But communications, though made to official persons, are not privileged where they are not made in the discharge of any public duty; such, for example, as a letter by a private individual to the chief secretary of the postmaster-general, complaining of the conduct of the guard of the mail towards a passenger.1

§ 252. For the same reason of public policy, in the furtherance of justice, the proceedings of grand-jurors are regarded as privileged communications. It is the policy of the law, that the preliminary inquiry, as to the guilt or innocence of a party accused, should be secretly conducted; and in furtherance of this object every grand-juror is sworn to secrecy.2 One reason may be, to prevent the escape of the party, should he know that proceedings were in train against him; another may be, to secure freedom of deliberation and opinion among the grand-jurors, which would be impaired if the part taken by each might be made known to the accused. A third reason may be, to prevent the testimony produced before them from being contradicted at the trial of the indictment, by subornation of perjury on the part of the accused. The rule includes not only the grand-jurors themselves, but their clerk,3 if they have one, and the prosecuting officer, if he is present at their deliberations; all these being equally concerned in the administration of the same portion of penal law. They are not permitted to disclose who agreed to find the bill of indictment, or who did not agree; nor to detail the evidence on which the

move the injunction of secrecy. Sed quære, for if so, the object of the rule, in the preservation of state secrets, may generally be defeated. And see Plunkett v. Cobbett, 29 Howell's St. Tr. 71, 72; 5 Esp. 136, s. c., where Lord Ellenborough held, that though one member of parliament may be asked as to the fact that another member took part in a debate, yet he was not bound to relate any thing which had been delivered by such a speaker as a member of parliament. But it is to be observed, that this was placed by Lord Ellenborough on the ground of personal privilege in the member; whereas the transactions of a session, after strangers are excluded, are placed under an injunction of secrecy, for reasons of state. [*In a somewhat recent case, Beatson v. Skene, 5 H. & N. 838, it is said the head of the department will judge of the propriety of withholding state secrets in the first instance; and unless such officer refers the question to the court, it will not en

force the disclosure of such secrets without very conclusive evidence that it may be done without prejudice to the public service.]

2

1 Blake v. Pilford, 1 M. & Rob. 198. ["The extent of the limitation upon the testimony of grand-jurors is best defined by the terms of their oath of office, by which the commonwealth's counsel, their fellows' and their own, they are to keep secret." By Bigelow, J. Čommonwealth v. Hill, 11 Cush. 137, 140.]

8 12 Vin. Ábr. 38, tit. Evid. B. a, pl. 5; Trials per Pais, 315.

4 Commonwealth v. Tilden, cited in 2 Stark. Evid. 232, note (1), by Metcalf; McLellan v. Richardson, 1 Shepl. 82. But on the trial of an indictment for perjury, committed in giving evidence before the grand-jury, it has been held, that another person, who was present as a witness in the same matter, at the same time, is competent to testify to what the prisoner said before the grand-jury; and that a police

accusation was founded.1 But they may be compelled to state whether a particular person testified as a witness before the grandjury; 2 though it seems they cannot be asked, if his testimony there agreed with what he testified upon the trial of the indictment.3 Grand-jurors may also be asked, whether twelve of their number actually concurred in the finding of a bill, the certificate of the foreman not being conclusive evidence of that fact.1

§ 252a. On similar grounds of public policy, and for the protection of parties against fraud, the law excludes the testimony of traverse jurors, when offered to prove misbehavior in the jury in regard to the verdict. Formerly, indeed, the affidavits of jurors have been admitted, in support of motions to set aside verdicts by reason of misconduct; but that practice was broken in upon by Lord Mansfield, and the settled course now is to reject them, because of the mischiefs which may result if the verdict is thus placed in the power of a single juryman.5

§ 253. There is a fourth species of evidence which is excluded, namely, that which is indecent, or offensive to public morals, or injurious to the feelings or interests of third persons, the parties themselves having no interest in the matter, except what they have impertinently and voluntarily created. The mere indecency of disclosures does not, in general, suffice to exclude them, where

2 Sykes v. Dunbar, 2 Selw. N. P. 815, [1059]; Huidekoper v. Cotton, 3 Watts, 56; Freeman v. Arkell, 1 C. & P. 135, 137, n. (c.); [Commonwealth v. Hill, 11 Cush. 137, 140.]

12 Vin. Abr. 20, tit. Evidence, H.; Imlay v. Rogers, 2 Halst. 347. The rule in the text is applicable only to civil actions. In the case last cited, which was trespass, the question arose on a motion for a new trial, for the rejection of the grand-juror, who was offered in order to discredit a witness; and the court being equally divided, the motion did not prevail. Probably such also was the nature of the case in Clayt. 84, pl. 140, cited by Viner. But where a witness before the grand-jury has committed perjury in his

testimony, either before them or at the trial, the reasons mentioned in the text for excluding the testimony of grandjurors, do not prevent them from being called as witnesses after the first indictment has been tried, in order to establish the guilt of the perjured party. See 4 Bl. Comm. 126, n. 5, by Christian; 1 Chitty's Crim. Law, p. [317]. Sir J. Fenwick's case, 13 Howell's St. Tr. 610, 611; 5 St. Tr. 72; Wharton's Am. Crim. Law, p. 130. By the Revised Statutes of New York, vol. 2, p. 724, § 31, the question may be asked, even in civil cases.

44 Hawk. P. C., b. 2, ch. 25, § 15; McLellan v. Richardson, 1 Shepl. 82; Low's case, 4 Greenl. 439; Commonwealth v. Smith, 9 Mass. 107.

Vaise v. Delaval, 1 T. R. 11; Jackson v. Williamson, 2 T. R. 281; Owen v. Warburton, 1 New R. 326; Little v. Larrabee, 2 Greenl. 37, 41, note, where the cases are collected. The State v. Freeman, 5 Conn. 348; Meade v. Smith, 16 Conn. 346; Straker v. Graham, 4 M. & W.721; [Boston, &c., R. R. Corp. v. Dana, 1 Gray, 83, 105; Folsom v. Manchester 11 Cush. 334, 337.]

the evidence is necessary for the purposes of civil or criminal justice; as, in an indictment for a rape; or in a question upon the sex of one, claiming an estate entailed, as heir male or female; or upon the legitimacy of one claiming as lawful heir; or in an action by the husband for criminal conversation with the wife. In these and similar cases the evidence is necessary, either for the proof and punishment of crime, or for the vindication of rights existing before, or independent of, the fact sought to be disclosed. But where the parties have voluntarily and impertinently interested themselves in a question, tending to violate the peace of society, by exhibiting an innocent third person to the world in a ridiculous or contemptible light, or to disturb his own peace and comfort, or to offend public decency by the disclosures which its decision may require, the evidence will not be received. Of this sort are wagers or contracts respecting the sex of a third person, or upon the question whether an unmarried woman has had a child.2 In this place may also be mentioned the declarations of the husband or wife, that they have had no connection, though living together, and that therefore the offspring is spurious; which on the same general ground of decency, morality, and policy, are uniformly excluded.3

§ 254. Communications between husband and wife belong also to the class of privileged communications, and are therefore protected, independently of the ground of interest and identity, which precludes the parties from testifying for or against each other. The happiness of the married state requires that there should be the most unlimited confidence between husband and wife; and this confidence the law secures, by providing that it shall be kept for ever inviolable; that nothing shall be extracted from the bosom of the wife, which was confided there by the husband. Therefore, after the parties are separated, whether it be by divorce or by the death of the husband, the wife is still precluded from disclosing any conversations with him; though she may be admitted to testify to facts which came to her knowl

1 Da Costa v. Jones, Cowp. 729.

2 Ditchburn v. Goldsmith, 4 Campb. 152. If the subject of the action is frivolous, or the question impertinent, and this is apparent on the record, the court will not proceed at all in the trial. Brown v. Leeson, 2 H. Bl. 43; Henkin v. Gerss, 2 Campb. 408.

8 Goodright v. Moss, Cowp. 594, said, per Lord Mansfield, to have been solemnly decided at the Delegates. Cope v. Cope, 1 M. & Rob. 269, per Alderson, J.; Rex v. Book, 1 Wils. 340; Rex v. Luffe, 8 East, 193, 202, 203; Rex v. Kea, 11 East, 132; Commonwealth v. Shepherd, 6 Binn. 283.

edge by means equally accessible to any person not standing in that relation. Their general incompetency to testify for or against each other will be considered hereafter, in its more appropriate place.

§ 254a. It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue, to determine that question.2

1 Monroe v. Twistleton, Peake's Evid. App. lxxxii. as explained by Lord Ellenborough in Aveson v. Lord Kinnaird, 6 East, 192, 193; Doker v. Hasler, Ry. & M. 198; Stein v. Bowman, 13 Peters, R. 209, 223; Coffin v. Jones, 13 Pick. 441, 445; Edgell v. Bennett, 7 Verm. R. 536; Williams v. Baldwin, Id. 503, 506, per Royce, J. In Beveridge v. Minter, 1 C. & P. 364, where the widow was permitted by Abbott, C. J., to testify to certain ad missions of her deceased husband, relative to the money in question, this point was not considered, the objection being placed wholly on the ground of her interest in the estate. See also 2 Kent, Comin. 180; 2 Stark. Evid. 399; Robbins v. King, 2

Leigh's R. 142, 144. See further, infra, § 333-345; [Smith v. Potter, 1 Williams, 304; Goltra v. Wolcott, 14 Ill. 89; Stein v. Weidman, 20 Mis. 17. In an action on the case brought by a husband for criminal conversation with his wife, the latter, after a divorce from the bonds of matrimony obtained subsequent to the time of the alleged criminal intercourse, is a competent witness for the plaintiff to prove the charge in the declaration. Dickerman v. Graves, 6 Cush. 308; Ratcliff v. Wales, 1 Hill, 63.]

2 Commonwealth v. Dana, 2 Met. 329, 337; Leggett v. Tollervey, 14 East, 302; Jordan v. Lewis, Id. 306, note

CHAPTER XIV.

OF THE NUMBER OF WITNESSES, AND THE NATURE AND QUANTITY OF PROOF REQUIRED IN PARTICULAR CASES.

| *§ 255. Two witnesses required to same overt act of treason, or to distinct acts of same species.

256. Proof restricted to overt acts laid in indictment.

257. In trials for perjury more is required than the evidence of one witness.

257a. And the rule applies to each separate specification.

258. It is not indispensable that any witness swear to the falsity. Other proof may be sufficient.

259. Mere contradiction in prisoner's statements not sufficient.

260. An answer in chancery requires more than the testimony of one witness to overcome it.

260a. General usage should be proved by more than one witness.

261. Written documents required to effect transmission of title in certain cases. 262. Statute of frauds requires written evidence in some cases.

263. This embraces all sales of land or of any interest therein.

264. Assignments or surrenders must also be in writing, &c.

265. Destruction of deed will not revest the title.

266. All trusts except resulting trusts must be evidenced by writing.

267. This statute embraces sundry other contracts.

268. Form of contract or mode of signature not important.

269. Power of agent need not be in writing. Auctioneer, agent of both parties.

270. Land embraces all interests and rights pertaining thereto.

271. Sale of things attached to land, without any use of land, not an interest in the land.

272. Devises of land required by the statute to be in writing, and witnessed by three witnesses.

278. What amounts to valid revocation of will.

274. Indentures of apprenticeship required to be in writing.]

§ 255. UNDER this head it is not proposed to go into an extended consideration of the statutes of treason, or of frauds, but only to mention briefly some instances in which those statutes, and some other rules of law, have regulated particular cases, taking them out of the operation of the general principles, by which they would otherwise be governed. Thus, in regard to treasons though by the common law the crime was sufficiently proved by one credible