his claim, or the substantiating his defence against the claim of others; that he should be able to place unrestricted and unbounded confidence in the professional agent, and that the communications he so makes to him should be kept secret, unless with his consent (for it is his privilege, and not the privilege of the confidential agent), that he should be enabled properly to conduct his litigation. That is the meaning of the rule."

1833, Shaw, C. J., in Hatton v. Robinson, 14 Pick. 416, 422: "This principle we take to be this; that so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it that they should be permitted to avail themselves of the superior skill and learning of those who are sanctioned by the law as its ministers and expounders, both in ascertaining their rights in the country, and maintaining them most safely in courts, without publishing those facts, which they have a right to keep secret, but which must be disclosed to a legal adviser and advocate, to enable him successfully to perform the duties of his office, that the law has considered it the wisest policy to encourage and sanction this confidence, by requiring that on such facts the mouth of the attorney shall be forever sealed."

1895, Emery, J., in Wade v. Ridley, 87 Me. 368, 32 Atl. 975: “An order of men, honorable, enlightened, learned in the law, and skilled in legal procedure, is essential to the beneficent administration of justice. The aid of such men is now practically indispensable to the orderly, accurate, and equitable determination and adjustment of legal rights and duties. While the right of every person to conduct his own litigation should be scrupulously respected, he should not be discouraged, but rather encouraged, in early seeking the assistance or advice of a good lawyer upon any question of legal right. In order that the lawyer may properly perform his important function, he should be fully informed of all facts possibly bearing upon the question. The person consulting a lawyer should be encouraged to communicate all such facts without fear that his statements may be possibly used against him."

1837, Anon. ("C."), in The Law Magazine, XVII, 68, Production of Cases prepared for the Opinion of Counsel: "[1] One great object of our legal system is that the rights of all persons shall be submitted with equal force to our courts of justice. . . . Let the person be who he may, strong or weak, learned or unlearned, wise or foolish, a man of influence and invested with authority, or destitute of means and utterly helpless, his claims are equally to be laid before the judge with all the power of advocacy of which they are susceptible. To accomplish this object, the first indispensable requisite is, that the client shall state to his legal advisers all the facts of his case. Very few clients can perceive wherein their strength lies. They must state the whole to the legal adviser, and leave him to form his own judgment. By this means the balance is adjusted. The weakness of the client finds a compensation in his lawyer's strength: the looseness of thought, carelessness and inaccuracy of the one, in the precision and subtlety and judgment of the other; and thus every man's case is brought with nearly equal ability and chance of success under the consideration of the judge. But how will a client venture to lay before his counsel a statement of all the facts of his case, if that very statement may hereafter be evidenced against him? There will be an end to equality, if one person has an advantage over another, because he is sufficiently cunning in the law to know what may, and what may not, be safely revealed to counsel. Such equality never can exist, unless client and counsel are completely identified, and their communications held to be as impervious to judicial investigation, as if they never had been uttered. [2] It is a received axiom, that every man knows the law. The axiom works but little injustice, because every man can ascertain the law by consulting a lawyer. But then the condition, upon which this power of ascertaining the law will rest, is, that he may make the inquiry without incurring any danger. The communication must be privileged to the utmost extent, or it will not be made. Thus it will be one consequence of the rule, that the law will be in no way open to the community at large; to them it will be a sealed book; and this axiom, from which every decision, in a greater or less degree, derives its justification in point of morality, will work very grievous injury. . . . [3] We would ask whether the advocates of this rule

have seriously considered the fearful relation which it will create between a lawyer and his client. We are not so utopian as to suppose that, in the long lists of our profession, names will not be found of lawyers treacherous to their clients, of men who scire volunt secreta domus atque inde timeri.' Such lawyers, if this rule is to prevail, will have their clients at their mercy, and may at any moment contrive their ruin. . . . Many of our readers will recollect the passage in Mr. Bentham's work upon 'Judicial Evidence,' in which he maintains the propriety of compelling lawyers to disclose the secrets of their clients. In the note upon this passage in Mr. Dumont's very pertinent remark: 'Admit this opinion of Mr. Bentham, it is said, and the accused have no longer counsel; they are surrounded by agents of justice and the police, against whom they ought to be so much the more upon their guard, as no man of a noble or elevated mind would stoop to such an employment. They are so many spies and informers placed round the accused. This is to suppress the defence entirely, . . . [4] Our limits confine us to only one more argument bearing upon the subject before us. Mr. Preston once said, that out of thirty questions submitted for his consideration, not more than one found its way into a court of justice. Indeed, the adjustment of disputes by the opinion of counsel takes place so far more frequently than by a suit or trial, that it may be said to form in this country the practical administration of civil justice. "The greatest trust,' says Lord Bacon,' between men and men, is the trust of giving counsel. For in other confidences men commit the parts of life; their lands, their goods, their children, their credit, some particular affair; but to such as they make their counsellors they commit the whole, by how much the more they are obliged to all faith and integrity.' The condition upon which alone this counsel can be given requires particular attention. The lawyer must have the whole of his client's case, or he cannot pretend to give any useful advice. Upon a partial statement of facts he may judge correctly, and yet give his opinion in favour of a claim, which, if he had known all the circumstances, he would have perceived to be unjust, and which a court of justice upon full investigation at once overthrows. That the whole will not be told to counsel unless the privilege is confidential, is perfectly clear. A man who seeks advice, seeks it because he believes that he may do so safely; he will rarely make disclosures which may be used against him; rather than create an adverse witness in his lawyer, he will refuse all private arbitration, and take the chance of a trial. We submit, that any rule which tends to prevent the settlement of quarrels by such arbitration will work an enormous evil. Our judges ought to pause before they sanction the received rule upon the production of cases, which, as it interferes with the communication between client and counsel, renders it dangerous to adopt this course, so easy and so safe, so free from vexation, and satisfactory to all honourable minds.” 1

Can these plausible reasonings be questioned? Is there lacking no one of those four essential elements (ante, § 2285) for a privilege against disclosing communications? Rarely indeed has any question been made of the soundness of this privilege. Nevertheless, how much there is to be said in answer can hardly be appreciated until we have heard the incisive arguments of Bentham, who stands out, with Lord Langdale and Chief Justice Appleton, as the only eminent names enrolled in our annals in radical opposition to the privilege:

1827, Mr. Jeremy Bentham, Rationale of Judicial Evidence, b. IX, pt. IV, c. 5 (Bowring's ed., vol. VII, pp. 474 ff.): “When, in consulting with a law adviser, attorney or advocate, a man has confessed his delinquency, or disclosed some fact which, if stated in court,

1 The reasons in favor of the privilege have also been set forth, impartially but forcefully, by Edward Livingston (circa 1823), in his Introductory Report to the Code of Evidence

(Works, ed. 1872, I, 459-467), in a passage which, next to the one last quoted, is perhaps the best of all treatments of the subject.

...

might tend to operate in proof of it, such law adviser is not to be suffered to be examined as to any such point. The law adviser is neither to be compelled, nor so much as suffered, to betray the trust thus reposed in him. Not suffered? Why not? [1] Oh, because 'to betray a trust is treachery; and an act of treachery is an immoral act.' . . . If the law adviser, of his own motion, the law neither commanding nor forbidding him, were to offer his testimony for the purpose of promoting the conviction of his client, the imputation of treachery would have, if not a good ground, at any rate a better, a more plausible ground. But the question is not, whether the lawyer shall thus offer his testimony; but, whether the law shall command it, or authorize him, nay force him, to refuse it. [2] But if such confidence, when reposed, is permitted to be violated, and if this be known (which, if such be the law, it will be,) the consequence will be, that no such confidence will be reposed. Not reposed? Well; and if it be not, wherein will consist the mischief? The man by the supposition is guilty; if not, by the supposition there is nothing to betray: let the law adviser say everything he has heard, everything he can have heard from his client, the client cannot have anything to fear from it. That it will often happen that in the case supposed no such confidence will be reposed, is natural enough: the first thing the advocate or attorney will say to his client, will be, Remember that, whatever you say to me, I shall be obliged to tell, if asked about it.' What, then, will be the consequence? That a guilty person will not in general be able to derive quite so much assistance from his law adviser, in the way of concerting a false defence, as he may do at present. . . . [3] 'A counsel, solicitor, or attorney, cannot conduct the cause of his client, (it has been observed) ‘if he is not fully instructed in the circumstances attending it; but the client' (it is added) 'could not give the instructions with safety, if the facts confided to his advocate were to be disclosed.' Not with safety? So much the better. To what object is the whole system of penal law directed, if it be not that no man shall have it in his power to flatter himself with the hope of safety, in the event of his engaging in the commission of an act which the law, on account of its supposed mischievousness, has thought fit to prohibit? The argument employed as a reason against the compelling such disclosure, is the very argument that pleads in favour of it. [4. It has been argued by a defender of this privilege that the guilty are entitled to be protected to a certain extent; that supposed policy has been thus phrased:] Even in the few instances where the accused has intrusted his defender with a full confession of his crime, we hold it to be clear that he may still be lawfully defended. The guilt of which he may be conscious, and which he may have so disclosed, he has still a right to see distinctly proved upon him by legal evidence. . . . Human beings are never to be run down like beasts of prey, without respect to the laws of the chase. If society must make a sacrifice of any one of its members, let it proceed according to general rules, upon known principles, and with clear proof of necessity; "let us carve him as a feast fit for the gods, not hew him as a carcass for the hounds."' . . . In reading the above declaration, one is at a loss to discover what it is which the writer is aiming at. Does he really think that, all other things being the same, a system of procedure is the better, for affording to criminals a chance of escape? If this be his serious opinion, there is no more to be said; since it must be freely admitted that, reasoning upon this principle, there is no fault to be found with the rule. If it be your object not to find the prisoner guilty, there cannot be a better way than refusing to hear the person who is most likely to know of his guilt, if it exist. The rule is perfectly well adapted to its end; but is that end the true end of procedure? This question surely requires no answer. But if the safety of the innocent, and not that of the guilty, be the object of the reviewer's solicitude, - had he shown how an innocent man could be endangered by his lawyer's telling all he has to tell, he would have delivered something more to the purpose than any illustration which the subject of carcasses and

By Mr. (later L. C. J.) Denman, in the Edinburgh Review, March, 1824, reviewing the original French edition of Mr. Bentham's treatise. The answering argument, following the above

quotation, is by Mr. J. S. Mill, who edited his master's treatise, but is conceived in the best Benthamic spirit and is worthy of the context.

hounds could yield. If he can be content for one moment to view the question with other than fox-hunting eyes, even he must perceive that, to the man who, having no guilt to disclose, has disclosed none to his lawyer, nothing could be of greater advantage than that this should appear; as it naturally would if the lawyer were subjected to examination. . . . The denunciation which follows against hunting down human beings without respect for the laws of the chase, is one of those proofs which meet us every day, how little, as yet. even instructed Englishmen are accustomed to look upon judicature as a means to an end, and that end the execution of the law. They speak and act, every now and then, as if they regarded a criminal trial as a sort of game, partly of chance, partly of skill, in which the proper end to be aimed at is, not that the truth may be discovered, but that both parties may have fair play: in a word, that whether a guilty person shall be acquitted or punished, may be, as nearly as possible, an even chance. . . . Whence all this dread of the truth? Whence comes it that anyone loves darkness better than light, except it be that his deeds are evil? Whence but from a confirmed habit of viewing the law as the enemy of innocence as scattering its punishments with so ill-directed and so unsparing a hand, that the most virtuous of mankind, were all his actions known, could no more hope to escape from them, than the most abandoned of malefactors? Whether the law be really in this state, I will not take upon myself to say; sure I am, that if it be, it is high time it should be amended. But if it be not, where is the cause of alarm? In men's consciousness of their own improbity. . . . [5] Thus much in vindication of the proposed rule [abolishing the privilege]. As for its advantages, they are to be sought for not so much in its direct, as in its indirect, operation. The party himself having been, as he ought to be, previously subjected to interrogation, his lawyer's evidence, which, though good of its kind, is no better than hearsay evidence, would not often add any new facts to those which had already been extracted from the lips of the client. The benefit which would arise from the abolition of the exclusionary rule, would consist rather in the higher tone of morality which would be introduced into the profession itself. A rule of law which, in the case of the lawyer, gives an express licence to that wilful concealment of the criminal's guilt, which would have constituted any other person an accessary in the crime, plainly declares that the practice of knowingly engaging one's self as the hired advocate of an unjust cause, is, in the eye of the law, or (to speak intelligibly) in that of the law-7 makers, an innocent, if not a virtuous practice. But for this implied declaration, the man who in this way hires himself out to do injustice or frustrate justice with his tongue, would be viewed in exactly the same light as he who frustrates justice or does injustice with any other instrument. We should not then hear an advocate boasting of the artifices by which he had trepanned a deluded jury into a verdict in direct opposition to the strongest evidence; or of the effrontery with which he had, by repeated insults, thrown the faculties of a bonâ fide witness into a state of confusion, which had caused him to be taken for a perjurer, and as such disbelieved. Nor would an Old Bailey counsel any longer plume himself upon the number of pickpockets whom, in the course of a long career, he had succeeded in rescuing from the arm of the law. The professional lawyer would be a minister of justice, not an abettor of crime." 8

1844, Lord Langdale, in Flight v. Robinson, 8 Beav. 22, 36: "I own that it is difficult for me to comprehend how it is possible to apply to such cases the rules which are applied to cases totally different. An innocent man, falsely accused of fraud, will scarcely be desirous of concealing the facts, which he may have stated to his legal adviser for the purpose of obtaining legal protection to which he is justly entitled. A man engaged in a scheme of fraud will be very unwilling to disclose the statement of facts, which he may have made to his legal adviser for the purpose of better enabling him to conceal or to secure and enjoy the fruits of his fraud; and it is a question, which I would willingly submit to the consideration of those who have to decide upon cases of this kind, whether the interests of society and of justice, or the honour and utility of the legal profession, which are 8 Mr. Bentham's arguments will be found Chief Justice Appleton of Maine, Evidence, c. X, paralleled in the treatise (1860) of his disciple,

VOL. IV. —

p. 161. 3201

so closely bound up with those interests, are more or less likely to be promoted, by the author of the fraud being compelled to disclose, or permitted to conceal, the fact of his own admissions contained in such a statement of facts."

At first sight the Benthamic argument seems irresistible. It always comes back to this, that the deterring of a guilty man from seeking legal advice is no harm to justice, while the innocent man has nothing to fear and therefore will not be deterred. In answer to this, nevertheless, three suggestions are to be made, the least weighty of which may be first noticed:

(1) There is in civil cases often no hard-and-fast line between guilt and innocence, which will justify us as stigmatizing one or the other party and banning him from our sympathy. In land-titles, for example, the one claimant has perhaps bought in good faith a title resting on a chain of conveyances reaching back to a Government grant, which itself involves a Mexican alcalde's authority; while the other claimant has bought from an occupier who has apparently gained title by adverse possession. The decision of the contested right will depend on some abstract rule of law which produces its effect far back in the tangle of documents, and is wholly irrespective of the personal merits of the claimant's conduct. There is no moral right or wrong, in a concrete sense, for either of them. Such was, and still is to some extent, the status of all land-litigation in England, where registration of deeds was practically not observed. We are therefore not necessarily abetting crime or other moral delinquency when we permit the concealment of the party's admissions to his attorney.

(2) Even assuming that the party against whom the law would decide is, by virtue of the illegality (technical or otherwise) of his cause, not to be considered as worthy of aid or encouragement, nevertheless, in a great part of civil litigation, it does not happen that all the acts and facts on one side have been wholly right and lawful and all of those on the other wholly wrong and unlawful. There is more commonly a mixture of these qualities, in infinitely varying proportions. Hence we cannot assume that the operation of the supposed deterrent influences upon the client's mind will be as simple as is supposed in Bentham's abstract argument. In other words, it does not commonly happen that A, by reason of the state of his case, will have no fear at all of disclosure, while B, by the same reason, will have all the fear. In a large proportion of cases, each will have something to fear. The consequence would be (if the quantity of unfavorable data in his case be large enough to exercise an influence) that a person who has a partly good cause would often be deterred from consultation by virtue of the bad part or of the part that might possibly (to his notion) be bad. Now the abstinence from seeking legal advice in a good cause is by hypothesis an evil which is fatal to the administration of justice; and even Bentham does not go so far as to question this hypothesis. It should be added that the client's attitude in criminal cases (where we may assume that, if guilty, he is wholly and indivisibly guilty) need not be taken as justifying Bentham's argument in that class of cases; because the communications will there be in effect self