, 2. Probable, 3. and lastly, Slight and rash.[46]
But finding that this head of Presumptive Evidence (which makes so large
a part with them and with us in the trial of all causes, and
particularly criminal causes) is extremely difficult to ascertain,
either with regard to what shall be considered as exclusively creating
any of these three degrees of presumption, or what facts, and how
proved, and what marks and tokens, may serve to establish them, even
those Civilians whose character it is to be subtle to a fault have been
obliged to abandon the task, and have fairly confessed that the labors
of writers to fix rules for these matters have been vain and fruitless.
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