20 ESSAY ON THE RATIONALE OP 



consistency, the exemplifications will be borrowed from cases of al- 

 leged murder. 



In the application of this rule to cases of homicide, it is essential 

 that there be distinct proof, 1st, of the fact of death, and 2nd, of the 

 specific cause of death ; nor without such proof can any individual 

 be reasonably implicated, or required to explain or account for facts 

 of supposed suspicion. The inspection of the body necessarily af- 

 fords the best evidence as well of the identity of the deceased as of 

 the fact of death ; and a conviction of murder is never allowed to 

 take place unless the body has been found, or there is equivalent 

 proof of the fact of death ; and many cases have shewn the peril of 

 a contrary practice. Joan Perry and her two sons were executed, in 

 the year 1660, for the murder of William Harrison, who had sud- 

 denly disappeared, but in about two years afterwards re-appeared. 

 The deceased had been out to collect his lady's rents, and had been 

 robbed by highwaymen, who put him on board a ship, which was 

 captured by Turkish pirates, by whom he was sold to a physician 

 near Smyrna.* Sir Matthew Hale mentions a case where A was 

 long missing, and upon strong presumptions B was supposed to 

 have murdered him, and to have consumed him to ashes in an oven, 

 that he should not be found. Whereupon B was indicted of mur- 

 der, convicted, and executed, and within one year after A re- 

 turned, being, indeed, sent beyond sea by B, against his will ; "and 

 so," he adds, "though B justly deserved death, yet he was really 

 not guilty of that offence for which he suffered. "f Sir Edward 

 Coke also gives the case of a man who was executed for the murder 

 of his niece, afterwards found to be living. (^Sce also Green's case. 

 State Trials, vol. xiv., p. 1311, and Arnott's Collection of Criminal 

 Trials'^. 



But to require the production of the body in all cases would be 

 unreasonable, and lead to absurdity and injustice; since the mur- 

 derer might secure impunity by effectually disposing of his victim's 

 remains, which has often been attempted by burning, but generally 

 without effect, owing to the slow and imperfect combustibility of 

 animal matter. The fact of death may, therefore, be inferred from 

 such strong and unequivocal circumstances of presumption as render 

 it morally certain, and leave no ground for reasonable doubt. Thus, 

 a mariner was indicted for the murder of his captain at sea, and a 

 witness stated that the prisoner had proposed to kill the captain ; 



• State Trials, vol. xiv., p. 1312. 

 + Pleas of the Crown, vol. ii., c. 39. 



