ILLUSTRATION OF APPARENT EXCEPTIONS.

633

cannot disclose in what condition an instrument was when entrusted to him by his client, as whether or not it were then stamped, or indorsed, or had an erasure upon it (7); and in an action of trover for a lease, brought by the assignees of a bankrupt, where the question was whether the lease had been deposited with the defendant by the bankrupt before or after the bankruptcy, an attorney, who, after the act of bankruptcy had been applied to by the bankrupt to procure a loan, was not permitted to answer a question as to whether his client had, on that occasion, brought to him the lease in question, for the purpose of raising money upon it (m). So, where the assignees of a bankrupt, in an action of assumpsit brought by them, endeavoured to establish that the bankrupt had committed an act of bankruptcy by having made a fraudulent conveyance to his son, and, in order to prove this transaction, called the bankrupt's attorney, Lord Ellenborough held that, though, as attesting witness to the deed, he was bound to disclose what took place at the time of its execution, he was privileged from stating what occurred during its concoction and preparation, and could not be asked whether it had not been subsequently destroyed, if the only knowledge he had, as to its concoction, preparation, or destruction, was acquired from his confidential situation as attorney (n).

§ 681. Again, the attorney may be called to identify his client as the person who has put in, or sworn, or signed an answer in Chancery, because this, so far from being a secret, is in its very nature a matter of publicity (o). The privilege also does not

(1) Wheatley v. Williams, 1 M. & W. 533. In B. N. P. 284 a., it is stated, that "if the question were about a rasure in a deed or will, the attorney might be examined to the question, whether he had ever seen it in any other plight;" but in Wheatley v. Williams, Lord Abinger observed that this passage "must apply to a case where the attorney has his knowledge independently of any communication from the client; it cannot mean that where the attorney, coming to the client for a confidential purpose, obtains some other collateral information which he would not otherwise have possessed, he can be compelled to disclose it," p. 541. See also, Brown v. Payson, 6 N. Hamps. 443.

(m) Turquand v. Knight, 2 M. & W. 98.

(n) Robson v. Kemp, 5 Esp. 52.

(0) B. N. P. 284 b.; Studdy v. Sanders, 2 D. & Ry. 347; Doe v. Andrews, 2 Cowp. 846, per Lord Mansfield; cited by Lord Brougham in 1 My. & K. 108, overruling R. v. Watkinson, 2 Str. 1122.

634

JUDGES, ARBITRATORS, AND COUNSEL.

attach to unnecessary communications made by a client to his legal adviser; and therefore a prosecutor's attorney has been allowed to state that, pending the proceedings on the indictment, his client had observed to him that he would give a large sum to have the prisoner hanged (p); and, in an action brought by an attorney for his bill, where the question was whether he had been employed by the defendant or by a third party, a statement made by the plaintiff to his attorney, on introducing such third party to him, was held to be excluded from the rule of privilege (q). So, if an attorney attests an instrument which his client executes, he may be compelled to prove the execution; for by becoming a subscribing witness he makes himself a public man, and pledges himself to give evidence on the subject, whether he be called by the party to whom the deed is executed, or by any other person who claims an interest in the property (r).

§ 682. Judges, arbitrators, and counsel may be mentioned as forming a second class of persons, who, from motives of public policy, are not compelled to testify as to certain matters, in which they have been judicially or professionally engaged; though, like ordinary persons, they may be called upon to speak to any foreign and collateral matters, which happened in their presence, while the trial was pending, or after it was ended (s). In regard to judges of courts of record, it is considered dangerous, or at least highly inconvenient, to compel them to state what occurred before them in court; and on this ground the grand jury have been advised not to examine the chairman of the Quarter Sessions, as to what a person testified in a trial in that court (t). The case of arbitrators is governed by the same general policy; and neither the courts of law nor of equity will disturb decisions deliberately made by arbitrators, by requiring them to disclose the grounds of their award, unless under very cogent circumstances, such as upon

(p) Annesley v. E. of Anglesea, 17 How. St. Tr. 1223-1244; Cobden v. Kendrick, 4 T. R. 431, cited ante, § 676.

(9) Gillard v. Bates, 6 M. & W. 547; 8 Dowl. 774, S.C.

(r) Doe v. Andrews, 2 Cowp. 845; Robson v. Kemp, 5 Esp. 53; 4 id. 235; Sandford v. Remington, 2 Ves. 189.

(s) R. v E. of Thanet, 27 How. St. Tr. 845—848.

(t) R. v. Gazard, 8 C. & P. 595, per Patteson, J.

SECRETS OF STATE-SPIES.

635

an allegation of fraud; for Interest reipublicæ ut sit finis litium (u). If an award be made in favour of a defendant, upon the examination of the parties, or the inspection of their books, which would not have been legal evidence had the cause been tried, the arbitrator, in an action for a malicious arrest, brought by the defendant against the former plaintiff, will not be permitted to depose as to what transpired before him (v); though, in ordinary cases, where he has proceeded according to strict rules of law, he may, by his own consent, be examined respecting the facts proved, or the matters claimed, at the reference (w). On the same ground, it has been held that a barrister cannot be forced to prove what was stated by him on a motion before the court (x); and the like privilege has been strenuously claimed, though not expressly recognised, where a counsel was called upon as a witness to disclose a confidential negotiation, into which, on behalf of his client, he had entered with a third party, though the client himself waived all objection to the course of examination proposed (y).

§ 683. We now proceed to the third class of cases, in which evidence is excluded from motives of public policy, namely, secrets of State, or things, the disclosure of which would be prejudicial to the public interest. These matters are such as concern the administration, either of penal justice, or of government; but the principle of public safety is in both cases the same, and the rule of exclusion is applied no further than the attainment of that object requires. Thus, in Crown prosecutions, and in Exchequer informations for frauds committed against the revenue-laws, witnesses for the Crown will not, on cross-examination, be permitted to disclose either the names of their employers, or the nature of the connection between them, or the names of the persons from whom they received information, or the names of those to whom they gave information, whether such last-mentioned persons were magistrates,

(u) Johnson v. Durant, 4 C. & P. 327; 2 B. & Ad. 925, S. C.; Ellis v. Saltau, 4 C. & P. 327, n.(a); Story, Eq. Pl. §§ 599, 824, 825, n.; 2 Story, Eq. Jurisp. §§ 1457, 1498; Anon., 3 Atk. 644.

(v) Habershan v. Troby, Pea. Ad. Cas. 181; 3 Esp. 38, S. C.

(w) Martin v. Thornton, 4 Esp. 181, per Lord Alvanley.

(a) Curry v. Walter, 1 Esp. 456, per Eyre, C. J.

(y) Baillie's case, 21 How. St. Tr. 358-361.

636

INFORMERS-CHANNELS OF INFORMATION.

or actually concerned in the executive administration, or were only the channel through which the communication was made to Government (2). Neither can the witness be asked whether he was himself the informer (a). "It is perfectly right," said Lord Chief Justice Eyre, in Hardy's case (b), " that all opportunities should be afforded to discuss the truth of the evidence given against a prisoner; but there is a rule, which has universally obtained, on account of its importance to the public for the detection of crimes, that those persons, who are the channel by means of which that detection is made, should not be unnecessarily disclosed."

§ 684. The protection afforded by this rule will be equally upheld, though the witness, in his examination in chief, has admitted that suggestions have been made to him on the part of the Government (c); and the doctrine has been even carried so far, that, where a witness, believing the views of certain parties to be dangerous to the State, had consulted a private friend as to what steps he should pursue, and the friend advised him to communicate the information to Government, a majority of the learned judges held that the name of this friend could not be disclosed (d). They were also, in this case, unanimously of opinion, that all questions tending to the discovery of the channels by which the information was given to the officers of justice, were, upon the general principle of public convenience, to be suppressed; that all persons in that situation were protected from the discovery; and that, if an objection was raised to the question, it was no more competent for the defendant to ask who the person was that advised the witness to give information, than to ask to whom he gave it in consequence of that advice, or to put any other question respecting the channel of communication, or all that was done under it.

(z) R. v. Watson, 32 How. St. Tr. 100-103; 2 Stark. R. 135, S. C.; R. v. Hardy, 24 How. St. Tr. 753, 808-820; 1 Ph. Ev. 178-180.

(a) Att.-Gen. v. Briant, 15 M. & W. 169.

(b) 24 How. St. Tr. 808.

(c) R. v. O'Connell, Armst. & Trev. R. 178, 179. See also pp. 233, 240, of same report, where the general doctrine was recognised and acted upon.

(d) R. v. Hardy, 24 How. St. Tr. 808-820, Eyre, C. J., Hotham, B., Grose, J., pro; Macdonald, C. B., and Buller, J., con.

RULE AS TO INFORMERS.

637

The witness, however, may still be asked, though there appears to be no practical use in putting such a question, whether the person to whom the information was communicated was a magistrate or not (e).

§ 685. It may well be doubted whether this rule of protection applies to ordinary prosecutions (ƒ); and even when it is applicable, as it unquestionably is 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 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 (g).

§ 686. The opinion which seems best supported by decided cases and dicta, is, that the proceedings of grand jurors should, on similar grounds of public policy, be regarded as privileged communications. It has been thought by some persons, though we contend erroneously, that the preliminary inquiry as to the guilt or innocence of a party accused should 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

(e) 24 How. St. Tr. 808.

(f) Att.-Gen. v. Briant, 15 M. & W. 181, per Pollock, C. B.

(g) Home v. Bentinck, 2 B. & B. 162, per Dallas, C. J.; U. S. v. Moses, 4 Wash. 726.