It is presumed, we are told, a persona qualitate, that an of person dies before a youth; that a woman is less resolut than a man; that the weaker of two combatants did no begin the fight, that semel malus, semper melas (a maxim tha is reproduced by Rochefoucault). Under the head of caus are enumerated a series of conclusions based on the scienc of psychology; and the probable results of amor, spes, an metus are detailed. As to metus, we have announced the presumption that a young woman loses her chastity only by force. Ex facto come the following: factum sequens declare voluntatem præcedentem; a præsenti ad præteritum et futurum præsumitur; and even a futuro ad præsens et præteritum præsumitur.*

The following psychological inference is introduced by Menoch as a presumption of law: non præsumendus est quisquam dicere quod non prius mente agitaverit; a proposition which has been the cause of much confusion in our later Anglo-American jurisprudence. It is sufficient here to say that the term "law" is so defined by Menoch as to include sociology, psychology, and physical science, and that, as presumptions of law, he treats psychological, social, and physical inductions. No doubt a statute may take an induction so borrowed, and, in order to relieve the parties from proving that which is reasonably settled, make it a presumption of law. When two persons are exposed on one plank to the dangers of the sea, and both die, the probability is, so we infer, that the stronger survives the weaker. We may base this probability on the instinctive love of life, which leads the stronger to use his superior strength to secure his survivorship; or on the physical laws of the human frame, which generally give longer endurance to the strongest. These, however, are presumptions of fact, which vary with each particular case. The legislature, however, in order to simplify litigation, and to give an arbitrary test by which something like uniformity of result may be reached, may enact by statute that in such cases the survivorship is to be

*NOTE.-Menoch, qu. 19.

etermined by certain fixed rules. The presumption in such ase is one, not of fact, but of law. The law may be very bsurd, and may conflict with the conclusions of those ciences which are most capable of judging such issues; but, hether absurd or not, it is binding. Here, then, is the distinction which escaped Menoch, from the fact that he mbraced all science and experience under the term "law." A presumption of law, in its true sense, is a presumption which, whether probable or improbable, is applied by statute, or by that which is equivalent to statute, to a fixed and constant condition of facts. A presumption of fact is a presumption applied by logic, aided either by common experience or by scientific research, to the exceptional and unique facts of each particular case.

If it be objected that I have exhibited in too great detail the views of the scholastic jurists from whom our prevalent classification of presumptions is taken, the answer is that it is only by such an exposition that the true character of the scholastic system can in this relation be known. Eminent English text writers, for instance, cite Menoch and Alciat as authority for the proposition that intent is a presumption of law; and, in fact, when we go back to the earlier English cases announcing this maxim, we find that its sole authorities are the scholastic commentators to whom I have just referred. We are led, therefore, to suppose (1) that maxims such as these have the authority of the Roman law, and (2) that they are part of a symmetrical system of jurisprudence based, as all practical jurisprudence must be, on the recognition of the coordinate power of the factors of law and of fact. But (1) the maxims in question, and the classification of presumptions to which they relate, are unknown to the Roman law, and are the creatures of the speculative scholasticism of the middle ages; and (2), what is more important, they are part of a false system which ignored reason as a coördinate factor in concrete adjudication, and which undertook to decide by a pre-announced rule of law every possible contingent question of fact. To these errors are attributable the multitudinous "presumptions of law" of the scholastic jurists; to

this we owe those immense volumes of judicial casuistry whic have done so much to mislead English writers on evidence

The restoration of the classical and philosophical doctrin in this respect is by a process not unlike the restoration under Niebuhr's auspices, of the treatise of Gaius, of whic so much was used in the Justinian compilation. The parch ment on which the full text of Gaius was written had bee covered by monkish legends, while the original writing had been apparently obliterated. By diligent and skilful labor however, the monkish legends have been removed and the text of Gaius restored. If we are bound by authority, then our duty is to perform the same office with the mediaval text books by which, in this branch of law, our conclusions have been so long perverted. We must get rid of the crust of false scholasticism by which the true authorities have been hidden, and restore those authorities in the purity of their text. If we are not bound by authority, then let us toss away the medieval as well as the classical jurists; but let us, at least, regain our logic. If there is no technical jurisprudence fettering us to a particular theory of presumptions, then we must fall back on reason, and hold that only is a thing presumed to be true when its truth can be proved. FRANCIS WHARTON.

CAMBRIDGE, MASS.

VII. RIPARIAN RIGHTS.

To every thoughtful student of the law it has an aspect f the absurd. He is made sensible of this when he conemplates it with reference to the tenacity with which it lings to time-honored custom, usage, and ancient precedent. A law which arose out of the necessities of a people centuries ago-out of a civilization, or semi-civilization, with Customs, manners, wants, and adaptabilities as different From the present as midnight darkness from the noon-day sun-is laid down as the rule for to-day. It matters not that the peculiar people, their domestic and foreign policy, the habits and necessities of their existence, and their place of abode, have all passed away or been changed. As a partial illustration of this, we instance the subject of the present paper.

The common-law doctrine of the rights of riparian owners had its inception and growth largely in the wants of the English people and the peculiar conformation of the Island of Great Britain, at a time before steam vessels were known, and little of engineering skill possessed by the people, and when a commercial marine was thought impracticable.

It was then, when sail vessels were unable to make headway against the current of the short and rapid streams of this island, that rivers were said to be navigable only to the extent of the ebb and flow of the tide-a fiction that is daily being announced as truth, from the bench in this country, of all our great rivers, the Mississippi included.

We know that this is said to be so only in law, not in fact. But we appeal to the sober thought and common sense of the jurists of our country, whether it is not time that they should cease to say "in law, though not in fact." What is true in fact, except when the distinction is made with reference to an equivocal use of language, should be true in law.

The annunciation that a thing is true in fact, but not in law, is a concession to roguery, and should be a cause for ridicule of the judge.

There is, perhaps, no more instructive and interesting chapter of our law than that which contains the varied learning, the profound research, and subtle sophistry by which it is sought to give plausibility and applicability in this country to the common-law doctrine on this subject.

Most laws have, as all laws should have, some basis of reason in the wants of the people, the peculiar circumstances giving their existence, or in some theory of "the eternal fitness of things." When they fail in any or all of these, they should be wiped out, and something better take their place.

Time-honored custom and usage, or ancient precedent, are not sufficient reasons for their perpetuation. The statesman and the superior judge should rise above this dictation of meaningless form-ancient, and objectless, and inapplicable usage. He may not always circumscribe his action by his peculiar views or judgment in every case. This would lead to an unsettling of all law. Many questions arise in which the reasons are about equally balanced, in which the reason of the living judge may conflict with that of the dead one, as represented in the pages of our reports and text-books. In such cases he will usually follow precedent. But when the question arises, and when the alternative exists, that he must choose between reason, perhaps right and justice, and precedent-precedent having, it may be, its origin in a state of things entirely different from the present, or in which the reason of the thing has ceased to exist-then he will follow his own judgment and reason.

In the case of the Railroad Company v. Schurmeir1 the court says: "Irrespective of the acts of Congress, it should be remarked that navigable waters, not affected by the ebb and flow of the tide, such as the great lakes and the Mississippi river, were unknown to courts and jurists. When the

7 Wall. 288.