privileges of Parliament." The principle embodied in the claim thus formally recognized appears very early in the report of the conference of 1667: "No man can make a doubt but whatever is once enacted is lawful; but nothing can come into an act of Parliament but it must first be affirmed or propounded by somebody; so that if the act can wrong nobody, no more can the first propounding; the members must be as free as the Houses. An act of Parliament cannot disturb the State; therefore the debate that tends to it cannot, for it must be propounded and debated before it can be enacted." The immunity was finally embodied in the provision of the Bill of Rights “that the freedom and debates on proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament." 2

In this country freedom of legislative discussion has been quite uniformly protected by constitutional enactments. The usual provision is that for any speech or debate in either House a member shall not be questioned elsewhere; in many constitutions the language is that speech in the Legislature can be the foundation of no prosecution or action, civil or criminal, in any other court or place. The provisions are usually confined to speech and debate, although occasionally the broader term deliberation is used. There is probably no essential difference in the various provisions.

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1143. COFFIN v. COFFIN

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1808.

4 Mass. 1

THIS action was originally commenced at the Court of Common Pleas for the county of Nantucket, to which both the parties belong, October Term, 1805. The declaration is in case for slander. . . . The defendant, by leave, pleaded two several pleas at the court below: 1st. The general issue of not guilty, which was joined by the plaintiff. 2. In bar. . . . Both these issues were found for the plaintiff at the Court of Common Pleas, in Nantucket, and his damages assessed in

1 Lords' Journal, XII, 166.

21 Wm. & M., Sess. 2, c. 2. On this subject in general see also May, Parl. Prac., 96 et seq., and Redlich, Procedure of House of Commons, III, 42 et seq. The provision of the Bill of Rights is obviously declaratory. Fielding v. Thomas (1896), A. C. 600. . .

3 Some of the colonial charters contained such provisions, and the Articles of Confederation, Art. V, par. 5, provided that "freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress." At the present day the only State constitutions which omit specific provision for this immunity are those of California, Florida, Iowa, Mississippi, Nevada, North Carolina and South Carolina.

4 The commonest form is that used in the Federal Constitution: "For any speech or debate in either House they shall not be questioned in any other place." U. S. Const., Art. I, sec. 6. A broader form is used in the Massachusetts Constitution: "The freedom of deliberation, speech, and debate, in either House of the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action, or complaint, in any other court or place whatsoever." Art. I, sec. 21.

the sum of fifteen dollars. From the judgment rendered below on this verdict, both parties appealed to this Court, which is by law holden for the counties of Suffolk and Nantucket, and the same issues came on to be tried before PARKER, J., at the last November term.

From the report of the judge who sat in the trial, it appears that the facts in the case were testified to by Benjamin Russell, a member of the House of Representatives, and were in substance as follows: That in the session of the Legislature, June, 1805, William Coffin, the plaintiff, with whom the witness had some acquaintance, and of whose integrity he had a high opinion, applied to him to move a resolution in the House, authorizing the appointment of an additional notary public for Nantucket. The witness asked and obtained leave to lay on the table a resolution for that purpose. Micajah Coffin, the defendant, rose in his seat, and asked where the member (meaning the witness) obtained his information of the facts upon which the proposed resolution was founded. In reply, the witness observed that his information came "from a respectable gentleman from Nantucket." The resolve passed, and the speaker had taken up some other business, when the defendant crossed the house, and came to the place where the witness was standing. . . . On perceiving the plaintiff sitting without the bar, behind the speaker's chair, the witness pointed to him, and told the defendant that was the gentleman from whom he received the information. The defendant looked towards him, and said, "What, that convict?" The witness was much surprised at the expression, and asked the defendant what he meant: he replied, "Don't thee know the business of the Nantucket bank?" The witness replied, "Yes, but he was honorably acquitted." The defendant then said, "That did not make him the less guilty, thee knows."

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The direction of the judge to the jury was in substance as follows: That the speaking of the words was justifiable under the clause of the Constitution which provides for the freedom of speech, deliberation, and debate, in either House of the Legislature; that this was partly a question of law, and partly of fact; . . . that being, however, called upon, by his official duty, to declare the law to the jury, the judge gave it as his then present opinion that the facts proved were not such as would amount to the justification contended for by the defendant; that in order to exempt a member of the Legislature from the legal scrutiny, which every other, man must submit to, if he traduce the character of another, it should appear that the words charged as defamatory, were spoken in the course of legislative business, under the forms prescribed by the House for the conduct of its members. . . . The jury returned a verdict against the defendant for two thousand five hundred dollars' damages. A motion was made by his counsel for a new trial on the question of law reserved by the judge, and also for the excessiveness of the damages; and the action was continued to this term for a decision upon that motion. .

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Dexter and the Attorney-General, Bidwell, being of counsel for the defendant, and B. Whitman, for the plaintiff.

The Attorney-General. . . . The Constitution declares that "The freedom of deliberation, speech, and debate, in either House of the Legislature, is so essential to the rights of the people, that it cannot be the foundation of any accusation or prosecution, action or complaint, in any other court or place whatsoever." Dec. of Rights, Art. 21. . . . The Constitution having thus vested the house with the freedom of deliberation, speech, and debate, in the most absolute and exclusive terms, and having also given them a discretionary control of the manner in which that freedom shall be exercised, it results that they are the sole judges of the extent of the privilege, and the only tribunal to which the members are responsible for any abuse of it. . . . CHIEF Justice. Is the privilege confined to the immediate presence of the house? Would not the members of a committee sitting in a lobby, and deliberating on a subject committed to them by the house, be as much protected as if they were deliberating in the house? Bidwell. Perhaps they would.

CHIEF JUSTICE. Would you extend the privilege to actions as well as words? Suppose, for instance, one member should assault or beat another in the presence of the house; would he not be answerable in an action, or on an indictment, in a court of law? Bidwell. Unquestionably he would. For it is the freedom of deliberation, speech, and debate, only, and not of assaulting and beating, that is secured by the Constitution. For other personal injuries and abuses, a member may be answerable or indictable; but not for any abuse of the freedom of deliberation, speech, and debate, in the house. . . . We contend that to be entitled to this high immunity and privilege, the member must be within the standing rules and orders of the House. By one of those rules it is provided that "No member shall speak out of his place, nor without first rising and addressing the speaker, and shall sit down as soon as he is done speaking." . . . In the case at bar, had the defendant spoken the defamatory words complained of, or even words more slanderous, if such can be conceived, in regular and orderly debate, the Constitution would have protected him. But the facts were altogether otherwise. The subject was not then under consideration, was not before the house. The defendant was not in his place, did not address the house nor the speaker; . . . being wandering from his place and duty, he forfeited, for the time, his claim of privilege. .

Dexter in reply. . . . In the case before the Court, it appears that a motion had been laid on the table, which had not been finally acted upon. It was at the time, then, a subject of deliberation. Before the defendant could obtain the information he needed or wished for on the subject, another subject came before the house. He then took the orderly and proper course to obtain the information he had a right to obtain. In this state of things, he spoke the words complained of. . . . PARSONS, C. J. . . . In considering this article [of the Constitution],

it appears to me that the privilege secured by it is not so much the privilege of the House, as an organized body, as of each individual member composing it, who is entitled to this privilege, even against the declared will of the House. For he does not hold this privilege at the pleasure of the House, but derives it from the will of the people, expressed in the Constitution. . . . These privileges are thus secured, not with the intention of protecting the members against prosecutions for their own benefit, but to support the rights of the people, by enabling their representatives to execute the functions of their office without fear of prosecutions, civil or criminal. . .

I will not confine it [the privilege] to delivering an opinion, uttering a speech, or haranguing in debate; but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature, and in the execution, of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the House, or irregular and 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 be 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 its 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 committee, either in debating, in assenting to, or in draughting a report. .

To this construction of the article it is objected, that a private citizen may have his character basely defamed, without any pecuniary recompense or satisfaction. The truth of the objection is admitted. But he may have other compensation awarded to him by the House, who have power, as a necessary incident, to demand of any of its members a retraction, or apology, of or for anything he has said, while discharging the duties of his office, either in the house, in committee, or in a convention of the two Houses, on pain of expulsion. But if it is allowed that the remedy is inadequate, then a private benefit must submit to the public good. The injury to the reputation of a private citizen is of less importance to the commonwealth, than the free and unreserved exercise of the duties of a representative, unawed by the fear of legal prosecutions.

2. If this very liberal construction of the twenty-first article be just; if it be warranted by its language; if it be consonant to its manifest intent and design, the question before the Court lies in a narrow compass. Was Coffin, the defendant, in speaking the defamatory words executing the duties of his office? Or, in other language, was he acting as a representative? If he was, he is entitled to the privilege he claims; if he was not, but was acting as a private citizen, as a private citizen he must answer. Upon information given by the plaintiff to Russell, a member, he had moved a resolution providing for the choice of another notary for Nantucket; and on Russell's stating that his information was from a respectable person from that place, the resolution had passed; the House had proceeded to other business; and the subject matter of the resolution, or of the information, was not in fact before the House. ... The defendant was answered; whatever was his motive, he had received the information. If, upon it, he intended again to call up the resolution, he might have done it. But no motion for that purpose was ever made. He then utters to Russell the defamatory words. What part of his legislative duty was he now performing? . . . I cannot, therefore, assign to the defendant any other motive for his indiscreet language, but to correct Russell for giving to the plaintiff the appellation of a respectable gentleman, and to justify the correction by asserting that an honorable acquittal, by the verdict of a jury, is not evidence of innocence. It is not, therefore, possible for me to presume that the defendant, in using thus publicly the defamatory words, even contemplated that he was in the discharge of any official duty. This inquiry by the defendant, and his replies, might have been made, for all the purposes intended by him, in State Street, or in any other place, as well as in the representatives' chamber; and it is not easy for me to conceive that any language or conduct of a representative must be considered as official, merely because he chooses the representatives' chamber for the scene. . . . To consider every malicious slander, uttered by a citizen, who is a representative, as within his privilege, because it was uttered in the walls of the representatives' chamber to another member, but not uttered in executing his official duty, would be to extend the privilege farther than was intended by the people, or than is consistent with sound policy, and would render the representatives', chamber a sanctuary for calumny an effect which never has been, and, I confidently trust, never will be, endured by any House of Representatives of Massachusetts. . . .

I am convinced after much consideration, that the facts presented by the case do not entitle the defendant to the privilege which he claims; and that, for this cause, the verdict ought not to be set aside. . .

In this opinion of the CHIEF JUSTICE, the other Judges, viz., SEDGWICK, SEWALL, THATCHER, and PARKER, severally declared their full and entire concurrence.