The New York herald., 1878-11-21
INyIOLABILITY OF TELEGRAMs.
MEETING OF THE NEW YORK STATE BAR AssocTA-
TtoN--ELEcTIoN or OFFICERS IMPORTANT
PAPERS READ

TtoS-sLEcTIoN OF OFFICERS s-rsIpoRrANr
PAPERS READ.
ALBANY. Nov. 90. 1873.
At meeting of the Bar Asso siation To-day, Iudge
platt Potter presided in the absence OF President por
ter. a number of new members added. The
treasurer Mr. Hun reported s3oTS42 in the treasury.
READ.
The remainder Of the session was devoted TO read
ing essays. follows - "Tciegrams- Their Invioa-
bility Against Disclosure. Subpoena and Search Var
rant by Grosyenor p Lowery. OF New YORK;
Equalization of Representation in the United States
Senate, by Elliott f. Shepard. of New York; "A Plea
for the Nonpolitical Lawyer" by Irving Browne, of
Troy: Taxation Should BE Confined to Real Estate
by Hon. James A. Briggs. OF Brooklyn; "Soilc
Thoughts Henry Wheaton and the Epoch to Which
He Belonsed,' by George Shea, OF New York. and
jurisprudence Political Economy" by William M
Joins, of New York.
OFFICERS CHOSEN
At the afternoon session the following officers
elected :--Prcsdent--Samuel Hand Vice Presidents
FIRST district j. K. Porter Of New York Second dis
trict, A. E. Sufern, of Haverstraw; Third district
John Gaul, of Hudson; Fourth district platt Potter
Of Schenectady; Fifth district. William G. Ruger.
of syracuse Sixth district. Horatio Ballard. of Cor
land Seventh district, James L. ANGLE OF Roches-
ter; Eighth district sherman S. Rogers of Buffalo
Corresponding Sccretary--Marcus 4. Hun. Record
ing secretary-A. V. Dewitt. of Albany.
INvIoLABlIiry IELEGEAMs
Mr.. Lowcry's paper opened with statement OF the
question whether correspondence by telegraph is
titled 70 such immunity frorn forced exposure is
communications. Telegraph companies. to enhance
public confidence, seek to resist compulsory pro-
dnson Of dispatches M,,, The writer qnoteaa
Constitutional Limitations favoring the idea
that az the operator fuhs important public func
ton being the repository of facts by the necessities
of business and not by the voluntary act OF
spondcnts. public policy should forbid the courts
compelling him to disclose them. Mr.. Lowery cites
the Senate debates of last the alleged election
frauds in Oregon, and continues
The courts of law have generally rejected tho con
siderati0ns above referred to drawn from public
policy or sentiment and declining to regard the
novel and special characteristics of the business
introducing any valid now ground Of judgment,
have limited their inquiries to whether telegram.
y means of evidence. u distirguishabc from other
writings found in the possession of persons subject
to the service of sub0no d4ccs tsesfYa and it may
now be considered as no longer open to question in
the courts that telegram which is otherwise COM
peten by the rules OF evidence is liable, like other
writings, to discovery by lawful process in aid OF q
regular judicial inquiry.
QUESTION PROCEDURE.
The question. therefore, has changed from one of
substance to one OF procedure and is likely to be in
all future cases. Whether the formalites which pro-
tect. private rights arc properly observed in the
method adopted to- discover the existence Of
kilograms to bring them into court? A case of
special interest in this view United States
Babcock. Dillon $685. in which the telegraph com
pany objected to the sweeping character of q
subpoena requiring them to search thoir files for dis
patches not shown by proof ever to have had
existence The petition was for writ commanding
the company TO bring into court all copies OF
kilograms received at certain offices by and from
persons named, and without any. sufficient state
ment that such messages had been sent. The
company asked for the revocation of an order
already granted being improvdcnt and because 1t
put them to speculative search for evidence to mako
out the Of one of the parties. The Court how
found the petition without these allegations
safncient to put the company upon search, ssyng.
ia vpry cast for I'm to
not in possession Of the papers. to come
here and say. We have no such papers
1t might perhaps be thought not only that this was
begging Of The question, whether it is really easy
otherwise than by expending all the time and labor
requisite to answer good subpoena. for telegraph
company to say whether among months and perhaps
years, of accumulated correspondence il possesses
certain messages. but also disregard Of the question
for his bcnc6t should not show by proof reasonable
ground for believing that the thing to be searched
may be found.p
AMERICAN AND ENGLISH CASES.
During the impeachment trial of President John
con. Mr.. Lowery remarks committee of the House
0cncc by Wholesale demands upon telegraph Offices
demand naturally resisted by the companies. Tit
union Of the and post oe in England DC
| there and here, but some analogy remains. ane
Mr.. Lowery quotes remark Of Baron Brainwell il
recent contested election case. in which. afte,
consultation with Judges Grove and Miller. he de
clned 10 order the production Of messages, as h
said because really think that for the public good
there ought to be no such power Of compelling ths
! production Of such documents 1t Ia the necessary
consequence that persons who correspond by telegram
Obliged to repose confidence in the and be-
eve will be for the public good IL found that that
In confidence that the Crown cannot be compelled To
viotste; inconvenience might arise IN many cases.
| tion between attorney and Client or husband and
wife; therefore must look to the general princi
pie strongly incline TO the opinion that 1t is for
the good Of the community that the necessary conf
| dcnce Of sender of telegram in the Post Once
| should not be violated
Mr. lou Ind nj some LAM 10 tla ~
Mr.. Barnes telegraph manager at New Orleans. be.
fore the House OF Representatives in 1877 He refused
| to comply with the order tn produce all campaign
messages, citing a statute Of Louisiana imposing
penalty Of fnc and Imprisonment any telegrspher
who should reveal or use messages. He concludes =
after several days consideration Of this answer,
the judiciary Committee OF the House reported neg
ativing all these grounds Of protest and asserting
broadly an unlimited power in this House. through
a committee otherwise to require Mr.. Barnes to
search his tiles and produce their contents whenever
required.
THE paper served upon Mr. Barnes was not recog-
nizable by any lawyer az subpoena duces tecum,
being in fact the mandate Of the Speaker to the Ser
geant-at-Arms. directing him to summon Mr. Barnes
and make return Of his action. Tho Judiciary Com
mittee thought, however that Mr. Barnes did not
know that it was not subpoena until he was so nd
yised by counsel, 1t was good enough subpoena to
justify committing him 70 close custody for con-
tempt. which was accordingly done.
mttee would not in similar case arising in his pri-
vate practice have felt justified to quote the strong
Language Of Lord Camden, in En.inck vs. Darlington,
warrant in order to procure evidence, IL than
the Spanish Inqusition; law under which no Eng
Hshmnn would like to live an hour
WITHOUT PROTECTION.
Thus it appears that kilograms. while In every
state protected by penal statutes against voluntary
disclosure. subject to the disclosure under
Judicial authority other evidence. and without
any protection against search warrant In the form
Of the subpoena duces tecum. except such ~
may be found In tho consciences Of those who
else irresponsible power. My own Judgment Is that
no sound reason exists for distinguishing telesrams
nj Ina
Of proofs necessary or useful to the administraton
Of the laws. but that great respect for
law VIII be required on special occasions
to prevent abuses in the OF pro-
dnction, especially when that production IL at the
command Of those who law unto themselves.
Some special forrpalites additional to those now re-
quired upon tho issuance OF subpmnas duccs tecum
by courts Of Justice in this State might with adysn.
tage be observed where telegrams sought Ii IN
my purpose to draft bill making those provisions.
to BE- handed to the appropriate committee Of this
association for their should they deem the sub.
ject Of suffcient interest"