Men act on them with all the power of a
creator over his creature. They make fictions of law and presumptions of
(_praesumptiones juris et de jure_) according to their ideas of utility;
and against those fictions, and against presumptions so created, they do
and may reject all evidence. However, even in these cases there is some
restraint. Lord Mansfield has let in a liberal spirit against the
fictions of law themselves; and he declared that he would do what in one
case[68] he actually did, and most wisely, that he would admit evidence
against a fiction of law, when the fiction militated against the policy
on which it was made.
Thus it is with things which owe their existence to men; but where the
subject is of a physical nature, or of a moral nature, independent of
their conventions, men have no other reasonable authority than to
register and digest the results of experience and observation. Crimes
are the actions of physical beings with an evil intention abusing their
physical powers against justice and to the detriment of society: in this
case fictions of law and artificial presumptions (_juris et de jure_)
have little or no place. The presumptions which belong to criminal cases
are those natural and popular presumptions which are only observations
turned into maxims, like adages and apophthegms, and are admitted (when
their grounds are established) in the place of proof, where better is
wanting, but are to be always over turned by counter proof.
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