Clark v. Field

12 Vt. 485

Opinion

Note, by

Redfield, J.

— The decision of this case, it is presumed, was not intended to settle the question how far, under all circumstances, communications, passing between the attorney for the state and the grand jury, might be privileged from disclosure. To require such a disclosure might, under some circumstances, amount to a dispensation with the official- oath of the witness. It was so held in Watson’s case, 24 Howell’s State Trials, 107. Upon similar ground, too, confidential communications between the executive and his official advisers have been held sacred. Horne v. Bentick, 6 Eng. C. L. 46. Anderson v. Hamilton, before Lord Ellenborough, 1816, reported in note to the last case. Wyatt v. Gore, 3 Eng. C. L. 114, and note at the end of the case. The same doctrine was, in a nisi prius case before Putnam, J., (in Massachusetts) extended to the attorney for the state in communicating with the grand jury. But in all these cases the object of withholding the testimony is secrecy, and when the matter is once made public that object becomes impossible. So that in the present case, when the testimony had been taken down, it might well be used. I apprehend that the true doctrine, in regard to requiring a witness to disclose state secrets, is, that the court will exercise its discretion in each particular case.