2. Parol Evidence Rule.

§ 2364. Grounds for Indictment; Illegal Evidence; Required Number of The finding of an indictment by the grand jury, like the verdict of a petit jury, is a legal act and a part of a judicial record; and the Parol Evidence rule therefore applies to all attempts to invalidate it. The principles upon which depends the application of that rule to verdicts have been already examined (ante, §§ 2348-2356); and it will be sufficient here to note briefly, under the same heads, the effect of those principles mutatis mutandis, upon the grand jury's legal act of finding an indictment.

(a) The motives, reasons, and grounds upon which the indictment was based cannot be availed of to invalidate it (ante, § 2349). This much is generally conceded. But suppose that there is a limitation of the grand jury's sources of investigation in the shape of a rule that they may receive only such kinds of evidence as would be receivable on a trial before a petit jury. Such a rule is a plain obstruction of justice, reprehensible in policy. But if it exists, it logically obliges the Court to permit the indictment to be invalidated by the fact of the jury's reception of illegal evidence. In an ordinary trial, the record of proceedings, containing the exceptions, furnishes the means of establishing the fact, and the fact, when established, may be used to invalidate the verdict. But in the grand jury's proceedings, if the rule is to be enforced at all, as it is for petit juries, the fact must be allowed to be shown by the grand jurors or others present. If, then, any community is willing to accept so deleterious a rule of criminal procedure, its enforcement in the only feasible way must be permitted by showing the facts. such a rule the various jurisdictions are divided.3 have not taken this oath," not permitted); 1895, Jenkins v. State, 35 Fla. 737, 18 So. 182 (State's attorney); 1836, McLellan v. Richardson, 13 Me. 82, 86 (county attorney); 1899, People v. Thompson, 122 Mich. 411, 81 N. W. 344 (prosecuting attorney's stipulation as to testimony, not admitted on plea of abatement to indictment); 1839, Clark v. Field, 12 Vt. 485 (State's attorney). Contra, but unsound: 1877, State v. Van Buskirk, 59 Ind. 384, 388 (prosecuting attorney held not subject to the grand jurors' rule, because he "is not bound by any such oath of secrecy"; yet here, where he was allowed to impeach a witness, a juror would equally have been allowed); 1874, Little v. Com., 25 Gratt. 921, 931 (third person present).

11902, Hall v. State, 134 Ala. 90, 32 So. 750 (jurors' testimony not admissible to show that the grand jury were brought to find a true bill only after several contrary votings, followed by repeated urgings of the prosecuting attorney and the judge); 1895, Owens v. Owens, 81 Md. 518, 32 Atl. 247 (inquiry of the foreman of a grand jury why a bill was dismissed, not allowed); 1847, People v. Hulbut, 4 Denio 133 (illegal liquor-selling, on an indictment in five counts charging five offences; grand jurors not allowed to testify that only one offence was testified to before them, mainly on the theory

Upon the recognition of

that the indictment "like other records, imports absolute verity," and cannot be disputed "unless it be done upon motion" to quash or to strike out counts).

In Pennsylvania an unwise rule as to the jury's methods of investigation has led naturally to a variation from the present principle: 1889, Com. v. Green, 126 Pa. 531, 17 Atl. 878 (grand juror's testimony admitted, on a motion for quashing the indictment, to show that the indictment was founded on testimony of witnesses and not on their own "knowledge and observation," a procedure which under the local law was forbidden and constituted "a breach of privilege on the part of the grand jury ").

2 1881, U. S. v. Farrington, 5 Fed. 343, Wallace, J. (for quashing an indictment, the proceedings may be inquired into with reference to the sufficiency or legality of the evidence ; "whenever it becomes essential to ascertain what has transpired before a grand jury, it may be shown, no matter by whom; and the only limitation is that it may not be shown how the individual jurors voted or what they said during their investigations ").

3 See the following typical cases: 1871, State v. Beebe, 17 Minn. 241; 1871, U. S. v. Brown, 1 Sawyer 531; 1902, State v. Comer, 157 Ind. 611, 62 N. E. 452.

(b) Where the question is as to the issues covered by the indictment (as when a former conviction for the same offence is pleaded), it may be necessary to ascertain the precise charge made by the testimony before the grand jury, so as to define the charge covered by the indictment. This is permissible on the general principle (ante, § 2351).*

(c) Where the misconduct of the jurors, or the irregularity of their proceedings, constitutes by the law of criminal procedure a ground for invalidating the indictment, the fact may properly be proved by the testimony of a grand juror, on the general principle (ante, § 2352); though a Court acknowledging the rule against a petit juror's impeaching his own misconduct should equally apply it here.

(d) That less than the required number assented to the verdict of a petit jury cannot be shown (ante, § 2355). Does the same consequence follow for a grand jury's indictment? For the petit jurors, the reason is that their outward assent, express or implied, at the time of polling, is the sole effective conduct constituting assent. This act of assent is in reality individual as well as joint, whether there is an individual polling or not. But the grand jurors are not polled; nor do they individually subscribe the indictment; nor is the tenor of each indictment brought home to them individually by public reading, as is that of a petit jury's verdict. There is, to be sure, some opportunity of dissent, but hardly a practical one. There is no formal outward act of assent in the sense in which there clearly is for petit jurors. Virtually, then, the time of the act of assent is carried back to the time of voting in the jury room. It is therefore consistent with principle to allow the absence of such assent by the requisite number to be shown. Some Courts are found to maintain the opposite view, following the analogy of a petit jury's verdict.7 So long as the present procedure is followed, the former view seems inevitably sound. But the proper course would be to poll the grand jurors upon each indictment after the manner of a petit jury, and thus to satisfy the requirements of principle, for it is undeniably poor policy to hold out any inducement (as the present rule does) to ferret among the grand jurors and ascertain the tenor of their votes, and to make necessary the quashing of an indictment which ought never to have been received in the beginning.

41859, Rocco v. State, 37 Miss. 357, 369 (on a plea of former conviction for the same offence of illegal liquor-selling, a grand juror's testimony to the parties and evidence before them on the indictment was received, applying a statute).

5 1858, Shattuck v. State, 11 Ind. 473, 477 (propriety of the indictment with reference to irregularities of proceeding before the grand jury; grand juror's testimony held admissible); 1815, U. S. v. Coolidge, 2 Gall. 364 (testimony of court officers that a witness before the grand jury was not duly sworn, admitted).

The leading opinion, fully expounding the principle and policy, is found in Low's Case, 4 Me. 439 (1827). To this add the following: 1888, State v. Coffee, 56 Conn. 410, 16 Atl. 151 (suggested as one possible exception "); 1878,

66

People v. Shattuck, 6 Abb. N. C. 33 (on a motion to quash, the number of votes may be shown).

71702, Colonel Bayard's Trial, 14 How. St. Tr. 478, New York (here the counsel for the defendant makes a good argument); 1878, Spigener v. State, 62 Ala. 383, 386 (neither jurors' testimony, nor that of others, admitted to show that less than twelve jurors assented to the bill; good opinion by Stone, J.); 1902, Hall v. State, 134 id. 90, 32 So. 750 (like Spigener v. State, supra); 1867, State v. Oxford, 30 Tex. 428 (that an indictment was not found by the requisite twelve can be shown only by the records of the court, and not by the testimony of the jurors; "our Code but follows the principles of the common law ").

§ 2367

BOOK I, PART III, TITLE II, SUB-TITLE III.

[CHAP. LXXXIII

TOPIC B (continued): PRIVILEGED COMMUNICATIONS.

SUB-TOPIC V: STATE SECRETS AND OFFICIAL DOCUMENTS.

CHAPTER LXXXIII.

§ 2367. Several Principles discriminated. $2368. (a) Tortious Non-Liability of the Executive.

§ 2369. (b) Constitutional Exemption of the Executive from Judicial Process.

§ 2370. (c) Testimonial Privilege of the Executive not to be a Witness.

§ 2371. (d) Testimonial Privilege of the Executive and Subordinate Officers, not to attend Court.

§ 2372. Same: Ambassadors, Consuls, Judges. § 2373. (e) Irremovability of Official Records.

§ 2374. (f) Privilege for Communications by Informers to Official Prosecutors.

$2375. (g) Privilege for Secrets of State and Official Communications.

§ 2376. Same: Who determines the Necessity for Secrecy.

§ 2367. Several Principles discriminated. The principle of privilege which protects from disclosure, through the testimony of governmental officers, the secrets of State and communications of informers to official prosecutors, is in practice superficially related to certain other principles, not resting upon testimonial privilege in general or upon this kind of privilege in particular. In order to discriminate the precise scope of these different principles, it is necessary to consider them together here. The necessity is the greater because some of them, being plainly valid, have in some courts been misused to give an unwarrantable scope to the present privileges for State secrets and informers' communications. By comparing their boundaries, the true and limited scope of the testimonial privileges can best be understood.

There are, then, seven distinct principles which in superficial features tend often to be counfounded. (a) There is a doctrine of the substantive law, that the chief Executive and subordinate executive officers are in some respects exempt from liability for torts of violence and defamation. (b) There is a question of constitutional law, whether the chief Executive is corporally exempt from the legal process of the Judiciary for any purpose whatever. (c) There is a question of testimonial privilege at large, whether the Executive is exempted from the ordinary duty to give testimony; this is usually united with the preceding question, yet is distinct in theory. (d) There is a question of testimonial privilege of attendance in court, whether executive and other officers are exempted from the general duty to attend, though still liable testimonially to give evidence by deposition while remaining at their offices. (e) There is a doctrine, analogous to the foregoing privilege, that official records are irremovable and cannot be required to be taken, in the original, from their place of official custody to the court-room. (ƒ) There is a genuine communications-privilege, permitting secrecy for communications by informers to official prosecutors. (g) There is a genuine topical privilege for facts constituting secrets of State, and this, by improper exten

sion, has often been made to include a bastard communications-privilege for communications between officials of the government.

These various doctrines may now be examined in the above order.

§ 2368. (a) Tortious Non-Liability of the Executive. The chief Executive and subordinate executive officers have unquestionably some exemptions from liability for harm done in the course of their official acts. A sheriff, for example, is not liable for the death of a person hanged by him in pursuance to a lawful order of execution. In general, two classes of officials are distinguished in applying this principle. A subordinate or ministerial official, i. e. one who acts under the orders of a superior official, is absolutely exempted from liability if the harm done by him is done solely in the implicit obedience of an order lawful upon its face; conversely, he is not exempt, if he varies from the order, though in good faith. A superior official, i. e. one who is given by the law a discretionary authority and exercises his judgment independently and without looking higher for orders, is exempted from liability, because the nature of his responsibility requires that he should exercise his judgment free from apprehension of the harassment of subsequent litigation. Some Courts exempt such an official only when he has acted in good faith; but sound policy requires an absolute exemption, not in order to protect the malicious official, but in order that the upright official may be exempted from the burden of defending himself from a charge of malice. In the following passage this doctrine is exemplified:

1888, Chief Justice Cooley, Torts, 2d ed., * 376: "If we take the case of legislative officers, their rightful exemption from liability is very plain. Let it be supposed that an individual has a just claim against the State which the Legislature ought to allow, but neglects or refuses to allow. In such a case there may be a moral wrong, but there can be no legal wrong. The Legislature has full discretionary authority in all matters of legislation, and it is not consistent with this that the members should be called to account at the suit of individuals for their acts and neglects. Discretionary power is, in its nature, independent; to make those who wield it liable to be called to account by some other authority is to take away discretion and destroy independence. . . . If we take next the case of executive officers, the rule will be found to be the same. The governor of the State is vested with a power to grant pardons and reprieves, to command the militia, to refuse his assent to laws, and to take the steps necessary for the proper enforcement of the laws; but neglect of none of these can make him responsible in damages to the party suffering therefrom. No one has any legal right to be pardoned, or to have any particular law signed by the governor, or to have any definite step taken by the governor in the enforcement of the laws. The Executive in these particulars exercises his discretion, and he is not responsible to the Courts for the manner in which his duties are performed. Moreover, he could not be made responsible to private parties without subordinating the executive department to the judicial department, and this would be inconsistent with the theory of republican institutions. Each department, within its province, is and must be independent. Taking next the case of the judicial department, the same rule still applies. For mere neglect in judicial duties no action can lie. A judge cannot be sued because of delaying his judgments, or because he fails to bring to his duties all the care, prudence, and diligence that he ought to bring, or because he decides on partial views and without sufficient information. His selection for his office implies that he is to be governed in it by his own judgment; and it is always to be assumed that that judgment has been honestly exercised and applied. . . For all duties the time, manner, and extent of the per

formance of which are left to the wisdom, integrity, and judgment of the officer himself, it is conceded that, as a general rule, the only liability of the officer is to the criminal law, in case he shall wrongfully and maliciously neglect to perform his duties, or shall perform them improperly. Duties of this nature are usually spoken of as duties in the exercise of discretionary and judicial powers, and it is deemed a conclusive answer to any private action for an injury resulting from neglect or unfaithful performance to say that where a matter is trusted to the discretion or judgment of an officer, the very nature of the authority is inconsistent with responsibility in damages for the manner of its exercise, since to hold the officer to such responsibility would be to confer a discretion and then make its exercise a wrong." 1

The foregoing principle of substantive law comes, at two points, into apparent contact with the ensuing principles here to be considered. In the first place, a chief Executive who has ordered a trespass- for example, a Governor who has ordered the military to fire upon a mob - may appeal to the foregoing principle to exempt him from civil or criminal liability. At the same time and in the same litigation the question may arise whether he is constitutionally subject to judicial process compelling him to appear (post, § 2369), and whether he is privileged from testifying at all (post, § 2370), and, if not, whether he is privileged from attendance at court (post, § 2371). All of these questions are independent of each other; yet they have sometimes been confused. In the second place, an officer who has in an official report made a libellous statement may appeal to the principle of substantive law to privilege him from liability. If he is thus legally exempt and pleads his exemption, no question of testimonial privilege arises. Yet some Courts have preferred to attain the same end, not by recognizing a plea of substantive law, but by declaring a privilege of testimonial secrecy (post, § 2375), thus defeating the action indirectly by suppressing the means of proof. Yet the testimonial and the tortious privileges should be strictly discriminated. § 2369. (b) Constitutional Exemption of the Executive from Judicial Process. Whether the apportionment of functions between Executive and Judiciary, in coördinate independent supremacy, signifies that the Executive can never be corporally subjected to the compulsory process of the Judiciary, is an interesting question, but solely one of constitutional law. The distinction between this question and the foregoing one (of exemption from tortious liability) is obscured when it is sought (for example) to sue the Governor of a State for a trespass done by the military under his order and at the same time to summon or to enjoin him by subpoena or to arrest him upon execution-process. But in a suit against him after expiration of his office, his supposed exemption from judicial process has clearly disappeared, and yet a proper plea claiming exoneration from tortious liability for executive acts would present that question nakedly and plainly, and would still defeat the action.

Whether, then, he has during office, as Executive, a constitutional immunity from compulsory process, after the analogy of the sovereign of a monarchy, is a large question independent of all others. Chief Justice

1 Compare the following opinions: 1774, Mansfield; 1841, Hill v. Bigge, 3 Moore P. C. Mostyn v. Fabrigas, Cowp. 161, 175, L. C. J. 465, 4 St. Tr. N. s. 723, Lord Brougham.