Catholic Encyclopedia (1913)/Presumption (in Canon Law)

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(IN CANON LAW)

A term signifying a reasonable conjecture concerning something doubtful, drawn from arguments and appearances, which by the force of circumstances can be accepted as a proof. It is on this presumption our common adage is based: "Possession is nine points of the law". Presumption has its place in canon law only when positive proofs are wanting, and yet the formulation of some judgment is necessary. It is never in itself an absolute proof, as it only presumes that something is true. Canonists divide presumption into;


  • (1) presumption of law (juris), or that which is deduced from some legal precept or authority expressed in law or based upon precedents or similarities, and
  • (2) presumption of a judge or man (judicis or hominis), when the law is silent on the subject and an opinion must be formed according to the way that circumstances and indications would affect a prudent man or judge.

There are several sub-varieties of presumption of law. Thus, it is called presumption of law alone (juris tantum) when a thing is judged to be so until the contrary is proved. Hence the legal formulæ: "Everyone is presumed innocent until his guilt is proved"; "Once bad always bad" (i. e. in the same species of ill-doing, if amendment is not certain); "What is known in a remote place is known in a neighbouring place", and others similar. It is denominated presumption juris et de jure, when the law so strongly supports the presumption that it is held to be certain in judicial proceedings. Against such a presumption no proofs are admitted except the evident truth. Thus, goods described in the inventory made by a guardian are presumed to belong to the possessions of the deceased, nor would the later testimony of the guardian himself to the contrary ordinarily be admitted. As to the presumption judicis or Hominis, it is called (a) vehement, when the probability is very strongly supported by most urgent conjectures. Thus, a birth would be held illegitimate, which took place eleven months after a husband's decease. A vehement presumption is considered equivalent to a full proof in civil causes of not too great importance. As to whether it should have sufficient effect in criminal causes to produce the condemnation of an accused person, canonists do not agree. It is termed (b) probable, when it arises from less urgent and only less probable conjectures and indications. Such presumption is looked on as merely a semi-proof, unless it be sustained by public rumour, in which case it is held as sufficient proof. Finally, it is denominated (c) rash, or temerarious, if it rests on insufficient conjectures or scarcely probable arguments. Such presumption is to be entirely rejected as a proof.

The foundation of these legal presumptions is to be sought in the natural conclusions drawn from the ordinary happenings of common life and the consideration of the motives that usually sway men in given circumstances. The general rules are thus formulated: "What is natural is presumed to be in the person or case in question"; "Change is not to be presumed"; "Presumption is to be formed from the favourable side". As to effects, when there is question of presumption juris, it abstracts from the necessity of proof; not so presumption hominis. A judge can follow the first in civil cases even when doubt remains, not so the second. The former places the burden of proof on the adversary, but the latter does not. Finally, the first is considered of itself equivalent to proof, while the second needs corroboration from something extraneous to itself.

TAUNTON, The Law of the Church (New York, 1906), s. v. Presumption; FERRARIS, Bibliotheca canonica, VI (Rome, 1890), s. v. Prœsumptio.

WILLIAM H. W. FANNING.