The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1901-12-09
SECRETARY HAY AND STATE
SECRETS.

SECRETS.
The New York newspaper which at
tempted TO make Secretary Of State Hay
a witness for it's defense in a libel suit
showed more impudence than judgment.
The name Of the paper is not given, but it
could only have been one of two or three
papers in that city. The suit was brought
by a Danish banker living in New York
and another Dane, on account Of statements
made regarding their alleged connection
with the sale Of the Danish islands in the
West Indies to the United States. which
statements. 1t was claimed, reflected upon
their competency. Counsel 70. the paper
subpoenaed the secretary of state, presum-
ably to tell what he knew about the negO-
tiation and the plaintiffs connection with
it. Ono Of the attorneys came to Wash
ington to take the secretary's deposition
and was politely received, but the secretary
fatty refused to answer any of his ques-
lions, on the ground that he had no per-
sonal knowledge OF the matters at issue.
hat whatever knowledge he possessed had
been acquired in the capacity of secretary
OF state and not as an individual. He
stated. moreover, that this official Informal
ton was a privileged communication to the
government of the United States. and to
make it public would be prejudicial to the
interests Of the country. For these reasons
ne declined TO give any Information on
the subject. The attorney noted his re-
fUsal. and, 1t is said, will move the New
FORK court to cite the secretary TO answer
for contempt. The case is an unusual one,
because it involves the right of the govern
ment to treat official communications and
information as privileged. 1t may be re-
marked that the secretary did not admit
that he knew anything bearing directly on
the case in hand. but simply took the
ground that whatever information he might
have on the subject was official, and there
fore privileged. In other words, he met
the inquiry at the threshold and stood on
his rights as a government official and the
custodian of government secrets. The dis
tinction which he drew between John Hay
as a private citizen and John Hay as sec
rotary OF state OF the United States is a
very clear one. He could not plead the dig
nifty OF his office or the improperly of his
meddlirg in a private lawsuit as a bar
against disclosing information that had
come to him in his individual capacity in
an unofficial way, but he could refuse to
disclose anything that came to him as
secretary Of state. His action therefore
raises the question whether such official
communications are privileged. In law a
privileged communication is a communica-
ton between such persons or under such
circumstance that it is not a matter of
right TO bring it out as evidence in court.
Formerly only communications between
client and attorney were held privileged,
but in recent years the rule has been APP
piled to communications made to priests in
confession and to those made to a physi-
clan while attending a person in his pro-
feSsional character. But the courts have
been very strict in confirming the privilege
10 communications made to a person in his
professional capacity, and it is not ex-
tended to any merely personal communica-
ton. however close or sacred the relation
which led to 1t. There would seem to be
strong reasons for applying the rule to Of
fetal information received by an officer of
the government the disclosure of which
might be detrimental to public interests.
Different Presidents have declined to ac-
cede to requests of Congress to give pub
licity to certain matters pertaining to the
executive, and the courts have no more
power over the executive than Congress
has. Washington was the first President
to respectfully decline to comply with such
a request of Congress-, and in doing so he
said:
The nature OF foreign negotiations re.
Quires caution, and their success must
often depend on secrecy; and even when
brought to a conclusion a full disclosure
OF all the measures, demands or eventual
concessions which may have been proposed
or contemplate would be extremely inn
polite, for this might have a pernicious
influence on future negotiations or produce
immediate inconvenience, perhaps danger
and mischief 10 other powers.
This reasoning applies equally to bring.
ing out state secrets by judicial process
The safety of the Republic is the supreme
law. and public interests are paramount t.
all others. without regard to the charac.
ter of the official Information in the pos.
session of the secretary of state, he wa:
right in refusing to disclose it.