dently based on the principle, that no one shall be allowed to take advantage of his own wrong; and there are several instances of its application to be found in the books. Thus, in the case of R. v. The Countess of Arundel, (m) where the Crown was entitled at law to certain lands, by reason of an attainder for high treason, a suit in equity was commenced by the Attorney-General against the defendants to recover the lands; and on its being shewn that the deeds whereby the estate came to the party attainted were not extant, but were very strongly suspected to have been suppressed and withheld by a party under whom the defendant claimed, a decree *was made that the Crown should hold and enjoy the [ *206 ] lands till the defendant should produce the deeds, and the Court thereupon take further consideration and order. So, in the case of Harwood v. Goodright, (n) where a party who had made a will in favour of the plaintiff was proved to have subsequently made another, the contents of which were unknown, Lord Mansfield said, that spoliation was a circumstance from which the jury might fairly have presumed that it was a revocation of the former will. And in Crisp v. Anderson(o) it was held, that, if a man withholds an agreement under which he is chargeable, it will be presumed to have been properly stamped. And it has been held at Nisi Prius, that where a document has been fraudulently obtained by one of the parties to a suit from a witness, whose property it is, and who is called on to produce it under a subpoena duces tecum, secondary evidence of the contents of the document may be given, without notice to produce the original.(p) § 147. But the presumption against the spoliator of documents is not confined to assuming those documents to be of a nature hostile to the spoliator, and procuring a more favourable reception for the evidence of his opponent, but it is said to cast suspicion on all the other evidence adduced by the party guilty of the mal-practice.(q) "Qui semel est malus, semper præsumitur esse malus in eodem genere."() In the case of Doe d. Beanland v. Hirst,(s) Bayley, J., is reported to have told the jury, that they were to consider the circumstance *of the erasure in a certain deed; observing, [ *207 ] that a man who was capable of making an alteration in one deed might be capable of suppressing another, if within his power. And the presumption arising from the fabrication or corruption of instruments of evidence is even stronger than from the suppression or destruction of them.(t) § 148. However salutary, and in general equitable, the maxim, (m) Hob. 109. According to that report, there was only a vehement suspicion that the deeds had been suppressed; but, in the case of Cowper v. Earl Cowper, (2 P. W. 749,) Sir Jos. Jekyll, M. R., says, that he had caused the register book to be examined, from which it appeared, that the deeds had been proved to have been extant and duly executed. For other instances of the manner in which the spoliation of documents is dealt with by courts of equity, see the cases there cited, and also Dalston v. Coatsworth, 1 P. W. 731; White v. Lady Lincoln, 8 Ves. 363; and Blanchett v. Foster, 2 Ves. 264; &c. (0) 1 Stark. 35, (2 Eng. Com. Law Reps.) (q) 1 Phill. & Am. Ev. 458. (8) 11 Price, 488. (n) Cowp. 87. (p) Leeds v. Cook, 4 Esp. 256. JANUARY, 1845.9 "Omnia præsumuntur contra spoliatorem," must be acknowledged to be, it has been made the subject of very fair and legitimate doubt, whether it has not in practice been carried too far. "The mere non production of written evidence," says Sir D. Evans, "which it is in the power of a party to produce generally operates as a strong presumption against him. I conceive that this has sometimes been carried too far, by being allowed to supersede the necessity of other evidence, instead of being regarded as mere matter of inference, in weighing the effect of evidence in its own nature applicable to the subject in dispute."(u) So, in the case of Barker v. Ray,(x) Lord Eldon said, "This Court has a peculiar jurisdiction in cases of spoliation..... The jurisdiction of the Court in matters of spoliation has gone a great way; indeed, it has gone to such a length, that, if I did not think myself bound by authority and practice, I should have great difficulty in following them so far. To say, that, if you once prove spoliation, you will take it for granted that the contents of the thing spoliated are what they have been alleged to be, may be, in a great many instances, going a great length." It certainly does [ *208 ] not necessarily follow, that, because a party has been proved to have committed an act of spoliation, his object in so doing was the precise one with which the opposite side charges him, much less that the suppressed documents would, if produced, prove the exact case which they put forward in their pleadings. And even where the positive fabrication of evidence is proved against a party, tribunals, whose object is the ascertaining of truth, will consider the nature of the case, and the temptation which might have led to fabrication. Is there anything impossible in the suggestion, is it even unlikely, that in many cases the fabrication of evidence has been resorted to under the apprehension, perhaps the certain knowledge, that similar malpractices will be made use of by the other side?(y) Suppose a man is sued on a bond which he knows to be a forgery, but he feels that it is altogether out of his power to prove it so. Forge a release,(z) or bribe a witness to prove payment, is a suggestion too obvious not to have been occasionally acted on. § 149. But whatever weight may be legitimately attached to this presumption in civil cases, where artificial rules are to a certain extent allowable, in criminal ones, where life or liberty is at stake, great care must be taken not to attribute to spoliation, or similar acts, any *force to which they are not entitled. Nations and ages [ *209 ] differ in the tone of moral feeling diffused through society, and reverence for the sacredness of an oath, and the other sanctions of truth; men differ in strength of conscientious principle, as well as in courage; and tribunals disler in ability and impartiality, and in the (u) 2 Evans's Poth. 337. See the recent case of Braithwaite v. Coleman, 1 Harrison, 229; 4 Nev. & M. 654, (30 Eng. Com. Law Reps.) (x) 2 Russ. 72, 73. ་ (y) 3 Benth. Jud. Ev. 168. (z) Ib. "One of the greatest and most difficult points in the Douglas cause," observea Sir D. Evans, " arose from Sir John Stewart having fabricated four letters, as received from Le Marre, the surgeon: a conduct certainly very suspicious, and calculated to induce a strong presumption against the general veracity of his account. I believe the true conclusion from all the circumstances in that cause to be that which was drawn by the House of Lords in support of the filiation; but it is impossible for great doubt not to hang upon a case affected by such a circumstance." 2 Ev. Poth. 337. quantity of evidence exacted for conviction. Undoubtedly, the suppression or fabrication of evidence by a party accused of a crime is always a circumstance, frequently a most powerful one, to prove his guilt; but many instances have occurred of innocent persons, alarmed at a body of evidence against them, which, although inconclusive, they know that they are unable to refute, having recourse to the suppression or destruction of criminative, and even to the fabrication of exculpatory, testimony.(a) Lord Coke relates a now well known, but not, on that account, less remarkable or striking, instance of this.(b) An uncle had the bringing up of his niece, who was entitled to some landed property under her father's will, to which she would be entitled at the age of sixteen. He was one day correcting her for some offence, when she was heard to say, "Oh, good uncle, kill me not!" After this time the child could not be heard of; and the uncle, being committed to jail on suspicion of her murder, was admonished by the judge of assize to find out the child against the next assizes. Unable to do this, he dressed up another child to represent her; but the falsehood being detected, he was convicted and [ *210 ] executed for the supposed murder. It afterwards appeared, however, that, on being beaten by her uncle, the niece had run away into an adjoining county, where she remained until the age of sixteen, when she returned to claim her property.(c). *CHAPTER VIII. [ *211 ] PRESUMPTIONS DERIVED FROM THE GENERAL CHARACTER, DISPOSITION, AND CONDUCT OF THE PARTIES TO JUDICIAL PROCEEDINGS. § 150. In an abstract point of view," remarks Mr. Bentham, "it appears obvious and indisputable, that, on the question between delinquency and non-delinquency," (and he might have added, the existence or non-existence of civil claims, or injuries between party and party,)" considerable light may be expected to be thrown by the consideration of previous character. But where the occasion calls for applying this general notion to practice, difficulties of no small moment will be seen to arise; some of them such as seem scarce capable of receiving solution but in the Gordian style." (aa) § 151. The law of England endeavours to meet these difficulties, (a) 1 Stark. Ev. 565, 3rd ed.; 1 Phil, & Am. Ev. 467; Wills on Circumst. Ev. 113, who states that innocent persons have endeavoured to defend themselves by setting up false alibis. Id. p. 115. Cases have probably occurred, where the accused, though innocent, could not avail himself of his real defence, without criminating others whom he is anxious not to injure, or even criminating himself with respect to other transactions. (b) 3 Inst., c. 104, p. 232; cited also in 2 Hale, P. C. 290; 2 Evans's Poth. 338. (c) A case is also related, where, in a large company, a valuable trinket belonging to one of the party was suddenly missed. On the proposal of one of the company, all agreed to be searched, except one, who, by an obstinate refusal, drew down on himself strong suspicion. He, however, succeeded in obtaining a private audience of the master of the house; and on his pockets being turned inside out, there was discovered, instead of the trinket sought, a portion of eatables which he had taken to bring home to his wife, who had no means of procuring food. (3 Benth. Jud. Ev. 88, 89.) (aa) 3 Benth. Jud. Ev. 193, where the subject is fully discussed. by drawing a distinction between cases where the character of the parties is supposed to be put in issue, and where it is not. According to the general rule, and, upon the whole, perhaps a judicious one, it is not competent to give evidence of the general character of the parties to forensic proceedings, much less of particular facts not in issue in the cause, with the view of raising a presumption either favourable to one party or disadvantageous to his antagonist. (b) This principle has been carried so far, that, on an indictment for an unna[ *212 ] tural offence, evidence of an admission by the accused, that he was addicted to the commission of similar offences, was rejected as irrelevant.(c) § 152. But where the very nature of the proceedings is to put in issue the character of any of the parties to them, a different rule necessarily prevails; and it is not only competent to give general evidence of the character of the party with reference to the issue raised, but even to inquire into particular facts tending to establish it.(d) Thus, on an indictment for keeping a common bawdy-house, or common gaming-house, or for being a common barretor, the prosecutor may give in evidence any acts of the defendant which support the general charge.(e) So, where the issue is whether a party be compos mentis, proof may be adduced of particular acts of insanity.(f) In actions for seduction(g) and criminal conversation, (h) the character of the female for chastity is directly in issue, and may be impeached, either by general evidence of misconduct or proof of particular acts of it. So, the female who prefers a charge of rape,(i) or of assault with intent to commit rape,(k) brings the question of her own chastity so far in issue, that it is competent for the accused to give [ *213 ] general evidence of her bad character in this respect, or even to shew that she has been criminally connected with himself; (2) but it has been held by the judges, upon a case reserved, that he cannot be allowed to prove particular acts of unchastity with other men.(m) § 153. But although, in criminal prosecutions in general, the character of the accused is not in the first instance put in issue, still, in all cases where the direct object of the proceedings is to punish the offence, (b) 1 Phil. & Am. Ev. 488, 491; per Lord Kenyon in King v. Francis, 3 Esp. 117. (e) Clarke v. Periam, 2 Atk. 339. In cases of barretry, however, notice must be given to the defendant, of the particular acts of barretry intended to be relied on at the trial. (2 Stark. Ev. 304, 3rd ed.) (f) Clarke v. Periam, 2 Atk. 340. (g) 1 Phill. & Am. Ev. 489; Bamfield v. Massey, 1 Camp. 460; Dodd v. Norris, 3 Camp. 519. (h) 1 Selw. N. P. 26, 9th ed., and the authorities there referred to; R. v. Barker, 3 C. & P. 589, (14 Eng. Com. Law Reps.); Elsam v. Faucett, 2 Esp. 562. (i) 1 Phill. & Am. Ev. 489; R. v. Martin, 6 C. & P. 562, (25 Eng. Com. Law Reps.); R. v. Barker, 3 C. & P. 589, (14 Eng. Com. Law Reps.) (k) 1 Phill. & Am. Ev. 489; R. v. Clarke, 2 Stark. 241, (3 Eng. Com. Law Reps.) (4) R. v. Martin, 6 C. & P. 562, (25 Eng. Com. Law Reps.); R. v. Aspinall, 3 Stark. Ev. 952, 3rd ed. (m) R. v. Hodgson, R. & R. C. C. 211, (1 Br. C. C.) In R. v. Martin, (6 C. & P. 562, 25 Eng. Com. Law Reps.), Williams, J., said, that he never could understand the case of R. v. Hodgson, and that it did not appear to him to be in strict accordance with the general rules of evidence. R. v. Clarke (2 Stark. 244, 3 Eng. Com. Law Reps.), and R. v. Barker (3 C. & P. 589, 14 Eng. Com. Law Reps.), seem, however, to support it. such as indictments for treason, felony, or misdemeanor, and is not merely for the recovery of a penalty,(n) it is competent to him to defend himself by proof of previous good character, reference being had to the nature of the charge against him. "On a charge for stealing," says a well known treatise on the Law of Evidence, (o) " it would be irrelevant and absurd to inquire into the prisoner's loyalty or humanity; on a charge of high treason, it would be equally absurd to inquire into his honesty and punctuality in private dealings. Such evidence relates to principles of moral conduct, which, however they might operate on other occasions, would not be likely to operate on that which alone is the subject of inquiry; it would not afford the least presumption that the prisoner might not have been tempted to commit the crime for which he is tried, and is therefore totally inapplicable to the point in question." [ *214 ] § 154. Few subjects are more liable to be misunderstood than that of character evidence. On an indictment for robbing A., proof that, on a former occasion totally unconnected with the transaction in question, the prisoner acted the part of an honest man in certain transactions with B. and C., assuming that it would, to a certain extent, disprobabilise the supposition of his having robbed A., is still considered too remote and insignificant to be receivable in evidence. (p) The inquiry should be as to his general character among those who have known him, with a view of shewing that his general estimation and reputation for honesty has been such as to render unlikely the dishonest act imputed to him. § 155. Wherever it is allowable to impeach the character of a party by evidence, it is of course competent to the other side to adduce evidence in support of that character.(q) And although, in a criminal prosecution, evidence cannot in the first instance be given to shew that the prisoner has borne a bad character, still, if he sets up his character as an answer to the charge against him, he puts it in issue, and the prosecutor may encounter his evidence either by cross-examination or *contrary testimony.(r) Thus, in the case of R. v. Wood, [ *215 ] the prisoner, who was indicted for a highway robbery, called a witness, who deposed to having known him for years, during which time he had, as the witness said, borne a good character. On cross-examination, it was proposed to ask the witness, whether he had not heard that the prisoner was suspected of having committed a robbery which had taken place in the neighbourhood some years before. This was objected to, as raising a collateral issue; sed per Parke, B., "The question is not whether the prisoner was guilty of that robbery, but whether he was suspected of having been implicated in it. Α man's character is made up of a number of small circumstances, of which his being suspected of misconduct is one." The question was (n) 1 Phill, & Am. Ev. 490; 2 Stark. Ev. 304, 3rd ed. (0) 1 Phill. & Am. Ev. 490. (p) "It frequently occurs, indeed, that witnesses, after speaking to the general opinion of the prisoner's character, state their personal experience and opinion of his honesty; but where this statement is admitted, it is rather from favour to the prisoner, than strictly as evidence of general character." 1 Phill. & Am. Ev. 491. (9) R. v. Clarke, 2 Stark. 241, (3 Eng. Com. Law Reps.); Bamfield v. Massey, I Camp. 460; Dodd v. Norris, 3 Camp. 519. (r) Bull. N. P. 296; 2 Stark. Ev. 304, 3rd ed.; Clarke v. Periam, 2 Atk. 339. |