member an immunity from prosecutions for anything said or done by him as a representative of the people in the exercise of the functions of that office; whether such exercise is regular according to the rules of the assembly, or irregular and against their rules; whether the member be within his place, within the house delivering an opinion; uttering a speech; engaging in debate; giving his vote; making a written report; communicating information, either to the house or to a member; or whether he is out of the house sitting in committee, and engaged in debating or voting therein, or in drawing up a report to be submitted to the assembly; in short, the privilege in question secures the members, of a legislative assembly against all prosecutions, whether civil or criminal, on account of anything said or done by them, during the session, resulting from the nature, and in the execution of their office. It is hardly necessary to add, that as a legislative assembly has no existence or authority, as such, except when regularly in session, the members cannot claim this privilege for anything said or done at any other time. It is to be observed, however, that the mere temporary adjournments, for the convenience of the members, and not for the purpose of putting an end to the session, are in fact continuations of and not terminations of it." a

"But, though a member, in the exercise of the functions of his office may speak, write, or vote in any manner that he deems proper, and may consequently give utterances with impunity, with what would subject a private person to a prosecution for libel or slander; yet he will not therefore be juatified in printing and publishing what he has spoken, if it contains matter injurious to the character of an individual; not even if the publication is intended to correct a misrepresentation contained in the report of his speech previously published without his authority or sanction." b

The representative is not indebted to the will or pleasure of the house for this privilege; he derives it not from them, but from the highest source of power, the will of the people expressed in the constitution, which is paramount to the will of either, or of both branches of the legislature.

While these protections are secured to citizens, parties, counsel, a Curtis Law and Pr. of Assemblies, § 603.

b Id. § 604.

and legislators, from motives of high public policy upon the one hand, neither the constitution, the law, or public policy, will tolerate the destruction of private character upon the other, by a public publication of the proceedings of the body of the assembly, or courts, to the injury of the character of the citizen. It does not at all follow, that because counsel may speak freely what he believes, or what he is instructed to say, in court, that he may publish his speech containing slanderous imputations out of court. The first was allowed in order to discharge a high duty to a client; but with the ending of the suit, that duty was at an end; the subsequent publicity must be at his individual peril, if it be unfair, unjust, or injurious to another; and this rule applies equally to the publication of judicial proceedings. Though a fair and impartial account of them is justifiable, and favored in law; an unfair or injurious report reflecting upon the character of the citizen, to his prejudice, is not privileged as against the injured party. The publisher must find his justification not in the privilege, but in the truth of the publication. a It is even libelous to publish a correct account of judicial proceedings, if accompanied with comments and insinuations tending to asperse a man's character. b The report must be confined to the actual proceeding in court, and must contain no defamatory observations or comments from any quarter whatever, in addition to what forms strictly and properly the legal proceedings.c The case was of privilege of a member of the House of Commons in England, and was plead to an action for libel by a private citizen. d It was the report published by order of the house for the members of the body, and also for sale, which report contained reflections upon the character of the plaintiff. Lord Denman said, "Most willingly would I decline to enter upon an in uiry which may lead to my differing from that great and powerful assembly. But when one of my fellow subjects, presents himself before me in this court demanding justice for an injury, it is not at my option to grant or withhold redress. I am bound to afford it, if the law declares him entitled to it. The decision of the court was unanimous that the privilege did not exist in regard to those copies of the report sold a Stanley v. Webb. 4 Sand. 21.

b Thomas v. Croswell, 7 John 264; Commonwealth v. Blanding, 3 Pick. 304. e King v. Carlisle, 3 B. & A. 167.

d Stockdale v. Hemsard, 9 Adol & Ellis, 1; Rex v. Creevy, 1 Maule & Selwin, 273

to others." "The protection of the character of the citizen, triumphed over a privilege, claimed to have existed for a period so long, that it had become hoary with age." a The editor of a newspaper has a right to publish the fact that an individual has been arrested, and upon what charge, but he has no right while the charge is in the course of investigation before the magistrate, to assume that the person accused is guilty, or to hold him out to the world as such. b Nor is such publication, often, less a public offence. 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.c

So ex parte proceedings, or mere preliminary examinations, though they may perhaps be called judicial, are not privileged, and when they reflect injuriously upon individuals, the publisher derives no protection from their having been already delivered in court. d Their tendency is to prejudge those whom the law still presumes to be innocent, and to poison the sources of justice. It is of infinite importance to all, that whatever has a tendency to prevent a fair trial, should be guarded against. Every one is liable to be questioned in a court of law, and called upon to defend his life and character. We would then wish to meet a court or a jury of our country with unbiassed minds.

If anything is more important than another in the administration of justice, it is, that jurymen should come to the trial of those persons on whose guilt or innocence they are to decide, with minds pure and unprejudiced. Is it possible they should do so, after having read for weeks, and months before, ex parte statements of the evidence against the accused, which the latter had no opportunity to disprove or controvert? By their own public declarations, we know that the minds of jurymen are often preoccupied by such statements, and that they proceed with terror to the discharge of

a Campbell' Lives of Chancellors, 293; King v. Abingdon, 1 Espurass R. 226. b Usher v. Severance, 2 Appleton, 9.

c Rex v. Carlisle, 3 B. & A. 167; Rex v. Creevy, 1 M. & S. 273.

d Stanley v. Webb, 4 Sand. 21; Huff v. Bennett, Id. 120; Matthews v. Beach, 5 Id. 256.

their duty, from the apprehension that an antecedent bias may influence their verdict. These publications tend alike to the conviction of the innocent, and the acquittal of the guilty.

The publication of proceedings in courts of justice where both sides are heard, and matters are finally determined, is salutary, and therefore permitted. The publication of these preliminary proceedings has a tendency to pervert the public mind, and to disturb the course of justice; and it is therefore illegal. What is injurious to individuals and to the community, the law considers criminal. a

A distinction has been attempted to have settled as law, between editors of public newspapers and other persons, making the former an exception to the general rule, on account of the peculiarity of their occupation. It was claimed, that it was their business to disseminate useful knowledge among the people ;-to publish such matters relating to correct events of the day, happening at home or abroad as fell within the sphere of their observation, and as the public curiosity demanded ;-and that it was impracticable for for them at all times, to ascertain the truth or falsehood of the various statements contained in other journals, and it was argued, that if the law were not thus indulgent, some legislative relief might become necessary for the protectionof this class of citizens.

The Supreme Court of this state, in a case where this argument was presented, said, b "Undoubtedly if it be necessary to pamper a depraved appetite or taste, (if there be any such) by a republication of all the falsehoods and calumnies upon private character that may find their way into the press-to give encouragement to the widest circulation of these vile and defamatory publications by protecting the retailers of them-some legislative interferance will be necessary; for no countenance can be found for the irresponsibility claimed in the common law. That, reprobates the libeller, whether author or publisher, and subjects him to both civil and criminal responsibility. His offence is then ranked with that of the receiver of stolen goods, the perjurer and suborner of perjury,

a Rex v. Fisher, 2 Camp. 563-570, Per. Lord Ellenborough.

b Hotchkiss v. Oliphant, 2 Hill. 513; King v. Root, 4 Wend. 138; Cooper v. Stone, 24 Wend. 434; Same v. Barber, Id. 105; Same v. Greely 1 Denio, 347; Stone . Cooper, 2 Denio, 293; Fry v. Bennett, 28 N. Y. 324.

the disturber of the public peace, the conspirator, and other offenders of a like character."

In another case the editor of a paper attempted to justify the libel, by showing that the article published, was published in good faith, having the name of the author attached to it. Chief Justice Kent held, that the attempted defence was properly rejected, and said, a "The same principles which are applied to public libels, are applicable to private calumny, and renders all equally liable who are in anywise concerned in the publication of it. Individual character must be protected, or social happiness and domestic peace are destroyed. It is not sufficient that the printer by naming the author, gives the party agrieved an action against him. This remedy may afford no consolation, and no relief to the injured party. The author may be some vagrant individual who may easily elude process, and if found he may be without property to remunerate in damages. It would be no check on the libelous printer who can spread the calumny with ease, and with rapidity throughout the community. The calumny of the author would fall harmless to the ground without the aid of the printer. The injury is inflicted by the press, which, like other powerful engines, is mighty for mischief as well as for good. I am satisfied that the proposition contended for on the part of the defendant, is as destitute of foundation, as it is repugnant to principles of public policy."

The act of publication, is an adoption of the original calumny, which must be defended in the same way as if invented by the defendant. The republication assumes and endorses the truth of the charge, and when called on by the aggrieved party, the publisher should be held strictly to the proof. If he chooses to become the endorser and retailer of private scandal, without taking the trouble of enquiring into the truth of what he publishes, there is no ground for complaint, if the law, which is studious to protect the character as the property of the citizen, holds him to this responsibility. The rule is not only just and wise in itself, but if steadily and inflexibly adhered to and applied by courts and juries, will greatly tend to the promotion of truth, good morals and common decency on the part of the press, by inculcating caution and inquiry into

a Dole v. Lyon, 10 John. 450.