Laws Based on Presumption

169. Preliminary notions. 1. Presumption is a prudent judgment in an uncertain matter from circumstances frequently connected with the thing or fact.

It is called presumption because, before all other proofs, something is taken as true from the circumstances.

2. Presumption is divided: a. into presumption of man, which is formed by a prudent man, without being found expressed in law; and into presumption of law, which is expressed in the law.

If Gaius at night, in the presence of Titius his enemy, is found killed, Titius is presumed to have killed him. Laws presume anyone to be good until he is proved bad, and one who is once bad always to be bad in the same kind of delict.

b. Into presumption of universal danger, e.g. of fraud, sins, etc., and into presumption of a particular fact, e.g. of fault, fraud, negligence, etc.

3. A law or precept is said to be founded on a presumption of common danger when the law forbids or prescribes something in order to forestall a danger which is found to be frequently connected with some action or omission; and it is said to be founded on a presumption of fact (of sin), when a law or precept is established from a supposed fact which is held as certain, because it usually happens thus.

The law which prohibits the reading of bad books is founded on a presumption of danger; the law which prohibits mixed marriages; the law which prescribes the proclamations of marriages. The law which holds the father of an infant to be him whom the marriage indicates is founded on a presumption of fact; the law which holds one born of Christian parents and raised among Christians to have been baptized; the sentence of a judge condemning someone to paying a fine.

¹ Cf. Reuter, Theolog. moralis p. I. n. 155 ss.

170. The force of this law. A law which is founded on a presumption of fact does not oblige in conscience if the fact does not in reality subsist; but a law which is founded on a presumption of danger always obliges in conscience, even if in the particular case the danger were not present.

a. The reason for the first is that in this case, since the presumption is false, the foundation of the law or precept is lacking, and therefore also the obligation; hence the axiom: presumption yields to truth. Hence if someone is condemned by the sentence of a judge to pay a fine because of damage inflicted by his animal, he is not bound to pay it if the damage was not inflicted; and if he is compelled to pay, he can use occult compensation.

b. The reason for the second is that a law does not cease unless the end of the law has adequately ceased: for otherwise the evils which the law intends to forestall would not be efficaciously impeded, because many would falsely persuade themselves that no danger is present. Hence even he to whom no danger threatens from the reading must abstain from the reading of a prohibited book. Likewise one condemned by the sentence of a judge is bound to repair damage caused by his animal, even without his own moral fault, because the law intends not only to punish moral fault but also juridical fault, and thus to render men more cautious for forestalling damages.

A law based on presumption is one in which the lawgiver rules for certain cases according to what experience shows in their regard—viz., that such cases are generally dangerous, or indicative of a particular fact. These laws are not of uncertain force, for the cases in which they cease to oblige are few and definite.

When a law is based on a presumption of common danger and that danger does not exist in a particular instance, the law nevertheless obliges (Canon 21); for the end of the law is the common good, and if it ceased for an individual whenever its presumption of danger was not true in his case, everyone could persuade himself that the law did not apply to him, and thus the common good would be defeated. Examples: The law against the reading of irreligious books is based on the presumption of common danger of sin, the law against clandestine marriages on the presumption of common danger of fraud; hence, they oblige even in the particular instances where these dangers are absent. Examples of laws based on the presumption of common danger can be found in Canons 199; 409, Sec. 1; 420; 422; 1022; 1028; 1114; 1116; 1138; 1396; 1398.

When a law is based on the presumption of a particular fact that usually happens in the cases with which the law is concerned, and the fact in an individual instance did not happen, does the law oblige?

(a) In conscience the law does not oblige of itself, because presumptions must yield to the truth; but it may oblige accidentally, if non-observance would cause great public or private harm. Example: The law presumes that a person born and brought up among Catholics has been baptized, and is therefore subject to the church laws. But if, in fact, the person was never baptized, he is not subject to those laws, as long as he remains unbaptized, unless there be some accidental necessity of keeping them, such as the danger of scandal.

(b) Before the public authority the law in question does oblige until the non-existence of the fact presumed by the law has been proved in the manner required by law. Example: When parties contract marriage according to the form prescribed by the Church, the presumption is that the contract was valid, and, as long as that presumption is not overcome, the Church will not sanction a new marriage by either of the parties. But if it can be proved in court that threats or violence produced lack of consent, the obligation not to contract a new marriage will terminate before the law.

277. (A) A law including a presumption of fact is one which, supposing that some fact always exists in certain adjuncts (because in similar adjuncts it is truly accustomed to exist), establishes rights and obligations for a case of this kind. Thus if someone has been born and educated among Catholics, he is presumed by law to have been baptized: therefore the law by which he is subjected to all the statutes of the Church, although his baptism is not certainly established, is a law including a presumption of fact.

A presumption of fact can be simply of law, or of law and by law: the former is one which is simply expressed or supposed in law, and against which any proof is admitted; thus in the case brought above; - the latter is one which is held by law as so firm that it is considered as truth, and against it not any proof is admitted, but only proof either indirect, or direct but wholly manifest: thus "a res judicata is held true and just by a presumption of law and by law, and cannot be impugned directly," as the Code, c. 1904, decrees; thus also from c. 1972, "a marriage which, while both spouses were living, was not accused, after the death of either or both spouses, is presumed to have been valid in such a way that no proof is admitted against this presumption, unless the question arises incidentally."

(a) In the external forum, a law founded on a presumption of law simply obliges until the falsity of the presumed fact is proved: and for demonstrating this, any proof suffices. - If there is question of a presumption of law and by law, it likewise obliges until the falsity of the presumed fact is demonstrated; but regularly direct demonstration is not admitted, unless it is wholly manifest. But indirect proof is admitted; for example, a res judicata can be impugned indirectly if the falsity of the documents on which the sentence exclusively rests is proved. - Indeed direct proof is permitted, if it is wholly evident, as judicial confession, a public document, witnesses of extraordinary authority: for the axiom is universally received: presumption yields to truth.

278. (b) In the internal forum, a law founded on a presumption of fact does not oblige in conscience, if the fact truly does not exist: for, in the forum of conscience, presumption always yields to truth. Thus if two spouses contracted marriage invalidly, because of a diriment impediment which cannot be proved in the external forum, they cannot engage in marital intercourse, even if the validity of the marriage is confirmed by the sentence of the judge.¹ - Yet if a law of this kind can be observed without sin, it often ought to be observed in order to avoid scandal.

¹ Decretal., cap. Inquisitioni, 44, de Sentent. excommunicationis.

279. (B) A law founded on a presumption of danger is one which forbids or commands something, to forestall a danger which is frequently found connected with some action or omission; thus the law which prohibits the reading of depraved books, or forbids mixed marriages; for in these cases the danger of perversion regarding faith or morals is frequently present. Now a law of this kind always obliges, even if in a particular case the danger is not present. For law does not cease unless the end of the law has ceased adequately, that is, totally and as to all, morally speaking: since it is directed to the whole community. But in our case, even if danger does not exist for such an individual, nevertheless it perseveres for the community. Therefore the law retains its force. - Moreover according to the Code,² "laws enacted to forestall a general danger urge, even if in a particular case the danger is not present." Otherwise many will rashly judge that no danger threatens them.

² Code, can. 21.

216. Notion. Presumption is taken in diverse senses, as will be explained more broadly below in the treatise on hope. But presumption, as there is now question of it, can be defined: "a probable conjecture concerning an uncertain thing";¹³⁰ or more broadly: "Presumption is a certain kind of proof, namely a reasonable conjecture or proof of a doubtful thing gathered from arguments and indications which frequently occur through the circumstances of things."¹³¹ Concerning presumptions, insofar as they constitute a certain kind of proof in ecclesiastical trials, canonists treat broadly, and there exists a special chapter in the Code of Canon Law.¹³² We briefly note the following:

¹³⁰ Cod. iur. can. c. 1825, § 1.

¹³¹ Ferraris, Prompta Bibl., word "Praesumptio"; Cod. iur. can. c. 1825, § 1. In the German language presumption is called "Rechtsvermutung"; in the French language "présomption"; cf. French Civil Code 1349 sqq.

¹³² Book 4, title 10, chapter 6.

217. Divisions. 1. By reason of the authority by which it is made, presumption of man and presumption of law are distinguished. A presumption of man is that which is found in no written law, but is gathered by man from reasonable indications. Thus, for example, a judge condemns the accused because of indications so strong that they produce moral certitude of guilt, although strict proof is not present. Canonists divide this presumption of man into light, grave, and most grave, according as the indications are light, grave, or most grave. - A presumption of law is that which proceeds from the authority and precept of the law itself. Several presumptions are held in law, for example, everyone is presumed good unless he is proved evil; "once evil, he is always presumed to be evil"¹³³ (understand: in the same kind of evil).

Presumption of law is subdivided into presumption iuris simply and presumption iuris et de iure. The first is that upon which the law indeed rests, but which admits proof of the contrary both direct and indirect; for example, true matrimonial consent is presumed conformable to the external words which were uttered in the celebration of marriage. Infants of Catholic parents are presumed to have been legitimately baptized. The other is that which in law is held as full truth until the contrary is manifestly established; and therefore against such a presumption only indirect proof is admitted, that is, proof against the fact which is the foundation of the presumption.¹³⁴ Such a presumption iuris et de iure stands, for example, for the sentence of a judge which passes into a thing adjudged;¹³⁵ for the validity of a marriage which has not been accused while both spouses were living.¹³⁶

2. By reason of the object, presumption of common danger and of particular fact are distinguished. The first is present when the legislator presumes that in certain circumstances there is common danger or fault; for example, the legislator presumes that from the reading of heretical books there arises a common danger of perversion, and therefore he prohibits the reading of books of this kind. - The other presumption has place when the legislator presumes some particular fact, although this cannot be certainly proved; for example, in relation to marriage a doubtful baptism is presumed valid, although this cannot be proved in a particular case.

¹³³ Rule of Law 8 in VI.

¹³⁴ Cod. iur. can. c. 1826.

¹³⁵ Ibid. c. 1904; res iudicata in German: rechtskräftiges Urteil; in French: jugement définitif et exécutoire.

¹³⁶ Ibid. c. 1972.

218. Principle 1. A law founded upon the presumption of common danger obliges, even if the presumed danger is not really present in a particular case. Thus also the Code of Canon Law c. 21 expressly establishes.

The reason is that a law does not yet cease, even if its end ceases in some particular case, as will be explained more broadly below. And in truth an opening would be given to many and pernicious illusions if a law ceased whenever some subject thinks that the law is useless for him. Hence, for example, the ecclesiastical law prohibiting evil books obliges even him for whom in some particular case there is no danger of perversion; the law of matrimonial banns must be observed, even if in some particular case it is already morally established from the beginning that no impediment obstructs the marriage.

219. Principle 2. A law founded upon presumption of fact obliges in the external forum until the falsity of the fact has been proved; but in the internal forum a law of this kind does not oblige.

The reason for the first part is that the presumption did not arise from a light motive and therefore is rightly held as truth in the external forum for as long as its falsity has not been proved. - The reason for the second part is the common adage: "Presumption must yield to truth." Hence a hard conflict between the external and the internal forum can arise; for example, if some woman has been joined in marriage in the face of the Church, she is presumed in the external forum to be a true wife and is compelled to cohabit with the man until the nullity of the marriage has been manifestly proved; but if that woman herself certainly knows that the putative marriage is invalid because of some diriment impediment, she cannot conduct herself as a true wife and therefore cannot licitly ask or render the conjugal debt. But how she must act in such a case will be said below in the treatise on marriage III, n. 732 and 751.

220. Scholion. On legal fiction. From a law founded upon presumption differs the so-called "fiction of law," which is a disposition of law made in a possible matter against truth from a just cause.¹³⁷ Therefore by a fiction of law the law declares from a just reason that some juridical effect has been produced by a cause which, because of an impediment, did not in reality produce it; or more briefly: fiction of law is an objective falsity and a mere juridical favor granted from a just cause. For example, since every marriage celebrated in the face of the Church is presumed valid, all infants begotten in such a marriage are deemed legitimate by a fiction of law, even if afterward the nullity of the marriage becomes known. Likewise, by a fiction of law, the so-called sanation "in the root" effects that a marriage hitherto invalid is held valid from the beginning. Such fictions of law already came into use in the old Roman law and, because they are conformable to natural equity, always oblige in both the external and the internal forum; but they must receive a strict interpretation and therefore must not be extended beyond that which is expressed in the law.

¹³⁷ Cf. Bouquillon, Theol. mor. fund. n. 175 (ed. 3); fictio iuris is rechtliche Annahme in German.