according to the rules of the house, or irregular and [* 447] against their rules. 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

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

* 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 one-sided 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 immediately 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.1 But it is said that, if a party is to be allowed

1 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; Torrey

to publish what passes in a court of justice, he must publish the whole case, and not merely state the conclusion which he him

self draws from the evidence. A plea that the sup[* 449] posed libel was, in substance, a true account and report of a trial has been held bad; 2 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. 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.5

It has, however, been held, that the publication of ex parte proceedings, or mere preliminary examinations, though of a judicial character, is not privileged; and when they reflect injuriously upon individuals, the publisher derives no protection from their having already been delivered in court. The reason for

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

v. Field, 10 Vt. 353; Saunders v. B. & Ald. 702; Pittock v. O'Neill, Baxter, 6 Heisk. 369; Storey v. Wal- 63 Penn. St. 253; s. c. 3 Am. Rep. lace, 60 Ill. 51. But not if the matter 544. published is indecent or blasphemous. Rex v. Carlile, 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. And of the proceedings on trials in voluntary organizations. Barrows v. Bell, 7 Gray, 301.

6 Duncan v. Thwaites, 3 B. & C. 556; Flint v. Pike, 4 B. & C. 473; Charlton v. Watton, 6 C. & P. 385; Rex v. Lee, 5 Esp. 123; Rex v. Fisher, 2 Camp. 563; Delegal v. Highley, 3 Bing. N. C. 950; Behrens v. Allen, 3 Fost. & F. 135; Cincinnati Gazette Co. v. Timberlake, 10 Ohio, N. s.*

1 Lewis v. Walter, 4 B. & Ald. 548; Mathews v. Beach, 5 Sandf. 611.

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

8 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.

4 Stiles v. Nokes, 7 East, 493; Delegal v. Highley, 3 Bing. N. C. 950. And see Lewis v. Clement, 3

256; Huff v. Bennett, 4 Sandf. 120; Stanley v. Webb, 4 Sandf. 120; Usher v. Severance, 20 Me. 9. It seems, however, that if the proceeding has resulted in the discharge of the person accused, or in a decision that no cause exists for proceeding against him, a publication of an account of it is privileged. In Curry v. Walter, 1

distinguishing these cases from those where the parties [* 450] are heard is thus stated by Lord Ellenborough, in the early case of The King v. Fisher: 1" Jurors and judges are still but men ; they cannot always control feeling excited by inflammatory language. If they are exposed to be thus warped and misled, injustice must sometimes be done. Trials at law, fairly reported, although they may occasionally prove injurious to individuals, have been held to be privileged. Let them continue so privileged. The benefit they produce is great and permanent, and the evil

that arises from them is rare and incidental. But these preliminary examinations have no such privilege. Their only 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 us all, that whatever has a tendency to prevent a fair trial should be guarded against. Every one of us may be questioned in a court of law, and called upon to defend his life and character. We would then wish to meet a jury of our countrymen with unbiassed minds. But for this there can be no security, if such publications are permitted." And in another case it has been said: "It is our boast that we are governed by that just and salutary rule upon which security of life and character often depends, that every man is presumed innocent of crimes charged upon him, until he is proved guilty. But the circulation of charges founded upon ex parte testimony, of statements made, often under excitement, by persons smarting under real or fancied wrongs, may prejudice the public mind, and cause the judgment of conviction to

be passed long before the day of trial has arrived. When [* 451] that day of trial comes, the rule has been * reversed, and the presumption of guilt has been substituted for the presumption of innocence. The chances of a fair and impartial trial are diminished. Suppose the charge to be utterly groundless. If every preliminary ex parte complaint which may be made before a police magistrate may, with entire immunity, be published and scattered broadcast over the land, then the character of the innocent, who may be the victim of a conspiracy, or of charges proved afterwards to have arisen entirely from misapprehension, may be cloven down, without any malice on the part of the publisher. The refutation of slander, in such cases, generally follows its propagation at distant intervals, and brings often but an imperfect balm to wounds which have become festered, and perhaps incurable. It is not to be denied, that occasionally the publication of such proceedings is productive of good, and promotes the ends of justice. But, in such cases, the publisher must find his justification, not in privilege, but in the truth of the charges.”1

1 Stanley v. Webb, 4 Sandf. 30. See this case approved and followed in Cincinnati Gazette Co. v. Timberlake, 10 Ohio, N. 8. 548, where, however, the court are careful not to

express an opinion whether a publication of the proceedings on preliminary examinations may not be privileged, where the accused is present, with full opportunity of defence.