Sir William Wheeler having been informed that the body had not been examined, wrote to the prisoner insisting that it should be done, which however he prevented, by various disingenuous contrivances, and the body was interred without examination, In the meantime, the circumstances having become known to the coroner, he caused the body to be disinterred and examined on the eleventh day after death. Putrefaction was found to be far advanced; and the head was not opened, nor the bowels examined and in other respects the examination was incomplete. When Lady Boughton, in giving evidence before the coroner's inquest, related the circumstance of the prisoner having rinsed the bottles, he was observed to take hold of her sleeve, and endeavour to check her; and he afterwards told her, that she had no occasion to have mentioned that circumstance, but only to answer such questions as were put to her; and in a letter to the coroner and jury, he endeavoured to impress them with the belief, that the deceased had inadvertently poisoned himself with arsenic, which he had purchased to kill fish. Upon the trial, four medical men, three physicians and an apothecary, were examined on the part of the prosecution, and expressed a very decided opinion, mainly grounded upon the symptoms, the suddenness of the death, the post mortem appearances, the smell of the draught as observed by Lady Boughton, and the similar effects produced by experiments upon. animals, that the deceased had been poisoned with laurel water; one of them stated that, on opening the body, he had been affected with a biting acrimonious taste, like that which affected him in all the subsequent experiments with laurel water. An eminent surgeon and anatomist examined on the part of the prisoner stated a positive opinion, that the symptoms did not necessarily lead to the conclusion that the deceased had been poisoned, and that the appearances presented upon dissection explained nothing but putrefaction. The prisoner was convicted and executed."

and

§ 738. As to the destruction of marks, &c., the following cases may serve as a guide. In R. v. Cook.(d)

"The prisoner was tried for the murder of a creditor who had called to obtain payment of a debt, and whose body he had cut into pieces and attempted to dispose of by burning. The effluvium and other circumstances, however, alarmed the neighbours, and a portion of the body remaining unconsumed, the prisoner was convicted and executed."

In the case of R. v. Greenacre, the prisoner cut up the body of his victim and conveyed the members to various distant localities. In the case of Webster in America, the deceased was entirely consumed by his murderer, a Doctor, in his laboratory. The identity of the

(d) Will's Circ. Ev. p. 165.

remains was principally established by the gold setting of some false teeth found in the ashes, to which the dentist who had made them positively swore. Concealment is one of the most ordinary evidences of guilt. Thus the discovery of stolen property buried under ground, thrown into wells, hid in roofs or walls, or the like, affords a presumption of theft or guilty receipt as the case may be, which puts the accused to the proof of his innocent possession. So on the trial of Courvoisier for the murder of Lord William Russell, the guilt of the prisoner was singularly established at a period of the investigation when there was comparatively little to criminate him conclusively, by the discovery of a portion of the deceased's silver plate in a foreign hotel in Leicester Square, where the prisoner had deposited it with the landlady for safe custody.

§ 739. A presumption arises from fear manifested by the deportment of the party. An instance of this is to be found in the celebrated case of Eugene Aram.(e)

"In the most debased persons there is an involuntary tendency to truth and consistency, except when the mind is on its guard, and studiously bent upon concealment. This law of our nature sometimes gives rise to evidentiary facts of great weight, and may be traced in minute and unpremeditated acts. In the case of Eugene Aram, who was tried in the year 1759 for the murder of Daniel Clark, an apparently slight circumstance in the conduct of Houseman, his accomplice, led to Aram's conviction and execution. About thirteen years after the time of Clark's being missing, a labourer, employed in digging for stone to supply a lime kiln near Knaresborough, discovered a human skeleton near the edge of the cliff. It soon became suspected that the body was that of Clark, and the coroner held an inquest. Aram and Houseman were the persons who had last been seen with Clark, on the very night before he was missing. Houseman was summoned to attend the inquest, and discovered signs of uneasiness: at the request of the coroner he took up one of the bones, and in his confusion dropped this unguarded expression, 'This is no more Daniel Clark's bone than it is mine;' from which it was concluded, that if he was so certain that the bones before him were not those of Clark, he could give some account of him. He was pressed with this observation, and, after various evasive accounts, he made a full confession of the crime; and upon search, pursuant to his statement, the skeleton of Clark was found in St. Robert's Cave, buried precisely as he had described it."

(e) Will's Circ. Ev. p. 68.

But this is a treacherous guide. The most innocent man may well exhibit symptoms of fear at the novelty and danger of his situation when apprehended on a false charge, while the hardened malefactor contemplates his condition with indifference even when his guilt is manifest. It would be the height of folly and injustice to attach great weight to deportment: and the whole of Best's observations be ever borne in mind.

are to

"The emotion of fear indicated by passive deportment when a party is accused, or perceives that he is suspected of an offence, is sometimes relied on as a criminative circumstance. The following physical symptoms may be indicative of fear :- Blushing, paleness, trembling, fainting, sweating, involuntary evacuations, weeping, sighing, distortions of the countenance, sobbing, starting, pacing, exclamation, hesitation, stammering, faultering of the voice,' &c.; and, as the probative force of each of these depends on the correctness of the inference that the symptom has been caused by fear of detection of the offence imputed, two classes of infirmative circumstances naturally present themselves. 1st. The emotion of fear may not be present in the mind of the individual. Several of the above symptoms are indicative of disease, and characteristic of other emotions, such as surprise, grief,、 anger, &c. With respect to the first, for instance, blushing,' the flush of fever and the glow of insulted innocence are quite as common as the crimson of guilt. 2ndly. The emotion of fear, even if actually present, although presumptive, is by no means conclusive evidence of guilt of the offence imputed. The alarm may be occasioned by the consciousness of another crime, committed either by the party himself, or by others connected with him by some tie of sympathy, on whom judicial inquiry may bring down suspicion of punishment; or even by the recollection of a fact, in consequence of which, without any delinquency at all, vexation has been, or is likely to be, produced to him or them. To these may be added the apprehension of condemnation and punishment though innocent, or of vexation and annoyance from prosecution-a circumstance the weight of which, like that of the evasion of justice, depends very considerably on the character of the tribunal before which, and the forms of criminal procedure in the country where his trial is to take place. Lastly, the rare, though no doubt possible, case of the falsity of the supposed self-criminative recollection, Eg. an habitual professed thief is taken into custody for a theft; that he should show symptoms of fear is natural enough, and confounding one of his exploits with another, may (especially if the time of the supposed offence be very remote), imagine himself to recollect a theft in which, in truth, he

(ƒ) § 449–450,

bore no part. Closely allied to this subject is the inference of the existence of alarm, and through it of delinquency, derived from confusion of mind; as expressed by countenance, by discourse, by conduct, or by all three. This, however, like the former, is subject to the infirmative hypotheses, 1st. That the alarm may be caused by the apprehension of some other crime or some disagreeable circumstance coming to light; and, 2nd. The consciousness that, though innocent, appearances are against him.

"The presence of fear may be evidenced in another way, namely, by acts showing a desire for secrecy; such as doing in the dark what, but for the criminal design, would naturally have been done in the light; choosing a spot supposed to be out of the view of others, for doing that which, but for the criminal design, would naturally have been done in a place open to observation; disguising the person;taking measures to remove witnesses from the scene of the intended unlawful action, &c. Acts such as these are however frequently capable of explanation. 1st. It is perfectly possible that the design of the person seeking secrecy may be altogether innocent. The lovers of servants, for instance, are often mistaken for thieves, and vice versa. 2ndly. The design, even if criminal, may be criminal with a different object, and of a degree more or less culpable than that attributed as, for instance, where a man, with a view of making sport by alarming his neighbours, dresses himself up to pass for a ghost."

§ 740. A presumption is sometimes raised from the silence of a party, which seems to fall under the head of deportment. The old maxim is Qui tacet consentire videtur; or as we popularly say, silence gives consent. But little reliance can be placed on this circumstance. A prudent man will generally prefer silence till he is actually put upon his defence at his trial.

§ 741. We have thus run through the principal sources whence arise presumptions. It is only necessary here to repeat the caution. already more than once expressed, against the danger of straining presumptions too far. In every case much must be left to the discretion and experience of the judge, and as no two cases are altogether similar in their circumstances, the presumption in each individual case will be stronger or lighter, amounting sometimes to all but conclusive proof, sometimes being utterly valueless, according to the particular facts proved in evidence. (9)

(g) This portion of the Lectures (on Presumptions), is principally taken from Mr. Best's admirable work; aided by illustrations from Mr. Wills' work on Circumstantial Evidence two books which should be in the library of every lawyer.

§ 742. Having thus shown what presumptions the law raises and directs to be drawn; as well as classified the more important species which the mind naturally draws independent of any direction of the law; it remains to see how the judge should deal not only with presumptions, but in the appreciation of all evidence of whatever class or quality which comes before him.

§ 743. Before proceeding to consider what is to guide him in the appreciation of testimony, whether real or personal, it may be useful to specify the principal rules for the construction of documents, especially of Statutes, since the increasing activity of the Legislative Council is constantly promulgating new Laws, which it is the province of the judge to construe and as there can scarcely be a case, especially in civil matters, in which some documentary evidence does not form part of the materials on which the judge has to form his opinion. The observations which I shall make on Statutes will be found to apply in a great measure to the construction of all documents; some of the rules are of a comparatively technical nature, but the study of one and all will be found not misplaced.(^)

CHAPTER XLII.

RULES FOR THE CONSTRUCTION OF STATUTES, &c. (i)

§ 744. 1st. Construction according to the letter.-The intention of the Legislature is always to be gathered if possible, 1st, from the words used by the Legislature: 2nd, from a reference to contemporary ex. positions; that is to say, decisions which may have been made upon the subject at or near about the time of the passing of the Act. It is obvious that this second source of exposition applies principally to the case of old Statutes. On this second point, the maxim of the Law is, Contemporanea expositio est optima et fortissima in lege. Contemporaneous explanation is the best and most powerful in law. ()

(h) The principal rules for the construction of Wills have already been given. (See ante $636 note w.)

(2) These remarks are chiefly compiled from the excellent work of Sir Fortunatus Dwarris on Statutes. The maxims on construction of documents are collected by Broom in his Legal Maxims, and should be there studied at large.

(4) See Phillimore Jurisp. p. 323, as to the effect of usage