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unquestionably it does whenever the Government is directly concerned,—it may sometimes, if rigidly enforced, be productive of great individual hardship; since, where a witness is giving an account of what occurred at a distant period, it is obviously material to ascertain whether he gave substantially the same account recently after the transaction; and if the object be to shake the credit of the witness, it is equally important to know whether a communication, which he asserts that he made to a certain person, was, in fact, ever so made. On the other hand, it is absolutely essential to the welfare of the State, that the names of parties who interpose in situations of this kind should not be divulged; for otherwise,—be it from fear, or shame, or the dislike of being publicly mixed up in inquiries of this nature,-few men would choose to assume the disagreeable part of giving or receiving information respecting offences, and the consequence would be that many great crimes would pass unpunished.1

§ 942. The opinion which seems best supported by decided cases § 863 and dicta, is, that the proceedings of grand jurors should, on similar grounds of public policy, be regarded as privileged communications. Some persons imagine, though it would seem erroneously, that the preliminary inquiry as to the guilt or innocence of a party accused ought to be secretly conducted; and, in furtherance of this object, every grand juror is sworn to secrecy. One reason may be, to prevent the escape of the party, should he know that proceedings were in train against him; another may be, to secure freedom of deliberation and opinion among the grand jurors, which might be impaired if the part taken by each could be made known to the accused or to the Crown; and although these reasons are clearly fallacious, since the first is answered by the fact, that most crimes are primarily investigated by an open inquiry before the committing magistrate, and the second rests on an assumption of pusillanimity and meanness, which the gentlemen who constitute

1 Home v. Bentinck, 2 B. & B. 162, per Dallas, C. J.; U. S. v. Moses, 4 Wash. 726. 2 Gr. Ev. § 252, in part. 3 In R. v. Bullard, 12 Cox, 353, Byles, J., observed, that "the grand jury were a secret tribunal, and not bound by any rules of evidence."

the grand jury but little deserve; still, they are the best that can be furnished in support of a system, which is doubtless often productive of perjury, often of collusion, and sometimes of oppression.1

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§ 943. The rule includes not only the grand jurors themselves, SC but their clerk, if they have one, and the prosecuting officer,3 if he be present at their deliberations; all these being equally concerned in the administration of the same portion of penal law. They are not permitted to disclose what number of jurors were present when a case was brought before them, or the number or names of the jurors who agreed or refused to find the bill of indictment; neither can they be called on the trial to explain their finding, or to detail the evidence on which the accusation was founded, or to show that a witness has given testimony in court contrary to what he had sworn before them. In an action, however, for a malicious indict

1 See observations on this subject, and on the general inutility of grand juries, in Law Mag. vol. xxxi. pp. 242-251.

2 12 Vin. Abr., Ev. B. a. 5.

3 So decided in America, Com. v. Tilden, cited in 2 St. Ev. 232, n. 1, by Metcalf; M'Lellan v. Richardson, 1 Shepl. 82.

4 R. v. Marsh, 6 A. & E. 236. See 4 Hawk. P. C., b. 2, c. 25, § 15. In America, grand jurors have been asked whether twelve of their number actually concurred in the finding of a bill, the certificate of the foreman not being conclusive evidence of that fact; M'Lellan v. Richardson, 1 Shepl. 82; Low's case, 4 Greenl. 439; Com. v. Smith, 9 Mass. 107.

5 R. v. Cooke, 8 C. & P. 584, per Patteson, J.

See R. v. Watson, 32 How. St. Tr. 107, per Ld. Ellenborough, and 6 A. & E. 237, arg.; Hindekoper v. Cotton, 3 Watts, 56; M'Lellan v. Richardson, 1 Shepl. 82; Low's case, 4 Greenl. 439, 446, 453; Burr's trial [Anon.], Ev. for deft., p. 2.

7 12 Vin. Abr. Ev. H.; Imlay v. Rogers, 2 Halst. 347. Mr. Chitty, in his 1st vol. of Crim. Law, p. 322, states that perjury before the grand jury is indictable, and refers to his vol. on Prec., which contains nothing on the subject. Mr. Christian, also, in a note to 4 Bl. Com. 126, narrates that, at York, a grand juror, hearing a witness swear in court contrary to the evidence which he had given before the grand jury, told the judge, “and the witness was committed for perjury, to be tried upon the testimony of the gentlemen of the grand jury." What became of this case does not appear. By the N. York Cr. Code, § 267, "Every member of the grand jury must keep secret, whatever he himself, or any other grand juror may have said, or in what manner he, or any other grand juror, may have voted on a matter before them." § 268. "A member of the grand jury may, however, be required by any court to disclose the testimony of a witness

ment, Lord Kenyon is reported to have allowed the plaintiff to call one of the grand jury, in order to prove that the defendant was the prosecutor, and a similar course was pursued on another occasion without opposition.2

§ 944. In illustration of this subject it may be added, that the § 863 clerk of the Property Tax Commissioners has been held bound to produce in a court of justice his official books, and to answer all questions respecting the collection of the tax, though he had been sworn, on entering office, not to disclose anything he should learn in that capacity, without the consent of the Commissioners, or unless by force of some Act of Parliament.3

§ 945. On similar grounds of public policy, and for the pro- § 864 tection of parties against fraud, the law excludes the testimony of traverse or petty jurors, when offered to prove mistake or misbehaviour by the jury in regard to the verdict. Thus, where a motion was made to amend the postea by increasing the damages, the court refused to admit an affidavit sworn by all the jurymen, in which they stated their intention to have been to give the plaintiff such increased sum.5 So, also, on several occasions, affidavits that verdicts have been decided by lot have been rejected on motion for new trials, whether such affidavits were sworn by individual jurymen, or by strangers, stating the subsequent admissions of jurors to themselves, or even that a declaration had been made by one

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examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court; or to disclose the testimony given before them by any person, upon a charge against him for perjury in giving his testimony, or upon his trial therefor." This appears to be the common-sense view of the matter.

1 Sykes v. Dunbar, 2 Selw. N. P. 1081.

2 Freeman v. Arkell, 1 C. & P. 137, cor. Park, J.

3 Lee v. Birrell, 3 Camp. 337, per Ld. Ellenborough.

4 Gr. Ev. § 252, in part.

5 Jackson v. Williamson, 2 T. R. 281.

6 Vasie v. Delaval, 1 T. R. 11; Owen v. Warburton, 1 N. R. 326; Heyes v. Hindle, per Q. B. in M. T., 1863, MS.; Little v. Larrabee, 2 Greenl. 37, 41, n.

7 Straker v. Graham, 4 M. & W. 721; The State v. Freeman, 5 Conn. 348; Meade v. Smith, 16 Conn. 346.

juror in the hearing of his fellows in open court after the verdict had been pronounced.1 In all cases of this kind, the court must obtain their knowledge of the misconduct complained of, either from the officer who had charge of the jury, or from some other person who actually witnessed the transaction. But, although a juryman's affidavit of what occurred in the jury-box during the trial cannot be received, it is admissible to explain the circumstances under which he came into the box.4

§ 946. On a like principle of public policy, no witness,—whether ş he be a Peer, a Member of the House of Commons, an officer of either House, or a shorthand writer,-can be forced, without the permission of the House having been first obtained, to disclose in a court of justice what took place within the walls of Parliament, or to relate any expressions or arguments that may have been used by one of the members in the course of debate; and although he may probably be asked as to the fact, whether or not a member spoke upon a particular subject of discussion, he may decline to answer any question relating to the manner in which the votes were given on a division.7

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§ 947.8 On similar grounds, the official transactions between the § s heads of the departments of Government and their subordinate officers, are, in general, treated as secrets of State. Thus, communications between a colonial governor and his attorney-general, on the condition of the colony or the conduct of its officers,10 or between such governor and a military officer under his authority;

the re

1 Burgess v. Langley, M. & Gr. 722; Raphael v. Bk. of England, 17 Com. B. 161. 25 M. & Gr. 725, per Cresswell, J. 3 Vasie v. Delaval, 1 T. R. 11, per Ld. Mansfield.

Bailey v. Macauley, 13 Q. B. 815, 829.

5 Plunkett v. Cobbett, 29 How. St. Tr. 71, 72; 5 Esp. 136, S. C., per Lal Ellenborough; Chubb v. Salomons, 3 C. & Kir. 75, per Pollock, C. B.

6 Plunkett v. Cobbett, 29 How. St. Tr. 71, 72; 5 Esp. 136, S. C.

7 Chubb v. Salomons, 3 C. & Kir. 75.

8 Gr. Ev. § 251, in great part.

9 By the N. York Civ. Code, § 1710, r. 5, "a public officer cannot be examined as to communications made to him in official confidence, when the public interests would suffer by the disclosure."

10 Wyatt v. Gore, Holt, N. P. R. 299.

11 Cooke v. Maxwell, 2 Stark. R. 183.

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port of a military commission of inquiry, made to the commander-
in-chief; the report of a collision at sea made by the captain of one
of the ships to the Lords Commissioners of the Admiralty; the
report submitted to the Lord Lieutenant of Ireland by an Inspector
General of the prisons; and the correspondence between an agent
of the Government and a Secretary of State; or between the
Directors of the East India Company and the Board of Control,
under the old law;5 or between an officer of the Customs and the
Board of Commissioners,6-are confidential and privileged matters,
which the interest of the State will not permit to be revealed. The
President of the United States, and the Governors of the several
States, are not bound in America to produce papers or disclose
information communicated to them, when, in their own judgment,
the disclosure would, on public considerations, be inexpedient.7
And the same doctrine, as it would seem, prevails in England,
whenever Ministers of State are called as witnesses for the purpose
of producing public documents.

§ 948. If, however, the Minister, instead of attending personally § 866
at the trial, should send the required papers by the hands of a
subordinate officer, the judge would probably examine them himself,
and would compel their production, unless he were satisfied that
they ought on public grounds to be withheld. When the law is

Home v. Bentinck, 2 B. & B. 130; 4 Moore, 563, S. C.; Beatson v.
Skene, 29 L. J., Ex. 430; 5 H. & N. 838, S. C.; Dawkins v. Ld. Rokeby,
8 Law Rep., Q. B. 255, per Ex. Ch. ; 42 L. J., Q. B. 63, S. C.

2 H. M. S. Bellerophon, 44 L. J., Adm. 5.

3 M'Elveney v. Connellan, 17 Ir. Law R., N. S. 55.

4 Anderson v. Hamilton, 2 B. & B. 156, n.; 8 Price, 244, n.; and 4
Moore, 533, n. S. C.; 2 Stark. R. 185, per Ld. Ellenborough, cited by the
Att.-Gen.; Stace v. Griffith, 6 Moo. P. C., N. S., 18; Marbury v. Madison,
1 Cranch. 144.

5 Smith v. E. India Co., 1 Phill. 50; Rajah of Coorg v. E. India Co., 25
L. J., Ch. 345; Wadeer v. E. India Co., 8 De Gex, M. & G. 182.

6 Black v. Holmes, Fox & Sm. 28.

71 Burr's trial, 186, 187, per Marshall, C. J.; Gray v. Pentland, 2 Serg.
& R. 23.

8 Beatson v. Skene, 29 L. J., Ex. 430; 5 H. & N. 838, S. C.

9 Id.; Dickson v. E. of Wilton, 1 Fost. & Fin. 425, per Ld. Campbell.
See, however, as to this last case, Dawkins v. Ld. Rokeby, 8 Law Rep., Q. B.
272, 273, per Kelly, C. J., pronouncing the judgment of the Ex. Ch.

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