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of fact, and so directly cognizable by the jury without the intervention of the court. Yet even now the rule in question can scarcely be deemed an infringement upon the province of the jury,1 since it is only a primd facie presumption, and so little more in fact than a rule of evidence. And even in those cases where the modern rule is recognized, that in criminal cases the jury are judges of both law and fact, it is admitted that in all matters relating to the evidence and the conduct of the trial, the law is to be laid down by the court.2
From this review of the law, it appears that the presumption of malice from the fact of killing, and, a fortiori, from the fact of intentional killing, has been firmly established in the common law from the earliest period ; that it has been constantly affirmed in adjudications of the courts, and recognized in legal treatises, and has only been questioned in two or three modern instances. It had its origin in the common law, in the jealousy with which the life of the citizen was guarded, and perhaps also in the primitive sense attached to the word murder, and the forms of procedure associated with it. In view of the somewhat technical construction and effect given to the statute 23 Hen. VIII., by which it was held that under an indictment for murder a verdict of manslaughter could be found, the overt act being held the substance, and the intent the manner or form merely, it was not illogical for the courts to continue to recognize the presumption of malice drawn from the act of killing, as it existed before that statute virtually divided felonious homicide into two grades. It appears, also, that the principle is not peculiar to the common law, but is found also fully established in the law of Scotland and in the system of the civil law. Further, it is a legitimate rebuttable presumption of law, founded upon what courts have usually found to be the truth in cases where the overt act is fixed upon the defendant, and strengthened and sanctioned by the maxim of law that certain acts (as in this instance the act of taking life) are primd facie unlawful, and import a criminal intention in the author. In cases of murder, malice is the specific criminal intent, and hence malice is presumed to have attended
i But see The State v. Bartlett, 48 N. H. 224, 230 ; State v. Pike, 49 N. H. 399, 431; Lisbon v. Lyman, 49 N. H. 453,476.
« Com. v. Knapp, 10 Pick. 477, 495; Com. v. Porter, 10 Mete. 263; Com. v. Anthes, 5 Gray, 185; Rex v. Atwood, 2 Leach, 522, per BuHer, J.
the act. Moreover, this presumption is not inconsistent with the presumption of innocence, because the latter is a general presumption, and applicable to the corpus delicti, as well as to the intent, and it cannot apply to prevent the application of a special presumption drawn in the course of trial, upon proof of the corpus delicti and a primd facie case against the prisoner. Then, although the burden of proof is shifted upon the defendant when the presumption arises, this fact does not conflict with the recognized rule as to reasonable doubts, because for the purposes of the trial the presumption stands upon the same footing as all the other evidence against the prisoner, and ceases to avail against him if in the course of the trial sufficient evidence appears to create a reasonable doubt as to its legitimacy in the particular instance. But if no evidence tending to that end appear, the presumption stands. The rule, however, that upon proof of the overt act the absence of criminal intent is to be established beyond a reasonable doubt, or even by a preponderance of evidence, is in violation of the doctrine as to reasonable doubts. Finally, the presumption in question is not in derogation of the powers of the jury, since it is everywhere admitted, even under the modern theory as to the function of the jury in criminal cases, that the law as to the evidence and the conduct of the trial must be laid down by the court.
From these conclusions it follows that if this rule of law is not thought to be conducive to the furtherance of justice, or to be sanctioned by public policy, resort must be had to legislation.
THE REPORTERS AND TEXT WRITERS.
American Authorities, English Estimate of. "The American authorities are not binding on us indeed, but entitled to respect as the opinions of professors of English law, and entitled to respect according to the position of those professors and the reasons they give for their opinions." — Bramwell, B., in Osborn v. Gillett, L. R. 8 Exch. 92.
Bacon's Abridgment. "A sufficient authority." — Blackburn, J., in The
Bentham's Rationale of Judicial Evidence. "The general principles of evidence are ably discussed, and often happily illustrated. That book should, however, be read with caution, as it embodies several essentially mistaken views relative to the nature of judicial evidence, and which may be' traced to overlooking the characteristic features whereby it is distinguished from other kinds of evidence." — Preface to Best on Evidence.
Best on Evidence. "A very able and instructive treatise on the principles of evidence." — Mr. Justice Willes in Cooper v. Slade, 6 House of Lords Cases, 772.
Blackstone's (Sir William) Reports. "We must not always rely on the words of reports, though under great names: Mr. Justice Blackstone's reports are not very accurate." — Lord Mansfield in Hassells v. Simpson, 1 Dougl. 93, 4th ed.
Bonnier (E.). Traite The'orique et Pratique des Preuves en droit civil et en droit criminel. 8vo. Paris, 1843. "An able work."—Preface to Best on Evidence. Although the third edition of this excellent book was published as recently as 1862, still it is now scarce. A faithful translation would be of the greatest possible value to the profession.
Callis's Reading upon the Statute of Sewers. "One of the best performances on that subject, and which has always been admitted as good authority." — Buller, J., in Dore v. Gray, 2 T. R. 365.
"The course of legal education, at the Inns of Court, consisted principally of readings and mootings, which have been described by Dugdale, Stow, and other writers. In times when the works of the learned, existing only in manuscript, and guarded in libraries with jealous care, were not easily accessible to the student, the necessity of oral instruction by such exercises is obvious. The readings, delivered in the hall with great solemnity by men experienced in the profession, were expositions of some important statute or section of a statute. Many of them have been published, and some of these contain most profound juridical arguments, such for instance as Lord Bacon's Reading on the Statute of Uses, and that of Mr. Serjeant Callis on the Statute of Sewers. These readings being attended with costly entertainments, their original object was forgotten in the splendor of the tables, and it became the duty of the reader rather to feast the nobility and gentry than to give instruction in the principles of the law. From this cause they were eventually suspended."— Spilsbury's Lincoln's Inn, p. 18.
Carthew's Reports. In The King v. Heaven, 2 T. R. 776, Lord Kenyon, C. J., observed that Carthew " in general is a good reporter." And Chief Justice Willes, a first-class authority in matters of this kind, in distinguishing the reports of a case "more largely and particularly reported" in 5 Modern than in Carthew, said : " I own that Carthew is in general a very good and a very faithful reporter; but I fancy he was mistaken here, because I cannot think that the court would give so absurd a reason for their judgment, especially since there is not a word said of it in 5 Modern, where the case and the arguments upon it are very particularly reported." —Tapner v. Merlott, Willes, 181. The citation of cases from Carthew in such books as Mr. Serjeant Williams's Notes to Saunders's Reports, and Mr. Serjeant Stephens's Treatise on Pleading, certainly argues well for the reputation of the reporter, who, according to a recent writer, "arrived at an eminence which, but for his early decease, would have secured for him a seat on the judicial bench." — Woolrych, Lives of the Serjeants, vol. ii. p. 460. At p. 462 he continues: "But during the trial of the Bishop of London against Fytche, in the House of Lords, Lord Thurlow observed, that Carthew and Comberbach were equally bad authority. However, with regard to this hostile opinion of Lord Thurlow, there is a curious tradition in the Carthew family, that the Serjeant's grandson headed an adverse party against the Chancellor at school upon one occasion (for they were school-fellows), and that Thurlow was a great bully, and remembered the circumstances afterwards with an ungenerous feeling."
Casaregis (Josephus Lanrentius Maria de). Discursus Legales de Commercio; et Elucubrationes ac Resolutiones in aliquot, et ad integra Statuta de Decretis, ac de Successionibus ab Intestato Reipublicas Gennensis. Editio secunda. 4 vols in 1, fol. Venetiis, 1740.
"The highest authority." — Shee, J., in Kemp v. Halliday, 6 Best & Smith, 736. Casaregis was for more than twenty years a judge in Florence. He taught as a professor of law, and his writings enjoy the highest reputation in Europe as standard authorities in mercantile affairs. Valin affirms that he is beyond contradiction the best of all maritime authors.
Clayton's Reports. This is a very thin 12mo, containing in the body of the book 158 pages, published in 1651. "If this book," writes Mr. Allibone, "will do all that Mr. Clayton promises for it, we should suppose that our friends the lawyers would insist on its immediate republication." In "The Epistle to the Fair Pleader," the reporter says: "You may see here how to avoid a dangerous jury to your client, what evidence best to use for him, how to keep the judge so he overrule you not; so that, if it be not your own fault, — as too often it is for fear or favor, — the client may have his cause so handled as, if he be plaintiff, he may have his right, and if defendant, moderately punished, or recompensed for his vexation; and such pleaders the people need."
Coke's Reports. See Plowden's Commentaries.
Coke's Third Institute. Hale's History of the Pleas of the Crown. "In the course of the seventeenth century two remarkable works on the criminal law were written, which not only gave an authentic view of it as it stood in the earlier and later parts of the century, but are still regarded as books of the highest authority. Coke's Third Institute is like the rest of its author's works, altogether unsystematic. It is little more than a digest, showing incidentally the progress made by the law since it was first reduced to shape.
"Hale's History of the Pleas of the Crown differs widely from Coke's Third Institute in point of style and composition, and handles systematically several subjects which Coke touches upon in a fragmentary and occasional manner. Some, but few, additions were made to the body of the criminal law between the dates of the two works; but in the main the law continued, as it was, a system strangely antiquated, unsystematic, and meagre, but of reasonable dimensions, and apparently sufficient for practical purposes." — Stephen's General View of the Criminal Law of England, pp. 65, 66.
Comyns's Digest. Coke's Institutes. Bacon's Abridgment. Tidd's Practice. "Text books of the highest reputation." — Kelly, C. B., in The Queen v. Ritson, L. R. 1 C. C. 203.
Comyns's Digest. "This dictum, wherever it comes from, derives some confirmation from its reception into the Digest of Lord Chief Baron. Comyns." — Sir William Scott, in The Gratitudine, 3 Chr. Rob. 269.
Cooke's Reports. "Sir George Cooke's Reports (long out of print and scarce) have always been held in good repute, and frequently cited.
"In 3 Wilson, 184, Serjeant Jephson, citing the case of Palmer v. Sir J. Edwards, says,' See the case at length, for it seems well reported by that very able chief prothonotary of the C. B.'
"We were induced to select Cooke's Reports as the next volume in our series of reprints, by having become possessed of a copy formerly belonging to Mr. Justice Nares, and containing numerous MS. notes.