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judicial proceedings. The benefit of 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 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 defend, if he had made them without any 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 a complete shield in all cases, except those 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 anything 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 justifiable, what he deliv

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ers by information, although it be false."1 The privilege of counsel in these cases is the same with that of the party himself, 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." 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 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 situation to

1 Brook v. Montagne, Cro. Jac. 90. See this case approved and applied in Hodgson v. Scarlett, 1 B. & Ald. 232.

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McMillian v. Birch, 1 Binney, 178, per Tilghman, Ch. J.

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

Privileges of Legislators.

The privileges 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 anything said in speech or debate. 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 where the plaintiff

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. 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.

There are provisions to this effect in every State constitution except those of Virginia, 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.

resided. The mover, in reply to an inquiry 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 everything 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.

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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 everything 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

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.

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