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sons are excused for publishing what would otherwise be actionable defamation. The publication of the charge in such cases is said to be 'privileged'; the charge itself being termed a privileged communication.

Privileged communications are of two kinds; absolutely privileged and prima facie privileged communications.2 A communication is absolutely privileged when the fact that it was published with actual, provable malice, that is, malice in fact, is immaterial, not affecting the excuse. In other words, a communication is absolutely privileged when evidence that it was published with actual malice is not admissible. A communication is prima facie privileged when evidence on the part of the plaintiff is admissible to show that the communication was published with actual malice. In the former case, the defence is a perfect one; in the latter it is perfect, provided evidence of malice be not shown by the plaintiff.

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Apart from statute, absolute privilege is confined to the State, and that, too, to its three departments, legislative, executive, and judicial; such privilege being justified only upon grounds of necessity. First, of statements made in judicial proceedings. Whatever is said orally, or stated in writing, in the course of and duly relating to such proceedings by those concerned therein, is absolutely privileged. According to recent English authority, it matters not whether the language was material or relevant, or not; it is deemed to be against public policy to permit any inquiry in regard to that. It is enough if it relates to the

1 Merivale v. Carson, 20 Q. B. Div. 279, 280; Cases, 144, Lord

Esher pointing out that what all men may do is no privilege.

2 Hastings v. Lusk, 22 Wend. 410; Cases, 151; Shelfer v. Gooding, 2 Jones, 175.

3 Nevill v. Fine Arts Ins. Co., 1895, 2 Q. B. 156, 169, malice 'in the

mind' considered to be meant by actual malice. Sed qu.

Munster v. Lamb, 11 Q. B. Div. 588 (counsel); Scott v. Stans

cause before the court. For example: Counsel for the defendant, in the course of arguing a criminal cause, makes base insinuations against the prosecutor in relation to the evidence given, which insinuations would be actionable if not privileged. No action can be maintained for making them; no inquiry into their bearing upon the case will be allowed.1 Again: A witness on the stand, after examination, volunteers a statement in vindication of himself, which contains a charge of crime against a stranger to the trial. This is not actionable.2

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Formerly relevancy appears to have been regarded in England; and in this country it is generally laid down that the language used, in order to be absolutely privileged, must either have been legally relevant or must have been believed to be relevant. This has been laid down of the language of parties,* of counsel," of witnesses, of jurymen, and of pleadings. For example: The defendant,

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field, L. R. 3 Ex. 220 (judge); Seaman v. Netherclift, 2 C. P. Div. 53 (witness); Henderson v. Broomhead, 4 H. & N. 569 (statements in pleadings).

1 Munster v. Lamb, 11 Q. B. Div. 588.

2 Seaman v. Netherclift, supra.

8 Hoar v. Wood, 3 Met. 193, 198; Hastings v. Lusk, 22 Wend. 410; Cases on Torts, 151, 156-159; Hodgson v. Scarlett, 1 B. & Ald. 232.

4 Hoar v. Wood, supra.

5 Hastings v. Lusk, supra; Marsh v. Ellsworth, 50 N. Y. 309; Hoar v. Wood, supra; McLaughlin v. Cowley, 127 Mass. 316, 319 Rice v. Coolidge, 121 Mass. 393; Jennings v. Paine, 4 Wis. 358; Morgan v. Booth, 13 Bush, 480.

6 White v. Carroll, 42 N. Y. 161; Barnes v. McCrate, 32 Maine, 442; Calkins v. Sumner, 13 Wis. 193; Lea v. White, 4 Sneed, 111; Storey v. Wallace, 60 Ill. 51; McLaughlin v. Cowley, supra; Rice v. Coolidge, supra.

7 Dunham v. Powers, 42 Vt. 1.

8 McLaughlin v. Cowley, supra; Wyatt v. Buell, 47 Cal. 624; Garr v. Selden, 4 Comst. 91; Johnson v. Brown, 13 W. Va. 71.

in the argument of his own cause in court, falsely charges perjury upon the plaintiff, the charge not being relevant, or believed by the defendant to be relevant, to any question before the court. The defendant is liable.1 Again: The defendant, during the deliberations of a jury of which he is a member, held in the jury room, concerning their verdict in a suit brought by the present plaintiff, says he would not believe the plaintiff under oath, and accuses him of having obtained an insurance upon property by fraud and afterwards committing perjury in a suit for the insurance money. This is not legally relevant, but the defendant acts honestly believing it to be so and that he is discharg ing his duty in the matter. The plaintiff cannot recover.2

The protection extends to the allegations contained in affidavits made in the course of a trial, even though the persons making them be not parties to the cause; and to statements of a coroner holding an inquest.5 In a word, it applies apparently to all statements made in the real discharge of duty at court.

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The law upon this subject has been thus (in substance) generalized: No action either for slander or libel can be maintained against a judge, magistrate, or person sitting in a judicial capacity over any court, judicial, military," or naval, recognized by and constituted according to law; nor against suitors, prosecutors, witnesses, counsel, or jurors, for anything said or done relative to the matter in hand, in the ordinary course of a judicial proceeding, in

1 Hastings v. Lusk, 22 Wend. 410; Cases, 151.

2 Dunham v. Powers, 42 Vt. 1.

8 Garr v. Selden, 4 Comst. 91.

Henderson v. Broomhead, 4 H. & N. 569.

5 Thomas v. Churton, 2 Best & S. 475.

6 Goodenow v. Tappan, 1 Ohio, 60; Dunham v. Powers, supra. 7 Jekyll v. Moore, 2 Bos. & P. N. R. 341; Dawkins v. Rokeby, L. R. 8 Q. B. 255; s. c. 7 H. L. 744, 752 (witness); Dawkins v. Saxe Weimar, 1 Q. B. D. 499.

vestigation, or inquiry, civil or criminal, by or before any such tribunal, however false and malicious it may be.1

A like rule of law to that by which defamatory statements made in the course of judicial proceedings are privileged governs all statements and publications made in the course of the proceedings of the Legislature. The occasion is deemed to afford an absolute justification for the use of language otherwise actionable, so long as it relates to the proceedings under consideration. No member of the Legislature is liable in a court of justice for anything said by him in the transaction of the business of the House to which he belongs, or in which he has duties to perform, however offensive the same may be to the feelings or injurious to the reputation of another.3

This privilege, however, is absolute only within the walls of the House, or of such other places as committees are authorized to occupy. It is not personal, but local. A member who publishes slander or libel generally, outside of such locality, stands, it seems, on the same footing with a private individual.5 For example: A member of Parliament prints and circulates generally a speech delivered by him in the House, containing defamatory language of the plaintiff. This is a breach of duty."

1 Starkie, Slander and Libel, 184 (4th ed. by Folkard); Munster v. Lamb, 11 Q. B. Div. 588, and cases cited.

2 Odgers, Slander, 187.

3 See Ex parte Wason, L. R. 4 Q. B. 573; Commonwealth v. Blanding, 3 Pick. 304, 314; Coffin v. Coffin, 4 Mass. 1, a very important case; Hastings v. Lusk, 22 Wend. 410, 417; s. c. L. C. Torts, 121, 124.

4 Goffin v. Donnelly, 6 Q. B. D. 307. See Belo v. Wren, 63 Texas, 686, irregular and irresponsible committee.

5 See however Coffin v. Coffin, supra, as to words not in the course of business.

Rex v. Abingdon, 1 Esp. 226; Rex v. Creevey, 1 Maule & S. 273; Stockdale v. Hansard, 9 Ad. & E. 1. As to private circulation

The same protection is extended to persons presenting petitions to the Legislature, and with the same restriction. The printing and exhibiting a false and defamatory petition to a committee of the Legislature, and the delivery of copies thereof to each member of the committee, is justifiable, unless perhaps the petition is a mere sham, fraudulently put forth for the purpose of defaming an individual. But a publication to any others than the members of the committee, or at any rate to others than members of the Legislature, removes the protection, and renders the author liable.1

Absolute privilege extends also, no doubt, to the acts and proceedings of the Executive Department, whether of the general government of the country or of the States.2

In other relations than those of the State, there is seldom any cause for absolute privilege; between man and man, outside of the affairs of the State, the occasion can create only a prima facie privilege. The defendant here shows privilege as before; but now, it should be noticed, the plaintiff may in turn show (actual) malice. This head embraces a great variety of cases; only the most important of these will be presented, from which a general rule can be deduced.

Proceedings before church organizations, societies, and clubs, for the discipline of their members, partake somewhat of the nature of trials in the courts, and may therefore be mentioned first. Though forming no part of the general administration of justice, such proceedings, when

of speeches among constituents, see Wason v. Walter, L. R. 4 Q. B. 73, 95.

1 Lake v. King, 1 Saund. 131 b, where this is conceded; Hare v. Miller, 3 Leon. 138, 163. See Proctor v. Webster, 16 Q. B. D. 112, as to communications to the Privy Council.

2 See Chatterton v. Secretary of State, 1895, 2 Q. B. 189.