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was not questioned in Regina v. Welch, in which the judges who constituted the court were different from those who had decided Regina v. Pembliton, with the exception of Lord Coleridge, who delivered the judgments of the court on both occasions.

KEOGH, J. I have the misfortune to differ from the other members of the court. I think it very fortunate for the prisoner that this case has lasted so long, and has received such elaborate consideration, for I can not be considered as violating judicial confidence when I state that if the case were decided when the arguments closed the conviction would stand. With regard to the alteration made by the learned judge who tried the case, I have read it, and I do not understand it to make a particle of difference, from what we had so clearly and distinctly stated during the progress of the argument. With regard to the decision of the English Court of Criminal Appeal in the case of Regina v. Pembliton, so much relied on for the prisoner, there appeared to be considerable hesitation among the members of the bench whether they would venture to overrule that decision. Baron DEASY, indeed, mentioned that he would not hesitate to do so, and in doing so, he would be only following suit to the Court of Criminal Appeal in England, for that court overruled the decision of this court in Regina v. Fanning. Probably, I would not have the same cause for not hesitating to overrule them, for in that case I was in the minority whose opinion they affirmed; but in this particular case, I see no reason why, having a very clear and distinct opinion in favor of a conviction, I should not express it, notwithstanding, that I have the misfortune to differ from my learned brethren, and also have in some way to run at cross purposes with the decision in Regina v. Pembliton. I am, therefore, of opinion the conviction should stand, as I consider all questions of intention and malice are closed by the finding of the jury, that the prisoner committed the act with which he was charged whilst engaged in the commission of a substantive felony. On this broad ground, irrespective of all refinements as to "recklessness" and willfulness," I think the conviction is sustained; and although, if necessary, prepared to decide this case irrespective of Regina v. Pembliton, I think I could distinguish this case from Regina v. Pembliton, in which the judges appear to have been carried away by the very specific and negative findings of the jury as to the intention of the defendant.

PALLES, C. B. I concur in the opinion of the majority of the court, and I do so for the reasons already stated by my brother Fitzgerald. I agree with my brother Keogh that from the facts proved the inference might have been legitimately drawn that the setting fire to the ship was malicious within the meaning of the 24 and 25 Victoria.1 I am of

1 ch. 97.

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opinion that that inference was one of fact for the jury, and not a conclusion of law at which we can arrive upon the case before us. There is one fact, from which, if found, that inference would, in my opinion, have arisen as matter of law, as that the setting fire to the ship was the probable result of the prisoner's act in having a lighted match in the place in question; and if that had been found I should have concurred in the conclusion at which Mr. Justice Keogh has arrived. In my judgment the law imputes to a person who willfully commits a criminal act an intention to do everything which is the probable consequence of the act constituting the corpus delicti which actually ensues. In my opinion this inference arises irrespective of the particular consequence which ensued being or not being foreseen by the criminal, and whether his conduct is reckless or the reverse. This much I have deemed it right to say to prevent misconception as to the grounds upon which my conviction is based. I wish to add one word as to Regina v. Pembliton,1 In my opinion the learned judges who were parties to that decision never intended to decide, and did not decide, anything contrary to the views I have expressed. That they did not deem actual intention, as distinguished from implied intention, essential, is shown by the subsequent case of Regina v. Welch, in which an indictment under the fortieth section of the same act was upheld, although actual intention was negatived by the jury. The facts found in answer to the second question in that case can not be relied upon as evidence of actual intention. As evidence they would have been valueless in face of the finding, negativing the fact which in this view they would have but tended to prove. Their value was to indicate a state of facts in which intention was imputed by an irrefutable inference of law. It was not germane to the actual decisions in Regina v. Pembliton, and Regina v. Welch, to determine whether the state of facts from which this inference of law arises is that suggested in the first case and acted upon by the second, or the circumstance of one act being the natural consequence of the other. Some of the learned judges, no doubt, during the arguments, and in their judgments in the first case indicate a state of facts from which this inference would arise. They do not decide that the same inference might not arise in the other state of facts to which I have alluded. If, contrary to my own view of that case, it shall be held to involve that intention to do that which is a necessary consequence of a wrongful act willfully committed, is not an inference irrefutable as matter of law, I must say, with unfeigned deference, that I shall hold myself free hereafter to decline to follow it. The Lord Chief Justice of the Common Pleas, who, in consequence of illness, has been unable to

1 12 Cox., C. C. 607.

importance and novelty of the subject to which it relates, is here given. The jury acquitted the prisoner on both charges. STEPHEN, J. "One of the cases to be brought before you is so singular in its character, and involves a legal question of so much novelty and of such general interest, that I propose to state at some length what I believe to be the law upon the matter. I have given it all the consideration I could, and I am permitted to say that although I alone am responsible for what I am about to say to you, Lord Justice FRY takes the same view of the subject as I do, and for the same reasons. William Price is charged with a misdemeanor under the following circumstances: He had in his house a child five months old of which he is said to have been the father. The child died, and Price, as it seems, did not register its death. The coroner accordingly gave him notice on Saturday, the 12th of January, 1884, that unless he sent a medical certificate of the cause of the child's death, he (the coroner) would hold an inquest on the body on the following Monday. Price, on the Monday afternoon took the body of the child to a field of his own, some distance from the town of Llantrissant, put it into a ten-gallon cask of petroleum and set the petroleum on fire. A crowd collected, the body of the child, which was burning, was covered with earth, and the flames were extinguished, and Price was brought before the magistrates and committed for trial. He will be indicted before you on a charge which in different forms imputes to him as criminal two parts of what he is said to have done - namely, first, his having prevented the holding of an inquest on the body; and secondly, his having attempted to burn the child's body. With respect to the prevention of the inquest, the law is that it is a misdemeanor to prevent the holding of an inquest which ought to be held, by disposing of the body. It is essential to this offense that the inquest which it is proposed to hold is one which ought to be held. The coroner has not an absolute right to hold inquests in every case in which he chooses to do so. It would be intolerable if he had power to intrude without adequate cause upon the privacy of a family in distress and to interfere with their arrangements for a funeral. Nothing can justify such interference except a reasonable suspicion that there may have been something peculiar in the death that it may have been due to other causes than common illness. In such cases the coroner not only may, but ought, to hold an inquest, and to prevent him from doing so by disposing of the body in any way for an inquest must be held on the view of the body is a misdemeanor. The depositions in the present case do not very clearly show why the coroner considered an inquest necessary. If you think that the conduct of Price was such as to give the coroner fair grounds for holding one, you ought to find a true bill, for beyond all question Price did as much as in him lay to dispose of the body in such a manner as to make an inquest impossible.

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"The other fact charged as criminal is the attempt made by Price to burn the child's body, and this raises, in a form which makes it my duty to direct you upon it, a question which has been several times discussed, and has attracted some public attention, though so far as I know no legal decision upon it has ever been given, the question, namely, whether it is a misdemeanor at common law to burn a dead body instead of burying it.

"As there is no direct authority upon this question I have found it necessary to examine several branches of the law which bear upon it more or less remotely. The practice of burning dead bodies prevailed to a considerable extent under the Romans as it does to this day amongst the Hindoos, though it is said that the practice of burial is both older and more general. Burning

appears to have been discontinued in this country and in other parts of Europe when Christianity was fully established, as the destruction of the body by fire was considered, for reasons to which I need not refer here, to be opposed to Christian sentiment, but this change took place so long ago, and the substitution of burial for burning was so complete, that the burning of the dead has never been formally forbidden or even mentioned or referred to, so far as I know, in any part of our law. The subject of burial was formerly, and for many centuries exclusively a branch of the ecclesiastical or canon law. Amongst the English writers on this subject little is to be found relating to burial. The subject was much more elaborately and systematically studied in Roman Catholic countries than in England, because the law itself prevailed much more extensively. In the Jus Ecclesiasticum of Van Espen, there is an elaborate discourse, filling twenty-two folio pages in double columns, on the subject of burial, in which every branch of the subject is systematically arranged and discussed, with references to numerous authorities. The importance of it is that it shows the view taken by the canonists, and this view had great influence on our ecclesiastical lawyers, though only a small part of the canon law itself was ever introduced into this country.

"Van Espen throughout regards the participation in funeral rites as a privilege to which, subject to certain conditions, all the members of the church were entitled, and the deprivation of which was a kind of posthumous punishment analogous to the excommunication of the living. The great question with which he occupies himself is, in what cases ought burial to be denied? The general principle is, that those who are not worthy of church privileges in life are also to be excluded from them after death. 'Sicuti enim nonnllos vivos a sua communione, præsertim in sacris, jam pridem excludendos censuit, ita quoque eosdem sua communione post mortem indignos credidit.' As for the manner in which the dead bodies of persons deprived of Christian burial were to be disposed of, Van Espen says only that though in some instances the civil power may have entirely forbidden burial, whereby bodies may remain unburied and exposed to the sight of all, to be devoured by beasts or destroyed by the weather (he considers the dissection of criminals as a case of this sort), the church has never made such a provision, and has never prohibited the covering of such corpses with the earth.

"This way of looking at the subject seems to explain how the law came to be silent on exceptional ways of disposing of dead bodies. The question was, In what cases burial must be refused? As for the way of disposing of bodies to which it was refused, the matter escaped attention, being probably regarded as a matter which interested those only who were so unfortunate as to have charge of such bodies.

"The famous judgment of Lord Stowell, in the case of iron coffins which constitutes an elaborate treatise on burial, proceeds upon the same principles. The law presumes that every one will wish that the bodies of those in whom he was interested in their lifetime should have Christian burial. The possibility of a man's entertaining and acting upon a different view is not considered.

"These considerations explain the reason why the law is silent as to the practice of burning the dead. Before I come to consider its legality directly, it will be well to notice some analogous topics which throw light upon it. There is one practice which has an analogy to funeral burning, inasmuch as it consti

1 II. 142-168, pt. II., sec. 4, tit. vii.

2 Gilbert v. Buzzard, 2 Hagg. Consist. 333.

tutes an exceptional method of dealing with dead bodies. I refer to anatomy. Anatomy was practiced in England at least as far back as the very beginning of the seventeenth century. It continued to be practiced without, so far as I know, any interference on the part of the Legislature down to the year 1832, in which was passed the act for regulating schools of anatomy. This act recites the importance of anatomy, and that the legal supply of human bodies for such anatomical examination is insufficient fully to provide the means of such knowledge.' It then makes provision for the supply of such bodies by enabling 'any executor or other party having lawful possession of the body of any deceased person,' to permit the body to be dissected, except in certain cases. The effect of this has been that the bodies of persons dying in various public institutions, whose relations are unknown, are so dissected. The act establishes other regulations not material to the present question, and enacts that after examination the body shall be decently interred.' This act appears to me to prove clearly that Parliament regarded anatomy as a legal practice, and further, that it considered that there was such a thing as a legal supply of human bodies,' though that supply was insufficient for the purpose. This is inconsistent with the opinion that it is an absolute duty on the part of persons in charge of dead bodies to bury them, and this conclusion is rather strengthened than otherwise by the provision in section 13, that the party removing' the body shall provide for its decent burial after examination. This seems to imply that apart from the act the obligation to bury would not exist, and it is remarkable that the words are not, as in the earlier section, 'executor or other party,' but 'party removing,' referring no doubt to the master of the workhouse or other person in a similar position who hands the body over to the surgeons. Upon him the statute imposes the duty of decently interring the bodies with which he is allowed to deal. The executor's rights at common law, whatever they may be, are not altered.

"I come now to a series of cases more closely connected with the present case. As is well known, the great demand for bodies for anatomical purposes, not only led in some cases to murders, the object of which was to sell the body of the murdered person, but also to robberies of churchyards by what were commonly called resurrection men. This practice prevailed for a considerable length of time, as appears from the case of Rex v. Lynn,2 decided in 1788, fortyfour years before the anatomy act. In that case, it was held to be a misdemeanor to disinter a body for the purpose of dissection, the court saying that the common decency required that the practice should be put a stop to; that the offense was cognizable in a criminal court as being 'highly indecent and contra bonos mores, at the bare idea alone of which nature revolted.' They also said that 'it had been the regular practice of the Old Bailey in modern times to try charges of this nature.' It is to be observed in reference to this case that the act done would have been a peculiarly indecent theft, if it had not been for the technical reason, that a dead body is not the subject of property. The case, however, has been carried a step farther in modern times. It was held in Regina v. Sharp,3 to be a misdemeanor, to disinter a body at all without lawful authority, even when the motives of the offender were pious and laudable, the case being one in which a son disinterred his mother in order to bury her

1 2 & 3 Wm. IV., ch. 75.

2 2 T. R. 733; s. c. 1 Leach, 497

2 DEFENCES.

3 1 D. & B. 160.

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