conspirator, or accomplice, in the prosecution of the enterprise, is considered the act of all, and is evidence against all.1 Each is deemed to assent to, or command what is done by any other, in furtherance of the common object.2 Thus, in an indictment against the owner of a ship, for violation of the statutes against the slave-trade, testimony of the declarations of the master, being part of the res gesta, connected with acts in furtherance of the voyage, and within the scope of his authority, as an agent of the owner, in the conduct of the guilty enterprise, is admissible against the owner. But after the common enterprise is at an end, whether by accomplishment or abandonment, is not material, no one is permitted, by any subsequent act or declaration of his own, to affect the others. His confession, therefore, subsequently made, even though by the plea of guilty, is not admissible in evidence, as such, against any but himself. If it were made in the presence of another, and addressed to him, it might, in certain circumstances, be receivable, on the ground of assent, or implied admission. In fine, the declarations of a conspirator or accomplice are receivable against his fellows, only when they are either in themselves acts, or accompany and explain acts, for which the others are responsible; but not when they are in the nature of narratives, descriptions, or subsequent confessions.5

§ 234. The same principle prevails in cases of agency. In general, no person is answerable criminally for the acts of his servants or agents, whether he be the prosecutor or the accused, unless a criminal design is brought home to him. The act of the

"Confessio 4 Rex v. Turner, 1 Mood. Cr. Cas. 847; Rex v. Appleby, 3 Stark. R. 33. And see Melen v. Andrews, 1 M. & M. 336, per Parke, J.; Regina v. Hinks, 1 Den. Cr. Cas. 84; 1 Phil. Evid. 199 (9th edit.); Regina v. Blake, 6 Ad. & El. 126, N. s.

1 So is the Roman Law. unius non probat in præjudicium alterius; quia aliàs esset in manu confitentis dicere quod vellet, et sic jus alteri quæsitum auferre, quando omninò jure prohibent; etiamsi talis confitens esset omni exceptione major. Sed limitabis, quando inter partes convenit parere confessioni et dicto unius alterius." Mascard. De Probat. Concl. 486, vol. 1, p. 409.

2 Per Story, J., in United States v. Gooding, 12 Wheat. 469. And see supra, § 111, and cases there cited. The American Fur Company v. The United States, 2 Peters, 358; Commonwealth v. Eberle et al., 3 S. & R. 9; Wilbur v. Strickland, 1 Rawle, 458; Reitenback v. Reitenback, Id. 362; 2 Stark. Evid. 232-237; The State v. Soper, 4 Shepl. 293.

3 United States v. Gooding, 12 Wheat.

51 Phil. on Evid. 414; 4 Hawk. P. C., b. 2, ch. 46, § 34; Tong's case, Sir J. Kelyng's R. 18, 5th Res. In a case of piracy, where the persons who made the confessions were not identified, but the evidence was only that some did confess, it was held that, though such confessions could not be applied to any one of the prisoners, as proof of his personal guilt, yet the jury might consider them, so far as they went to identify the piratical ves sel. United States v. Gibert, 2 Sumn. 16 [* State v. Thibeau, 30 Vt. R 100.]

agent or servant may be shown in evidence, as proof that such an act was so done; for a fact must be established by the same evidence, whether it is to be followed by a criminal or civil consequence; but it is a totally different question, in the consideration of criminal, as distinguished from civil justice, how the principal may be affected by the fact, when so established. Where it was proposed to show that an agent of the prosecutor, not called as a witness, offered a bribe to a witness, who also was not called, the evidence was held inadmissible; though the general doctrine, as above stated, was recognized.2

§ 235. It was formerly doubted whether the confession of the prisoner, indicted for high treason, could be received in evidence, unless it were made upon his arraignment, in open court, and in answer to the indictment; the statutes on this subject requiring the testimony of two witnesses to some overt act of treason. But it was afterwards settled, and it is now agreed, that though, by those statutes, no confession could operate conclusively, and without other proof, to convict the party of treason, unless it were judicially made in open court upon the arraignment; yet that, in all cases, the confession of a criminal might be given in evidence against him; and that in cases of treason, if such confession be proved by two witnesses, it is proper evidence to be left to a jury.4 And in regard to collateral facts, which do not conduce to the proof of any overt acts of treason, they may be proved as at common law, by any evidence competent in other criminal cases.5

1 Ld. Melville's case, 29 Howell's St. Tr. 764; The Queen's case, 2 B. & B. 306, 307; supra, § 170.

2 The Queen's case, 2 B. & B. 302, 306, 307, 308, 309. To the rule, thus generally laid down, there is an apparent exception, in the case of the proprietor of a newspaper, who is, primâ facie, criminally responsible for any libel it contains, though inserted by his agent or servant without his knowledge. But Lord Tenterden considered this case as falling strictly within the principle of the rule; for "surely," said he, "a person who derives profit from, and who furnishes means for carrying on the concern, and intrusts the conduct of the publication to one whom he selects, and in whom he confides, may be said to cause to be published what actually appears, and ought to be answerable, though you cannot show that he was individually concerned in the particular

publication." Rex v. Gutch, 1 M. & M. 433, 487. See also Story on Agency, §§ 452, 453, 455; Rex v. Álmon, 5 Burr. 2686; Rex v. Walter, 3 Esp. 21; Southwick v. Stephens, 10 Johns. 443.

3 Foster's Disc. 1, § 8, pp. 232-244; 1 East's P. C. 131, 132, 133. Under the Stat. 1 Ed. VI. c. 12, and 5 Ed. VI. c. 11, requiring two witnesses to convict of treason, it has been held sufficient, if one wit ness prove one overt act, and another prove another, if both acts conduce to the perpetration of the same species of treason charged upon the prisoner. Lord Staf ford's case, T. Raym. 407; 3 St. Tr. 204, 205; 1 East's P. C. 129; 1 Burr's Trial, 196.

4 Francia's case, 1 East's P. C. 133, 134, 135.

5 Smith's case, Fost. Disc. p. 242; { East's P. C. 130. See infra, §§ 254, 255.

CHAPTER XIII.

OF EVIDENCE EXCLUDED FROM PUBLIC POLICY.

[*§ 236. Evidence sometimes rejected upon grounds of policy.

237. This embraces communications between attorney or counsel and client. 238. This is done out of regard to the rights of clients and the course of justice. 239. The privilege extends to all grades in the profession, their agents, interpre

ters, and personal representatives.

239a. Summary of the recent American cases.

240. It embraces all legal proceedings, in esse, or in contemplation.

240a. Communications after dispute privileged, but not those in matters wholly distinct and anterior.

241. Other incidents of the privilege. Counsel may prove the existence, but not contents, of deeds.

242. The privilege only attaches to facts obtained solely through professional confidence.

243. The obligation of secrecy is perpetual.

244-245. Instances where counsel may testify to facts learned in the course of

professional employment and otherwise.

246. The court will inspect documents to determine whether they shall be produced. Sed quære.

247. Christian ministers not privileged to withhold confidences.

248. Nor is a physician, or agent, or steward so privileged.

249. Judges, jurors, and arbitrators not bound to disclose the ground of their

judgments.

250. State secrets, and of the detective police, are privileged.

251. This will embrace communications to the President, Governors, and other

high officers of state.

252. Grand jurors and other officers required to keep proceedings secret.

252a. Petit jurors not allowed to disclose what passes in jury-room.

253. Facts offensive to public decency not allowed to be proved, except from

strict necessity.

254. Confidential communications between husband and wife held inviolable. 254a. Papers illegally obtained sometimes allowed to be used in evidence.]

§ 236. THERE are some kinds of evidence which the law eacludes, or dispenses with, on grounds of public policy; because greater mischiefs would properly result from requiring or permitting its admission, than from wholly rejecting it. The principle of this rule of the law has respect, in some cases, to the person testifying, and in others, to the matters concerning which he is interrogated; thus including the case of the party himself,

and that of the husband or wife of the party, on the one hand, and on the other, the subject of professional communications, awards, secrets of state, and some others. The two former of these belong. more properly to the head of the Competency of witnesses, under which they will accordingly be hereafter treated. The latter we shall now proceed briefly to consider.

§ 237. And in the first place, in regard to professional communications, the reason of public policy, which excludes them, applies solely, as we shall presently show, to those between a client and his legal adviser; and the rule is clear and well settled, that the confidential counsellor, solicitor, or attorney, of the party, cannot be compelled to disclose papers delivered, or communications made to him, or letters or entries made by him, in that capacity.2 "This protection," said Lord Chancellor Brougham, “is not quali fied by any reference to proceedings pending, or in contemplation. If, touching matters that come within the ordinary scope of profes sional employment, they receive a communication in their professional capacity, either from a client, or on his account and for his benefit, in the transaction of his business, or, which amounts to the same thing, if they commit to paper in the course of their employment on his behalf, matters which they know only through • their professional relation to the client, they are not only justified in withholding such matters, but bound to withhold them, and will not be compelled to disclose the information, or produce the papers, in any court of law or equity, either as party or as witness." 3 § 238. "The foundation of this rule," he adds, "is not on account of any particular importance which the law attributes

[Infra,] § 326-429.

Abr. Evid. B. a; Wilson v. Rastall, 4 T.

fought. Gaskell, 1 My. & K. R. 755, Rex &. Withers, 2. Cap. 573;

101. In this decision, the Lord Chancellor was assisted by consultation with Lord Lyndhurst, Tindal, C. J., and Parke, J., 4 B. & Ad. 876. And it is mentioned, as one in which all the authorities have been reviewed, in 2 M. & W. 100, per Lord Abinger, and is cited in Russell v. Jackson, 15 Jur. 1117, as settling the law on this subject. See also, 16 Jur. 30, 41-43, where the cases on this subject are reviewed. The earliest reported case on this subject is that of Berd v. Lovelace, 19 Eliz., in chancery, Cary's R. 88. See also Austen v. Vesey, Id. 89; Kelway v. Kelway, Id. 127; Dennis v. Codrington, Id. 143; all which are stated at large by Mr. Metcalf, in his notes to 2 Stark. Evid. 895 (1st Am. edit.). See also 12 Vin.

Wilson v. Troup, 7 Johns. Ch. 25; 2 Cowen, 195; Mills v. Oddy, 6 C. & P. 728; Anon. 8 Mass. 370; Walker_v. Wildman, 6 Madd. R. 47; Story's Eq. Pl. 458-461; Jackson v. Burtis, 14 Johns. 391; Foster v. Hall, 12 Pick. 89; Chirac v. Reinicker, 11 Wheat. 295; Rex v. Shaw, 6 C. & P. 372; Granger v. Warrington, 3 Gilm. 299; Wheeler v. Hill, 4 Shepl. 329.

3 Greenough v. Gaskell, 1 My. & K. 102, 103. The privilege is held to extend to every communication made by a client to his attorney, though made under a mistaken belief of its being necessary to his case. Cleave v. Jones, 8 Eng. Law & Eq. R. 554, per Martin, B. And see Aikin v. Kilburne, 14 Shepl. 252

to the business of legal professors, or any particular disposition to afford them protection. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the courts, and in those matters affecting rights and obligations, which form the subject of all judicial proceedings." If such communications were not protected, no man, as the same learned judge remarked in another case, would dare to consult a professional adviser, with a view to his defence, or to the enforcement of his rights; and no man could safely come into a court, either to obtain redress, or to defend himself. 2

1

§ 239. In regard to the persons, to whom the communications must have been made, in order to be thus protected, they must have been made to the counsel, attorney, or solicitor, acting, for the time being, in the character of legal adviser.3 For the reason

1 ["It is to be remembered whenever a question of this kind arises, that communications to attorneys and counsel are not protected from disclosure in court for the reason that they are made confidentially; for no such protection is given to confidential communications made to members of other professions. The principle of the rule, which applies to attorneys and counsel,' says Chief Justice Shaw, in Hatton v. Robinson, 14 Pick. 422, 'is, that so numerous and complex are the laws by which the rights and duties of citizens are governed, so important is it 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 sustain this confidence, by requiring that on such facts the mouth of the attorney shall be for ever sealed.'" By Metcalf, J., in Barnes v. Harris, 7 Cush. 576, 578.]

2 Bolton v. The Corporation of Liverpool, 1 My. & K. 94, 95. "This rule seems to be correlative with that which governs the summary jurisdiction of the courts over attorneys. In Ex parte Aiken (4 B. & Ald. 49; see also Ex parte Yeat

man, 4 Dowl. P. C. 309), that rule is laid down thus:-'Where an attorney is employed in a matter, wholly unconnected with his professional character, the court will not interfere in a summary way to compel him to execute faithfully the trust reposed in him. But where the employment is so connected with his professional character as to afford a presumption that his character formed the ground of his employment by the client, there the court will exercise this jurisdiction.' So, where the communication made relates to a circumstance so connected with the employment as an attorney, that the character formed the ground of the communication, it is privileged from disclosure." Per Alderson, J., in Tirquand v. Knight, 2 M. & W. 101. The Roman Law rejected the evidence of the procurator and the advocate, in nearly the same cases in which the common law holds them incompetent to testify; but not for the same rea sons; the latter regarding the general interest of the community, as stated in the text, while the former seems to con sider them as not credible, because of the identity of their interest, opinions, and prejudices, with those of their clients. Mascard. de Probat, vol. 1, Concl. 66, vol. 3, Concl. 1239; P. Farinacii Opera, tom. 2, tit. 6, Quæst. 60, Illat. 5, 6.

3 If the party has been requested to act as solicitor, and the communication is made under the impression that the request has been acceded to, it is privileged. Smith v. Fell, 2 Curt. 667; [Sargent v.