Henry and Van Vechten, contra. The general principles which have been laid down by the counsel for the plaintiff in error, are not denied. . . . In Lake v. King, the complaint made was to the committee of grievances, who had a right to inquire into the fact. So, if the plaintiff in error had presented a petition to the house of assembly, who have power to inquire, and to impeach, it would have been in the regular and ordinary course of justice. But the Council of appointment have no power analogous to that of a court of justice, or of the assembly. They have power only to appoint certain officers, and to remove such as depend on their pleasure. . . . It is important that they should have correct information; that their minds should remain unprejudiced and unbiased by the representations of interested persons. They cannot call the person accused before them or try him; they cannot examine witnesses, or enter into any legal investigation of the truth of the charges. . . . Then, we say, the inquiry is nugatory, and the Council is not the proper place for the hearing and decision of such complaints.

Thomas Addis Emmet, in reply. . . . In an ordinary case, where there is no duty to be performed, or trust discharged, in bringing a matter into the course of justice, there the uttering of defamatory matter is, prima facie, evidence of malice; but where a party discharges his duty, in bringing a thing in the way of judicial inquiry and redress, there the law does not imply malice, but it must be proved aliunde; I say, in discharge of a duty, whether of perfect or imperfect obligation; as, what may be said by a member of a church, in the course of church discipline. . . . Now, the giving the character of a public officer to the Council of appointment does not go further than the cases which have been stated; and as the plaintiff has only proved the publication, without proceeding to show malice, the action is not maintained.

This case comes within that class of cases which have been mentioned, of memorials or petitions to persons empowered to redress grievances. It is not requisite that the persons addressed should have power to send for witnesses, or to try. . . . Express malice, or want of probable cause must be proved. This is the distinction for which I contend, and on which I rest the cause.

The CHANCELLOR [WALWORTH]. This cause comes up on a writ of error from the Supreme Court. It presents the question, whether a petition to the Council of appointment, containing false allegations, and praying the removal of a public officer, is good cause of action, as for a libel. This question is novel, of much interest and importance, and well merits a fuller consideration than the present occasion affords. . . .

The Council of appointment forms one of the great departments of government, which has duties of a very important nature assigned to it; almost all the officers of government are appointed by, and hold their offices during its pleasure: . . . It is, doubtless, the interest of

the public to have the door of information as widely expanded to a body of this description, as the delicate trust confided to them, and the extent of the objects committed to their management, require... There is one distinction, which, it appears to me, is a solid one, pervading all the cases which have been cited. I shall lay it down as collected from them, to enable the Court to compare them with it and apply it to them, as I proceed in the examination of those cases: it is this, that all of them, the case from 1 Term Rep. 520 excepted, are cases of a prosecution in a course of justice, or a complaint founded on private right or private injury, in which the recovery of the one, or the redress of the other, was the object of pursuit. . . . In the present case, no private right was attempted to be asserted; no redress of private injury sought, to which the summary justice of removal could be applied. It was not calculated to correct a public grievance, unless that grievance existed.

As it was not in the regular course of justice, it was, in my opinion, made at the peril of the petitioners. . . . The Council may inquire, but they possess not the power nor are they constitutionally competent to examine and determine upon an accusation, so as to produce the effect of a trial at common law. Their inquiries and determinations must necessarily be summary and prompt, and unaided by those powers which enable courts of justice to investigate thoroughly, and decide properly, on the subject matter. They cannot compel the attendance of witnesses, and even the officers are not legally compellable to appear before them, though they may be disposed to do so, from considerations of expediency. The legal position deducible from these premises, and from the principles of our government, in my opinion, is that the Council may receive every information relative to the conduct of public officers, necessary to enable it fairly, impartially and discreetly, to exercise the power vested in it; but, to be given at the peril of the informant. . .

For these reasons, I am of opinion, that the judgment of the Supreme Court ought to be affirmed.

CLINTON, Senator. It is to be regretted, that the hasty decisions of the judges at the circuits, formed and pronounced without time for deliberation, and without an opportunity of recurring to authorities, are not, in all cases, subjected to a revision in the Supreme Court, before they are brought to this forum. Instances then would not occur before us, like the present; and we should not be necessitated to review a decision which violates the most sacred and unquestionable rights of free citizens; rights essential to the very existence of a free government; rights necessarily connected with the relations of constituent and representative, the right of petitioning for a redress of grievances, and the right of remonstrating to the competent authority, against the abuse of official functions; and there can be no doubt, but that the candid and learned judge, who presided at the trial of this

cause, would willingly have availed himself of an opportunity to retract a decision, so erroneous in itself, and so pernicious in its consequences..

There is a certain class of cases, wherein no prosecution for a libel will lie, though the matter contained in it is false and scandalous; as in a petition to a committee of parliament; in articles of the peace, exhibited to justices of the peace; a presentment of a grand jury; in a proceeding in a regular course of justice; in assigning, on the books of a quakers' meeting, reasons for expelling a member; in an exposition of the abuses of a public institution, as in the case of the deputy governor of Greenwich hospital, addressed to the competent authority to administer redress. The policy of the law here steps in and controls the individual right of redress. The freedom of inquiry, the right of exposing malversation in public men and public institutions to the proper authority, the importance of punishing offences, and the danger of silencing inquiry and of affording impunity to guilt, have all combined to shut the door against prosecutions for libels, in cases of that, or of an analogous nature. The case before us is an application to the Council of appointment, for the removal of a district attorney, charging him with malversation in office. It is in the nature of a memorial for the redress of grievances, addressed in the proper channel by which such redress might be had.

It is admitted by the counsel for the defendant in error, that if the paper had been addressed to the house of assembly, as a grand inquest, no action could be sustained; and their whole defence rests upon its being sent to an improper or incompetent forum. . . . The competency of the forum cannot be disputed. But it is contended that it is not armed with the necessary powers to inquire into official malversation, by compelling the attendance of witnesses; and that to swear falsely before them would not be punishable as perjury. That our laws have not sufficiently provided in these cases, may be true; but this defect of legal provision does not affect the constitutional powers of the Council. In their investigations of complaints, they must take the best measures in their power to elicit truth and to dispense justice. And although their proceedings may be of a summary nature, and not, in all respects, conformable to the forms of judicial tribunals; yet it is to be remarked, that the power of removal is not with a view to punish the man, but to protect the public against the misconduct of the officer; that it is exercised over the officer, not over the individual; that impeachment is a process of a different nature, difficult in its commencement, slow in its progress, and more extensive in its punishment; that, under the most favorable view of the case, for the defendant in error, we must agree, that our constitution has provided for the removal of a public officer in two ways: by the Council of appointment; and by the Court for the Trial of Impeachments; that the present complaint was addressed to the former forum; and

that unless we deny its power to expel a public officer, holding during pleasure, from office, we must admit, that the grievances complained of by the plaintiff and his coadjutors, were transmitted to the competent and proper authority; and, whether true or false, whether innocent or malicious, the powerful and commanding dictates of public policy must merge and extinguish all individual claims, and all personal considerations.

The majority of the Court being of this opinion; it was, thereupon, ordered, adjudged and decreed, that the judgment given below be reversed. Judgment of reversal.

927. GRAY v. PENTLAND

SUPREME COURT OF PENNSYLVANIA. 1815

2 S. & R. 23

ERROR to the Common Pleas of Allegheny county, in which bills of exception were taken to the charge of the Court, and also to the admission of parol evidence to prove the contents of the writing which was the cause of action. It was a suit for a libel made and published by Gray, the defendant, against Pentland, who was the prothonotary of the Court of Common Pleas of Allegheny county. The defendant made a deposition before a justice of the peace, charging the plaintiff with several offences in the transaction of his official business, and concluding with an allegation that "from frequent intoxication, he was unfit to perform the duties of his office with dignity and propriety." This deposition was sent to the Governor of the Commonwealth. On the trial in the court below, the defendant's counsel requested the court to charge the jury, "that if it was made and sent, for the purpose of an investigation of the plaintiff's official conduct, and his fitness for office, it was not actionable." The Court would not go to the extent required, but gave in the charge, "that if the deposition originated in malice, and was destitute of probable cause, the action was maintainable." To this charge the defendant excepted. . . A verdict was given for the plaintiff for five hundred dollars damages. This case was argued at September Term, 1814.

A. W. Foster, for the plaintiff in error. It is not actionable, to make a deposition for the purpose of investigating the conduct of an officer removable at the pleasure of the Governor. He is the regular authority to hear and decide on the conduct of officers who hold at will; and resembles, in this respect, a court of competent jurisdiction. It has always been considered, that charges made, in the regular course of judicial proceedings, are not actionable. . . .

...

Wilkins, contra. The substance of the Court's opinion was, that where the charge originated in malice, without probable cause, action

lies. The defendant contends, that the motive is not to be inquired into; but we say, that if it originated in malice, it is actionable.

TILGHMAN, C. J. On the trial of this cause, an exception was taken to the charge of the Court, and also to the admission of parol evidence, to prove the contents of the writing which was the cause of action. ... 1. It is a general rule, that all allegations made in the ordinary course of judicial proceedings, are not to be considered as libels. For this there are two reasons. One, that it would be impolitic to discourage the free prosecution of wrongs, public or private; the other, that the proceedings ending in a public trial, the injured party has an opportunity of vindicating his character. . . . The deposition, however, of which the plaintiff complains, was not a judicial proceeding. The Governor might act upon it as he thought good; he might either disregard it altogether, or give it such credit as to remove the plaintiff from office without further inquiry; and even if he determined to investigate the matter, he could hold no court, nor compel witnesses to appear before him; so that the plaintiff would not have that security or protection which is assured to him in judicial proceedings.

I am aware of the danger of discouraging accusations of this kind. If officers misbehave, it is proper that their conduct should be made known to him who has the power of removing them; especially, if the misbehavior be of a kind not cognisable in the courts of justice, as is the case with many breaches of morals and decency. But although officers should be amenable to every species of fair inquiry, I see no policy in placing them in the situation of outlaws, in exposing them naked to the shafts of malice and calumny. In order, then, to protect both the public and the officer, I consider accusations preferred to the Governor, so far of the nature of judicial proceedings, that the accuser is not held to prove the truth of them. Anything which satisfies the jury, that the proceeding did not originate in malice, and without probable cause, is sufficient to excuse him. The law was so laid down by this court in Birch v. M'Millan, where the words for which the plaintiff brought his action, were spoken by the defendant, in the usual course of proceedings, in the religious society of which both were members. I am, therefore, of opinion, that there is no error in the charge of the Court.

2. The second point is on the admission of parol evidence, to prove the contents of the defendant's deposition. . I am of opinion, that the parol evidence ought not to have been admitted. The judgment must, therefore, be reversed, and a venire de novo awarded.

YEATES, J. I have paid every attention in my power to the ingenious remarks made by counsel on both sides, since the former argument; and can see no reason for retracting the opinion which I then formed. . . . Wherever, under the insidious mask of consulting the public welfare, he renders the investigation of the conduct of a public