been given to establish a good reputation on the one hand is not
true because the man's general reputation was bad. Now, then,
what is the answer in the present case? The witness, it seems,
disclaims all knowledge as to the general reputation of the
accused; what he says is this:-"I know nothing of the neigh-
bourhood's opinion." I take the word neighbourhood to mean,
"I know nothing of the opinion of those with whom the man has
in the ordinary occupations of life been brought immediately into
contact. I knew him and so did two brothers of mine when he
was in school, and, in my opinion, his disposition,”—in that sense
the word "character" comes in question when you look at the
answer," in my opinion his disposition is such that he is capable
of committing the class of offences with which he stands charged."
I am strongly of opinion that the evidence is not admissible.
Now, just test it; in the one instance, when a witness is called
to speak to the good character of the accused, it would not have
been competent to him to say, "I know nothing of his general
character, but I have had an opportunity of forming an opinion as
to his disposition, and my opinion is such that he is incapable of
this offence;" so, on the other hand, if the witness at once declares
that he has no knowledge of the general character of the accused,
but that in his judgment and opinion his information was such as
to make it likely that he would commit the offence in question.
I think, applying the same principle and the same test to rebut-
ting evidence as to character, the answer is not admissible. It is
not because an objectionable answer is given to an objectionable
question that the prosecution, or the party adducing the evidence,
is concluded by the answer, and if the learned judge who presided
at this trial had stopped the answer before it was completed, or,
the answer having been given inadvertently, without the oppor-
tunity of stopping it, had told the jury they must withdraw it
from their consideration, I think the answer would not prejudice
the case; but we learn from the report that the learned judge
expressly left the answer to the jury, directing them to take it
into their account, and balance the evidence which had been given
in favour of the prisoner's general character. I think that on his
leaving it to the jury, it became a part of the case, and cannot be
treated as an answer which was unexceptionable because given to an
unexceptionable question. I beg, in conclusion, I may not be under-
stood as offering any opinion as to what the law should be as
to what evidence or facts should be admissible in reference to
character, either in chief in favour of the prisoner, or in reply on
the part of the prosecution. I take my stand on this. I find it
uniformly laid down in the books of authority that the evidence to
character must be evidence to general character in the sense of
reputation; that evidence of particular facts although they might
go far more strongly than the evidence of general reputation, to
establish that the disposition and tendency of the man's mind was
such as to render him incapable of the act with which he stands
charged, must be put out of consideration altogether. We must

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JAMES ROWTON.

1865.

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Limits.

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JAMES ROWTON.

1865.

Evidence of character

Limits.

deal with the law as we find it, and in doing so my opinion is the evidence given on the present occasion in the particular answer is inadmissible, and I come therefore to the conclusion that the conviction ought not to stand.

ERLE, C.J.-I concur with the Lord Chief Justice in many parts of the judgment that he has just delivered. The admissibility of character for the prisoner stands on peculiar grounds, and the question of the admissibility of witnesses to say that that character is undeserved is now brought for the first time for adjudication before the Court. I take the progress of our law to be according to the great interests of society, and so the law is adapted with respect to the admissibility of evidence, and it ought to be regulated by attending carefully to the interests of truth. If a prisoner having a bad character proposes to adduce witnesses to mislead the Court by saying that he has a good character, contrary to the interests of truth, then the falsehood should be removed, and I quite agree with the Lord Chief Justice that the evidence in reply in this case was admissible, and that the first question ought to be answered accordingly. With respect to the second question, I do not agree with the Lord Chief Justice. I am entirely of opinion with him that individual facts are to be excluded, and whether the answer given by the witness does comprise something in the nature of an individual fact or not, I do not stop to inquire, because it appears to me that a question of very general importance has been raised and has been argued; and as to this question of general importance I assume that the answer understood in such sense is admissible. What is the principle of admitting evidence of character? I am of opinion that the evidence is admissible for the purpose of showing the disposition of the party accused, and raising a presumption from that disposition, that he had not committed the crime imputed to him. Now, disposition cannot be ascertained directly; it is only to be ascertained by the opinion of others, and the opinion of others must be founded either on their own personal experience, or must be founded on the expression of opinion by others whose opinion, if it ought to have any avail, ought to be founded on their personal experience. The point at issue between us is whether the Court is at liberty to receive a statement of the repute of a person founded on personal experience of the witness who attends to give in evidence his estimate of the disposition of the prisoner, an estimate of the character of the prisoner, taking it in the sense of disposition, which long personal knowledge and acquaintance of his habits enable him to form. I am of opinion that each source of evidence is admissible: you may have the general rumour prevalent in the neighbourhood where the party resides, and, according to my opinion, you may have the personal experience of those who have had abundant opportunity of forming a more real substantial guiding opinion than that which is to be gathered from the casual conversation of persons. According to my experience I never saw a witness examined to character without an inquiry into his own personal means of knowledge of

that character. I have never known the evidence to go to the jury
without, according to my experience, their being told to estimate
the weight of the evidence entirely upon the personal experience
of the witness. A witness is called to say that "this man has been
in my employ for twenty years, and I have always regarded him
with the highest estimation and respect, but I never heard a human
being speak of him in my life." I take it that the principle that
the Lord Chief Justice has laid down would require that
the presiding judge when the evidence was offered should say
it is not admissible. "I know nothing but from my personal
experience; I never heard a human being express an opinion
of him, but I have had abundant experience of him, and he is
one of the worthiest of the race he belongs to." That
is personal experience. That is the point on which I differ.
To my mind that personal experience enables the witness to say
"my repute of him is such as I express," and that personal
experience gives cogency to the evidence; whereas a witness
saying "I have heard some persons say-I have heard generally
a report in favour of the prisoner," is very slight in comparison.
I think if the proposition is that general character is alone
admissible, it is an impossible fact to state. There is no such
thing as general rumour; it lies in the collection of the sayings of
a number of individuals; you cannot ask who spoke that as an
individual fact, but it is a general inference supposed to be from
hearing a number of separate and specific statements in favour of
the party. I think that the notion that general character is alone
admissible, is not strictly accurate, if you come to limit it to
separate individuals. If a witness was asked what individual
has he ever heard give a particular opinion-an opinion of a
particular fact, that would be wholly inadmissible. I attach
considerable weight to this distinction, because in my opinion the
best character is that which is the least talked about. If the
discussion is whether the party is honest or not, if the answer is
we believe him honest, so far from that amounting to evidence in
favour of his honesty superior to that of a man whose honesty
was never thought of being questioned, I should say that it
should have a different effect to that. I know that is a wide and
general question. I must say that I have attempted to give
expression to the arguments of Mr. Tayler, which commanded my
assent upon this branch of the argument, and I have stated how
my experience has been with respect to asking for the personal
experience of the witness. When I look to the case of Rex
v. Davidson, which was cited by the learned counsel for the
prosecution, I am strongly confirmed in saying that in my opinion
Lord Ellenborough held, and Mr. Holroyd and the other counsel
in that case were all of them of opinion, that the personal
experience of a witness, or an opinion founded upon his personal
experience, was admissible in evidence. There were eleven
witnesses to character called in the case of Rex v. Davidson, and
though I have not looked at the book for some time, according to
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character

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ROWTON.

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Limits.

my experience of that case, five or six out of the eleven gave very considerable evidence of their personal experience, so as to show the means they had of founding an opinion upon personal experience. Lord Moira was the first witness called, and he stated that the prisoner had been employed in India and in other places for a great many years, and when he came to a statement of a specific transaction, then it was that Lord Ellenborough interfered, and said particular facts are never admissible. I find out of the eleven witnesses each of them was asked what were their means of knowledge of the matter, and what was their opinion, and the question put was, "In your opinion is he capable of committing a crime of this description." I can only say from the numerous reports the practice appears to be very strongly in favour of my opinion, that witnesses are frequently stopped by an attempt to introduce an individual fact. Means of knowledge is the foundation of the general inference of character. Whatever difference of opinion there is between the Lord Chief Justice and myself on the second question, I entirely concur in the first question. In the particular case, the question "what was the character of the prisoner?" and the answer of the schoolboy "I knew him at school, and I say his character is bad," if it had stopped there it would have fallen within my principle, and would have been admissible; it was a statement of personal experience, and he was bound to give his answer according to the general inference he had drawn from his personal experience as to the character, but he added a specific fact, "My two brothers told me something." That individual fact, in answer, would not be admissible, but in a grave case involving a very important question I cannot put it minutely on the particular answer. On the general ground I have stated I think that both questions ought to be answered in the affirmative, and that the conviction should be affirmed.

COCKBURN, C.J.-I would not be thought for a moment to make any attempt to reply on anything that has fallen from the Chief Justice of the Common Pleas. I am only anxious that in consequence of one observation made, I should not for one moment be misunderstood in the judgment I have pronounced. I am ready to admit that that negative evidence to which I have referred, of a man saying, "I never heard anything against the character of the person of whose character I come to speak,' should not be excluded. I think, though it is given in a negative form, it is the most cogent evidence of a man's good character and reputation, because a man's character does not get talked about till there is some fault to be found with him. It is the best evidence of his character that he is not talked about at all. I think the evidence is admissible in that sense. I am only anxious that I should not be misunderstood. I will just mention that upon the first point all my learned brothers agree with the judgment I have pronounced; and the Lord Chief Baron, my brothers Williams, Martin, Channell, Blackburn, Keating, Pigott, and Shee all concur upon the second point.

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JAMES ROWTON.

1865.

Evidence of

Limits.

MARTIN, B.-I am of opinion with the Lord Chief Justice and the majority of the judges that the presiding judge was wrong in allowing the evidence to go to the jury. With respect to the first question, I do not mean at all to differ from the judgment that has been delivered by the Lord Chief Justice. I will act upon it, as I consider I am bound to do; but if the question had depended entirely upon myself I should have taken further time character to consider. The question is whether or not witnesses having been called to character any evidence is admissible to contradict it? Perhaps it is impossible to answer that in the negative, as it is put. But the question discussed is whether or not when witnesses have been called to give a good character to a prisoner, witnesses are to be permitted to be called to give evidence of another kind as to his character. That is the matter which has been discussed by the learned counsel; and the doubt which exists upon my mind is this. The law of England is made up of practice and of precedent; that which has been the practice for years is what constitutes the law, and it has been found that it has been an expedient practice and attended with beneficial results, and when any practice is found wrong the Legislature has interposed and set the matter right. That is the history of the common law of England which rules the decisions of the Courts. Now, in this particular case the indictment charged the individual with having committed an indecent assault on a lad of about fourteen years of age. If I were to be investigating, for my own private satisfaction, whether or not this prisoner had committed the offence, I would make some inquiry whether or not from the prisoner's character he would be a party to a transaction of that sort, and if I was informed by persons in whom I could put trust that it was notorious that he was a man addicted to acts of this sort, I should be in a great manner guided by it, though it was only the statements of individuals. But if a man is indicted in a court of law, it is notorious that that evidence is not admissible, and the evidence would be confined to this, whether or not the assault was committed, and nothing but evidence directly bearing upon that issue would be permitted at all, and the evidence of disposition of a person directly excluded. No counsel would for a moment attempt to adduce such evidence before a jury, but would confine himself to the evidence as to the issue. The jury are sworn to try one issue, that is the assault on George Low, and the witnesses are sworn to give evidence upon that issue; and it seems to me the law is with respect to an inquiry of that sort that the evidence shall be confined to what bears directly upon the issue before the jury. Now if this evidence as to character is to be admissible, and we acted on strict principle, as I have already said, the evidence with regard to the man's disposition or character, with regard to this offence, would bear strongly upon it; but a practice has sprung up that witnesses are admitted to be called when a man is charged with an offence of any kind to give evidence as to his good character with respect to that