Page:American Journal of Sociology Volume 11.djvu/441

 REVIEWS 425

of it is the exclusion of matter foreign to the issue, but tending to prejudice the jury against a party. The evidence he relies on to establish the rule is as follows : protests by the orators against the prevailing practice of using it ; arguments by them that going into side issues consumes too much time and is the resort of those who have bad cases ; instances of parties refraining from answering irrelevant evidence given on the other side ; apologies for intro- ducing irrelevant matter; an understanding that speeches ought to be relevant ; orders from the court to " stick to the main issue." The only real indication of a rule is that parties speaking in the Areopagus had to take oath to confine themselves to the record. In the other courts that was not required. Is it not rather plain that the limita- tions on irrelevancy were merely such as any body, a town-meeting for example, would place upon its speakers, rather than a hard and fast legal rule ? The former was to be expected ; the latter would be surprising.

The evidence of a rule permitting one to refuse incriminating himself (p. 43) is slight indeed. An advocate, who apparently has prepared a deposition for a witness, writes him that the so-called deposition is carefully composed and will not subject him to legal liability, danger, or disgrace. Does it appear from this that the wit- ness could not be compelled to testify if such results would follow? The advocate may well have been merely stating the care he had taken in preparing the deposition, or he may have been inducing a reluctant witness to testify without compulsion.

Even the evidence of a rule against hearsay, which it is said (p. 20) " was expressly forbidden by law," is not convincing. Isaeus says it is right to testify to things one was present at, that to testify to others is hearsay. Demosthenes says that the laws forbid hearsay. But in none of these cases was it excluded. Perhaps all Demosthenes meant was that one could be punished for palming off hearsay knowl- edge on the court as first-hand knowledge. Mr. Bonner tells us (p. 20) that such a fraud on the court was punishable. But that would be far from excluding hearsay when frankly offered as such.

In some places Mr. Bonner's statement of the English law is not absolutely accurate. It is hardly true that "any inducement being held out by anyone in authority " (p. 29) makes a confession of crime inadmissible. The common law rules concerning incompetency (p. 27) are neither fully nor accurately stated. Religious belief and sanity as qualifications, for example, are not mentioned. But Mr.