Page:Harvard Law Review Volume 12.djvu/520

500 HARVARD LAW REVIEW.' coming paupers, — the loans might be justified. Though the court dispute it, the public benefit is as indirect here as in the principal case, and the rule logically enforced would seem to require holding the act bad in botli instances. The truth seems that no courts are wholly logical in enforcing the rule. Most courts allow bounties for enlistments, and pensions too, though the benefit is direct to the individual. The same courts both allow corpoiations to take land by eminent domain on the ground that the establishment of great manufacturing industries is a public purpose, Jordan v. Woodward, 40 Me. 317; Boston 6- Roxbury Mill Corp. v. New- man^ 12 Pick. 467 ; and, also, hold that the establishment of these same industries cannot be assisted by public loans, because the object is not a public purpose. Allen v. Inhabitants of Jay, 60 Me. 120. Considering these confliciing holdings it would seem that the rule, so far as it goes, is a mere instrument for the transfer of legislative power to the courts. That whereas previously the legislative judgment that the object was public was presumed correct till the contrary was shown " beyond a reason- able doubt," now, by this rule, this judgment is presumed mistaken till the courts are persuaded of the necessity. The rule has many Hmitations. See 5 Harvard Law Review, 30. It is probably more of an excuse than a reason seriously relied on. But it is worthy of notice as an indication of that judicial encroachment which some say bids fair eventually to change our whole system of government. Evidence of Character. — With a view to clemency, evidence of the character of a party to the litigation is admissible in criminal cases within certain limits. The privilege is not open to the prosecution until the accused raises the question ; and the proof is also confined to evi- dence of the general reputation of the person whose qualities are under discussion. In those civil suits, such as Hbel and slander, in which character, by a rule of substantive law, becomes a material fact in the case. It may, of course be duly proved, there being no question of the law of evidence. In cases of negligence, however, and in other civil suits, proof of character as a ground for inference to conduct stands on a different footing. In Missouri K. ^^ T. Ry. Co. v. Johnson, 38 S. W. Rep. 568, the plaintiff, an engineer of the defendant company, brought action for injuries received in a collision. The company claimed that he disregarded signals and was asleep at his post. The engineer, backed by the testimony of his fireman, insisted that he was engaged in other duties and was unable to be on the lookout. In rebuttal the defendant offered to prove that the plaintiff was in the habit of going to sleep while running his engine. This evidence, excluded below, was held inadmissible by the Supreme Court of Texas, who said that the fact that such a habit existed was without sufficient probative force to affect the deterrainadon of the question. The result reached is clearly correct and follows the great weight of authority. Southern Kansas Ry. Co. v. Robbins, 43 Kan. 145. The court, however, do not find the true basis for the rejection of such evi- dence. As a matter of such reason such habits of carelessness on the one hand or of diligence on the other may be of distinct probative value. Still they are unacceptable as tending to prejudice the man in the minds of that peculiar tribunal, the jury, which affects so widely the law of evidence. The dangerous character of this medium of proof outweighs