statement of the case, that the injury complained of was a punishment inflicted on the plaintiff by the defendant, in November, 1840, near the Sandwich Islands, for disobedience of orders, or a refusal to perform duty when directed. The plaintiff claimed that the term for which he was bound to serve as a marine had then expired; that the defendant had no right or justification to detain him longer on board; and that, his refusal to do duty longer being the only reason, and an insufficient one, for punishing him at all, under such circumstances he was entitled to recover damages of the defendant for subjecting him to receive twelve lashes, and for a repetition of punishment on a subsequent day, after another request and refusal by him to obey; and also, in the meantime, for putting him in irons, and confining him in a native prison on the island of Oahu. The defendant pleaded the general issue. . . . Having ascertained that the defendant had further jurisdiction over the plaintiff [after Nov. 16, 1840], and it being admitted that the latter refused to perform his orders, and, in the language of the fourteenth article, that he disobeyed the lawful orders of his superior officer (Stat. at L., 47), and this on an important subject, and under circumstances likely to extend to many more of the crew, and to end in mutiny or an abandonment of the expedition, if not suppressed with promptitude and decisive energy, the next inquiry is whether the punishment was inflicted within the license of the law.

1. It is not the province of the judiciary to decide on the expediency or humanity of the law, but merely its existence and the conformity or non-conformity to it by the defendant. Where a private in the navy, therefore, is guilty of any "scandalous conduct," the commander is, by the third article of the laws for the government of the navy, authorized to inflict on him twelve lashes, without the formality of a court-martial. 2 Stat. at L. 47. . . . In the discipline of the merchant service, where an act of disobedience is persisted in, and endangers the due subordination of others, the captain is justified, not only in punishing personally, but in resorting to any reasonable measures necessary to produce submission and safety. See Cobley v. Fuller, 2 Woodb. & M., and cases there cited, and 9 Law Rep. 386. . . . [The defendant's punishment of the plaintiff here] appears to have been done under the same aspect of the case, looking to the preservation of sound discipline and the safe imprisonment of the plaintiff till he consented to return to his duties. . . . 2. The only remaining consideration, in order to dispose of all which is left in any of the exceptions, is the competency of the commander to decide on these various questions without being amenable to the plaintiff in an action at law for any mere error of judgment in the exercise of his discretion, which may have been involuntarily committed under the exigencies of the moment. In order to settle this point correctly, it being in itself a very important one, as well as running through several of the exceptions, it will be necessary to advert to the

1 [Point 1 of the opinion is concerned with the principle of No. 738, ante. — ED.]

circumstances that Captain Wilkes was not acting here in a private capacity and for private purposes; but, on the contrary, the responsible duties he was performing were imposed on him by the government as a public officer. . . . A public officer, invested with certain discretionary powers, never has been, and never should be, made answerable for any injury, when acting within the scope of his authority, and not influenced by malice, corruption, or cruelty. (See the cases hereinafter cited.) Nor can a mandamus issue to such an officer, if he is intrusted with discretion over the subject-matter. (Paulding v. Decatur, 14 Pet. 497; Brashear v. Mason, 6 How. 102.) His position, in such case, in many respects, becomes quasi-judicial, and is not ministerial, as in several other cases of liability by mere ministerial officers. 11 Johns. 108; Kendall v. United States, 12 Pet. 516; Decatur v. Paulding, 14 Pet. 516. And it is well settled that “all judicial officers, when acting on subjects within their jurisdiction, are exempted from civil prosecution for their acts." (Evans v. Foster, 2 N. H. 377; 14 Pet. 600, App.)

Especially is it proper, not only that a public officer, situated like the defendant, be invested with a wide discretion, but be upheld in it, when honestly exercising and not transcending it, as to discipline in such remote places, on such a long and dangerous cruise, among such savage islands and oceans, and with the safety of so many lives and the respectability and honor of his country's flag in charge. In such a critical position, his reasons for action, one way or another, are often the fruits of his own observation, and not susceptible of technical proof on his part. No review of his decisions, if within his jurisdiction, is conferred by law on either courts, or juries, or subordinates, and, as this Court held in another case, it sometimes happens that

"a prompt and unhesitating obedience to orders is indispensable to the complete attainment of the object. . . . While subordinate officers or soldiers are pausing to consider whether they ought to obey, or are scrupulously weighing the evidence of the fact upon which the commander-in-chief exercises the right to demand their services, the hostile enterprise may be accomplished without the means of resistance." 12 Wheat. 30.

Hence, while an officer acts within the limits of that discretion, the same law which gives it to him will protect him in the exercise of it.

For acts beyond his jurisdiction, or attended by circumstances of excessive severity, arising from ill-will, a depraved disposition, or vindictive feeling, he can claim no exemption, and should be allowed none under color of his office, however elevated or however humble the victim. (2 Carr. & P. 158, n.; 4 Taunt. 67.) But when not offending under such circumstances, his justification does not rest on the general ground of vindicating a trespass in private life between those not acting officially and not with a discretion. Because then, acts of violence being first proved, the person using them must go forward next, and show the moderation or justification of the blows used. (2 Greenl.

Ev., § 99.) The chief mistake below was in looking only to such cases as a guide. For the justification rests here on a rule of law entirely different, though well settled, and is that the acts of a public officer, on public matters, within his jurisdiction, and where he has a discretion, are to be presumed legal, till shown by others to be unjustifiable. (Gidley v. Palmerston, 7 Moo. 111; Vanderheyden v. Young, 11 Johns. (N. Y.) 150; 6 Har. & J. (Md.) 329; Martin v. Mott, 12 Wheat. 31.) This, too, is not on the principle merely that innocence and doing right are to be presumed till the contrary is shown (1 Greenl., §§ 35-37); but that the officer, being intrusted with a discretion for public purposes, is not to be punished for the exercise of it, unless it is first proved against him, either that he exercised the power confided in cases without his jurisdiction, or in a manner not confided to him, as with malice, cruelty, or wilful oppression, or, in the words of Lord MANSFIELD, in Wall v. McNamara, that he exercised it as "if the heart is wrong" (2 Carr. & P. 158 [ante, No. 1136]). In short, it is not enough to show he committed an error in judgment, but it must have been a malicious and wilful error. Harman v. Teppenden et al., 1 East, 562, 565, n. In this Court, like views were expressed, through Justice STORY, in Martin v. Mott, 12 Wheat. 31.

"Whenever a statute gives a discretionary power to any person, to be exercised by him upon his own opinion of certain facts, it is a sound rule of construction that the statutes constitute him the sole and exclusive judge of the existence of these facts. . . . Every public officer is presumed to act in obedience to his duty, until the contrary is shown."

Under these established principles and precedents, it will be seen that the rulings below must be held erroneous whenever the Court departed from them, and required the defendant (as on several occasions) to go forward and in the first instance to prove details rebutting any error or excess. ... On the contrary, as has been shown, all his acts within the limits of the discretion given to him are to be regarded as prima facie right, till the opposite party disprove this presumption. The judgment below must therefore be reversed, and a venire de novo awarded, and the new trial be governed by the principles here decided.

1139. MITCHELL v. HARMONY

SUPREME COURT OF THE UNITED STATES. 1851

13 How. 115

[Printed ante, as No. 762.]

1140. REVISED LAWS OF MASSACHUSETTS.

(1902. Ch. 211, § 6.) Riot Act. If, by reason of the efforts made by any two or more of said magistrates or officers or by their discretion to disperse such assembly or to seize and secure the persons composing the same who have refused to disperse, though the num

ber remaining may be less than twelve, any such person or any other person then present is killed or wounded, the magistrates and officers, and all persons acting by their order or under their directions, and all persons acting under the provisions of the two preceding sections, shall be held guiltless and fully justified in law.

1141. LAWS OF ILLINOIS. (1909. June 10, p. 437.) Military and Naval Code. Art. XX, § 11. . . . Should any member of the National Guard or Naval Reserve of Illinois, either an enlisted man or commissioned officer, while in the discharge of his duty on active service in pursuance of orders from a superior authority, take life or injure any person or persons or property in such discharge of his duty, the act or acts upon the part of such enlisted man or commissioned officer shall be deemed to be justifiable and lawful, and he shall not be prosecuted therefor in any court or incur any civil liability by reason thereof.

Topic 3. Legislative Officers

1142. VAN VECHTEN VEEDER.

...

Absolute Immunity in Defamation. (Columbia Law Review, 1910, X, 131.) Freedom of speech is inherent in the idea of a deliberative assembly. . . . The essential nature of such immunity is shown by the fact that it has followed parliamentary government in its progress throughout the world. . . . In England this immunity, which was at a very early day based upon the custom of Parliament, has had a long and interesting history.1 It received formal legislative and judicial sanction as early as 1399, with respect to executive, and in 1512 with respect to judicial aggression, and in 1541 it appears among the "ancient and undoubted rights and privileges,” claimed by the Speaker of the House of Commons at the beginning of each Parliament.

2

3

The Tudor and Stuart Kings strove, nevertheless, to limit both freedom of speech and matter of deliberation in Parliament; the Commons had to struggle not merely for latitude of discussion, but for their initiative in legislation. The

1 The need of protection against arbitrary domination is shown by the conduct of Edward I towards Henry Keighley, the spokesman of the Commons in the Parliament of Lincoln; of John of Gaunt towards Peter de la Mare, the prolocutor of the Good Parliament, and of the Yorkish party towards the Lancastrian Speaker, Thomas Thorpe, in 1453. Stubbs, Const. Hist., § 451.

2 This arose out of the condemnation of Sir Thomas Haxey by Richard II in 1397, for the introduction of a bill for the reduction of the charges of the royal household. Rot. Parl., III, 339-341; Taswell-Langmead, Const. Hist., 242– 244. Two years later, in the first year of the reign of Richard's successor, the judgment against Haxey was twice reversed and annulled as being "encontre droit et le curse avoit este devant en Parlement"—in the first instance, upon his own petition by the King and Lords, and, again, on the petition of the ComRot. Parl., III, 430, 434. The immunity was thus acknowledged by the highest authorities of the realm.

mons.

In the case of Richard Strode, who was prosecuted in the Stannary Court, in 1512, for the introduction of certain bills for the regulation of tin mines in Cornwall. Anson, Law of the Const., I, 147; Taswell-Langmead, Const. Hist., 257. This proceeding gave rise to an Act condemning as void, in the case of Strode "and of all members of the present and future Parliament,” legal proceedings "for any bill, speaking, reasoning, or declaring of any matter or matters concerning the Parliament, to be communed or treated of." 4 Hen. VIII, c. 8.

4 May, Parl. Prac. (120).

1

Crown maintained, and the House denied, that the Commons were summoned merely to vote such sums as were asked of them, to formulate or approve legislation submitted to them, or to give opinions on matters of policy in which they were consulted. A standing protest against the Crown's contention survives in the practice, at the beginning of every session, of reading a bill for the first time before the King's speech is considered.1 Throughout this period members whose speech, in matter or in manner, was obnoxious to the Court were summoned before the Council and committed to prison, or forbidden to attend Parliament until further notice. In 1571 Elizabeth forbade the Commons to meddle with any matters of State, except such as were propounded to them. Replying, in 1593, to the Speaker's petition for the usual privileges, she said: "Privilege of speech is granted, but you must know what privilege you have; not to speak every one what he listeth, or what cometh in his brain to utter that: but your privilege is, aye or no.' 112 In indignation at such attempts to gag the House, Wentworth asked in the Parliament of 1587 "whether this council was not a place for any member of the same, freely and without control, by bill or speech, to utter any of the griefs of the Commonwealth." 3

The contest culminated under James I, in the famous Protestation of the Commons, December 18, 1621. To James' assertion, in connection with the imprisonment of Sir Edward Sandys, that he felt himself "very free and able to punish any man's misdemeanors in Parliament, as well during their sitting as after," the Commons replied in a petition claiming freedom of speech as their ancient and undoubted right and inheritance. The King's rejoinder was that these privileges were derived from the grace and permission of his ancestors and himself, since most of them had grown from precedents which showed rather toleration than an inheritance. The Commons thereupon promulgated their Protestation. James dissolved Parliament, tore the Protestation from the journals of the House, and meted out various punishments to the chief offenders.1 The last instance of a direct violation of the privilege was the imprisonment of Sir John Eliot and eight other members in 1629 for seditious speeches in Parliament. Eliot and his associates successfully resisted the jurisdiction of the Star Chamber; but in the Court of King's Bench, to which this case was transferred, judgment was rendered against them, after a ruling by the judges that the Act of 1512 was a private Act referring to Strode's case only. In 1641, however, the long Parliament declared the proceedings in Eliot's case to have been a breach of the privileges of the House, and in 1667 the judgment of the Court of King's Bench was formally reversed by the House of Lords on a writ of error. At the same session the Commons resolved that the statute of 1512 was of general operation, "a declaratory law of the ancient and necessary rights and

1 Anson, Law of the Const., Parl., 151.

Prothero, Stat. and Const. Doc., 119, 125.

* Ibid. 123. In 1571 Strickland, who had introduced a bill for reforming the Book of Common Prayer, was forbidden to attend Parliament. Prothero, 119. Cope was committed to the Tower in 1587 for suggesting ecclesiastical reforms; and Wentworth was imprisoned three times between 1576 and 1593 for persisting in discussing subjects unacceptable to Elizabeth. D'Ewes, 166, 410; Medley, Const. Hist. 270.

• Prothero, 313, 314; Gardiner, Hist. of England, 261.

5 Gardiner, Hist. of England, VII, 90-96, 108-119; Forster, Eliot, II, 459 et seq.; Hallam, Const. Hist., I, 412 et seq.

• Lords' Journal, XII, 223.