Article 1, Section 6, Clause 1
Coffin v. Coffin4 Mass. 1 1803
Parsons, C. J.: 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 enquiry 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, 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 enquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules. I do not confine the member to his place in the house; and I am satisfied that there are cases, in which he is entitled to this privilege, when not within the walls of the representatives' chamber.
He cannot be exercising the functions of his office as member of a body, unless the body be in existence. The house must be in session, to enable him to claim this privilege: and it is in session, notwithstanding occasional adjournments, for short intervals for the convenience of its members. If a member therefore be out of the chamber, sitting in committee, executing the commission of the house, it appears to me that such member is within the reason of the article, and ought to be considered within the privilege. The body of which he is a member, is in session, and he, as a member of that body, is in fact discharging the duties of his office. He ought therefore to be protected from civil or criminal prosecutions for every thing said or done by him in the exercise of his functions, as a representative in committee, either in debating, in assenting to, or in draughting a report. 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 publick good. The injury to the reputation of a private citizen is of less importance to the commonwealth, than the free and unreserved exercise of the duties of a representative, unawed by the fear of legal prosecutions.[Volume 2, Page 339]
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 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 enquired 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. 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 honourable 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 publickly, the defamatory words, even contemplated that he was in the discharge of any official duty. This enquiry 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 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 [Volume 2, Page 340] 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.
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 a 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 cognizable 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 addressed himself to the chair, or deliberates or advises with another member respecting such subject."
As it is admitted by the defendants 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. 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, or 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 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 [Volume 2, Page 341] 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, authority to decide whether the matter before it be, or be not within its jurisdiction, without the legal controul 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 Gardner and of Kilham against the selectmen of Salem: 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 controul the proceedings of the house, nor can the proceedings of the house controul the courts of law. The judgments of each court, whatever may be the result, can be executed without any interference. Suppose a publick 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 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 controuled 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.
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, Thacher and Parker severally declared their full and entire concurrence.
The Founders' Constitution
Volume 2, Article 1, Section 6, Clause 1, Document 22
The University of Chicago Press