The Cincinnati daily star. [volume] ([Cincinnati, Ohio]) 1875-1880, 1876-12-21

reply to this is that the papers in ques-
! tion are not the property OF the persoti
subj &c laed, but were comm tied to him,
as Of necessity, by other persons in con
! filence, and are therefore held as priv
LEGGED communications; which he is not
by law required to produce nor make
known.
Correspondence by telegraph is mod
ern mode Of communication not
contemplated at the time of the
adoption OF the Constitution, nor
is it in any manner spec tically pro-
Vided for by more recent legislation.
Its control must therefore be regulated
by those recognized principles Of law
under which judicial authority has here
tofore acted. The judiciary Act of the
United States provides that its courts
shall have power, on motion and due no.
ticP, to require the parties to produce
books or writings i'll their possession or
power, which contain evidence perth
nent to the issue, Gin cases and under
circumstances where they might be
compelled to produce the same by the
ordinary proceedings in Chancery."
But we do not presume that any in
stance can be found, since the days of
Richard IL, when this writ of subpoena
was first framed, that Court OF Chan
Gerry has ever commanded the produc-
tion of private C rrespondence as be-
tween the parties thereto.
Granting. then, to Congress all the
powers conferred upon the Courts OF the
! United States in this regard, and it can
certainly claim no greater, we can not
see by what authority its Committee
can demand the production Of private
correspondence by telegraph any more
than by mail or messenger.
But, it may be claimed that the officer
OF telegraph company is not party to
the correspondence, is merely the Gus
todian of the writings constituting that
correspondence; and may, therefore, be
compelled to appear as Il witness and
produce the writings in question.
To this it may be replied that there
are many cases recognized and sane.
toned by the law where persons stand
ing i'll confidential relations TO the party
to be adjudicated upon can not be com.
PEELED, and will not even be permitted,
to produce papers under any process
known TO the courts, either of law or
chancery. An attorney can not be called
upon to produce paper entrusted to
HIM by his client, nor will he be per-
mitted to disclose its contents. A ply
siclan will not be allowed to testify as
to communications made to him i'll pro-
tessional confidence, whether verbally
or by writing. 1t is true that, in this
the law proceeds upon the presumption
| that such confidence in an attorney or
| ply is Il matter Of necessity tor
the proper discharge OF mis- professional
duty; and, consequently, that a person
who is but the accidental custodian OF
deeds or writings, made such by the
simple choice or convenience Of the
party, can not refuse compliance with
the call of the subj 9na.
But, in this instance OF the telegraph
company'5 officer, the rule Of "necessi.
| ty' is quite as strong as in the case of
the attorney. The telegram in question
must, OF necessity, be committed TO him
in confidence for the discharge of his
professional duty in its transmission.
There is no possible alternative. The
communication comes, therefore, strictly
| within the principle Of the law of eXemp-
| ton. And this view Of the subject must
| be recogniz ID, or the telegraphic con-
veniences of the country must be mater
tally crippled, and the greatest inyep-
tion of This inventive age be rendered
comparatively useless, il not dangerous
to the interests of The people.
We are glad that Mr.. Orton, as Presi-
dent OF the Telegraph Company thus
called upon by the Committee, has re-
solved upon testing the question of the
| power Of Congress touching this matter.
1t is matter that affects every citizen
! in the nation, and we trust that it's de-
cisiOn may be made without the inter-
ference of any political influence or
partisan bias whatever.