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good faith rebuts the presumption of malice, and the affiant is protected under his privilege, as long as the statement is pertinent to the cause of action, and where he is not actuated by malice in making it. If the statement is not pertinent, or if express malice be proved, the liability attaches. All allegations in pleadings, if pertinent, are said to be absolutely privileged, except where the libelous words in the pleadings refer to third person, and not to the defendant. Then they are only privileged, when they are pertinent and are pronounced in good faith.: Not only are false statements privileged, when made in preliminary proceedings, but a false statement has also been held to be privileged, where it has been made to one, after the commission of a crime, with a view to aid him in discovering the offender and bringing him to justice. And so, likewise, is a paper privileged, which is signed by several persons, who thereby agree to prosecute others, whose names are given in the paper, and who are therein charged with the commission of a crime. 5
In the same manner is the report of the grand jury privileged, notwithstanding, in making it, they have exceeded their jurisdiction.
1 Kine o. Sewell, 3 Mees. & W. 297; Kidder v. Parkhurst, 3 Allen, 393; Worthington v. Scribner, 108 Mass. 487 (12 Am. Rep. 736); Eames v. Whittaker, 123 Mass. 342; Jarvis v. Hathaway, 3 Johns. 180; Allen v. Crofoot, 2 Wend. 515; Burlingame v. Burlingame, 8 Cow. 141; Garr v. Selden, 4 N. Y. 91; Maurice v. Worden, 54 Md. 233 (39 Am. Rep. 384); Vaussee v. Lee, 1 Hill (S. C.), 197 (26 Am. Dec. 168); Marshall v. Gunter, 6 Rich. 419; Lea v. Sneed, 4 Sneed, 111; Grimes v. Coyle, 6 B. Mon. 301 ; Bunton v. Worley, 4 Bibb, 38 (7 Am. Dec. 735); Strauss v. Meyer, 48 II. 385; Spaids o. Barrett, 57, III. 289; Wyatt v. Buell, 47 Cal. 624.
· Strauss v. Meyer, 48 Ill. 385; Lea v. White, 4 Speed, 111; Forbes v. Johnson, 11 B. Mon. 48.
3 McLaughlin o. Cowley, 127 Mass. 316; Daris v. McNees, 8 Humph. 40; Ruohs v. Packer, 6 Heisk. 395 (19 Am. Rep. 598); Wyatt v. Buell, 47 Cal. 624.
4 Goslin v. Cannon, 1 Harr. 3.
When the case is called up in court for trial, the chief aim of the proceeding is the ascertainment of the truth, and all the protections thrown around the dramatis persone in a judicial proceeding are designed to bring out the truth, and to insure the doing of justice. We therefore find as a familiar rule of law, that no action will lie against a witness for any injurious and false statement he might make on the witness-stand. If he is guilty of perjury, he subjects himself to a criminal liability, but in no case does he incur any civil liability.' But he is only privileged when the statement is pertinent to the cause and voluntarily offered. He is not the judge of what is pertinent, and is protected if his statement is prompted by a question of counsel, which is not forbidden by the court.
The statements of the judge are privileged for similar reasons, and in the same manner are jurors privileged in statements which they make during their deliberations upon the case.
The most important case of privilege, in connection with judicial proceedings, is that of counsel in the conduct of the
In order that the privilege may prove beneficial to the party whom the counsel represents, it must afford him the widest liberty of speech, and complete immunity from liability for any injurious false statement. It is, therefore, held very generally, that the privilege of counsel is as broad as that of the legislator, and that he sustains no civil liability for false, injurious statements, however malicious an intent may have actuated their utterance, provided they are pertinent to the cause on trial. Nowhere is the privilege of counsel more clearly elucidated than in the following extract from an opinion of Chief Justice Shaw: “ We take the rule to be well settled by the authorities, that words spoken in the course of judicial proceedings, though they are such as impute crime to another, and, therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable, if they are applicable and pertinent to the subject of inquiry. The question, therefore, in such cases is, not whether the words spoken are true, but whether they were spoken in the course of judicial proceedings, and whether they are relevant or pertinent to the cause or subject of inquiry. And in determining what is pertinent, much latitude must be allowed to the judgment and discretion of those who are entrusted with the conduct of a cause in court, and a much larger allowance made for the ardent and excited feelings with which a party or counsel, who naturally and almost necessarily identifies himself with his client, may become animated, by constantly regarding one side only of an interesting and animated controversy, in which the dearest rights of such a party may become involved. And if these feelings sometimes manifest themselves in strong invectives, or exaggerated expressions, beyond what the occasion would strictly justify, it is to be recollected that this is said to a judge who hears both sides, in whose mind the exaggerated statement may be at once controlled and met by evidence and argument of a contrary tendency from the other party, and who, from the impartiality of his position, will naturally give to an exaggerated . assertion, not warranted by the occasion, no more weight than it deserves. Still, this privilege must be restrained by some limit, and we consider that limit to be this: that a party or counsel shall not avail himself of his situation to gratify private malice by uttering slanderous expressions, either against a party, witness or third person, which have no relation to the cause or subject matter of the inquiry. Subject to this restriction, it is, on the whole, for the public interest, and bost calculated to subserve the purposes of justice, to allow counsel full freedom of speech in conducting the causes and advocating and sustaining the rights of their constituents; and this freedom of discussion ought not to be impaired by numerous and refined distinctions." I
1 Dunlap v. Glidden, 31 Me. 435; Barnes v. McCrate, 32 Me. 442; Cunningham v. Brown, 18 Vt. 123; Allen v. Crofoot, 2 Wend. 515 (20 Am. Dec. 647); Garr v. Selden, 4 N. Y. 91; Marsh v. Ellsworth, 50 N. Y. 309; Grove v. Brandenburg 7 Blackf. 234; Shock v. McChesney, 4 Yeates, 507 (2 Am. Dec. 415); Terry v. Fellows, 21 La. Ann. 375; Smith v. Howard, 28 Iowa, 51.
2 See Barnes o. McCrate, 32 Me. 442; Kidder v. Parkhurst, 3 Allen, 393; White o. Carroll, 42 N. Y. 166 (1 Am. Rep. 503); Calkins o. Sumner, 13 Wis. 193.
• Dunbam v Powers, 42 Vt. 1; Rector v. Smith, 11 Iowa, 302.
1 Hastings o. Lusk, 22 Wend. 410 (34 Am. Dec. 380); Warner v. Paine, 2 Sandf. 195; Marsh v. Ellsworth, 50 N. Y. 309; McMillan v. Birch, 1 Binney, 178 (2 Am. Dec. 426); McLaughlin o. Cowley, 127 Mass. 316; Har. den o. Comstock, 2 A. K. Marsh. 480 (12 Am. Dec. 168); Spaids 0. Barnett, 57 1l. 289; Jennings v. Paine, 4 Wis. 358.
While the importance of an almost unrestricted liberty of speech to a counsel is recognized and conceded, and likewise the difficulty in restraining abuses of the privilege, still the commonness of the abuse would well make the student of police power pause to consider, if there be no remedy which, while correcting the evil, will not tend to hamper the counsel in the presentation of his client's case.
Personal invective against one's opponent, the “ browbeating” of hostile witnesses, are the ready and accustomed weapons of poor lawyers, while really able lawyers only resort to them when their cause is weak. If the invective was confined to the subject matter furnished and supported by the testimony before the court, and consisted of exaggerated and abusive presentations of proven facts, while even this would seem reprehensible to us, there are no possible means of preventing it. But it is not within the privilege of counsel to gratify private malice by uttering slanderous expressions, either against a party, a witness or a third person, which have no relation to the subject-matter of the inquiry. Counsel should be confined to what is relevant to the cause, whatever may be his motive for going outside of the record. The courts are too lax in this regard. No legislation is needed; they have the power in their reach to reduce this evil, for it is an evil, to a minimum. The most salutary remedy would be raising the standard of qualification for admission to the bar. The number of poor lawyers, now legion, would be greatly reduced, and consequently the abuse of this privilege lessened.
i Hoar v. Wood, 3 Metc. 193. See Bradley v. Heath, 12 Pick. 163; Mower v. Watson, 11 Vt. 536 (34 Am. Dec. 704); Gilbert v. People, 1 Denio, 41; Ring v. Wheeler, 7 Cow. 725; Hastings v. Lusk, 22 Wend. 410 (34 Am. Dec. 380); Stackpole v. Hennen, 6 Mart. (N. 8.) 481 (17 Am. Dec. 187); Marshall v. Gunter, 6 Rich. 419; Lester o. Thurmond, 51 Ga. 118; Ruohs v. Backer, 6 Heisk. 395 (19 Am. Rep. 598); Lawson v. Hicks, 38 Ala. 279; Jennings v. Paine, 4 Wis. 358.
$ 17c. Criticism of officers and candidates for office. When a man occupies an official position, or is a candidate for office, the people whom he serves, or desires to serve, are interested in his official conduct, or in his fitness and capacity for the office to which he aspires. It would seem, therefore, that, following out the analogy drawn from cases of private communications, affecting the reputation of persons, in whom the parties giving and receiving the communications are interested, any candid, honest, canvass of the official's or candidate's character and capacity would be privileged, and the party making the communication will not be held liable, civilly or criminally, if it proves to be false. But here, as in the case of private communications, one or the other of the parties, who were concerned in the utterance of the slander or publication of the libel, must have been interested in the subject matter of the communication. In the case of officials and candidates for office, in order to be privileged, the criticism must be made by parties who are interested personally in the conduct and character of the official or candidate. The subject matter of the communication must, therefore, relate to his official conduct, if the party complained of be an officer, and, if he be a candidate for office, the communication should be confined to a statement of objections to his capacity and fitness for office.