4 Mass. 1

March, 1808

Suffolk County

This Court is competent to decide on a plea of privilege pleaded by a member of the House of Representatives, in bar to an action for slander.

The freedom of deliberation, speech, and debate, secured by the declaration of rights to each house of the legislature, is rather the privilege of the individual members, than of the house as an organized body; being derived from the will of the people, the members are entitled to it, even against the will of the house

The article securing this freedom ought to be construed liberally, that its full design may be answered; and it extends to every act resulting from the nature of the member's office, and done in the execution of it, and exempts him from prosecution for every thing said or done by him, as a representative, whether according to the rules of the house or not.

So if he is sitting on a committee in a lobby, or in a convention of the two houses out of the representatives' chamber.

A representative is not answerable in a prosecution for defamation, if the words charged were uttered in the execution of his official duty, although spoken maliciously; nor if not uttered in the execution of his official duty, and not maliciously, or with intent to defame.

When, in an action for a tort, the damages found by the jury are so great, that it may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice, or corruption, the Court may set aside the verdict, and award a new trial.

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, and after the usual allegations respecting

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the plaintiff's good name, fame, and reputation, charges the defendant with speaking and publishing, in the hearing of Benjamin Russell and other good citizens of the commonwealth, of and concerning the plaintiff, the following false, feigned, scandalous, malicious, and opprobrious words, viz.: "That convict," thereby meaning that the plaintiff had been convicted of some felony, or other infamous crime, in some court having competent jurisdiction of such offences; and when the said Russell said to the defendant that he did not comprehend him, the defendant added these words: "Did you never hear of the affair of the Nantucket Bank?" thereby meaning a late robbery and theft committed by some person or persons at the Nantucket Bank; whereupon the said Russell observed to the defendant that the plaintiff had been honorably acquitted by the jury in that affair; to which the defendant replied, "That does not make him the less guilty;" thereby meaning and intending that the said William was guilty of the crimes of theft and robbery, and had stolen the money then lately stolen from the Nantucket Bank. The plaintiff lays his damages at five thousand dollars.

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, that the plaintiff "his action aforesaid thereof against him ought not to have or maintain, because, protesting that he, the said Micajah, did not, in the presence and hearing of divers good citizens of this commonwealth, falsely and maliciously speak and publish the defamatory words mentioned in the plaintiff's declaration, as the plaintiff has therein alleged, the said Micajah for plea says, that by the constitution of this commonwealth, it is declared that the freedom of deliberation, speech, and debate, in either house of the legislature of this commonwealth, cannot be the foundation of any prosecution or action in any other court or place whatsoever; and because the said Micajah and the said Benjamin Russell, at the time the said words are alleged to have been spoken, were members of the House of Representatives, one of the houses of said legislature, and the said supposed words, if spoken, were spoken by the said Micajah to the

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said Russell, in deliberation in said house, while the same was in session, and some of the members were there, and particularly the said Micajah and the said Russell, deliberating concerning the appointment of a notary public; and the said words, if spoken, had relation to the subject in deliberation; wherefore the said Micajah, at the time and place mentioned in the plaintiff's declaration, spoke and uttered the words therein mentioned of and concerning the plaintiff, as he, the said Micajah, lawfully and constitutionally might do, and this he is ready to verify; wherefore the said Micajah prays judgment if the plaintiff his action aforesaid thereof against him ought to have and maintain, and for his costs."

By Isaac Coffin

To this second plea the plaintiff replied, "that notwithstanding any thing in the said plea of the said Micajah alleged, he, the said William, ought not to be barred from having and maintaining his said action against him, the said Micajah, because he says that, at the time and place, when and where the said false, feigned, scandalous, opprobrious, and defamatory words were by the said Micajah spoken and published of and concerning him, the said William, in manner and form as he has alleged in his declaration, the said Micajah, of his own wrong, and without any such cause as is by him in his said plea alleged, spoke and published the said words; and this the said William prays may be inquired of by the country.

By Kilborn Whitman

And the said Micajah doth the like.

By Isaac Coffin.

Both these issues were found for the plaintiff at the Court of Common Pleas, in Nantucket, and his damages assessed in 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,

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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, talking with several gentlemen, in the passage-way, within the walls of the house, and asked the witness who the respectable gentleman was, from whom he had received the information which he had communicated to the house. The witness observed, carelessly, it was perhaps one of his relations, and named Coffin, as very many of the Nantucket people were of that name.

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 [Note p4] 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."

The witness, being asked whether the house were not then proceeding to the choice of a notary public for Nantucket, answered, No; that this conversation took place a little before one o'clock, and that the choice was not until the afternoon session, or the next day: being asked whether the plaintiff was not a candidate for that office, he answered, No, and he afterwards recollected that one Hussey was the candidate.

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No contradictory evidence being offered by the defendant, the principal question made by his counsel was upon the plea of privilege.

The direction of the judge to the jury was in substance as follows, viz.: That the words charged in the declaration being proved by one witness, whose recollection appeared to be very clear on the subject, and no evidence being offered to contradict his testimony, they would probably not hesitate much, as to finding the first issue for the plaintiff.

That as to the matter of defence, which seemed alone relied on, viz., 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, this was partly a question of law, and partly of fact; the whole, however, for the jury to determine, under such advice as should be given by the Court.

That the question of law would be reserved for the consideration of the whole Court, it being a constitutional question, and worthy of deliberate consultation and decision; 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; that it could not be supposed that the framers of the constitution intended to shelter the legislators from punishment, for any violation of the rights of others, further than was necessary for their personal security and independence; and that, in his opinion, the freedom of speech, deliberation, and debate, of the defendant, as a member of the House of Representatives, according to the true sense and meaning of the constitution, was not infringed by the maintenance of this action against him.

The subject of damages, the judge observed, was so entirely and exclusively within the province of the jury, that

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he should say nothing to them upon it, except to caution them, on the one hand, not to give exorbitant damages; and, on the other hand, if they were satisfied from the facts that the plaintiff ought to recover, not to turn him off with such slight damages, as to induce one so situated rather to seek personal revenge, than resort to the laws of his country; that the degree of malice, in an action of this kind, would properly measure the damages; if the jury believed the words to have been spoken in haste, and in the heat of the moment, without a deliberate and malicious intent to injure, they would of course give small damages; on the other hand, if the evidence satisfied them that the words were spoken from malignant motives, the damages would be greater.

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.

And now the Court observed that they would first hear an argument on the question of law, saved at the trial, reserving the question on the subject of damages to be spoken to afterwards, if the defendant should not prevail on the first point; Dexter and the Attorney-General, Bidwell, being of counsel for the defendant, and B. Whitman for the plaintiff.

The Attorney-General apprehended that, although the defendant's plea in bar was not penned with technical precision, the question of privilege was by it sufficiently brought before the Court to admit a discussion of that question upon the present motion.

The motion, then, may be considered as presenting to the Court a constitutional question, important in itself, as indeed any question is which affects the constitution; and of additional importance and peculiar delicacy, inasmuch as it respects the limits of jurisdiction between two independent coordinate departments of our government, the judiciary and one branch of the legislature.

To avoid a conflict of jurisdictions, and to settle the question on its true principle, it is necessary to consider the nature

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of the privilege claimed, and the constitutional ground on which the claim is founded.

Privilege has been said to be an odious plea, in derogation of common right, and therefore not to be favored in law, but to receive a restrictive construction. However just this observation may be when made with reference to private and personal claims of exemption from public duties or services, for the ease or emolument of the individual, it can have no application to such privileges as are conferred by the constitution upon public functionaries for the benefit of the people at large. Of a claim thus founded the principles of our free government require the most favorable allowance. Such is that which is asserted by the defendant in this case. He has not claimed an exemption from responsibility for what he said of the plaintiff; he has only insisted that the House of Representatives, of which he was then a member, and in which he spoke the words in question, and not the judicial courts, had the cognizance of that subject.

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 House of Representatives are also empowered by the constitution "to settle the rules and orders of proceedings in their own house." (Chap. 1, Sect. 3, Art. 10.) They alone can judge of those rules and orders, enforce their observance, and punish a member for any violation of them.

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.

This is not a novel doctrine. It is founded on a principle as old as the history of jurisprudence. The decision of either house of parliament, respecting any subject of parliamentary

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privilege, has for ages been holden to be conclusive upon the courts of law. "When, in 31 Hen. 6, the House of Lords propounded a question to the judges, touching the privileges of parliament, the chief justice, Sir John Fortescue, in the name of his brethren, declared, that "they ought not to make answer to that question; for it hath not been used aforetime that the justices should, in anywise, determine the privileges of the high court of parliament; for it is so high and mighty in its nature that it may make law, and that which is law it may make no law, and the determination and knowledge of that privilege belongs to the lords of parliament, and not to the justices." [Note 1]

Mr. De Lolme, whose doctrine, and even language, the framers of our constitution have adopted and copied, and whose treatise was written since the privileges of parliament were in some measure defined by the bill of rights, says, "These two houses enjoy the most complete freedom in their debates, whether the subject be grievances, or regulations concerning government matters of any kind; no restriction whatever is laid upon them; they may start any subject they please.-- And in short, what makes the freedom of deliberating, exercised by the two houses, really to be unlimited, unbounded, is the privilege, or sovereignty, we may say, enjoyed by each within its own walls, in consequence of which nothing done or said in parliament is to be questioned in any place out of parliament."

Sir William Blackstone, in his Commentaries, quotes the declaration of the chief justice Fortescue and his brethren with approbation, and gives it the sanction of his own authority, as established law in his day. The doctrine is well settled and understood. A declaration of privilege by either house of parliament is always respected by the judicial courts, as evidence of the privilege declared. And it is believed that this honorable Court will receive, with equal respect, a declaratory resolve of our own House of Representatives, relative to their privilege of free deliberation, speech, and debate.

Whitman requested the Attorney-General to state to the Court the purpose for which he introduced the resolution.

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Bidwell said he offered it for two purposes; 1st. To show the claim of the house, and of the defendant as a member of that house. 2d. As an authority decisive of the principle on which the question before the Court ought to be decided.

Whitman objected to the reading of the resolve, and observed that it was merely a declaration of the house made in their own favor, and that upon the application of this defendant since the trial of the cause.

Bidwell, in answer to the objection, said that the resolve was a general one, not predicated upon, nor alluding to this particular case, but adapted to all cases coming within its general principle. As it respects a general principle, it can be of no importance, at what time, or upon what occasion, it was adopted. It is sufficient that the house have made a decision on a subject within their jurisdiction. Such a decision is entitled to respect, as an authority, according to the rule quoted from Blackstone, and agreeably to the nature of our balanced government.

Whitman hoped the practice or the claims of the British parliament would not be considered as authorities here. We have a constitution of our own, which establishes this Court, and not the House of Representatives, as the supreme tribunal, to determine the true meaning of each part of the constitution, as well as of the laws.

The Chief Justice asked the Attorney-General whether he contended that a declaration of privilege by one branch of the legislature was an authority to the same extent, as a similar declaration by either house of parliament.

Bidwell said he did not contend that it was so as to privileges generally, but only as to those privileges which are granted by the constitution to the two houses, such as freedom of deliberation, speech, and debate. Upon the subject of privileges, which the constitution has vested in either house, that house is the supreme court, whose decision, as to the nature and extent of the privileges, is final and conclusive. It cannot be reversed for error by any other court. No other tribunal can, without usurpation, undertake to consider whether it is erroneous or not. This is the true theory of our government;

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and on this ground the declaratory resolve of the house on the subject of the privilege in question is offered.

The Court admitted the resolution to be read, reserving for further consideration the effect of it. And it was read by Bidwell as follows:--


In the House of Representatives, March 1st, 1808.

'The House of Representatives, impressed with their duty to protect the rights of their citizens, and the principles of the constitution, under the safeguard of which they assemble and deliberate for the public good, and to guard, at all times, their own privileges against the undue interference of any other department of the government, do, therefore, Resolve, and Declare, that words spoken by any member, within the walls of this house, relative to a subject under their consideration, either in their separate capacity, or in a convention of both branches of the legislature, (whether the member speaking such words addresses himself, in debate, to the chair, or deliberates and advises with another member, respecting such subject,) are alone and exclusively cognizable by this house; and that for any other tribunal or department of government to interfere with its authority, and take cognizance of words thus spoken, is a breach of the rights and privileges of this house, and a flagrant violation of that important article of the constitution, which expressly provides for 'the freedom of deliberation, speech, and debate, in each house of the legislature.")

The Attorney-General proceeded. It is here decided and declared that words spoken by a member of the house, within its walls, although not addressed to the chair in formal debate, but communicated in conversation with another member, are within the constitutional privilege. The reason of this decision is obvious. The house being exclusively responsible for the manner in which the freedom of deliberation, speech, and debate, is exercised by its members, no other court has authority to decide whether the member uttering the words is in order or not; or what consequences he is to suffer, if out of order. Those are questions cognizable by the house alone. No other tribunal has a right to consider

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whether he uttered them standing or sitting, with his hat on or uncovered, in his proper seat or in some other part of the house, in a public address to the speaker or in private deliberation with another member, after the subject had been moved or before any motion was made respecting it, within the rules of decorum or in transgression of them. If they were spoken by a member in the presence of the house, during its sitting, in any manner suffered or not prevented by the house, they are within the constitutional freedom of deliberation, speech, and debate, in the house; and however improper they may be thought, they cannot be drawn into question "in any other court or place what soever."

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. That, however, is a point which it may not be necessary to determine in deciding the question before the Court. It is not the object of the defendant's counsel, in this argument, to ascertain with precision the utmost limits to which the privilege may be extended, but to show that it embraces every word spoken by a member of the house, while in actual session, however disorderly or improper; because for any disorder or impropriety the member is amenable to the house, which has the power to punish him for abusing his privilege, and to do justice to any person, who is the object of that abuse; not, indeed, in the form of damages, as in a court of law, but in one adapted to its own forms of proceeding, and not less satisfactory to an honorable mind.

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

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answerable or indictable; but not for any abuse of the freedom of deliberation, speech, and debate, in the house.

This principle is recognized in the case of Lord Abingdon, [Note 2] who was prosecuted in the Court of King's Bench, for a libel. From the report of the case it appears "that Lord A., having, in the House of Lords, given notice of his intention to bring in a bill, the next session of parliament, to regulate the practice of attorneys, had, in the course of his speech, mentioned his having employed Mr. Sermon, of Gray's Inn, as his attorney, and after much invective, charged him with improper conduct in his profession, with pettifogging practices, and other matters highly injurious to his character. This speech his lordship read, in the House of Lords, from a printed paper, which paper he had, at his own expense, sent and had printed in several of the newspapers. Lord Kenyon, in summing up the cause to the jury, said that, as to the words in question, had they been spoken in the House of Lords, and confined to its walls, that court [the King's Bench] would have no jurisdiction to call his lordship before them, to answer for them as an offence." And yet, had Lord Kenyon been presiding in the House of Lords, he would doubtless have pronounced the same words to have been disorderly and abusive, being uttered on a subject respecting which there was no motion before the house, and being also of a personal and slanderous nature. Lord Abingdon was responsible to the House of Lords, of which he was a member, for an abuse of his privilege; but he was not answerable in a judicial court for speaking the offensive words, although he afterwards rendered himself liable by publishing his speech in the newspapers.

That case is precisely in point. The words charged upon the present defendant were spoken in the presence of the House of Representatives, which was then actually sitting, and of which he was a member. They were, in the language of Lord Kenyon, confined to the walls of the house; and if it were competent for this Court to make the inquiry, it would appear that they were, at least, as fairly within the rules of order, as the words of Lord Abingdon. Until, therefore, the

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defendant, in imitation of his lordship, shall publish in the newspapers what he said of the plaintiff, it is believed that this Court has no more jurisdiction of the subject, than the King's Bench had in that case.

Whitman agreed with the defendant's counsel that the question before the Court was a great constitutional one, involving the construction of the twenty-first article in the declaration of rights. That declaration consists of certain political maxims or axioms, deliberately settled and established by the people of the state in the formation of their government, which were intended to operate as controlling rules over the exercise of any power delegated, by the constitution, or by laws made pursuant to it, to any public functionaries or officers of government. And these axioms are all to be construed together, not to be taken abstractedly, and pursued or considered separately.

In construing this, and indeed any other part of the constitution, little aid can be derived from precedents found in the proceedings of the British parliament, or of the judicial courts in any other country. No other country furnishes an example of a nation peaceably and deliberately settling the principles of their government, and distributing and limiting the duties, powers, and privileges, of those who should be designated to fill the various departments and offices which were to exist under it. The British government, indeed, in its practice, has considerable resemblance to those of our country; but it can furnish us with no decisions applicable to the present question, as there is not, nor ever was, any written constitution in that country, controlling, in any degree, what has been called the omnipotence of the three estates of parliament. As to what is commonly, but, to say the least, very inaccurately, called the constitution of England, it is nothing more than certain rights and privileges, which the two houses of parliament have wrested from the power of the crown in revolutionary days; but especially those which the commons have, in their struggles with the monarchical and aristocratical branches of the government, been able to obtain, as concessions or grants, rather than as original rights, or principles and axioms of an original compact.

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We contend that, under our own constitution, the judiciary power is an original, coordinate, and independent branch of the government. It is through the medium of this branch that the citizen expects to find a certain remedy, by having recourse to the laws, for all injuries or wrongs which he may receive in his person, property, or character. [Note 3]

It is a necessary principle, in every government of laws and not of men, that the supreme judiciary has the power of judging and finally determining on the extent and limits of jurisdiction belonging of right to every inferior judiciary tribunal, and also to every public functionary and officer, and every other military, civil, and judicial tribunal within the same government.

The plaintiff in this case having instituted a legal and proper suit for an injury alleged to have been received from the defendant, and the defendant having pleaded certain facts, which, he says, take away the jurisdiction of this Court, it is of necessity that the Court adjudge the point thus brought before them: in other words, they must try and determine whether the House of Representatives have, or have not, the exclusive jurisdiction of the ground of this action; unless, indeed, it shall be said that the mere allegation of a party, or, at most, the claim of the House of Representatives, is to deprive the plaintiff of his common law remedy, and to oust this Court of its jurisdiction. If the Court find the cause of action to belong exclusively to the House of Representatives, they will immediately stop their hands, they will proceed no further; but if they are satisfied that their jurisdiction is not taken away in the present case by the constitution, they will not deny the plaintiff the remedy he has sought in a regular, legal, and orderly manner.

If the House of Representatives can, by their own act, determine, ultimately and exclusively, the extent of their own powers and jurisdiction, and if they have a right to say, in any instance, that this Court cannot interfere with its jurisdiction, to redress a private wrong or a public mischief, it will follow that, whenever the House of Representatives chooses, by its interference, to take away the subject's remedy, the people must submit to the oppression, or resort to arms in order to

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dissolve the government and produce a revolution. For the House of Representatives cannot be impeached, nor removed in any constitutional and orderly manner.

On the other hand, if, as we contend, this Court have authority to interfere in every case of private injury or public wrong, which may be regularly brought before them, and to decide the limits of jurisdiction and privilege of all other tribunals, the people have a certain remedy for any unconstitutional, oppressive, or imbecile exercise of the powers of this Court, viz., by impeachment or address, to procure the removal of any or all the justices, whose conduct may call for the application of those high constitutional remedies; and this without dissolving the social compact, or causing any violent shock in the government.

Presuming, then, that this Court will find itself competent to decide the question of jurisdiction, we shall contend that, in the present case, the House of Representatives have not constitutionally any jurisdiction of the facts which are the foundation of the present action.

The provisions of the constitution ought to receive a legal and technical construction, if consistent with the apparent intention of the framers of the instrument, so as, if possible, to prevent the mischief intended to be guarded against, or to obtain the good intended to be produced; in other words, to effectuate the intentions of the people in that fundamental act. Thus it is apparent that, by the twenty-first article in the declaration of rights, nothing more was intended, than to secure to the individual members of the two houses the independent exercise of their offices, the privilege of doing whatever was proper and necessary for them to do as legislators. The words "either house of the legislature" cannot intend the walls or building which cover and surround the members. They plainly intend the aggregate assembly of members, organized, and in the exercise of the functions allotted to them. In the standing rules and orders of the House of Representatives, there are more than fifty instances, in which the word house has the signification here contended for. And so long as a member is occupied as such, is actually in the exercise of his functions as a member, so long, and no longer, is he entitled to the privileges contained in that

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article; so long, and no longer, is he to be considered, for the purposes of that article, a member of the house.

Further, 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."

The deliberation, speech, and debate, to which the constitution has annexed this great immunity, must intend the public discussion of some subject under consideration, such speech and debate as is permitted by the rules and orders of proceeding, which the house has established to restrain and control its members.

In a "Manual of Parliamentary Practice for the Use of the Senate of the United States," composed by the present president of the United States, a construction is given to a like provision in the constitution of the United States, which confirms the interpretation we contend for in the present case. The provision is in these words: "For any speech or debate in either house they shall not be questioned in any other place." The commentary by Mr. Jefferson is, "But this is restrained to things done in the house in a parliamentary course. [Note 4] For he is not to have privilege contra morem parliamentarium to exceed the bounds and limits of his place and duty." [Note 5]

In the case of The King vs. Lord Abingdon, the court expressly define the limits of the privileges of the lords. Lord Kenyon says, had the words been spoken in the House of Lords, (meaning, no doubt, in public, open, and orderly debate,) the Court of King's Bench would have had no jurisdiction; but here the privilege stopped, and when the member caused his speech to be printed and published, he ceased to be protected.

So, in the case at bar, had the defendant spoken the defamatory words complained of, or even words more slanderous, if

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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. On the contrary, he was at that moment breaking the orders of that body, from whom he now asks protection; he was bound to attend to the subject then before the house, and being wandering from his place and duty, forfeited, for the time, his claim of privilege.

Suppose that the plaintiff, instead of coming here to obtain satisfaction for the injury he has sustained, had applied by petition to the House of Representatives, stating the facts, and praying their animadversion upon the defendant. Waiving, for the present, the futility of any remedy in the power of the house to furnish, they would have answered him, and properly too, "This was a private conversation between two members of our body, relating to a subject not in debate at the time: we have no authority in the case. The courts of law are open to you; there you are at liberty to seek your remedy, and there you will undoubtedly find it."

Dexter, in reply, observed that, in the discussion of this question, very little aid could be derived from books of reports, as no adjudged cases were to be found on the point in question, and that this fact was a strong proof that courts of common law, in England, would not hold cognizance of facts arising in parliament; otherwise we should find cases reported, as the passions excited in debate would compel parties to institute suits at law. For English authorities, then, we can resort only to elementary books and proceedings in parliament.

In our own country, however, we have a higher, and a more definite and explicit authority to recur to, - an authority paramount to judicial decisions, and even to the most solemn acts of the legislature, viz., the constitution or frame of government, which was established by the people, as a restraint upon and an authoritative guide to, every department and officer of the government. It is by this written constitution that the question now before the Court must be decided.

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It is a question of no less delicacy than importance, and, if not prudently discussed and gravely adjudged, may produce an unfortunate collision between two coordinate branches of the government, each claiming to derive its rights, powers, and privileges, from the same original source.

Such a collision it is in every view desirable to avoid, as there is to superior tribunal having power to determine on the respective claims of the parties to the contest. And it will be avoided in this case by a decision of this Court, that it is not competent to decide a question on the extent of privilege of a member of the House of Representatives.

Unless the House of Representatives have the exclusive power to decide, in every case, whether they have jurisdiction, there is an end to their independence. If this Court can take cognizance of a fact, of which the house claim the exclusive cognizance, the decisions of the two tribunals, each claiming to be supreme, and having no common arbiter, may be contradictory. The mischiefs flowing from such a state of things are as discernible as they are great.

It is not a new position that the two houses of the legislature have respectively the right to define their own jurisdiction; nor can inconvenience arise from it, more than from the authority claimed by the judicial courts to determine exclusively the limits of their jurisdiction, and to decide, in every instance, what is a contempt, and to punish it at discretion. Such an authority is thought necessary to the independent exercise of their general jurisdiction; and it is difficult to conceive a reason applying on this point to the courts of common law, which does not apply with equal strength to the House of Representatives.

Neither is there any inconvenience or mischief to be apprehended from ascribing to the house the jurisdiction claimed for them by the defendant in this suit, but what arises from supposing an abuse of their power.

But it is to be presumed that the decision of the house, in every case, will be what it ought to be. It is true they cannot award satisfaction, for a wrong done by a member to another member or to a stranger, in dollars and cents. But is this the only recompense an honorable man will be satisfied

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with, when his character has been traduced? To such a man, would not a public apology and recantation be a higher satisfaction? Would not the expulsion of the offender from that situation in which he had committed the offence, be as severe a punishment, and as satisfactory an atonement, to a man of correct and liberal mind, as a pecuniary mulct? To say this would not be done in the present, or in any supposable case, is presuming very improperly.

But if individuals may, in some solitary instances, fail of obtaining a satisfaction for an injury of the sort alluded to, yet the public interest must be preferred to the claims of individual resentment, and even of individual justice, when they are incompatible with each other. The public interest demands the perfect freedom of every member of the legislature, while exercising his functions. The privilege of a member is the privilege of the house.

The very frame and nature of our government contemplates checks and balances in the different departments. If one scale preponderates, the balance is destroyed, and confusion must ensue. It is absolutely necessary to the peaceful and regular administration of the legislative, executive, and judicial departments, that they be respectively independent of each other. When in any case this Court shall have solemnly decided that they have jurisdiction, it is not in the power of the House of Representatives to say they have not, except by impeachment of the individual judges; yet the judgment would still remain in force.

By the decision of this Court, the question would be put at rest forever. If this is true, it is equally true that when the House of Representatives, in exercising its constitutional jurisdiction, have made a decision in any case or upon any point, that question is also put at rest between the parties, and such decision cannot be revised or impeached by this or any other tribunal. It will not be denied that the House of Representatives have constitutionally a judicial authority in certain cases, limited, indeed, as it respects the objects of it, but within those limits final and supreme. But this is destroyed, if another tribunal has authority to say that the house has it not in any particular case, wherein it claims it.

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A question of jurisdiction, like every other question, must be capable of receiving a final decision by some competent tribunal; and that Court which is lawfully authorized to determine finally on the general subject matter, must be competent to ascertain finally the limits of its jurisdiction; otherwise contention must be eternal.

But if it were competent to this Court to determine a question on the extent of jurisdiction of the House of Representatives, we contend that the decision in this case, from the facts as they appear before the Court, must be that the House of Representatives have exclusive cognizance of the cause of action set forth.

The declaratory resolution of the house, which was read in the opening of the argument, is not a new law; it is rather a judicial explanation of the law as it stood; a practical exercise of their right to construe the constitution, so far as it relates to their own privileges. And it contains no extended or extravagant claim of jurisdiction; nothing more than is necessary to secure that freedom of deliberation, speech, and debate, assured to them by the constitution.

They claim the exclusive cognizance of words spoken by a member within the walls of the house, relative to a subject matter under consideration, either of the representatives alone, or of the two houses in convention; whether the member speaking the words addresses the chair, or deliberates with another member on such subject.

Now, by "a subject matter under consideration" must be understood, not merely a subject at the very instant under debate; but the phrase must include one which has been before the house, and is not yet finally determined; and whether any other matter is before the house at the moment, cannot, in the nature and reason of the thing, make a difference. It is necessary to deliberate in various ways and forms. Subjects, for instance, are commonly referred to committees in their various stages. It is the duty of such committees to deliberate, and they must be protected in their deliberations, or the end of their appointment will be frustrated.

Whenever a measure is proposed to the house, it is the right, and it is the duty, of every member, to communicate

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to his brethren the information he possesses, and to obtain such as he may need.

Further, the members have a right to deliberate and confer with each other on a measure not yet publicly moved, and they must be protected and privileged in the exercise of such right. Suppose, for example, a member contemplated an impeachment of a certain public officer; it would be his duty to confer with his brethren, and their duty to confer with him, on the propriety and expediency of the proposed measure; to scrutinize the character and conduct of the officer. And shall it be said that for the exercise of this duty a member is amenable in this Court in an action for slander? Is not a principal benefit and effect of the provision of the constitution annihilated by such a construction of it?

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. The question is not, what were the defendant's motives for speaking the words; what was his offence; whether the words were true or false, malicious or not; but whether he is liable to any other jurisdiction for that offence, be it what it may, than the House of Representatives, in whose presence they were spoken; whether he is amenable in this Court, in this action, for these words thus spoken.

The defendant had a right to take every lawful measure in his power to prevent what he might think an unnecessary or improper act. He might have persuaded Mr. Russell to move for a reconsideration of the resolve that had just passed. It is presumable that he spoke the words with that view. If he had succeeded in the intention, - if he had, by this means, procured a decision of the house conformed to his wishes, - it would not be denied that the words were spoken relatively to a subject matter under consideration. But surely his failure of success cannot render him more liable to the plaintiff's action, than he would otherwise have been. It is

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possible, also, that he might suppose that the plaintiff was a candidate for the proposed appointment.

The rules of the house were cited by the plaintiff to show that the defendant was not protected by them. But for this Court to look into those rules, in order to determine whether the defendant is or is not protected by them, would be to decide the very question of jurisdiction about which the parties are now contending. Those rules are adopted by the house for the preservation of decorum among the members, and for the orderly conducting of the business of the house. The very question, whether a member has or has not transgressed those rules, is proper to the House of Representatives. They have prescribed the rules; they have affixed the penalty to the breach of them, and they claim the sole and exclusive right of applying the penalty in every case of a breach. Thus, by article xvi. of the section relating to the duties, rights, and decorum, of the members, "When any member shall be guilty of the breach of either of the rules and orders of the house, and the house has determined he has so transgressed, he shall not be allowed to speak or vote until he has made satisfaction, unless by way of excuse for the same."

In fact, these rules (and the same remark is a sufficient answer to the citations from Jefferson's Manual, and to the authorities cited) are intended as principles of conduct for the government of the members, and by which the speaker or presiding officer is to regulate their conduct. They can be no rule in a court of law. They are made for the regulation of a tribunal competent to execute them, and will probably govern there; but they are no authority to show whether one tribunal or another has jurisdiction in any supposed case. The house is the proper tribunal to explain and enforce their rules, and the house has decided that they alone have jurisdiction of such facts as appear in the present case.

The fifth article of those from which the citation was just now made, is this: "No member shall speak more than twice to one question, without first obtaining leave of the house." Put the case that, in violation of this rule, a member speaks a third time, without first obtaining permission, and in that third speech, not being called to order, he uses words respecting

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a citizen, which, in any other place, would be clearly actionable; will this Court say that he was out of order, and therefore amenable here, but that, if he had spoken the same words in the second address he made to the house, no action would have lain against him in this Court? They must say so, if, by being guilty of a breach of the rules established by the house entirely for the orderly conduct of business, a member loses the protection and privilege which the constitution has provided for him.

The passage cited from Blackstone, in the opening, states the law to have been, from early antiquity, what it continued to be at the time of his writing, respecting the privileges of parliament. There is no case in the books, in which judicial courts have rendered judgment against a member for an act done in either house of parliament.

The case cited from Espinasse recognizes the principle that the Court of King's Bench had no cognizance of words spoken in the House of Lords. Those words were highly indecent and calumnious; and there was nothing then before the house to which they had relation. Lord Abingdon merely signified his intention to make a certain motion at the next session of parliament, and then went into a scandalous aspersion of the character of a private citizen. Yet the court say they have no jurisdiction of slander thus wantonly and impertinently uttered. It is true, when the member came out of the place of his privilege, and, by a new and voluntary act, published the same slander, he became amenable to the justice of his country in her courts of common law. So long as the facts, whatever they might be, were confined to the parliament house, the Court of King's Bench would not inquire whether they were in the rules and orders of the house or not.

The Court took time to consider the motion, and at an after day in the term, the following opinion was delivered, by

PARSONS, C. J. The plaintiff has commenced an action of the case, demanding damages of the defendant for an injury to his character, committed by the defendant, in maliciously uttering and publishing defamatory words, which imported that the plaintiff had committed felony by robbing the Nantucket Bank.

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To this demand the defendant pleaded not guilty, and also, by leave of the Court, a special plea in bar, justifying the speaking of the words, because, as he alleged, at the time when they were spoken, he and Benjamin Russell were members of the House of Representatives, then in session, and that he spoke the words to Russell, in deliberation in the house, concerning the appointment of a notary public, and that the words had relation to the subject of their deliberation.

The plaintiff, in his replication, denies these allegations, and avers that the words were spoken by the defendant of his own wrong, and without such cause as he had alleged, and tenders an issue to the country. The defendant does not demur to the replication, but joins the issue thus tendered.

Both the issues came on to trial, and it appeared from the evidence, that when the words were spoken, the defendant and Russell were members of the House of Representatives, then in session. The occasion, manner, and circumstances, of speaking them are thus related by Russell, the witness. He, having some acquaintance with the plaintiff, and thinking highly of his integrity, was applied to by him to move a resolution for the appointment of an additional notary for Nantucket, the town represented by the defendant. Russell made the motion, and had leave to lay the resolution on the table The defendant, in his place, inquired where Russell had the information of the facts on which the resolution was moved. The witness answered, from a respectable gentleman from Nantucket. The resolution then passed, and the speaker took up some other business. Russell then left his place, and was standing in the passage-way, within the room, conversing with several gentlemen. The defendant, leaving his place, came over to Russell, and asked him who was the respectable gentleman, from whom he had received the information he had communicated to the house. Russell answered carelessly, he was perhaps one of his relations, and named Coffin, as most of the Nantucket people were of that name. The witness, then, perceiving the plaintiff sitting behind the bar, pointed to him, and informed the defendant he was the man. The defendant looked towards him, and said, "What, that convict?" Russell, surprised at the question, asked the

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defendant what he meant; he replied, "Don't thee know the business of Nantucket Bank?" Witness said, "Yes, but he was honorably acquitted." The defendant then said, "That did not make him less guilty, thee knows." It further appears that this conversation passed a little before one o'clock, that the election of notaries was not then before the house, but was made that afternoon, or the next day, and that the plaintiff was not a candidate for that office. And there is no evidence that the resolution laid on the table by Russell, and passed, or the subject matter of it, was ever after called up in the house.

It does not appear from the report that it was contended by the defendant, that the words testified to did not import the slander charged in the plaintiff's declaration, nor is the verdict objected to on that ground: the judge therefore directed the jury, that if they believed the testimony, the plaintiff had maintained the first issue. But the defendant insisted that the evidence supported the justification contained in the bar, and that by law the second issue ought to be found for him.

The question of law, therefore, arises on the second issue. Both parties had submitted the trial of this issue to a jury. The issue involved both law and fact, and the jury must decide the law and the fact. To enable them to settle the fact, they were to weigh the testimony: that they might truly decide the law, they were entitled to the assistance of the judge. If the judge had declined his aid in a matter of law, yet the jury must have formed their conclusion of law as correctly as they were able. But the judge was officially obliged to declare to the jury his opinion of the law. If this be denied, as a matter not within the jurisdiction of the Court, it must also be denied that the jury were legally authorized to decide on the law; the consequence of which would be, that, when any defendant representative should plead his privilege in bar, whether the plea be true or false cannot be inquired into, because every such plea must involve both law and fact; and the judge must send the parties out of Court.

If the judge was officially obliged to declare the law to the jury, he must necessarily take notice of the law, on which the defendant relied, and give it, according to his judgment,

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a sound construction, applicable to the issue on trial. The law relied on is the twenty-first article of the declaration of rights.

This article he was obliged to notice and explain, according to what he judged to be its true intent and effect. If there had been any explanation of this article, by the act of any legislature, or by the judgment of any court, constitutionally obligatory on courts of law, such explanation is law, and ought to have governed the judge in his construction of the article. It is not pretended that at the time of the trial any such act or judgment existed. The only aid which the judge could receive, must have been derived from other parts of the constitution, and from the principles of the common law, by which sound rules of construction are established.

The judge accordingly gave to the jury his construction of the article, and declared to them his opinion, that the facts did not in law maintain the issue for the defendant; and the jury found a verdict for the plaintiff.

To this opinion of the judge the defendant excepted, and moves for a new trial; and on the correctness of it are we now to decide.

As the jury found a verdict agreeably to the judge's direction, it is to be presumed that they were influenced by it; and if the direction was wrong, the cause ought to be again tried by another jury, uninfluenced by an erroneous opinion of the judge in a matter of law.

The twenty-first article of the declaration of rights 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." On this article the defendant relies for his justification. And if it were competent to the judge, on the trial, to declare his opinion of the true intent and meaning of it, it must be competent for this Court to decide whether his opinion was or was not legal; or the defendant can have no relief by his motion; unless the Court are to decide, without inquiry or authority, that the opinion was against law. But I know of no action within the jurisdiction of a court, and regularly before it, in which it will not be the duty of the judges to decide all matters of law arising in it,

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so far as the court is competent to decide on them, according to their own apprehension of the law. Otherwise they will have no jurisdiction of legal questions; or they must act as ministerial agents, deciding according to the will of others.

In considering this article, 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, which is paramount to the will of either or both branches of the legislature. In this respect, the privilege here secured resembles other privileges attached to each member by another part of the constitution, by which he is exempted from arrests on mesne (or original) process, during his going to, returning from, or attending, the General Court. Of these privileges, thus secured to each member, he cannot be deprived, by a resolve of the house or by an act of the legislature.

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 therefore think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it 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 every thing 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.

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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. Neither can I deny the member his privilege, when executing the duties of his office, in a convention of both houses, although the convention should be holden in the senate chamber.

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 any thing 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 common wealth, than the free and unreserved exercise of the duties of a representative, unawed by the fear of legal prosecutions.

A more extensive construction of the privileges 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 privileges above his fellow-citizens; nor are the rights of the people affected if he is placed on the same ground, on which his constituents

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stand. He is secured the liberty of travelling to the house, of attending his duties there, of exercising the functions of his office as a member, and of returning home. But so careful were the people in providing that the privileges, which they, for their own benefit, had secured to their representatives, should not unreasonably prejudice the rights of private citizens, that a member may be arrested upon execution in a civil suit, in cases where he could not be lawfully arrested on original or mesne process. And that offences against law may be duly and seasonably punished, this privilege is not extended to arrests on criminal prosecutions, in any case where by law the member may be prosecuted as a criminal.

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, although it is certain that any member might have moved to rescind the resolution. Russell, his brother member, was in the passage-way, conversing with several gentlemen: the defendant came to him, and inquired the name of Russell's informant, who, he had declared, was a respectable gentleman from Nantucket. Was this inquiry, thus made, the act of a representative, discharging his duty, or of a private citizen, to gratify his curiosity? It was the former, say the defendant's counsel. Whether it was or not, certainly it was innocent. But to pursue the evidence: the defendant was answered: whatever was his motive, he had received the information.

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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? It is said that he might apprehend that the plaintiff was a candidate for the office of notary, and that his motive might be to dissuade Russell from giving him his vote. But there is no evidence that the defendant supposed the plaintiff to be a candidate, and it is in evidence that the plaintiff was not a candidate. It is also apparent that the defendant believed that Russell was not ignorant of the indictment against the plaintiff, and of his acquittal. 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.

But it has been urged that the privilege must extend to a representative giving information to a brother member, on any subject before the house; or which may be expected to come before the house; for the information may be necessary to enable the member informed to discharge his official duty with ability and propriety. Without remarking the essential distinction between a man's seeking information on subjects relating to his office, and his actual execution of its functions, and without observing the extreme difficulty of supposing that defamatory words, maliciously uttered, can ever be considered as useful information, I do clearly admit that a representative will certainly be entitled to his privilege in all cases, where he shall give information in the discharge

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of his official duty; although the manner may be irregular, and against the rules of the house. But when a representative pleads his privilege, to entitle himself to it, it must appear that some language or conduct of his, in the character of a representative, is the foundation of the prosecution, for in no other character can he claim the privilege.

But in actions for defamatory words against a member, he may, in cases to which his privilege does not extend, defend himself like any other citizen, by proving that the words were spoken for a justifiable purpose, not maliciously, nor with a design to defame the character of any man. And this defence will avail every man charged with slander, although it may be that the words uttered are not true. I do not, therefore, consider any citizen, who is a representative, answerable in a prosecution for defamation, where the words charged were uttered in the execution of his official duty, although they were spoken maliciously; or where they were not uttered in the execution of his official duty, if they were not spoken maliciously, with an intent to defame the character of any person. And I do consider a representative holden to answer for defamatory words, spoken maliciously, and not in discharging the functions of his office. But 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.

It has been said that, although the judge at the trial had no other information of the nature and extent of the defendant's privileges but what he derived from the constitution, yet that, since the trial on the first of March instant, the house passed a resolution declaratory of the privileges of its members, to which declaration we are obliged to conform in our judgments; because the house is to judge exclusively of its own privileges.

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That the house is to judge exclusively of its privileges, for certain intents and purposes, is very certain; but if it is to exclude courts of law from judging of the privileges of its members in every case, the consequences would be unfortunate to the members. If a member, in any action, pleads his privilege, he submits it to the judgment of the court; and if it be allowed, it is by virtue of the judgment of the court. All, therefore, which the court could do, upon such an hypothesis, would be to reject the plea, lest, in judging of it, it should invade the privileges of the house.

The resolution declares that words spoken by any member, within the walls of the house, relative to any subject under their consideration, either in their separate capacity, or in a convention of both branches of the legislature, whether the member speaking such words addresses himself in debate to the chair, or deliberates or advises with another member respecting such subject, are alone and exclusively cognizance by the house; and that for any other tribunal to take cognizance of words thus spoken would be a violation of the twenty-first article of the constitution. And the words relied on for the defendant are, "whether the member speaking such words addresses himself to the chair, or deliberates or advises with another member respecting such subject."

As it is admitted by the defendant's counsel that this Court is competent to construe the twenty-first article, in order to decide whether the facts in the case bring the defendant within it, so also it is admitted that the Court is competent to construe this resolution for the same purpose. The resolution, judging from the face of it, does not appear to be an act of the house in any case of contempt on trial before it, but to be a general declaration of the privileges secured to the members by the twenty-first article of the constitution; because it is declared that an invasion of these privileges would be a violation of that article. I consider the house, therefore, as defining the constitutional privileges of its members, relating to words spoken by them. In this declaration, the words must be spoken on a subject before the house, and either addressed to the chair, or by one member to another by way of deliberation and advice on the same subject.

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In either case, the words must be spoken officially, although in the latter case they may be spoken in a disorderly and irregular manner. The house has not, therefore, claimed any privileges for its members, when prosecuted for slander, unless the words charged were spoken officially in the character of a representative. This inference is inevitable, unless it should be unreasonably concluded that one member could deliberate or advise with another member, on a subject before the house, having abandoned his official duty, and acting as a private citizen. Whether I do or do not allow to the resolution, thus passed, the force of law, I am satisfied that it claims no privileges, but what are secured to the members by the constitution, of which, as far as it extends, it is in affirmance. The resolution does not, therefore, in my opinion, aid the defendant; for it appears, from the facts in the case, that the defamatory words, charged on the defendant, were not spoken by him on a subject before the house, either in an address to the chair, or by way of deliberation or advice with another member.

It has been urged that a declaration of privileges made by the house, whether those privileges do or do not belong to it, has the force of law, and is obligatory, in all cases, on the courts of justice. A declaration of that nature is not now before us; for I am satisfied that the house has all the privileges claimed by its resolution. Whenever a declaration shall be made by the house, claiming privileges not belonging to it in the opinion of the judges of a court of law, let the judges then decide the question. The merits of it must depend on a careful consideration of the constitution, with a due regard to the privileges and prerogatives of the house resulting from it. On this subject I give no opinion; but from the observations I have already made, it may not be improper to declare, that if it had appeared to me that the words charged on the defendant had been officially spoken by him without the walls of the representatives' chamber, either in a convention of the two houses holden in the senate chamber, or in a committee, while executing the commission of the house then in session, as I am now advised, I would have allowed him his privilege, although, by the resolution

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produced, the house seem to confine its privileges to words spoken within the walls of the representatives' chamber.

But the danger of conflicting jurisdictions has been insisted on with much ability and eloquence, if we should support the present action. I am sensible that where a conflict of final jurisdictions exists in any state, there must be a defect in the laws of that state. In my opinion, this state is not liable to the opprobrium; for I do not conceive that final conflicting jurisdictions here are consistent either with our constitution or statutes.

To introduce examples from the British House of Commons cannot much illustrate the subject. The privileges of that house are not derived from any written constitution, but have been acquired by the successful struggles of centuries, directed either against the monarchy or an hereditary aristocracy. The exertions of the commons have generally been popular, because the people were supposed to reap the fruits of them. In this state, we have a written constitution, formed by the people, in which they have defined, not only the powers, but the privileges, of the house, either by express words, or by necessary implication. A struggle for privileges, in this state, would be a contest against the people, to wrest from them what they have not chosen to grant. And it may be added that the grant of privileges is a restraint on the rights of private citizens, which cannot be further restrained but by some constitutional law. These principles are perfectly consistent with the resolution of the house, which is not a claim of any further privileges not granted by the constitution, but a description of some, and only of some, privileges there granted.

I consider the House of Representatives not only as an integral branch of the legislature, and as an essential part of the two houses in convention, but also as a court having final and exclusive cognizance of all matters within its jurisdiction, for the purposes for which it was vested with jurisdiction. It has jurisdiction of the election of its members; of the choice of its officers; of its rules of proceeding; and of all contempts against the house, either in its presence, or by violating the constitutional privileges of its members. When the house is proceeding as a court, it has, exclusively,

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authority to decide whether the matter before it be or be not within its jurisdiction, without the legal control of any other court. As to contempts, the house proceeds against the offender to punish the contempt. Courts of law proceed to punish offences against the state, and to redress private wrongs. The same act may be a contempt against the house, an offence against the state, and an injury to an individual; and in all these respects, proceedings may be had against the offender.

When the house decides in a question of election, it can conclusively decide on the right of voting claimed by any elector, so far as is necessary to settle the election. But an elector illegally deprived of his right of voting, may demand redress for this wrong against the selectmen by a suit at law. This was decided in the cases of Gardiner and of Kilham against the Selectmen of Salem, [Note 6] where the only defence set up was, that the plaintiffs had no right to vote. Upon this question, the judgments of both courts, however rendered, could be executed without any interference. Let me illustrate the subject by supposing a case or two. A member is assaulted in the town in which the house is in session, and is cruelly beaten, for words spoken in the house in the execution of his duty. The house may proceed against the assailant for a contempt; and cannot the member prosecute him at law for damages? And may not the grand jury indict him for a breach of the peace? And neither can the proceedings of a court of law control the proceedings of the house, nor can the proceedings of the house control the courts of law. The judgments of each court, whatever may be the result, can be executed without any interference. Suppose a public officer indicted for extortion, and upon trial acquitted at law; cannot he afterwards be convicted by the senate on an impeachment? Both judgments may be executed without interference. The courts of law proceed to punish the offender, and he is acquitted. The power of the senate is censorial, and exercised to preserve purity in office. If it should be supposed that the senate cannot proceed after an acquittal at law, it should be remembered that, by the express provision of the constitution, courts of law may proceed after a conviction in senate; and

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in the proceedings at law the jury may acquit; and it could not have been intended to place the senate as subordinate to a court of law. The true design of that provision was a mere cautionary declaration that the proceedings in the senate were not to punish offenders against the state, but for a different end. And I would add that, in the present case, if the house, of which the defendant was a member, had proceeded against the plaintiff for a contempt in suing this action, - whatever had been the result of its proceedings, this Court could not have interfered, or granted any relief, until the sentence had been performed. And as this judgment could not have affected those proceedings, so neither could those proceedings have controlled the authority of this Court. The two courts are independent, and have each exclusive cognizance of the matters within its jurisdiction; and although the transaction animadverted on may be the same, yet the proceedings are for different purposes, and the judgments of both courts may be executed without any interference. There cannot, therefore, be any conflict of jurisdictions.

Extreme cases of the abuse of power, either in the House of Representatives, or in this Court, may be imagined; but they are not to be argued from, to influence legal decisions.

Since the argument of this cause, I have examined the subject with as much attention as I have been able to give to it, amidst all the business of the Court pressing on us, with a strong disposition to guard the privileges of the house, and of its members, because their privileges are essential to the rights of the people, and ought to be supported, by every good citizen, according to their true limits.

From this examination I am satisfied that, whatever may be our decision of the question, it is within our jurisdiction thus brought before us; and that no breach of the privileges of the house, or a conflict with its jurisdiction, can result from our determination.

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.

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Under this impression, to give a different opinion would be a desertion of a solemn duty, and a gross prevarication with my own conscience.

In this opinion of the Chief Justice, the other judges, viz., Sedgwick, Sewall, Thatcher, and Parker, severally declared their full and entire concurrence.

The motion for a new trial, on the ground that the jury had given excessive damages, was afterwards argued by the same counsel.

Dexter observed that the true principle which must govern in every case of this kind was, that the damages ought to be in exact proportion to the injury sustained. In actions for a breach of contract, or for a tort committed on property, it is easy to apply this principle; but in actions for a mere personal tort, the great difficulty was to form a precise estimate of the injury received. It must be greater or less according to the character and circumstances of the parties, the manner of the act or words complained of, the degree of malice shown by the wrong-doer, the amount of the suffering of the other party, and very many other circumstances, which it is not necessary to recite.

In the case now before the Court, no circumstances appear which should occasion the award of very extravagant damages. There was no evidence that either of the parties was possessed of very great wealth. The only witness sworn at the trial testified that the plaintiff was a very respectable man. There is no disposition on the part of the counsel for the defendant to derogate from that character. The plaintiff is, however, but a private citizen; so he has not lost any office of rank or profit, nor been put in hazard of losing such an office. The defendant is the representative of his town in the legislature of the commonwealth. This is the amount of what appears respecting the character and circumstances of the parties.

If the words charged had been publicly spoken and addressed to the house, the damage to the plaintiff would have been greater in proportion to the number of the persons who should hear them; and it may be added that the defendant's official standing, as a member of the house, would

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have given weight, as well as credit and currency, to the slander. Yet in such a case, it is agreed that the plaintiff could have obtained no pecuniary satisfaction whatever for the injury he might have sustained.

The sole ground on which an action of slander for charging the party with a crime can be maintained, though no actual damage be sustained, is that the law presumes damage from the danger that may arise of being prosecuted for the offence: the present case is one in which the general principle would not entitle the plaintiff to any damages; for he cannot be put in danger of a prosecution after an acquittal.

From the fact of the acquittal, it may likewise be strongly argued that the real damage to the plaintiff must be very inconsiderable; inasmuch as he had it in his power, at any time, to prove his innocence, by the record of his trial, which he might always have in his pocket, or publish to the world, if he saw fit. [Note p38]

From these considerations, the damages assessed by the jury appear enormous and excessive, and it is believed that no case can be shown where so high a sum was given without the allegation or proof of any actual or special damage whatever.

Whitman, in support of the verdict, said that the conclusions he should draw from his brother Dexter's premises were widely different from those he had suggested.

If these words had been spoken in debate, they might have been attributed to the warmth, and even intemperance, not unfrequently exhibited in public discussions. In such case, malice would be less presumable in the speaker, and the impression on the minds of the hearers would be less forcible and permanent. By uttering the slander in the artful manner which the case exhibits, the defendant not only showed more malice than by an open charge unguardedly made in

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an animated contest, but the mischief and damage to the subject of the slander were also greatly enhanced.

The counsel for the defendant has said that the plaintiff's acquittal was notorious, and if it was not, he might publish it, and by this means prevent any injurious impression on the public mind from the words spoken. That acquittal has been published, and it ought to have been a shield to the plaintiff, and have protected him against such malignant insinuations. If a judicial declaration of innocence is not sufficient to protect that innocence from an imputation of guilt, an acquittal in a court of law, after a full discussion, will lose much of the value which has been attached to it.

In the case of Bartlett vs. Willis, in Cumberland, which was for a libel, the jury gave 1500 dollars' damage. The defendant there pleaded the truth of the words in justification; and although such a justification, if it wholly fail in the proof, may be considered rather as an aggravation of the injury, yet it often happens, and therefore may well be presumed to have happened in that case, that the defendant, in support of his justification, approaches very near to the legal evidence of the truth of his plea, which, though not sufficient to give him a verdict, would naturally and properly have an influence with the jury in lessening the damages.

In the case at bar, the direction of the judge to the jury as to the damages was exceptionable: he declared it to be a subject entirely and exclusively within their province, and he would say nothing which might have a tendency to influence their verdict, except to lay down a general rule in cases of this kind, that the degree of malice was the proper measure of the damages. The law and the fact united were left to the decision of the jury; and the Court will respect the rights of juries as well as their own. They will not lightly set aside a verdict given upon full evidence and solemn argument, where no surprise or corruption is suggested.

The parties in this action, their characters and circumstances, were well known to the jury, who, in contemplation of law, are their neighbors. If they have estimated those characters and circumstances, and considered the degree of malice shown in the case, is it for the Court to say they

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have overvalued the plaintiff's character, or judged wrongly of the malice exhibited? It was not improper for the jury to consider the very great expense the plaintiff had been put to in the prosecution of this action, to which he was impelled by every sentiment of honor. And although the maintenance of a fair and irreproachable character among his fellow-citizens was his sole motive in instituting the suit, yet a pecuniary satisfaction is all that by our law he can obtain, and upon the amount of this will his character in no small degree depend.

The true principle, in cases of this sort was laid down by Lord Mansfield, in the case of Gilbert vs. Burtenshaw. [Note 7] That was, like the present, a motion to set aside a verdict, and grant a new trial, on the ground of excessive damages in an action for a malicious prosecution for perjury, and for slander. Lord Mansfield says he should be sorry to say, that in cases of personal torts, no new trials should ever be granted for damages which manifestly show the jury to have been actuated by passion, partiality, or prejudice. But it is not to be done without very strong grounds indeed; nor unless it appears that the damages are flagrantly outrageous and extravagant.

The Attorney-General, Bidwell, in reply, thought that the circumstances, under which the words in this case were spoken, indicated a much less degree of malice in the defendant, than if they had been spoken in public debate. They were not even addressed to an enemy of the plaintiff, who might have derived a malicious satisfaction in propagating the slander: the communication was made to the plaintiff's friend, who had, without doubt, been acquainted with all the circumstances of the indictment and trial, which the defendant is supposed to have had in his mind when he spoke the words; to one who, the defendant had every reason to believe, would have no disposition to give currency to the insinuation. The case shows no repetition of the slander, from which a resolution to persist in it, beyond the mere occasion of uttering it, might be inferred.

The case of Bartlett vs. Willis was for eighteen or twenty libellous publications concerning the plaintiff, in a newspaper,

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edited by the defendant. Some of them charged Mr. Bartlett with gross misconduct in his office, as a senator of the commonwealth. Neither in the circumstances of the case, nor in the character of the parties, therefore, can any inference be drawn from that case in support of the present verdict. It is well known too, notwithstanding the circumstances of aggravation in that action, that the amount of the damages awarded was a matter of extreme surprise, wherever it was known.

It is very true that, in presumption of law, the jurors are summoned from among the neighbors of the parties. But if any stress is laid on this point in the present argument, the Court will take notice, that when this cause was submitted, at the court below, to a jury, who were in fact all inhabitants of Nantucket, and the real neighbors of the parties, to whom not only their characters and situation were perfectly known, but all the circumstances of the transaction, which were alluded to by the defendant, were familiar, the plaintiff recovered but fifteen dollars for this very injury and upon the same evidence upon which a jury of this county have awarded the enormous sum of two thousand five hundred dollars.

Some days after this last argument, the following opinion of the Court was delivered by

PARSONS, C. J. The Court having given their opinion that the verdict ought not to be set aside for the misdirection of the judge, the defendant now moves for a new trial, because the damages found by the jury are excessive.

That a verdict may be set aside for excessive damages, there can be no doubt; and it may be done in two cases: one case is where the law recognizes some fixed rules and principles in measuring the damages, whence it may be known that there is an error in the verdict. In this case are included actions on contracts, or for torts done to property, the value of which may be ascertained by evidence. The other case includes actions for personal injuries, where no rules are prescribed by law for ascertaining the damages, but from the exorbitancy of them the Court must conclude that the jury acted from passion, partiality, or corruption -- causes which naturally produce error or injustice. But to enable the Court to draw this conclusion, it is not enough, that in

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their opinion the damages are too high, or that much less damages would have been a sufficient satisfaction to the plaintiff; for the law has not intrusted the Court with a discretion to estimate the damages, but has devolved the power on a jury, as a matter of sentiment and feeling, to be exercised by them according to their sound discretion, duly weighing all the circumstances of the case, and considering the state, degree, quality, trade, or profession, as well of the party injured, as of him who did the injury. Judges, therefore, should be very cautious how they overthrow verdicts, given by twelve men on their oaths, on the ground of excessive damages.

But as excessive damages may be a good cause for setting aside a verdict in an action for a personal injury, it may be proper to consider when damages are, for this purpose, to be adjudged by the court to be excessive. In Wilford vs. Berkley, [Note 8] the principle stated is, that the magnitude of the damages must be such that the court can manifestly see that the jury have been outrageous in giving such damages as greatly exceeded the injury. A verdict must be set aside for excessive damages, if they are such as are unreasonable and outrageous, and which all mankind might at first blush see to be unreasonable. [Note 9] And it must be a glaring case, indeed, of outrageous damages in a tort, and which all mankind at first blush must think so, to induce the court to grant a new trial for excessive damages. [Note 10] In the case of Boardman vs. Carrington & Al., [Note 11] it is observed by the court, that there is great difference between cases where damages may be seen, as in promises or trespass for goods, and where the damages are matters of opinion and speculation, and are ideal; that the judges are to advise, and not to control juries; and when a verdict is set aside for excessive damages, it must be in a case where the damages are monstrous and enormous indeed, and such as all mankind will be ready to exclaim against at first blush. It is admitted in the case of Gilbert vs. Burtenshaw, which was cited at the bar, that verdicts may be set aside for excessive damages, when

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their magnitude manifestly shows the jury to have been actuated by passion, partiality, or prejudice. But it is observed that it is by no means to be done because the court may feel, that if they had been on the jury, they would have given less damages, or because they may think that the jury would have discharged their duty by giving a less sum; and that of all the cases delivered to a jury, none is more emphatically left to their sound discretion than an action of slander; and unless it appears that the damages are flagrantly outrageous and extravagant, it is difficult for the court to draw a line.

The result of these cases seems clearly to settle the principles which are to govern the court in setting aside a verdict for excessive damages in an action for a personal injury. When the damages are so great, that it may be reasonably presumed that the jury, in assessing them, did not exercise a sound discretion, but were influenced by passion, partiality, prejudice, or corruption, the court may set aside the verdict, and send the cause to another jury for revision.

Let us now consider the evidence, so far as it can be collected from the record and the judge's report.

The words uttered imported a charge of a heinous crime, a felonious robbery of the Nantucket Bank. They were not spoken privately, but in the chamber of the House of Representatives, and in the hearing of some people there, for Russell was interrupted by the defendant, when conversing with several gentlemen. The defendant was in a respectable and honorable station, representing in the legislature the town of Nantucket. And there is no evidence of the condition, circumstances, or profession, of the plaintiff.

The defendant's counsel have argued that the damages are excessive, on three grounds - That it appears from the record, that the jury, at the Common Pleas in Nantucket, assessed the damages at fifteen dollars only; that the defendant did not wantonly seek occasion for uttering the slander, but that it was offered by the language the witness had used on a subject recently under the consideration of the house; and that it appears that the plaintiff, having been acquitted of the crime imputed to him, was not in danger of being prosecuted criminally in consequence of the defamation.

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The first argument cannot have any weight, because we have no knowledge of the evidence offered to the former jury, and can, therefore, form no opinion of the impression, which the injury, the plaintiff complained of, ought to have made on their minds. And if we could presume that they had the same evidence that was given to the last jury, yet it is an established rule of law, that the jury on the appeal are obliged to try the cause uninfluenced by any former verdict.

The circumstance relied on in the second argument does not appear to us to have much, if any, tendency to mitigate the damages. Russell had declared that his information was from a respectable gentleman - an epithet, when applied to the plaintiff, the defendant did not brook, but retorted the charge of felony.

The last circumstance relied on by the defendant's counsel certainly had a tendency, in one view of the subject, to mitigate the damages, for the reason assigned in the argument. But upon a consideration of all the circumstances, it is our opinion that its tendency was, upon the whole, to aggravate the damages. The plaintiff, having been accused of felony, had submitted his cause to his country, and a jury had acquitted him. This was all he could do in his own justification. If he is not now to be considered as an innocent man, he has no other remedy, no other hope. This public declaration of his innocence before a competent and impartial tribunal he has a right to consider not only as a defence against punishment, but as a shield against calumny. But the defendant, as far as in him lay, would disarm him of his defence, and expose him, helpless and unprotected, to obloquy and disgrace. He cannot have another trial for the offence, and when he seeks, in a civil action, a compensation for the injury, he ought to receive a liberal and exemplary satisfaction.

There is no objection to the direction of the judge to the jury on the subject of damages; and there is no evidence that they had been tampered with, or were connected with either party, or were influenced by any bias or prejudice to either side. The cause was left to them, under all the circumstances either party thought fit to lay before them; and they found a verdict for the plaintiff, assessing his damages at twenty-five hundred dollars.

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Before we can set aside this verdict, on account of these damages, we must infer from their magnitude, under all the circumstances of this case, that the jury acted intemperately, or were influenced by passion, prejudice, or partiality. To make this inference, we must have satisfactory evidence that the damages are excessive; [Note 12] and in our opinion this evidence is not before us. The verdict, therefore, cannot be set aside.

Were we impressed with a belief that the damages were too great, and that a less sum would have been an adequate compensation to the plaintiff, yet whether our impression or the impression of the jury is the most correct, as judges, we are not authorized to determine. The plaintiff's counsel has intimated that he did not wish for larger damages than the Court should think reasonable, as the object of his client in the prosecution was to obtain justice for his character, and not to dispose of it for money. It is not the province of the Court to advise either party; but as the jury have done ample justice to the plaintiff's character, we are satisfied that a liberal remission of a part of the damages could not in any manner operate to the plaintiff's dishonor.

Unless there be a remission of part of the damages, judgment must be entered according to the verdict. [Note a]


[Note p4] The defendant is of the religious sect called Friends or Quakers

[Note 1] 1 Black. Com. 161

[Note 2] 1 Esp. Rep. 226.

[Note 3] Declaration of Rights, Art. 11.

[Note 4] Rush. 663.

[Note 5] Whitman observed that, the book from which he read not being paged, he could not cite the place where the passage is found.

[Note 6] Vide 2 Mass. 236 , 244.

[Note p38] Mr. Dexter observed, in the course of his argument upon this question, that he was of counsel for the prosecution, upon the indictment against the present plaintiff to which the words spoken alluded; and he said that he was himself perfectly satisfied of the correctness of the verdict of acquittal, there having been, in his opinion, very little evidence, to throw a suspicion of guilt upon the object of the prosecution. And this Mr. Dexter believed to be the unanimous sentiment of all fair and discerning men, who heard the trial.

[Note 7] Cowper, 230.

[Note 8] 1 Burr. 609.

[Note 9] Leeman vs. Allen & Al., 2 Wils. 160.

[Note 10] Huckle vs. Money, 2 Wils. 205.

[Note 11] 2 Wils. 244.

[Note 12] 2 Wils. 248.

[Note a] [ Clark vs. Binney, 2 Pick. 113 . -- Bodwell vs. Osgood, 3 Pick. 379 . -- Shute vs. Barrett, 7 Pick. 82 . -- Lord Townsend vs. Hughes, 2 Mod. 150. -- Duke of York vs. Pilkington, 2 Show. 246. -- Tillotson vs. Cheetham, 2 Johns. 63. -- Coleman vs. Southwick, 9 Johns. 45. -- 5 Cow. 119. -- Southwick vs. Stevens, 10 Johns. 443. -- Root vs. King, 7 Cow. 613.-- Cole vs. Perry, 8 Cow. 214. -- Douglass vs. Tinney, 2 Wend. 352. Ryckman vs. Parkins, 9 Wend. 470. -- Rundell vs. Butler, 10 Wend. 119. -- Neal vs Lewis, 2 Bay 204. -- Davis vs. Davis, 2 N. & McCord, 81. -- Graham's N. T. 410-- 442.-- Ed.]