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the law not only set great value upon human life, and forbade the taking of it except upon the severest necessity, but it was thought that the blood of a man slain was a defilement, and the person or thing causing death was accursed. This is shown not only from the fact that homicide se defendendo and per infortunium was felony, and so entailed forfeiture in all cases, but also in the case of deodands. In Britton it is said that if a man fall from a tree, ship, boat, cart, horse, or mill, though there be no felony, yet the things which caused the death shall be adjudged deodands.1 It made no difference who the owner of the thing was; and so if a man kill another with my sword, the sword is forfeited as an accursed thing. A great variety of instances is given in Blackstone,s and the principle on which they are based, however superstitious it may have been, is that the killing of a man is in itself defiling and wicked. The same may be said of forfeitures attached to killing without fault. For although such killing was not, as was supposed by Lord Coke,4 punished with death, yet some penalty was always attached to it, on the ground, says Blackstone, that “ he who slays his neighbor without an express warrant from the law so to do, shall in no case be absolutely free from guilt." 5 That is to say, primâ facie the act is unlawful, though the offending party may change the prima facie character of the act by showing express warrant of the law. In the same passage there are given many parallels to this view of the prima facie criminal character of all homicide, in the laws of other nations. Thus among the Jews, in Athens, in the laws of the Goths, and in the civil law itself,' all homicide was at least primâ facie criminal, and had to be expressly pardoned or else expiated. Moreover, it is to be considered that in the English law forfeitures and deodands went to swell the king's revenues, and the life of the subject was perhaps held more precious for that reason.10
i Britton, lib. i. c. 8.
8 1 Bl. Com. 301. 4 2 Inst. 148, 315.
5 4 Bl. Com. 187. 6 Numb. xxxv.; Deut. xix.
7 Plato, de Leg. lib. 9. 8 Stiernh. de Jure Goth, 1. 8, c. 4.
9 Cod. 9, 16, 5. 10 “ The rule that wilful killing is presumed to be malicious is sanctioned by the moral sentiment of the great value to be set on human life, and is, perhaps, a relic of the old law which affixed forfeitures even to accidental homicide, partly, perhaps, from the notion that blood defiles the land, partly from love of forfeitures.” Steph. Cr. Law, 121.
These considerations bring us to the objections that have been made to the rule in question on the score of principle. The presumption under consideration has been said to be a presumption of law based on observation of the ordinary course of nature and the conduct of men, although deriving perhaps additional support from considerations of public policy. It is said that neither of these grounds is tenable. Now a presumption may be defined to be where, in the absence of any fact, or until actual certainty of its existence can be obtained, an inference of the existence of that fact is drawn by a process of probable reasoning.? “A presumption of any fact,” said Lord Tenterden,8 is properly an inference of that fact from others that are known; it is an act of reasoning.” Presumptions are divided into presumptions of law and presumptions of fact. The former are, in our law, drawn by the court, or, as is said, by the law itself; the latter by the jury, being in truth nothing more than conclusions from circumstantial evidence. Presumptions of law are either conclusive or disputable, either irrebuttable or rebuttable, presumptiones juris et de jure or præsumptiones juris. Of the latter sort is the one under consideration, and when it is applied, its effect is to transfer the burden of proof. If nothing else appears in evidence, and there is no stronger presumption to oppose it, the law holds it to be true. “In this mode,” says Greenleaf, in speaking of rebuttable presumptions of law, “the law defines the nature and amount of the evidence, which it deems sufficient to establish a prima facie case, and to throw the burden of proof on the other party; and if no opposing evidence is offered, the jury are bound to find in favor of the presumption.” And he adds that the rules in this class of presumptions have been adopted by common consent, from motives of public policy, and for the promotion of the general good; yet not forbidding all further evidence, but only dispensing with it till some proof is given on the other side to rebut the presumption thus raised. It is plain, therefore, that to justify the law in assuming a priori the existence of one fact upon proof of another, even primâ facie, the observed connection between the two must be pretty uniform. This is commonly expressed by saying that the two facts are usually found to be companions, or to be the result, one of the other.
1 Best, Pres. § 129 ; 1 Greenl. Ev. & 34. . 2 Best, Pres. & 3; Wills. Circum. Ev. 34. 3 Rex v. Burdett, 4 B. & Ald. 161, 162.
4 “ Est animi legislatoris ad verisimile applicatio, onus probandi transferens." Bald. in rubr. C. 19, 4, de prob.
5 “Præsumptio juris est probabilis conjectura ex certo signo proveniens quæ, alio non adducto, pro veritate habetur.” Alciat. Tract. de Præs., in prælect. par. 8, DO. 1.
61 Greenl. Ev. § 33.
Now the general principle laid down in Greenleaf on Evidence, of which this presumption of malice is the illustration, is that, as men seldom do unlawful acts with innocent intentions, the law presumes every act in itself unlawful to have been criminally intended.? To this Mr. Bishop responds, that the statement involves the gratuitous, and, as he thinks, unfounded assumption that all killing is unlawful. In fact, says he, vastly more people are killed lawfully than unlawfully. “For instance, it is so when the regularly educated and licensed medical practitioner unintentionally kills his patient, and there are many more deaths of this sort than there are murders. It is so where one takes life in self-defence, in preventing the commission of a felony; in battle ; in the infliction of the death penalty adjudged by law;" and in other cases. Now if we were to take direct issue with the particular instances here given, it might be said that however it may be in fact as to numbers killed by physicians, it is certain that the law has cognizance of very few, that is, very few are inquired of even in the preliminary processes of the law; and as to the instance of those killed in battle, the law cannot, from the nature of the case, have knowledge of such deaths. Inter arma silent leges. But it is unnecessary to disprove the assertion that in the world at large more deaths are caused by the hand of man, in the perpetration of which the specific intent with which the act is done is not such as is forbidden by law, than there are where the intent is criminal. A great number of deaths caused by the hand of man, not only in battle, but in many other cases, are not inquired of by trial in the regular process of the law, and among those cases where a person is tried for the offence, there are some where the fact of the killing is not fixed upon him. But we think it will not be denied that among those cases regularly tried by law, where the overt act has been fixed upon the defendant, it is usually, though not always, found that the act was committed with an unlawful intent. Indeed, it is incontrovertible as matter of fact, that both in civil and criminal trials the plaintiff or prosecutor, as the case may be, prevails in a majority of instances. Bentham made that fact the basis of an ingenious criticism upon the rule that where the plaintiff does not prove his case, the defendant is to be acquitted. Actore non probante reus absolvitur. A fortiori, would it be true of one element of the crime, the intent, when the overt act, which is the indispensable basis of the charge, is fixed upon the defendant. Now the law is a practical science, and bases its rules upon the facts of a given class as they are presented in judicial proceedings, that is, upon such as it has cognizance of. Regard being had, then, to these limitations and conditions, it may be laid down as a well-founded rule that, inasmuch as in most cases which the law actually inquires of, where the act of killing is fixed upon the defendant, it turns out that the act was accompanied with a criminal intent, the prima facie presumption is that such is always the case. In all such instances enough has been proved to authorize the law to call upon the defendant to explain.
11 Greenl. Ev. & 33. “Præsumptiones sunt veluti anticipationes quædam de eo, quod in re est, communi sensu perceptæ, ex eo, quod plerumque intelligitur, quodque plerumque fit, quæ probationum onus in eum transferunt contra quem faciunt.” Cujacius, Parat. in lib. quin. Dig. par. 2, lib. 22, tit. 3. “Ces conséquences sont fondées sur ce qui arrive communément et ordinairement.” Pothier, des Oblig. tom. ii. par. 4, c. 3, sect. 2, § 1. 2 1 Greenl. Ev. & 34.
3 2 Bish. Cr. Proc. $ 619.
These considerations are supplemented by the principle that primâ facie every act of killing is unlawful. Whether it be called a rule of law or a maxim of public policy, it is certain that this principle has always been recognized, and that it is, moreover, founded upon the soundest jurisprudential basis. We have before shown that human life has always been held sacred, not only in the common law, but under other systems. There are certain rights which the law recognizes in the individual, and it enjoins upon all others the duty of abstaining from the violation of them. If I am in possession of an article of property, the law puts upon all others the duty of leaving me in undisputed possession of it. If any one infringes my possession, the prima facie inference of the law is that he did so unlawfully, and he is put to the necessity of showing that his real right is paramount to my primâ facie right. The right of existence is, if possible, a still more primitive and imperative one, and a corresponding duty to leave the possessor thereof in the enjoyment of it, is enjoined upon the rest of mankind. When one man takes another's life, that duty appears to be violated. Primâ facie the act is unlawful, and the law consequently calls upon the slayer to show the contrary.
Now it is unnecessary to cite authorities to establish the proposition that in the common law the perpetration of an unlawful act carries with it a primâ facie presumption of a criminal intent. The principle is established by a great variety of cases, and laid down by our text writers in the most unequivocal terms. “ The consequence,” says Mr. Stephen, “ of making malice in general terms a necessary element of crime is, that certain acts, as, for example, the destruction of life, or the appropriation of what belongs to another, are declared to be primâ facie wicked actions, though circumstances may exist by which their wickedness is either removed or diminished.” 2 The principle is recognized as a distinctive feature of the commonlaw system by foreign writers. We have already seen that the presumption under consideration was put upon a similar basis by the civilians. The maxim was expressed in general terms in that law by saying that certain things are criminal or unlawful in themselves. Res ipsa in se dolum habet. This, says M. Rossi, is oddly enough expressed, assez bizarrement exprimée, and it is easy to criticise the expression, and to say that as the criminality is always in the agent and not in the act, it is absurd to speak of objective criminality. But the distinction is founded in the nature of things, and marks the difference between the criminality resulting primâ facie from the overt act, and that which may finally appear from evidence. Now in
i Rex v. Dizon, 3 M. & S. 11; Rex v. Sheppard, R. & Ry. 169; Rex v. Phip, 1 Mood. Cr. Ca. 263; Com. v. Bakeman, 105 Mass. 53, 57, 61.
2 Steph. Cr. Law, 83.
3 “Une question fort débattue en cette matière est celle qui consiste à savoir si l'on doit présumer l'intention criminelle à raison de nature de l'acte, qui serait inex. plicable, s'il n'avoit pas un but illicite. ... Tel est aussi le droit commun en Angleterre et en Amérique.” Bonnier, Traité des Preuves, tom. ii. no. 858.
4 D. 36, de verb. oblig.
6 "Nous voulons parler de la distinction de la culpabilité (dolus) en réelle ou perBonelle ; d'autres ont dit présumée ou à démontrer; objective ou subjective. . . . Il est facile de critiquer l'expression ... de faire observer . . . que la résolution criminelle, n'étant que le résultat de l'intelligence et de la liberté, est toujours dans