almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated 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 situ[* 445] ation to *gratify private malice by uttering slanderous expressions, either against a party, witness, or third person, which have no relation to the cause or subject-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

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. 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

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 where the

plaintiff * resided. The mover, in reply to an inquiry [* 446] 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

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.

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 according to

the rules of the house, or irregular and against their rules. [* 447] I do * not confine the member to his place in the house, and I am satisfied that there are cases in which he is entitled to this privilege when not within the walls of the representatives' chamber. He cannot be exercising the functions of his office as member of a body, unless the body is in existence. The house must be in session to enable him to claim this privilege, and it is in session notwithstanding occasional adjournments for short intervals for the convenience of the members. If a member, therefore, be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought, therefore, to be protected from civil or criminal prosecutions for every thing said or done by him in the exercise of his functions as a representative, in a committee, either in debating or assenting to or draughting a report. Neither can I deny the member his privilege when executing the duties of the office, in a convention of both houses, although the convention may be holden in the Senate Chamber." And after considering the hardships that might result to individuals in consequence of this privilege, he proceeds: "A more extensive construction of the privilege of the members secured by this article I cannot give, because it could

not be supported by the language or the manifest intent of the article. When a representative is not acting as a member of the house, he is not entitled to any privilege above his fellow-citizens; nor are the rights of the people affected if he is placed on the same ground on which his constituents stand." And coming more particularly to the facts then before the court, it was shown that the defendant was not in the discharge of any official duty at the time of uttering the obnoxious words; that they had no connection or relevancy to the business then before the house, but might with equal pertinency have been uttered at any other time or place, and consequently could not, even under the liberal rule of protection which the court had laid down, be regarded as within the privilege.1

*Publication of privileged Communications through the [* 448] Press.

If now we turn from the rules of law which protect communications because of the occasion on which they are made and the duty resting upon the person making them, to those rules which concern the spreading before the world the same communications, we shall discover a very remarkable difference. It does not follow because a counsel may freely speak in court as he believes or is instructed, that therefore he may publish his speech through the public press. The privilege in court is necessary to the complete discharge of his duty to his client; but when the suit is ended, that duty is discharged, and he is not called upon to appeal from the court and the jury to the general public. Indeed such an appeal, while it could not generally have benefit to the client in view, would be unfair and injurious to the parties reflected upon by the argument, inasmuch as it would take only a partial and onesided view of the case, and the public would not have, as the court and jury did, all the facts of the case as given in evidence before them, so that they might be in position to weigh the arguments fairly and understandingly, and reject injurious inferences not warranted by the evidence.

The law, however, favors publicity in legal proceedings, so far as that object can be attained without injustice to the persons imme

1 Coffin v. Coffin, 4 Mass. 1. See Jefferson's Manual, § 3; Hosmer v. Loveland, 19 Barb. 111; State v. Burnham, 9 N. H. 34.

diately concerned. The public are permitted to attend nearly all judicial inquiries, and there appears to be no sufficient reason why they should not also be allowed to see in print the reports of trials, if they can thus have them presented as fully as they are in court, or at least all the material portion of the proceedings stated impartially, so that one shall not, by means of them, derive erroneous impressions, which he would not have received from hearing the case in court.

It seems to be a settled rule of law, that a fair and impartial account of judicial proceedings, which have not been ex parte, but in the hearing of both parties, is, generally speaking, a justifiable publication. But it is said that, if a party is to be allowed to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusion which he himself

draws from the evidence. A plea that the supposed libel [* 449] was, in *substance, a true account and report of a trial

has been held bad; and a statement of the circumstances of a trial as from counsel in the case has been held not privileged.* The report must also be strictly confined to the actual proceedings in court, and must contain no defamatory observations or comments from any quarter whatsoever, in addition to what forms strictly and properly the legal proceedings.5 And if the nature of the case is such as to make it improper that the proceedings should be spread before the public, because of their immoral tendency, or of the blasphemous or indecent character of the evidence exhibited, the publication, though impartial and full, will be a public offence, and punishable accordingly.

Hoare v. Silverlock, 9 C. B. 20; Lewis v. Levy, E. B. & E., 537; Ryalls v. Leader, Law Rep. 1 Exch. 296. And see Stanley v. Webb, 4 Sandf. 21; Cincinnati Gazette Co. v. Timberlake, 10 Ohio, N. s. 548. But not if the matter published is indecent or blasphemous. Rex v. Carlisle, 3 B. & Ald. 167; Rex v. Creevey, 1 M. & S. 273. The privilege extends to the publication of testimony taken on an investigation by Congress. Terry v. Fellows, 21 La. Ann. 375.

2 Lewis v. Walter, 4 B. & Ald. 611.

Flint v. Pike, 4 B. & C. 473.

Saunders v. Mills, 6 Bing. 213; Flint v. Pike, 4 B. & C., 473. And see Stanley v. Webb, 4 Sandf. 26; Lewis v. Walter, 4 B. & Ald. 605.

Stiles v. Nokes, 7 East, 493; Delegal v. Highley, 3 Bing. (N. C.) 950. And see Lewis v. Clement, 3 B. & Ald. 702; Pittock v. O'Neill, 63 Penn. St. 253; s. c. 3 Am. Rep. 544.

Rex v. Carlile, 3 B. & Ald. 167; Rex v. Creevey, 1 M. & S. 273.