jurist 12), "ever yet found any inconvenience from too close an inspection into the conduct of its officers; but many have been brought to ruin, and reduced to slavery, by suffering gradual imposition and abuses which were imperceptible only because the means of publicity had not been secured." The menace which this supposed privilege implies to individual liberty and private right will justify us in repudiating it before it is too solidly entrenched in precedent. More than once have plain warnings been given us of the potency of its abuse for partisan and selfish ends:

1807, Mr. Botts, arguing, in Aaron Burr's Trial, Robertson's Rep. II, 517: "I can never express, in terms sufficiently strong, the detestation and abhorrence which every American should feel towards a system of State secrecy. It never can conduce to public utility, though it may furnish pretexts to men in power to shelter themselves and their friends and agents from the just animadversion of the law, to direct their malignant plots to the destruction of other men while they are themselves secure from punishment. In a government of responsibility like ours, where all the agents of the public must be responsible for their conduct, there can be but few secrets. The people of the United States have a right to know every public act, every thing that is done in a public way by their public functionaries. They ought to know the particulars of public transactions in all their bearings and relations, so as to be able to distinguish whether and how far they are conducted with fidelity and ability; and with the exception of what relates to negotiations with foreign nations, or what is called the diplomatic department, there ought to be nothing suppressed or concealed. . . . I will again predict that, if a secret inquisitorial tribunal be established by your decision now, . . if you determine that we be deprived of the benefit of important written or oral evidence by the introduction of this State secrecy, you lay, without intending it, the foundation for a system of oppression. If these things be established, to go down to posterity as precedents, the inevitable consequences will be that, whenever any man in the United States becomes an object of the vengeance or jealousy of those in power, he may easily be ruined. A wicked executive power will have nothing to do to effect his destruction but to foment divisions in this country, to encourage and excite accusations by its officers, to deny the use of all public documents that may tend to the justification of the accused, or to render the attainment of exculpatory evidence dependent on the arbitrary whim of its prosecuting officers, and he will be condemned to sink without the smallest effectual resistance."

1863, Mondelet, J., in Gugy v. Maguire, 13 Low. Can. 33, 38 (upon a Provincial Secretary's refusal to produce the report of a superintendent of police); "It has been pretended, as in the case of Home v. Bentinck, that it is necessary for the interest of the public that secrecy should be had in such and similar matters. . . . I cannot, I ought not, for a moment, as a judge living and administering justice under constitutional institutions, admit such a monstrous doctrine, a doctrine which prostrates to the ground that liberty, that protection to life, honour, property, and to civil and religious liberty, which this country has so much right to boast of, too valuable to be thus thrown away and scattered to the four winds of Heaven! A doctrine which reduces the judge on the Bench to an automaton, who, like the statue of Don Juan, will bend at the bidding of any reckless politician, whatever shade of politics or party spirit it may be his misfortune to be tainted with, or of any unprincipled member of society, whoever he is or may be, who is desirous of, or has interest in being screened, or of screening others, from the responsibility his misdeeds have subjected them to. If that doctrine be law, or rather, were law, it would be appalling. It would be such that no one would feel himself secure. I cannot, I must not assent to it. It is not law. It is unconstitutional. It is tyrannical. It is monstrous. And it must more glaringly appear so, when we come to reflect that an

12 Edward Livingston, Works, I, 15.

attempt is made to give it currency, and to fasten it on the judges of the land, under constitutional responsible government. Such a pretension reminds me of what was so often done in France, under the old régime, by means of the maxim then looked upon as sacred by the government. The following will, much better than I could myself, illustrate this branch of the subject: Vainement les Parlemens et les autres Cours souveraines élevaient une voix courageuse contre cet intolérable abus; la Cour ne répondait qu'en lançant de nouvelles lettres de cachet, ou par cette maxime, “qu'il ne faut pas soumettre à l'inspection des tribunaux le secret de l'administration et l'exécution des ordres du roi"; d'où l'on concluait qu'il n'existait aucun recours contre les ordres donnés par ses ministres.' . . . I never can, and I trust never shall acknowledge as a true one, the paradoxical proposition, that under the protection of the freest and best constitution in the world, and the most solemn imperial statute guaranteeing our rights, an action may be instituted against any one who has caused damage to his fellow subject, but that it will be in the power of a secretary, or of any member of the government, to deprive the injured of the evidence which he may adduce to entitle him legally to a verdict or a judgment. . . . [It is] a dangerous, monstrous pretension."

1877, Agnew, C. J., in Hartranft's Appeal, 85 Pa. 433, 458: “There were fearful crimes committed on the 21st and 22d of July. These are the undoubted subjects of judicial inquiry in the mode prescribed by law, to wit, through a grand jury. In that unknown and vast multitude of citizens and soldiers, who were guilty? Who were innocent? By the 22d section of the Declaration of Rights, it is declared that the 'military shall in all cases, and at all times, be in strict subordination to the civil power.' The military took many lives - the multitude some. Did the military act under the authority of the civil power? This is one of the first points of inquiry by a grand jury, for it involves the question, whether their acts were murder, manslaughter, excusable or justifiable homicide. Thus the evidence of civil authority becomes essential to the inquiry. Did the Governor, as commander-in-chief, command their presence, and aid in quelling the violence of the mob? Or was his authority assumed by unauthorized persons? These are questions which the Governor alone, as a witness, might be able to answer satisfactorily, by competent testimony in a common-law proceeding. They are not State secrets, but acts of authority in their very nature public, and cannot be concealed from the inquiry of the law. The rights of life and public safety are too sacred to be subordinated to any right to conceal the authority by which they are destroyed or jeoparded. If the executive authority was duly given, he neither can nor ought to withhold the knowledge which acquits of crime the military acting under his own orders. Indeed, from the character of our excellent Governor, he would not for a moment refuse to come to their rescue, if he believed his duty demanded it. On the other hand, if his authority was unlawfully assumed, or was simulated, or was exercised at the bidding of persons without right - an inference which his absence in California very naturally raises and the military have been involved in an unlawful act, his duty and the rights of the people demand his testimony, that the parties who have thus misled them may be reached. This is no State secret as to them, but its concealment is a crime against society, which no one who knows the Governor would attribute to him, if aware of his duty. . . . In every respect of personal and official duty, the State has a right to the disclosure. A contrary doctrine strikes at the essential and fundamental principles of a free government as set forth in the Declaration of Rights."

§ 2376. Same: Who determines the Necessity for Secrecy. So far as the privilege has any legitimate scope, it raises the question how the existence of the facts which make it applicable is to be determined. If it extends only (as its just limits prescribe) to matters involving international negotiations or military precautions against a foreign enemy, the presence of such matters in the documents or communications sought to be disclosed must by some

authority be predetermined, before the privilege can be deemed applicable. If it extends to the larger scope indicated by the English rulings, still the existence of a necessity for secrecy must be in each instance declared. Who shall make this determination? Obviously, and by analogy with other privileges, the Court (ante, §§ 2193, 2271, 2322, post, § 2550). But the judge, urges the learned incumbent of that office, in Beatson v. Skene,1 "would be unable to determine it without ascertaining what the document was," surely an unavoidable process; "which inquiry," however, it is added, "cannot take place in private," a singular assumption. It would rather seem that the simple and natural process of determination was precisely such a private perusal by the judge. Is it to be said that even this much of disclosure cannot be trusted? Shall every subordinate in the department have access to the secret, and not the presiding officer of justice? Cannot the constitutionally coördinate body of government share the confidence? It is ludicrous to observe a chief magistrate, as in Beatson v. Skene, solemnly protesting his incompetence to share the knowledge of a fact which had never been secret at all and had for months been spread abroad by the hundred tongues of scandal. By the doctrine of judicial notice, to be sure, he could not judicially know anything that was not already notorious; by a sarcastic perversion of that doctrine, the perusal of the documents in Beatson v. Skene might have been urged upon the Court.

The truth cannot be escaped that a Court which abdicates its inherent function of determining the facts upon which the admissibility of evidence depends will furnish to designing officials too ample opportunities for abusing the privilege. The lawful limits of the privilege are extensible beyond any control, if its applicability is left to the determination of the very official whose interest it is to shield his wrongdoing under the privilege. Both principle and policy demand that the determination of the privilege shall be for the judge:

1807, Aaron Burr's Trial, Robertson's Rep. I, 121, 127, 186, 255; II, 536, treason; a subpoena duces tecum was issued by Chief Justice Marshall to President Jefferson, to attend and bring certain correspondence with General Wilkinson said to be material to the defence; as to the argument that reasons of State might forbid the disclosure, Marshall, C. J., said: "There is certainly nothing before the Court which shows that the letter in question contains any matter the disclosure of which would endanger the public safety; . . . if it does contain any matter which it would be imprudent to disclose, which it is not the wish of the Executive to disclose, such matter, if it be not immediately and essentially applicable to the point, will of course be suppressed. Everything of this kind, however, will have its due consideration on the return of the subpoena. . . . I admit, in such a case, much reliance must be placed on the declaration of the President; perhaps the Court ought to consider the reasons which would induce the President to refuse to exhibit such a letter as conclusive on it, unless such letter could be shown to be absolutely necessary in the defence. The President may himself state the particular reasons which may have induced him to withhold a paper, and the Court would unquestionably allow their full force to those reasons. President

"2

dent's delegation of discretion to the prosecuting counsel was not lawful.

Jefferson, while forwarding the desired letter, added the following: "With respect to papers, there is certainly a public and private side to our offices. To the former belong grants of land, patents for inventions, certain commissions, proclamations, and other papers patent in their nature. To the other belong mere executive proceedings. All nations have found it necessary that for the advantageous conduct of their affairs some of these proceedings at least should remain known to their executive functionary only. He, of course, from the nature of the case, must be the sole judge of which of them the public interest will permit publication."

1863, Mondelet, J., in Gugy v. Maguire, 13 Low. Can. 33, 38 (upon a provincial secretary's refusal to produce the report of a superintendent of police): "[Conceding that the privilege may exist,] are you to compare the discretion, the unbiassed mind, the position of the judge who is alike independent of the Crown and of the People, who is free from party spirit, who knows or should know no one, to the biassed mind-naturally, necessarily, biassed mind of a politician, not independent as the judge is, but dependent upon a party, who knows or must know, the contending parties, and may have the most cogent reasons for supporting one party, in preference to another; who has to bear, and does bear the external pressure which the judge is or should be inaccessible to; whose interest it may be, under the flimsy pretence, under the transparent veil of pretended public interest, to screen some petty minion in office? The comparison cannot hold for a moment. In the case of the judge, you have sacred guarantees; in that of a politician, you have none. External pressure will curb down the politician, whilst you will behold the judge more erect than ever, calmly and firmly resisting and baffling its baneful influence. Clearly then, manifestly, should it be left to the judge on the Bench, in his discretion, to determine the question, instead of allowing a secretary, or any member of the government, to silence him, to interfere with the administration of justice, and to become the judge? . . . This very case, this very flimsy, unfounded pretence, this unjustifiable refusal of the honorable secretary to prove the letter, which, through the instrumentality of the assistant provincial secretary, one of the acknowledged channels of communication with the department of the secretary, and actually, in most cases of importance, the medium of such communication, has been made public, shews up, in its true light, the danger, were it even legal or constitutional (which it is not), of the exorbitant pretension now set up. The honorable Judge, who presided at the trial, had it in his power, and at a mere glance at it, with his well known clear mind and sound judgment, had he thought proper to do so, might have seen through the transparency of the objection raised by the honorable secretary and the respondent. Such a letter, if proved, injurious to the public service! In what respect? How could the fact that the respondent had libelled the appellant, supposing he has, be injurious to the public service? . . . It is manifestly laying down the rule, that a secretary, or other public functionary, member of the government, will be at liberty to say that white is black, and that he must be believed." 8

3 What the English ruling to-day would be is uncertain: 1860, Beatson v. Skene, 5 H. & N. 838, 853 (the executive officer's claim of injury to public interests determines the recognition of the privilege; unless perhaps where he merely sends a subordinate to make objection without such explanation; Martin, B., diss.); 1888,

Hennessy v. Wright, L. R. 21 Q. B. D. 509, 515, 521 (disapproving Beatson v. Skene, on this point); 1884, Bradley v. McIntosh, 5 Ont. 227, 232, 236 (the officer determines). Compare some remarks by the judges in Re Joseph Hargreaves, Limited, 1900, 1 Ch. 347.

TOPIC B (continued): PRIVILEGED COMMUNICATIONS.

CHAPTER LXXXIV.

SUB-TOPIC VI: COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT.

Sub-topic VI: COMMUNICATIONS BETWEEN PHYSICIAN AND PATIENT.

§ 2380. History and Policy; Statutes. It was early understood, in the precedents of English law, as soon as the secrecy of private confidence in general was finally settled to be no justification for a legal privilege (ante, §§ 2286, 2290), that confidences given to a physician stand upon no better legal footing than others:

1776, Duchess of Kingston's Trial, 20 How. St. Tr. 573; bigamy; Mr. Hawkins, a physician, who had attended the accused and her alleged husband, was asked: "Do you know from the parties of any marriage between them?" Ans.: "I do not know how far anything that has come before me in a confidential trust in my profession should be disclosed, consistent with my professional honor." L. C. J. Mansfield: If all your lordships will acquiesce, Mr. Hawkins will understand that it is your judgment and opinion that a surgeon has no privilege, where it is a material question in a civil or criminal cause to know whether parties were married or whether a child was born, to say that his introduction to the parties was in the course of his profession and in that way he came to the knowledge of it. . . . If a surgeon was voluntarily to reveal these secrets, to be sure, he would be guilty of a breach of honor and of great indiscretion; but to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatever."

This has ever since been accepted by English judges 1 (in spite of an occasional and proper dispensation by courtesy 2); and would probably have

1 1792, Wilson v. Rastall, 4 T. R. 753, 760, per Buller, J. ("It is much to be lamented that the law of privilege is not extended" to medical persons; this judge's views on the subject were anachronistic, as noted ante, § 2285); 1822, Garrow, B., in Falmouth v. Moss, 11 Price 455, 470; 1823, R. v. Powell, 1 C. & P. 97, Parke, B. (a surgeon attending an accused indicted for the murder of her bastard child, held not entitled to refuse testimony to

her confession); 1838, Greenlaw v. King, 1 Beav. 137, 145, per Lord Langdale, M. R. ; 1851, in Russell v. Jackson, 9 Hare 387, 391, per Wigram, V. C.; 1876, Jessel, M. R., in Anderson v. Bank, L. R. 2 Ch. D. 644, 650, obiter; 1881, the same judge in Wheeler v. Le Marchant, 17 id. 675, 681, obiter.

2 1825, Gardner Peerage Case, Le Marchant's Rep. 65, 88, 133 (names of women whose periods of gestation were testified to).