
    State against Truman Squires, Esquire.
    Upon a rule to shew cause, the Court will not order an attorney of the Court to deliver to the State Attorney, for the inspection of the Grand Jury, promissory notes suggested to have been forged, which had been delivered to the attorney idi the eomsir.ivj course of buidcess his oVnl't SI'S* jpv>.>t-.'i C - Bit uig che Í</',■gciy,
    SPECIAL rule.
    
      David Fay, State Attorney for said County, here moves the Court for a special rule to be served upon Truman Squires, attorney in this Court, to shew cause, if any he have, why he should not forthwith deliver to the grand jurors, duly impanelled, sworn, and charged by this Court, at this now term, diligently to inquire after and true presentment make of all felonious breaches of the law, for their inspection and examination, two certain promissory notes (which he holds in his hands as attorney to one Thomas Mai
      
      lery,) for the sum of twenty-five dollars each, purporting to have been made by one Silas Ilubbel, to the said Thomas Mattery ; the said Mattery having been recognised by Mr. Justice Sexton, of Manchester, in this County, to appear and answer in this Court touching such things as might be charged against him for the falsely and feloniously forging and making the said notes ; the Grand Jurors having the same now under their consideration.
    
      David Fay, State Attorney.
    Rule granted.'
    And now, on the same day of the term, Mr, Squires shewed cause, and observed—
    That he felt himself delicately situated between the duties due to his client and the government. As an attorney of the Court he had a reputation to preserve, which must be principally grounded upon his unshaken attachment to the interests of his client. As a citizen he owed duties to the government, which he at all times esteemed it incumbent upon him promptly to discharge. The report that as an attorney he had wantonly disclosed the secrets of his ' client, and unnecessarily exposed him to public prosecution, and perhaps infamous punishment, would be painful. But the very imputation that, in defiance of his duties as a good citizen, he has suppressed evidence of crime, and sheltered the accused from public prosecution, might sully his character as an officer of the Court, and an honest man. • As the point whether he should disclose the papers in question to the Grand Jury, could not be decided by considerations merely moral or honourable, but by considera'tions of constitutional and legal propriety, he had he-sit'ated to decide for himself, and had suggested to the State Attorney the measure of filing this rule ; and confessed, that he anticipated from tire decision of the Court, to which he should cheerfully submit, a direction to duty, and a sanction for his conduct.
    At present it behoved him, as attorney to Thomas Mattery, to shew cause why the rule should not be made absolute. He conceded that he held in his possession certain promissory notes of the purport of those mentioned in the rule, and stated that they were delivered to him by Thomas Mattery; that in the ordinary course of the business of his office,- he should have holden himself as accountable to Mattery only for the control of them, to whom he considered himself still attorney.
    He then argued from the intimacy subsisting between persons in the relation of attorney and client, which in many .cases amounted to almost personal identity in the contemplation of law. This intimacy, like that between husband and wife, was highly respected in judicial proceedings. When an attorney is sworn to testify in a cause in which he is or has been engaged as counsel, the very form of the oath administered contained an exception of such matters us have been communicated to him in confidence by .his client. That the bill of rights prefixed to our constitution of government, declares, “ that in all prosecutions for criminal offences, a person cannot be pompelled to give evidence against himselfthat this clause in the bill of rights was one of the distinguishing marks between a despotic and free government, and should not be shaken by any consideratious Of present expediency. That by the same bill of lights, any person accused of a crime hath a right to be heard by counsel. But how shall the accused venture to instruct his counsel in the nature of his defence, if the papers communicated in the confidence of a private consultation, might, in the course of the prosecution, by the order of the Court, be extorted from his counsel, and used as evidence against-him? Would not this in most cases defeat the bill of rights ?
    Mr. Squires then observed, that the clauses read from the bill of rights are but in affirmance of the common law; and cited Burrow’s Reports, vol. 3. p. 1687. Rex v. Dixon»
    The State Attorney, in reply, observed, that he held the bill of-rights in high respect; but he could not refrain from noticing, that the Legislature had considered that the clause which sheltered a person from being- compelled to give evidence against himself, did not admit of so extensive a construction as that contended for by Mr. Squires. Provision had been made for search warrants in the case of stolen goods ; and in the case of counterfeited coins, a person may be compelled to give evidence against himself. The act declares, “ that every Justice of the Peace within this State is hereby authorised and empowered, and it is hereby made his duty to seize and take into custody every piece of such false, forged, altered or counterfeited coin, which he shall see, observe, or have knowledge of, and the same shall retain, entering the name of the person or persons from whom he took the same, and at his discretion to cause the person or persons from whom he took such coin to come before him to be examined in the premises ; and to administer an oath to such person or persons, to declare from whom he or they received such coin; and proceed in his inquiries, in manner aforesaid, for the detection of the author of such mischief, so far as he in his discretion shall think necessary.” If the progress of the magistrate’s inquiries leads to the felon himself, he will be compelled to give evidence against himself, and that under oath. But be that as it may, he thought it his duty, as public prosecutor, to pursue every legal course to bring offenders to condign punishment. If the Court considered this demand upon Mr. Squires not warranted by law, he should cheerfully submit to the» decision.
   Woodbridgb, Chief Judge.

The attorney in this case must be considered as the keeper of these notes for his client. If so, in contemplation of law they arc; in the possession of Thomas Mattery. I .doubt the propriety of ordering papers thus situated out of his possession for the purpose of making use of them against him. It is true there are search warrants for the discovery of stolen goods; and magistrates who may seize base coin, are authorised to examine persons through whose hands it may have passed, under oath. But these are statute provisions, which do not con ■ trovert the bill of rights. There are no instances of warrants to search for papers correctly issuable at common law.

D. Fay, State Attorney, for the State*

Truman Squires, pro se.

If Mattery makes use of these notes to support atj action, the Court before whom such action is tried may and ought to direct them to be stopped. The case in Burrows I conceive to be in point.

Hall, Judge.

I consider the only power the Court have over such papers, while in possession of the party or his attorney, whom I consider to be one in contemplation of law, must be when they are attempted to be exhibited in evidence in this Court. I do not think we have any more power over these notes than we have over any other private papers which Mr. Attorney may suggest are in the custody of Mattery, and which he may esteem requisite to maintain a prosecution against Mm. I am for discharging the rule. ,

Smith, Judge.

I am of the same opinion.

Rule discharged.  