1 Governed by Federal and Arkansas statutes, and by Indian law, not here considered. 2 These laws are not here considered, being chiefly of Spanish origin.

II. REPORTS.

Most of the citations of decisions rendered since 1893 have been taken from the reports published in the National Reporter System, as they appeared in weekly numbers. For all decisions reported since the beginning of that System, the duplicate citation has been added, to include both the Official Report and the National Reporter, most of these duplicate citations being furnished through the courtesy of the West Publishing Company, the remainder added by the author from the Blue Books. As the printing progressed, the duplicate citations of the Official Reports appearing from time to time were obtained from the Third Labels and inserted in the proof. Thus it happens that in the earlier parts of the book most of the citations of decisions of 1903 are to the National Reporters only.

The printing of these present volumes began in January, 1904, and occupied a full year; it was therefore desirable to set a definite point of time for the ending of citations (instead of inserting current late cases in the latter portions of the book only), in order that those who use the book may know where to begin in bringing the later citations down to the date of their consultation. The point taken was therefore that volume of the different National Reporters which ended nearest to January, 1904; this ranged (dating by the weekly issues) between November, 1903, and March, 1904. Substantially, then, the citations come down to the beginning of 1904. The latest volumes of Reporters consulted were as follows:

and of Official Reports not covered by the National Reporter System:

The reports of the Appellate (intermediate) Courts in Colorado, Illinois, Indiana, Kansas, New York (Supreme Court), ard Texas, have not been cited, except on interesting matters for which there is scanty authority; partly because their rulings are not final, and partly because in some jurisdictions they are expressly made not binding as precedents. The trial rulings of Federal District Courts since the creation of the Circuit Court of Appeals have also been left unnoticed to a similar extent.

III. CITATION OF THIS TREATISE.

Citations of other parts of this treatise are made herein by number of section (§) and number of note. The notes are numbered continuously within each section.

Between the chapters, and between main subdivisions of each chapter, there are from one to five (occasionally more) numbers omitted; so that the series of numbers does not read consecutively at those points. This is not an inadvertence, nor a sign of materials omitted; but merely a mechanical expedient which became indispensable in working upon a bulky manuscript. In the course of inserting the cross-references (some ten thousand), a great number of the references obviously had to be made, during the progress of the work, to portions of the text yet unwritten; and it therefore became necessary to give to these topics reference-numbers beforehand. In order to allow for occasional additions of topics in the course of the work, these blanks were left in the series. A reference to the California Codes will show that this expedient is not without precedent.

§ 2182. Inconvenience (Public Records). § 2183. Illegality; (1) Documents, Chattels, Testimony, obtained by Illegal Search, Removal, or Compulsion. § 2184. Same: (2) Documents violating Stamp-Tax Laws.

§ 2175. General Nature of these Rules. The rules of admissibility of evi-.dence, as already pointed out (ante, § 11), fall into three general groups: first, those which determine the probative value, or Relevancy, of circumstantial and testimonial evidence, that is, the fundamental quality without which no evidential data are to be allowed to be considered by the jury (ante, §§ 24-1168); secondly, those Auxiliary Rules of Probative Policy which impose artificially some added conditions of admissibility, but are directed solely to improving the quality of proof and strengthening the probabilities of ascertaining the truth as the result of the investigation (ante, §§ 11712169); and, thirdly, the present group,—those rules which rest on no purpose of improving the search after truth, but on the desire to consider the requirements of Extrinsic Policy. They forbid the admission of various sorts of evidence because some consideration extrinsic to the investigation of truth is regarded as more important and overpowering. The rules of this last class thus differ from those of the second class, in that their effect is to obstruct, not to facilitate, the search for truth, and that this effect is consciously accepted as less harmful, on the whole, than the extrinsic disadvantages which would ensue to other interests of society if no such limitations existed. It ought to follow that no limitation of the present nature ought to be recognized unless it is clearly demanded by some specific important extrinsic policy, and that every intendment should be made against such a demand.

The most natural grouping of these rules of Extrinsic Policy is that which regards them according as they are absolute or conditional. The former class

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of prohibitions are enforood by the Court like other rules of evidence; the latter are applied only on demand of the person who is supposed to be affected in his interests by the extrinsic policy in question and to be protected by the rule from an injury to that interest. The latter class of rules-the rules of Privilege-have features in common, which sharply distinguish them from the former. The former class is small in number; indeed, it can hardly be said that there are any definite and well-established rules of exclusion of that type; they have usually been discountenanced in judicial opinion. The rules of the latter class, on the contrary, are numerous and well established, and affect in a marked degree the daily course of proof in litigation.

Title I: RULES OF ABSOLUTE EXCLUSION.

2180. Indecency. The notion of indecency is often regarded as though it were an absolute quality of words' and actions. In truth, it is merely a relative term. "Unto the pure, all things are pure," said Paul. Indecency depends upon the spirit and purpose of the utterance or the act. The law punishes what it calls "indecent exposure of the person"; but it has no penalty for the very same actions when done in the presence of a physician for the purpose of obtaining his medical assistance. The utterance of vile words of slander may be indecent from the mouth of the slanderer; but the repetition of those words in a court of justice by the witness who is called by the injured person to prove them in his action for redress is in no sense indecent. What we are to conclude, then, since the process of investigating the truth in courts of justice is both an indispensable and a dignified function of life, is that no utterances or acts called for in evidence in that process are to be prohibited because under other circumstances they might be characterized by indecency. In other words, the general policy of discountenancing indecency does not extend to the exclusion of evidence in a court of justice.

To this the only qualification can be that, if utterances or acts, which might be indecent in some circumstances and might therefore excite prurient attention among onlookers at a public occasion and lead to shame and embarrassment in the person of whom they are required in evidence, are not materially useful for the purpose of the proof in hand, they may be dispensed with and prohibited; the discretion of the trial Court to determine the exigency in each case. This limitation upon the general principle is a fair one, and would probably find general judicial recognition. Its application would sometimes take the extreme form (as in Lord Mansfield's ruling) of refusing to entertain at all a specific plea or cause of action; but the principle would be in effect the same, whether it resulted in a rule of evidence or in a rule of substantive law. Lord Mansfield's utterance plainly lays down both the general principle and its qualification :

1765, Mansfield, L. C. J., in Dacosta v. Jones, Cowp. 729 (refusing to allow the trial of a wager as to the sex of the Chevalier D'Eon): "The trial of this cause made a great noise