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22. Wigmore expresses the same opinion about the character of irrebuttable presumptions, for he says that "wherever from one fact another is said to be conclusively presumed, in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that, where the first fact is shown to exist, the second facts existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a rule of substantive law, and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence (Wigmore on Evidence IX Edition P. 292, Para. 2492)." With respect, it is doubtful whether it is correct to say that in drawing a conclusive presumption from one fact proved about the existence of another fact, the rule renders the second fact's existence wholly immaterial. What the rule provides is that the probative or persuasive value of the proved fact in relation to the fact not proved is so great that the fact not proved should always be taken to be proved once the other fact is proved. In any case, the opinion of Wigmore is in favour of the contentions raised by the petitioners.

55. Every law has something to do with the function of the State in securing rights to and imposing liabilities on its people. While however some of the laws deal primarily with the creation, modification or extinguishment of rights or liabilities, other laws deal with the further task that then becomes necessary - of ascertaining how for in any particular case, such rights or liabilities have come into existence, or have become, destroyed. For clarity of thought, and convenience of discussion, the laws falling in the former class are called substantive laws while those in the second class are called adjective laws. Adjective laws again have two branches, one dealing with the procedure of the court; and the other (which is also in the strict sense "procedure") rule of evidence. The distinction between substantive law adjective law is well understood in jurisprudence, thought some amount of confusion has occasionally been caused by some writers losing sight of the distinction. As early as the beginning of the nineteenth century Bentham criticised in his Rationale of Judicial Evidence the tendency of many writers to present rules of civil law and criminal law as rules of evidence. "What, therefore the lawyers give us, under the appellation "law of evidence", says Bentham, "is really, in a great part of it, civil and penal law." Since Bentham's time much progress has been made in this matter and many jurists of eminence have emphasised the distinction between rules of evidence properly so called and rules which in the guise of rules of evidence are really rules of substantive law. Mr. Justice Holmes in this Common Law says - "If the Court should rule that certain acts or omissions coupled with damage were conclusive evidence of negligence unless explained, it would, in substance and in truth; rule that such acts or omissions were a ground of liability or prevented a recovery, as the case might be". "It is then fundamental", says Professor Thayer, in his Preliminary Treatise on Evidence. "that not all determinations admitting or excluding evidence are referable to the law of evidence. Far the larger part of them are not." "Permitting a fact", says Professor Wigmore in his Treatise on Evidence, "to become a proposition is not an evidentiary process", and gives the following example : "An action of battery upon a plea of not guilty, the defendant offers evidence to prove that the plaintiff used insulting words to the defendant before the attack, and this is rejected; here the ruling is in truth that insults constitute no excuse or no ground for mitigation of damages, a rule of substantive law; or perhaps, that such a defence is not available upon a plea traversing the battery - a rule of pleading. It is certainly not a ruling upon a question of evidence; it is a ruling that the proposition desired to be proved is either not tenable, by the substantive law, or not issuable, by the law of pleading."

56. This reasoning is obviously at the basis of Wigmore's view in s. 2492, Vol. IX of the same treatise that rules laying down conclusive presumptions are really rules substantive law. "In strictness" says he, "there cannot be such a thing as a "conclusive presumption." Wherever from one fact another is said to be conclusively presumed in the sense that the opponent is absolutely precluded from showing by any evidence that the second fact does not exist, the rule is really providing that, where the first fact is shown to exist, the second facts existence is wholly immaterial for the purpose of the proponent's case; and to provide this is to make a substantive law and not a rule apportioning the burden of persuading as to certain propositions or varying the duty of coming forward with evidence."

58. While both Wigmore and Holdsworth seem to regard all conclusive presumptions as rules of substantive law, Phipson in his Law of Evidence says, more guardedly, that many of such conclusive presumptions are rules of substantive law. At page 698 of his book the learned author says :- "In many cases these so-called conclusive presumptions are rules which belong, properly speaking, to the various branches of substantive law and not to the law of evidence, such as the presumption that an infant under seven is incapable of committing a felony, or that all men know the law (i.e., that ignorance of the law is no excuse for crime)." He then gives several instances of matters which are conclusive presumptions or amount to conclusive evidence, either by statute or common law. But unlike Wigmore and Holdsworth, he does not say that all rules of conclusive presumptions are rules of substantive.