Especially in criminal cases.

on a bond which he knows to be a forgery, but feels that it is altogether out of his power to prove it so. Forge a release (1), or bribe a witness to prove payment, are suggestions too obvious not to have been occasionally acted on.

§ 402. Whatever weight may be legitimately attached to this presumption in civil cases, great care must be taken not to attribute to spoliation, or similar acts, any force to which they are not entitled in criminal ones, where life or liberty are at stake. Nations and ages differ in the tone of moral feeling diffused through society, and reverence for the sacredness of an oath; men differ in strength of conscientious principle, as well as in courage; and tribunals differ in ability and impartiality, and in the quantity of evidence which they exact for condemnation. 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 false or inconclusive, they feel themselves unable to refute, having recourse to the suppression or destruction of criminative, and even to the fabrication of exculpatory, testimony (m). Sir Edward Coke relates

(1) 3 Benth. Jud. Ev. 168. "One of the greatest and most difficult points in the Douglas cause," observes Sir W. D. Evans, 66 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 I believe the true conclusion, from all the circumstances

account.

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, note (a).

(m) 1 Stark. Ev. 565, 3rd Ed.; Ph. & Am. Ev. 467, 3rd Ed. Innocent persons have occasionally endeavoured to defend themselves by setting up false alibis; and cases have probably occurred

a now well-known, but not on that account less remarkable or striking instance of this (n). An uncle had the bringing up of his niece, who was entitled to some landed property under her father's will, of which she would become possessed at the age of sixteen, and to which the uncle was next heir. When she was about eight or nine years old 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, though much inquiry was made after her; and the uncle, being committed to jail on suspicion of her murder, was admonished by the justices 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 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 (o). "Which case," he adds, "we have reported for a double caveat: first to judges, that they in case of life judge not too hastily upon bare presumption: and, secondly, to the innocent and true man, that he never seek

where the accused, though innocent, could not avail himself of the real defence without criminating others, whom he is anxious not to injure, or even criminating himself with respect to other transactions.

(n) 3 Inst. ch. 104, p. 232; cited also 2 Hale, P. C. 290; 2 Ev. Poth. 338; Wills, Circ. Evid. 82, 3rd Ed., &c.

(0) 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.

to excuse himself by false or undue means, lest thereby he offending God (the author of truth) overthrow himself, as the uncle did."

Presumptions

in international and maritime law.

Presumptions relating to domicil.

SUB-SECTION VIII.

PRESUMPTIONS IN INTERNATIONAL AND MARITIME LAW.

§ 403. We propose now to consider certain presumptions to be found in international and maritime law. With respect to international law, its very existence as a science rests on one important presumption. "In the silence of any positive rule," says Dr. Story, affirming or denying, or restraining the operation of foreign laws, courts of justice presume the tacit adoption of them by their own government, unless they are repugnant to its policy, or prejudicial to its interests (q)." So, says Professor Greenleaf, "A spirit of comity, and a disposition to friendly intercourse, are presumed to exist among nations as well as among individuals (r).”

§ 404. There are other presumptions to be found in this branch of jurisprudence. Thus, the place of a person's birth is considered as his domicil, if it is at the time of his birth the domicil of his parents (s). But a more important rule is, that the place where a person resides must be taken, primâ facie, to be his domicil, until other facts establish the contrary (t). Where the family of a married man resides is generally to be deemed his

(9) Story, Conflict of Laws,

§ 38.

(r) 1 Greenl. Ev. § 43, 4th Ed. (s) Story, Conflict of Laws, § 46.

(t) Story, in loc. cit.; Bruce v. Bruce, 2 B. & P. 229, 230, note (a); Bempde v. Johnstone, 3 Ves. jun. 198; Stanley v. Bernes, 3 Hagg. N. R. 437.

domicil (u); and that of an unmarried one will be taken to be in the place where he transacts his business, exercises his profession, or assumes and exercises municipal duties or privileges (x). And it is said to be a principle, that where the place of domicil is fixed by positive facts, presumptions from mere circumstances will not prevail against those facts (y). This does not mean that presumptive evidence is inadmissible to prove domicil; and, indeed, it amounts to little more than saying that the weaker evidence shall not be allowed to prevail against the stronger.

international

§ 405. It is also a principle of international law, that Other precontracts are, generally speaking, to be governed by the sumptions in laws of the place where they are entered into and where law. they are to be executed, and the contracting parties are to be presumed to enter into their engagements under a knowledge of those laws (z). So, a foreign marriage will be presumed to have been celebrated with the due solemnities required by the law of the place where it is celebrated (a). And the general presumptions against crime, fraud, covin, immorality, &c. are applicable to acts done abroad as well as to acts done at home.

state.

§ 406. Where the subject of one state is also the Acts done by an independent independent sovereign of another he is, of course, not sovereign who responsible to the laws of the former state for acts done is also the subject of another by him as such sovereign (b). And it seems that in respect to any act done by such a person out of the realm of which he is a subject, or any act as to which it might be doubtful whether it ought to be attributed to the character of the sovereign prince or to that of the subject,

(u) Story, in loc. cit. (x) Id. § 47.

(y) Id.

(z) Id. § 76.

Brampton, 10 East, 282.

(b) The Duke of Brunswick v. The King of Hanover, 6 Beav. 1; De Haber v. The Queen of Por

(a) R. v. The Inhabitants of tugal, 16 Jur. 164.

Presumptions in maritime law.

the act ought to be presumed to have been done in the character of the sovereign prince (c).

§ 407. Among the most important presumptions in maritime law are those relating to seaworthiness. Every Seaworthiness. ship insured sails under an implied warranty that she is seaworthy. It is not necessary to inquire whether the owner acted honestly and fairly in the transaction; however just and honest his intentions may be, if he is mistaken in the fact, and the vessel is not seaworthy, Unseaworthi- the underwriter is not liable (d). But if, shortly after sailing, a ship turn out to be unfit for sea, without apparent or adequate cause, the burden of proof is thrown on the assured, and a jury ought to presume that the unseaworthiness existed before the commencement of the voyage (e); and this rule holds even though the ship had encountered a violent storm, unless it can fairly be inferred that the damage resulted from the storm (ƒ).

ness.

§ 408. Where a vessel is missing, and no intelligence of her has been received within a reasonable time after she sailed, it shall be presumed that she foundered at sea (g). Thus, where a ship was insured in 1739, from North Carolina to London, with a warranty against captures and seizures, an action was brought against the underwriters, alleging the loss to have been by sinking at sea, which came on to be tried in M. T., 17 Geo. II. The only evidence, however, was that she had sailed on

(c) The Duke of Brunswick v. The King of Hanover, 6 Beav. 57, 58.

(d) Park, Ins. 332, 7th Ed.; Arnould, Ins. 652; Douglas v. Scougall, 4 Dow. 269.

(e) Munro v. Vandam, Park, Ins. 333, note (a), 7th Ed.; Arn. Ins. 685.

(f) Douglas v. Scougall, 4 Dow. 269; Watson v. Clark, 1 Dow. 344; Parker v. Potts, 3 Dow. 31.

(g) Park, Ins. 105, 7th Ed.; Arn. Ins. 793; Green v. Brown, 2 Str. 1199; Houstman v. Thornton, Holt, N. P. C. 243.