, of artificial contrivance. The rules concerning it become more
positive, as connected with positive institution. The legislator
therefore always, the jurist frequently, may ordain certain methods by
which alone they will suffer such matters to be known and established;
because their very essence, for the greater part, depends on the
arbitrary conventions of men. 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.

These presumptions mostly go to the _intention_. In all criminal cases,
the crime (except where the law itself implies malice) consists rather
in the intention than the action. Now the intention is proved but by two
ways: either, 1st, by confession,--this first case is rare, but
simple,--2dly, by circumstantial proof,--this is difficult, and requires
care and pains. The connection of the intention and the circumstances is
plainly of such a nature as more to depend on the sagacity of the
observer than on the excellence of any rule. The pains taken by the
Civilians on that subject have not been very fruitful; and t