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In the same case his Lordship recognised a principle which, although laid down by Lord Hale, and correct to a large extent, does not appear, according to other cases, to be true universally. The rule is-Never to convict where the corpus delicti, the substantial crime, is not established. An illustration of this rule has been already mentioned.1

In Evans v. Evans,2 Lord Stowell said: "It has been asked, and very properly asked, Do not courts of justice admit presumptive proof? Do you expect ocular proof in all cases? I take the rule to be this: -If you have a criminal fact ascertained, you may then take presumptive proof to show who did it: to fix the criminal, having then an actual corpus delicti.

But to take presumption in order to swell an equivocal fact, a fact that is absolutely ambiguous in its own nature, into a criminal fact, is a mode of proceeding of a very different nature, and would, I take it, be an entire misapplication of the doctrine of presumption." But the same learned judge, in a later case,3 stated luminously the evidence which is required in cases of adultery; and his judgment there seems to contain a more comprehensive statement of this rule.

"It is a fundamental rule that it is not necessary to prove the direct fact of adultery; because, if it were otherwise, there is not one case in a hundred in which that proof would be attainable; it is very rarely indeed that parties are surprised in the direct fact of adultery. In every case almost, the fact is inferred from circumstances that lead to it by a fair and necessary conclusion; and unless this were the case, and unless this were so held, no protection whatever could be given to marital rights. What are the circumstances which lead to such a conclusion cannot be laid down universally... because they may be infinitely diversified by the situation and character of the parties, by the

1 Supra, p. 4.

2 1 Hagg. Cons. Rep. 105. 32 Hagg. Cons. Rep. 2.

state of general manners, and by many other incidental circumstances, apparently slight and delicate in themselves, but which may have most important bearings in decisions upon the particular case. The only general rule that can be laid down upon the subject is, that the circumstances must be such as would lead the guarded discretion of a reasonable and just man to the conclusion; for it is not to lead a rash and intemperate judgment, moving upon appearances that are equally capable of two interpretations. Neither is it to be a matter of artificial reasoning, judging upon such things differently from what would strike the careful and cautious consideration of a discreet man. The facts are not of a technical nature, they are facts determinable upon common grounds of reason; and courts of justice would wander very much from their proper office of giving protection to the rights of mankind, if they let themselves loose to subtleties and remote and artificial reasonings upon such subjects. Upon such subjects the rational and the legal interpretation must be the same."

Presumptions are said to be either presumptions of law or of fact. But as this distinction appears to be more technical and artificial than real, it will not

be attempted to define it. Some presumptions are conclusive, and others are disputable. The following are prominent examples of both classes.

The law presumes innocence.

Thus the proof of guilt lies generally on the prosecutor, and where that is deficient, the prisoner must be acquitted; and this is so, even where the act charged is only one of omission. Where any act is required to be done on the one part, so that the party neglecting it would be guilty of a criminal neglect of duty in not having done it, the law presumes the affirmative, and throws the burden of proving a negative on the

1 Sup. p. 2.

other side. Thus, where the plaintiff declared that the defendant, who had chartered his ship, put on board a combustible article by which loss was occasioned, without due notice to the captain, it was held that the plaintiff must prove his negative averment, because the law will not presume negligence which amounts to a criminal neglect of duty. Thus, also, the law will not presume fraud; and therefore generally where fraud is pleaded it must be proved, or at least some primâ facie evidence of it given, when it will lie on the opposite party to disprove the allegation.2

So in bigamy the prosecution must prove that the first husband or wife was alive at the date of the second marriage.3 But when the first husband or wife has not been heard of for seven years, it seems doubtful, under 9 Geo. 4, c. 31, s. 22, whether the prosecutor must prove that the prisoner knew of the existence of such first husband or wife: or whether the prisoner must prove ignorance of it.4

This rule also is subject to the qualification that if a negative averment be made by one party which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative, is to prove it, and not he who avers the negative.5

Thus, before the New Game Law, it was held in the above case, that a conviction against a carrier, for having game unlawfully in his possession, was good without any averment negativing his qualification. It was also assumed in this case that, in proceedings under the old Game Law, the person professing a qualification must prove it. This view of the law has since been confirmed in this particular case by the

1 Per Lord Ellenborough, Williams v. East India Company, 3 East, 199.

2 Mather v. Lord Maidstone, 26 L. J. 58, C. P., and infra.

3 R. v. Twining, 2 B. & Ald. 386.

4 R. v. Briggs, 26 L. J. 7, M. C.

5 Bayley, J., R. v. Turner, 5 M. & S. 211.

So on an indictment for

1 & 2 Will. 4, c. 32, s. 42. night-poaching it is unnecessary to prove want of leave and licence; and it is enough to show that the prisoner was on the land; for the circumstances raise a presumption of illegality, and the jury may infer the want of licence.1

The law presumes in criminal matters that every person intends the probable consequence of an act which may be highly injurious.2

Thus, in homicide, when the death is proved, malice is presumed; and it is for the prisoner to prove the extenuating circumstances which may reduce the act from murder to manslaughter, or to justifiable or excusable homicide.3 So in an action for libel, it was held, that a judge is wrong in leaving it to a jury to say whether the defendant intended to injure the plaintiff, inasmuch as if the tendency of the libel was injurious to the plaintiff, the defendant must be taken to have intended the consequence of his own act. In Bromage v. Prosser,5 Bayley, J., said :

"Malice in common acceptation means ill-will against a person; but in its legal sense it means a wrongful act done intentionally, without just cause or excuse. If I give a perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally and without just cause or excuse. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, I apprehend the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury whether I meant to produce an injury or not;

1 R. v. Wood, 25 L. J. 96, M. C.

2 Lord Ellenborough, R. v. Dixon, 3 M. & S. 15.

3 Wels. Cr. Pr. 495.

Havié v. Wilson, 9 B. & C. 643.

5 4 B. & C. 255.

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and if I had no legal excuse for the slander, why is he not to have a remedy against me for the injury it produces? . . . And I apprehend the law recognises this distinction between these two kinds of malice,malice in fact, and malice in law, in actions of slander. In an ordinary action for words, it is sufficient to charge that the defendant spoke them falsely; it is not necessary to state that they were spoken maliciously. But in actions for such slander as is primâ facie excusable on account of the cause of speaking or writing it, as in the case of servants' characters, confidential advice or communications to persons who ask it or have a right to expect it, malice in fact must be proved by the plaintiff," i. e. in such cases, it must be proved that the false representations were made with a knowledge of their falsehood. A privileged communication was defined in Somerville v. Hawkins,1 to be one made "bonâ fide in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the party using the words."

Omnia præsumuntur rité esse acta.

It is a general presumption of law that a person acting in a public capacity is duly authorised so to do.2

It is presumed that all who act as justices of the peace, or as constables, have been duly appointed,3 On an indictment for having committed perjury before a surrogate of the Ecclesiastical Court, proof that the person who administered the oath acted as surrogate has been held sufficient primâ facie evidence that he had been duly appointed, and had authority to administer the oath. But this evidence is only primâ facie, and may be rebutted. And the rule does not apply to

120 L. J. 131, C. P., and Wenman v. Ash, 22 L. J. 191, C. P. 2 Lord Ellenborough: R. v. Verelst, 3 Camp. 433.

3 Berryman v. Wise, 4 T. R. 366.

4 R. v. Verelst, sup.

5 Rosc. N. P. 30.

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