THE SECRECY OF TELEGRAMS.

Westport Times, Volume VIII, Issue 1174, 8 May 1874, Page 4

THE SECRECY OF TELEGRAMS.

(BY ELECTRIC TELEGRAPH.) WELLINGTON. May 4. The Commissioner of Telegraphs has forwarded this memo with his compliments :—> As the proceedings which are taking place in the case of Macassey v. Bell have occasioned doubts as to the power of the telegraph department to preserve telegrams from scrutiny when litigants desire to obtain information which may possibly aid them in pending suits, we have been requested by the Telegraph Commissioner to briefly explain what has taken place in reference to the case in question. It is first, however, necessary to say that whether or not such a power should exist, the law unquestionably enables a litigant to compel the production of telegrams which are specified and described in the subpoena, calling for their production, provided, of course, that they relate to the suit and affect the parties thereto, and that if they were letters they would not bo privileged. In the present instance the question is whether unspecified telegrams are liable to be produced in Court, and also whether they are liable to be inspected before production in Court. By unspecified telegrams is meant a general reference to any telegrams that may have passed between different persons, such reference being evidently made in ignorance of any particular telegram, but under the assumption or supposition that there have been some telegrams revalent to the matter. It may further be explained that the order to inspect, before trial, unspecified telegrams or indeed specified telegrams, as far as the department is aware, is without precedent. There is one precedent at least for a subpoena to produce unspecified telegrams in Court in the case of the Taunton election. In that case the telegraph officer appeared with the telegrams in Court, but was instructed to object to produce them. BeiiK' a witness only he could not have the matter argued by counsel, but the judge upheld the objection ; expressly, however, intimating that the decision was not to be regarded as a precedent. In the case of Macassey v. Bell the plaintiff obtained an order to allow plaintiff or his solicitor to inspect all telegrams relating to the subject of this action, without even specifying the persons between whom they passed, and thus making it necessary to expose telegrams passing between a number of person?, some of them not parties to the suit, and some of them standing in the relation of clients and attorneys to each other. A subpoena was also served on rn officer of the department to produce unspecified telegrams in Court. The names of some of the persons, between whom the telegrams were supposed to have passed, were specified in the subpoena but of these two were not parties of the suit, and the department has since been informed they stood in the relation of solicitor and client, and this solicitor was also solicitor to the defendant. The department at once decided not to take any notice of the judge's order. The plaintiff was given to understand that such was the determination arrived at, but ho took no steps to enforce the order. Seme time subsequently no rule nisi was obtained by the defendant to upset the order, but with that, the Commissioner had nothing to do. lie had already decided to protest the order on behalf of the department, if the plaintiff attempted to enforce it. In respect to the subpoena it w; s at first i decided to adopt the course pursued i in the Taunton case, namely to take i ihe telegrams into court, but to refuse to produce them unless the , judge ordered their production. It was however, expressly arranged with the plaintiff that the fact of the search being made in order that the telegrams should be ready for production was not to prejudice the objections to be offered in court against the subpoena. The telegrams indicated in the subpoena were selected and sent to Dunedin, but subsequently, when it was considered that the case could not be argued in court on behalf of the department, and that therefore the court would probably not decide more than in the Taunton cause, namely the point in the particular, and when it was further considered how important it was to have at once decided jthe point as to whether the production of unspecified telegrams, was compellable; the telegraph Commissioner took proceedings prior to the trial to test the sufficiency and force of the subpoena, but ,Mr Justice Chapman decided in that proceedings that on various grounds the objections could not be urged on behalf of the telegraph officer, or the department but only by the defendant at the trial. The Telegraph Commissioner then came to conclusion to instruct the officer to refuse lo produce the telegrams, so that on a rule to attach the witness for contempt being moved for, the telegraph department might on the argument urge that there js no power to subpoena an officer to produce unspecified telegrams. Tt will be thus seen that the department is j.ealously guarding the secrecy of the telegraph and is determined to do so unless after argument the Supremo Court and Appeal Court decide that the law otherwise requires.