New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1880-02-02

hands they ere found, if the Court is satisfied Of
their elevehcy to the issue, and they are not priv.
Ileged communications" properly speaking sucb "A
correspondence between attorney and client or be-
tween husband and wife. This part of the proposed
act seems somewhat ambiguous. When II provides
that kilograms shall be protected to the same ex.
tent letters sent by the United States MALI etc
is ii meant thar the protection SHALL as in the case
of letters relate only to the internal of ansnissionf
IL can hardly mean this. for kilograms are trans
mitted simultaneously. while letter may be from
one TO ten days in the custody of post Office officials
and the letter itself necessarily handled by num-
Der of persons,any one of whom ght open it. Does
IL mean, then. that the originals and copies of tele
grams retained by the company, but copy Of
which has in fact been delivered to the receiver
shall be as completely protected during all he time that
they remain in the oompdnys hands as letters are pro-
tected whst In the naiisf II ii this, rather
II the act Is liable, whether intended or not to
this Interpretation, would not such Interpretation
be practically adopting the doctrine that kilograms
as such. shall be ard remain absolutely privileged
against the process of the Courts, under any and all
circumstances
| do not suppose nor suggest that tho Western
Union Telegraph Company their very able coun-
sci intend that this act should DO so construed.
But if it open to such construction. it is liable to
criticism. The evils of an IndIscrimnate seizure OF
kilograms in the company's office under color Of
legal process are quite as great as the cOmpany's
article states; and the telegraph company is
entitled to the thanks OF the public for the de-
termned resistance they have made in the Courts
and before Congress to this whole business of drag
net subpGnas" But the remedy might prove az
bad as the disease, if it were found in
paralyzng the Courts from obtaining evil
dence which, under proper restrictions. might
and ought to be obtained in the interest OF justice
without any violation of propriety or of Constitu-
tional right. 1t seems to me that the act as pro-
posed might well be construed TO make kilograms
and the copies thereof remaining in the conpanys
Office absolutely exempt from the process of The
Courts or of Legislatures under any and all clreum-
stances whatever.
Surely, il is not necessary that statute designed
only to remedy the abuse of "drag-net subpenas"
should go faras this. Such an abuse ought to DO
prevented; but neither Congress nor the public
generally afford to ignore or diminish the ndis
pensabe power Of the Courts to compel the produc-
ton of relevant and competent testimony IN proper
cases. whether it be in the form of kilograms letters
or private writings OF any description or the more
common form of knowledge IN the memory OF wit
nesses What are called privileged communica-
tIonsn such as between attorney and chentand nus
band and wife. are uniformly and properly pryi-
legged not because the production OF them Is llaDeto
abuse but because their disclosure under any cir
cumstances whatever is held inconsistent with the
trust and confidence which are indispensable to the
maintenance of those relations. aud TO the welfare
of society itself It can hardly be contended that
an indlscrminate aud needless disclosure of tele-
grams cannot be prevented except by making all
kilograms whatsoever absolutely privileged.
venture to submit that all which Is needlul for
Toerie fafp ne
State TO contain. in order to meet the abuse com-
planned of as far as other demands OF public justice
permit. would be COMPRISED in provisions substan-
italy as follows:
Let the act, if you please declare that kilograms
and comics thereof remaining in the hands Of tho
company are private papers. Let It further provide
expressly that no Court nor legislative COM
mittee shall have power 10 compel any telegraph
company complying with Title 60 Revised Statutes
TO produce any telegram in evidence or for inspec-
ton unless the party applying tor the same shall W
first file in the cause proceeding an ahidavlt, at
least upon information and belief OF the existence
the sufficiently certain description, and the alleged
or snpposed contents of the dispatches called for
showing their relevancy in the cause, and shall
satisfy the Court that there is probable cause for
their production and shall ~ give reasonable no
tice of such application, far as practicable TO an
third person sender or receiver of such telegram
and reasonable opportunity 70 show cause against
the same. And let the act further pro-
vide. in addition to the criminal penalty for
falsely making such affidavit, right Of action for
exemplary damages against any party who SHAH
w,lfully OF maciously procure, by means OF such
process. the unnecessary disclosure of any private
message Such an act assumes the right of Congress
10 Iegislate with reference TO interstate telegraph
lines already declared by The Supreme Court ia
what is known as the Pensacola Telegraph case
(96 L. s Rep. o. II would leave no more to the
discretion of the Court than absolutely necessary
under the infinitely varying circumstances OF cases
which nav arise. But it would impose conditions
which on the one hand would prevent the Issue OF
"drag-net subp@nas" altogether while recognizing
the Indispensable power of the Courts in proper
cases to compel the disclosure even OF confidential
private papers. H. de-
81. L0His, Jan. II, 1880.