638

PROCEEDINGS OF GRAND JURORS.

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 the grand jury but little deserve ; still, they are the best that can be furnished in support of a system which we are persuaded is often productive of perjury, often of collusion, and sometimes of oppression (h). The rule includes not only the grand jurors themselves, but their clerk (i), if they have one, and the prosecuting officer (j), 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 (k); neither can they be called on the trial to explain their finding (1), or to detail the evidence on which the accusation was founded (m), or to show that a witness has given testimony in court contrary to what he had sworn before them (n). It is, however, proper to observe,

(h) See observations on this subject, and on the general inutility of grand juries, in Law Mag. vol. xxxi., pp. 242-251. (i) 12 Vin. Abr. Ev. B. a. 5. (j) So decided in America, Com. v. Tilden, cited in 2 St. Ev. 232, n. (1) by Metcalf; M'Lellan v. Richardson, 1 Shepl. 82.

(k) R. v. Marsh, 6 A. & E. 236. See 4 Hawk. P. C. b. 2, ch. 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.

(1) R. v. Cooke, 8 C. & P. 584, per Patteson, J.

(m) See R. v. Watson, 32 How. St. Tr. 107, per Lord 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.

(n) 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 Rev. St. of New York, vol. ii, p. 724, § 31,

PETTY JURORS-GROUNDS OF VERDICT.

639

that in an action for a malicious indictment, 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 (0), and that a similar course was pursued on another occasion without opposition (p). In illustration of this subject it may be added, that the 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 (9).

§ 687. On similar grounds of public policy, and for the protec tion of parties against fraud, the law excludes the testimony of traverse or petty jurors, when offered to prove mistake or misbehaviour in 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 (r). So, also, on several occasions, affidavits that verdicts have been decided by lot have been rejected on motions for new trials, whether such affidavits were sworn by individual jurymen (s), or by strangers, stating the subsequent admissions of jurors to themselves (t), or even that a declaration had been made by one juror in the hearing of his fellows in open court after the verdict had been pronounced (u). 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 (x), or from some other person who actually witnessed the transaction (y).

a juror may be asked whether the testimony of a witness given before the grand jury corresponds with that given upon the trial, and this appears to be the common sense view of the matter. (0) Sykes v. Dunbar, 2 Selw. N. P. 1068.

(p) Freeman v. Arkell, 1 C. & P. 137, cor. Park, J.

(9) Lee v. Birrell, 3 Camp. 337, per Lord Ellenborough.

(r) Jackson v. Williamson, 2 T. R. 281.

(s) Vasie v. Delaval, 1 T. R. 11; Owen v. Warburton, 1 New R. 326; Little v. Larrabee, 2 Greenl. 37, 41, n.

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

(u) Burgess v. Langley, 5 M. & Gr. 722. (x) Id. 725, per Cresswell, J. (y) Vasie v. Delaval, 1 T. R. 11, per Lord Mansfield.

640

PROCEEDINGS IN PARLIAMENT-SECRETS OF STATE.

§ 688. On a like principle of public policy, a witness will not be permitted 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; though it seems he may be asked as to the fact, whether or not a member spoke upon a particular subject of discussion (r).

§ 689. On similar grounds, the official transactions between the 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 (s); or between such governor and a military officer under his authority (t); the report of a military commission of inquiry, made to the commander-in-chief (u); and the correspondence between an agent of the government and a Secretary of State (v); or between the Directors of the East India Company and the Board of Control (w); or between an officer of the Customs and the Board of Commissioners (x),—are confidential and privileged matters, which the interests 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 to produce papers or disclose information communicated to them, where, in their own judgment, the disclosure would on public considerations be inexpedient (y). And where the law is restrained by public policy from enforcing the production of papers, the like necessity restrains it from doing what would be the same thing in effect, namely, receiving secondary

(r) Plunkett v. Cobbett, 2 How. St. Tr. 71, 72; 5 Esp. 136, S. C., per Lord Ellenborough. See Law v. Scott, 5 Har. & J. 438, contra ; sed qu.

(s) Wyatt v. Gore, Holt's N. P. C. 299.

(t) Cooke v. Maxwell, 2 Stark. R. 183.

(u) Home v. Bentinck, 2 B. & B. 130; 4 Moore, 563, S. C.

(v) Anderson v. Hamilton, 2 B. & B. 156, n. ; 8 Price, 244, n.; and 4 Moore, 533,

n., S. C.; 2 Stark. R. 185, per Lord Ellenborough, cited by the Att.-Gen.; Marbury v. Madison, 1 Cranch, 144.

(w) Smith v. East India Co., 1 Phill. 50; 3 & 4 Will. 4, c. 85, §§ 29, 30, 35. (x) Black v. Holmes, Fox & Smith, R. 28.

(y) 1 Burr's Trial, 186, 187, per Marshall, C. J.; Gray v. Pentland, 2 Serg. & R. 23.

SECRETS OF STATE-INDECENT EVIDENCE.

641

evidence of their contents (z). It has, however, been held, that, in an action of trespass brought against the governor of a colony, a military officer under his control might be asked in general terms, whether he did not act by the direction of the defendant, though the written instructions could not be given in evidence (a). But communications, though made to official persons, are not privileged, where they are not made in the discharge of any public duty; such, for example, as a letter by a private individual to the chief secretary of the postmaster-general, complaining of the conduct of the guard of the mail towards a passenger (b).

§ 690. There is a fourth species of evidence which is excluded on public grounds, namely, that which is indecent, or offensive to public morals, or injurious to the feelings or interest of third persons, the parties themselves having no interest in the matter, except what they have impertinently and voluntarily created. The mere indecency of disclosures does not in general suffice to exclude them, where the evidence is necessary for the purposes of civil or criminal justice; as, on an indictment for a rape; or on a question upon the sex of one claiming an estate entailed, as heir male or female; or upon the legitimacy of one claiming as lawful heir; or in an action by the husband for criminal conversation with the wife. In these and similar cases the evidence is necessary, either for the proof and punishment of crime, or for the vindication of rights existing before, or independent of, the fact sought to be disclosed. But where the parties have voluntarily and impertinently interested themselves in a question, tending to violate the peace of society by exhibiting an innocent third person to the world in a ridiculous or contemptible light, or to disturb his peace and comfort, or to offend public decency by the disclosures which its decision may require, the evidence will not be received. Of this sort are wagers (c) or contracts respecting the sex of a third person (d),

(3) Gray v. Pentland, 2 Serg. & R. 23, 31, 32, per Tilghman, C. J., cited with approbation in Yoter v. Sanno, 6 Watts, 166, per Gibson, C. J. See ante, § 666. (a) Cooke v. Maxwell, 2 Stark. R. 183, per Bayley, J.

(b) Blake v. Pilfold, 1 M. & Rob. 198.

(c) No wager is now recoverable either at law or in equity 8 & 9 Vict. c. 109, § 18.

(d) Da Costa v. Jones, 2 Cowp. 729.

S S*

642

INDECENT EVIDENCE-HUSBAND AND WIFE.

or upon the question, whether an unmarried woman has had a child (d).

§ 691. In like manner, the testimony of the husband or wife, that, though living together, they have had no connexion, and that therefore the offspring is spurious, has, on the same general ground of decency, morality, and policy, been uniformly rejected (e). This rule excludes, not only all direct questions respecting access, but all questions which have a tendency to prove or disprove that fact, unless they are put with a view to some different point in the cause (f); and it applies to the depositions of the parents equally with their vivâ voce testimony (g). Neither is it affected by the circumstance, that, at the time of the examination of one of the parents, the other is dead; because the rule has been established, not simply on the ground that the tendency of such evidence is to promote connubial dissension, but on the broad basis of general public policy (h). But this rule does not preclude the parents from proving, that the supposed marriage was either invalid, or valid (i), or that their children were born before, or after, its celebration, though the effect of such evidence is, in the first and third case, to bastardise the issue, and, in the others, to establish its legitimacy (j). For this purpose, too, their declarations or their answers in Chancery are admissible evidence (k). It is clear also, that, in a case of bastardy, a married woman may, when the fact of her husband's

(d) Ditchburn v. Goldsmith, 4 Camp. 152. If the subject of the action is frivolous, or the question impertinent, and this is apparent on the record, the Court will not proceed at all in the trial. Brown v. Leeson, 2 H. Bl. 43; Henkin r. Gerss, 2 Camp. 408. But see Hussey v. Crickett, 3 Camp. 168.

(e) Goodright v. Moss, 2 Cowp. 594; Cope v. Cope, 1 M. & Rob. 269 272274, per Alderson, B. ; 5 C. & P. 604, S. C. ; R. o. Luffe, 8 East, 193, 202, 203 ; R.. Rook, 1 Wils. 340; R. v. Reading, Ca. Temp. Hardw. K. B. 79; R. v. Mansfield, 10. B. 444; 1 G. & D. 7, S. C. ; Com. v. Shepherd, 6 Binn. 283.

(f) R. v. Sourton, 5 A. & E. 180, 185, 188, 189. In this case, with the view of proving non-access, the father was asked whether, at a particular time, he did not live 100 miles from his wife, and cohabit with her sister. Held, this question could not be put.

(g) Goodright v. Moss, 2 Cowp. 592, per Lord Mansfield; Cope v. Cope, 1 M. & Rob., 272-274, per Alderson, B. (h) R. v. Kea, 11 East, 132.

(1) R. v. Bramley, 6 T. R. 330; Standen v. Standen, Pea. R. 32.

(j) Goodright v. Moss, 2 Cowp. 591, and the cases referred to in Lord Mansfield's judgment, 593, 594.

(k) Id.