Totten v. United States - 92 U.S. 105 (1875)

Rule:

A condition of the engagement requiring one's lips to be forever sealed is implied in all secret employments of the government in time of war, or upon matters affecting foreign relations, where a disclosure of the service might compromise or embarrass the government in its public duties, or endanger the person or injure the character of the agent.

Facts:

Appellant, the administrator of the intestate's estate, brought an action to recover compensation for services rendered by his intestate under a contract with the President of the United States to proceed south to gain information regarding the insurrectionary states as might be beneficial to the government during the war. The trial court dismissed the action, and appellant sought review.

Issue:

Was the dismissal of the action against the United States proper under the circumstances? 

Answer:

Yes.

Conclusion:

On appeal, the United States Supreme Court affirmed the dismissal. The Court explained that its objection was not to the contract but to the action upon it in the trial court. The Court believed that the service stipulated by the contract was a secret service; the information sought was to be obtained clandestinely and was to be communicated privately. The employment and the service were to be equally concealed. The Court concluded that public policy forbade the maintenance of any suit in a court of justice, the trial of which would inevitably have led to the disclosure of matters that the law itself regarded as confidential, and respecting which it would not allow the confidence to be violated. The Court held that the existence of a contract of this kind was itself a fact not to be disclosed.