protection only extends to those communications which are in the course of the proceedings to bring the supposed offender to justice, or are designed for the purpose of originating or forwarding such proceedings; and communications not of that character are not protected, even although judicial proceedings may be pending for the investigation of the offence which the communication refers to. Still less would a party be justified in repeating a charge of crime, after the person charged has been examined on his complaint, and acquitted of all guilt.2

Privilege of Counsel.

One of the most important cases of privilege, in a constitutional point of view, is that of counsel employed to represent a party in *judicial proceedings. The benefit of [* 443] the constitutional right to counsel depends very greatly

on the freedom with which he is allowed to act, and to comment on the facts appearing in the case, and on the inferences deducible therefrom. The character, conduct, and motives of parties and their witnesses, as well as of other persons more remotely connected with the proceedings, enter very largely into any

defendant of actual malice, and without any reasonable, probable, or justifiable cause, and not bona fide, or in the bona fide discharge of defendant's duty as superior officer. On demurrer, a majority of the court (Mellor and Lush, JJ.) held the action would not lie: planting themselves, in part, on grounds of public policy, and in part, also, on the fact that the military code provided a remedy for wrongs of the nature complained of; and quoting with approval Johnstone v. Sutton, 1 T. R. 544, and Dawkins v. Lord Rokeby, 4 F. & F. 841. Cockburn, Ch. J., delivered an able dissenting opinion.

1 Dancaster v. Hewson, 2 M. & Ry. 176. As to the privilege connected with church trials and investigations, see Dunn v. Winters, 2 Humph. 512; York v. Pease, 2 Gray, 282.

2 Burlingame v. Burlingame, 8 Cow. 141. In Mower v. Watson, 11 Vt. 536, an action was brought for slander in saying to a witness who was giving his testimony on a material point in a cause then on trial to which defendant was a party, “That's a lie," and for repeating the same statement to counsel for the opposite party afterwards. The words were held not to be privileged. To the same effect are the cases of McClaughry v. Wetmore, 6 Johns. 82, and Kean v. McLaughlin, 2 S. & R. 469. See also Torrey v. Field, 10 Vt. 353; Gilbert v. People, 1 Denio, A report made by a grand jury upon a subject which they conceive to be within their jurisdiction, but which is not, is nevertheless privileged. Rector v. Smith, 11 Iowa, 302.

41.

judicial inquiry, and must form the subject of comment, if they are to be sifted and weighed. To make the comment of value, there must be the liberty of examination in every possible light, and of suggesting any view of the circumstances of the case, and of the motives surrounding it, which seems legitimate to the person discussing them. It will often happen, in criminal proceedings, that, while no reasonable doubt can exist that a crime has been committed, there may be very great doubt whether the prosecutor or the accused is the guilty party; and to confine the counsel for the defence to such remarks concerning the prosecutor as he might justify, if he had made them without special occasion, would render the right to counsel, in many cases, of no value. The law justly and necessarily, in view of the importance of the privilege, allows very great liberty in these cases, and surrounds them with a protection that is always a complete shield, except where the privilege of counsel has been plainly and palpably abused.

The rule upon this subject was laid down in these words in an early English case: "A counsellor hath privilege to enforce any thing which is informed him by his client, and to give it in evidence, it being pertinent to the matter in question, and not to examine whether it be true or false; for a counsellor is at his peril to give in evidence that which his client informs him, being pertinent to the matter in question; but matter not pertinent to the issue, or the matter in question, he need not deliver; for he is to discern in his discretion what he is to deliver, and what not; and although it be false, he is excusable, it being pertinent to the matter. But if he give in evidence any thing not material to the issue, which is scandalous, he ought to aver it to be true; otherwise he is punishable; for it shall be considered as spoken maliciously and without cause; which is a good ground for the action. . . . So if counsel object matter against a witness which is slanderous, if there be cause to discredit his testimony,

and it be pertinent to the matter in question, it is justifi[* 444] able, what he delivers by information, although it be false." The privilege of counsel in these cases is the

1 Brook v. Montagne, Cro. Jac. 90. See this case approved and applied in Hodgson v. Scarlett, 1 B. &

Ald. 232. And see Mackay v. Ford, 5 H. & N. 792.

same with that of the party himself,1 and the limitation upon it is concisely suggested in a Pennsylvania case, "that if a man should abuse his privilege, and, under pretence of pleading his cause, designedly wander from the point in question, and maliciously heap slander upon his adversary, I will not say that he is not responsible in an action at law."2 Chief Justice Shaw has stated the rule very fully and clearly: "We take the rule to be well settled by the authorities, that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of the inquiry. The question, therefore, in such cases is, not whether the words spoken are true, not whether they are actionable in themselves, but whether they were spoken in the course of judicial proceedings, and whether they are relevant or pertinent to the cause or subject of the inquiry. And in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are intrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party, or counsel who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and ani mated controversy, in which the dearest rights of such party may become involved. And if these feelings sometimes manifest themselves in strong invectives, or exaggerated expressions, beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both sides, in whose mind the exaggerated statement may be at once controlled and met by evidence and argument of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally give to an exaggerated assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit, and we consider that limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slan- [*445] derous expressions, either against a party, witness, or

*

third person, which have no relation to the cause or subject

1 Hoar v. Wood, 3 Met. 194, per Shaw, Ch. J.

2 McMillan v. Birch, 1 Binney, 178, per Tilghman, Ch. J.

matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and best calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the cases and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions." 1

Privilege of Legislators.

The privilege of a legislator in the use of language in debate is made broader and more complete than that of the counsel or party in judicial proceedings by constitutional provisions, which give him complete immunity, by forbidding his being questioned in any other place for any thing said in speech or debate.2 In an early case in Massachusetts, the question of the extent of this constitutional privilege came before the Supreme Court, and was largely discussed, as well by counsel as by the court. The constitutional provision then in force in that State was as follows: "The freedom of deliberation, speech, and debate in either house cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever." The defendant was a member of the General Court, and was prosecuted for uttering slanderous words to a fellow-member in relation to the plaintiff. The member to whom the words were uttered had moved a resolution, on the suggestion of the plaintiff, for the appointment of an additional notary-public in the county

1 Hoar v. Wood, 3 Met. 197. See also Padmore v. Lawrence, 11 Ad. & El. 380; Ring v. Wheeler, 7 Cow. 725; Mower v. Watson, 11 Vt. 536; Gilbert v. People, 1 Denio, 41; Hastings v. Lusk, 22 Wend. 410; Bradley v. Heath, 12 Pick. 163; Lea v. White, 4 Sneed, 111; Marshall v. Gunter, 6 Rich. 419; Ruohs v. Backer, 6 Heisk. 395; Jennings v. Paine, 4 Wis. 358; Lawson v. Hicks, 38 Ala. 279; Lester v. Thurmond, 51 Geo. 118. In Hastings v. Lusk, it is said that the privilege of counsel is as broad as that of a legislative body; however false and malicious may be the charge made by him affecting the reputation

of another, an action of slander will not lie, provided what is said be pertinent to the question under discussion. And see Warner v. Paine, 2 Sandf. 195; Garr v. Selden, 4 N. Y. 91; Jennings v. Paine, 4 Wis. 358.

2 There are provisions to this effect in every State constitution except those of North Carolina, South Carolina, Mississippi, Texas, California, and Nevada. Mr. Cushing, in his work on the Law and Practice of Legislative Assemblies, § 602, has expressed the opinion that these provisions were unnecessary, and that the protection was equally complete without them.

where the plaintiff * resided. The mover, in reply to an in- [* 446] quiry privately made by defendant, as to the source of his. information that such appointment was necessary, had designated the plaintiff, and the defendant had replied by a charge against the plaintiff of a criminal offence. The question before the court was, whether this reply was privileged. The house was in session at the time, but the remark was not made in course of speech or debate, and had no other connection with the legislative proceedings than is above shown.

Referring to the constitutional provision quoted, the learned judge who delivered the opinion of the court in this case thus expressed himself: "In considering this article, it appears to me that the privilege secured by it is not so much the privilege of the house as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the house. For he does not hold this privilege at the pleasure of the house, but derives it from the will of the people, expressed in the constitution, which is paramount to the will of either or both branches of the legislature. In this respect, the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrest on mesne (or original) process, during his going to, returning from, or attending the General Court. Of these privileges, thus secured to each member, he cannot be deprived by a resolve of the house, or by an act of the legislature.

"These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecution, civil or criminal. I therefore think the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution. of the office; and I would define the article as securing to every member exemption from prosecution for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular