Page images
[ocr errors]

wholly to his public duties, thereby defeating, to some extent, the very purpose for which his office was created.

2. The effect of putting the judge on his defence as a wrong. doer necessarily is to lower the estimation in which his office is held by the public, and any adjudication against him lessens the weight of his subsequent decisions. This of itself is a serions evil, affecting the whole community; for the confidence and respect of the people for the government will always repose most securely on the judicial authority when it is esteemed, and must always be unstable and unreliable when this is not respected. If the judiciary is unjustly assailed in the public press, the wise judge refuses to put himself in position of defendant by responding, but he leaves the tempest to rage until an awakened public sentiment silences his detractors. But if he is forced upon his defense, as was well said in an early case, it " would tend to the scandal and subversion of all justice, and those who are most sincere would not be free from continual calumniations."

3. The civil responsibility of the judge would often be an incentive to dishonest instead of honest judgments, and would invite him to consult public opinion and public prejudices, when he ought to be wholly above and uninfluenced by them. As every suit against him would be to some extent an appeal to popular feeling, a judge, caring specially for his own protection, rather than for the cause of justice, could not well resist a leaning adverse to the parties against whom the popular passion or prejudice for the time being was running, and he would thus become a persecutor in the cases where he ought to be a protector, and might count with confidence on escaping responsibility in the very cases in which he ought to be punished. Of what avail, for example, could the civil liability of the judge have been to the victims of the brutality of Jeffries, if, while he was at the height of his power and influence, and was wreaking his brutal passions upon them amidst the applause of crowded court rooms, these victims had demanded redress against him at the hands of any other court and jury of the realm ?

4. Such civil responsibility would constitute a serions [*408] *obstruction to justice, in that it would render essential a

large increase in the judicial force, not only as it wouid

* Floyd o. Barker, 12 Co. 25; quoted in 13 Wall. 349.

multiply litigation, but as it would open each case to endless controversy. This of itself would be an incalculable evil. The interest of the public in general rules and in settled order is vastly greater than in any results which only affect individuals; courts are for the general benefit rather than for the individual; and it is more important that their action shall tend to the peace and qniet of society than that, at the expense of order, and after many suits, they shall finally punish an officer with damages for his misconduct. And it is to be borne in mind that if one judge can be tried for his judgment, the one who presides on the trial may also be tried for his, and thus the process may go on until it becomes intolerable.

5. But where the judge is really deserving of condemnation a prosecution at the instance of the State is a much more effectual inethod of bringing him to account than a private suit. A want of integrity, a failure to apply his judgment to the case before him, a reckless or malicious disposition to delay or defeat justice may exist and be perfectly capable of being shown, and yet not be made so apparent by the facts of any particular case that in a trial confined to those facts he would be condemned. It may require the facts of many cases to establish the fault; it may be necessary to show the official action for years. Where an officer is in peached, the whole official career is or may be gone into; in that case one delinquency after another is perhaps showneach tends to characterize the other, and the whole will enable the triers to form a just opinion of the official integrity. Bút in a private suit the party wonld be confined to the facts of his own case: it is against inflexible rules that one man should be allowed to base his recovery for his own benefit on a wrong done to another, and could it be permitted, the person first wronged, and whose right to redress would be as complete as any, would lose this advantage by the very fact that he stood first in the line of injured persone.

Whenever, therefore, the State confers judicial powers upon an individual, it confers them with full immunity from private suits. In effect, the State says to the officer that these duties are confided to his judgment; that he is to exercise his judgment fully, freely, and without favor, and he may exercise it without fear; that the duties concern individuals, but they concern more *especially the welfare of the State, and the peace and [*409)

happiness of society; that if he shall fail in the faithful discharge of them he shall be called to account as a criminal; but that in order that he may not be annoyed, disturbed, and impeded in the performance of these high functions, a dissatisfied individ. ual shall not be suffered to call in question his official action in a suit for damages. This is what the State, speaking by the moutb of the common law, says to the judicial officer.

The rule thus laid down applies to large classes of offices, embracing some the powers attached to which are very extensive, and others whose authority is exceedingly limited. It applies to the highest judge in the State or nation,' but it also applies to the lowest officer who sits as a court and tries petty causes.'

[ocr errors]

· Dicas o. Lord Brougham, 6 C. & Morrison 0, McDonald, 21 Me. 550; P. 249; Fray u. Blackburn, 3 Best & Downing 0. Herrick, 47 Me. 462; 8. 676; Yates v. Lansing, 5 Johns. Bailey o. Wiggins, 5 Harr. 462; Reid 282; 8. C. 9 Johns. 394; Lining o. o. Hood, 2 N. & McCord, 471; Wasson Bentham, 2 Bay, 1; Bradley o. Fisher, o. Mitchell, 18 Iowa, 153; Londegan 13 Wall. 335. Lange o. Benedict, 73 0. Hammer, 30 Iowa, 508; Fuller e. N. Y. 12.

Gould, 20 Vt. 643; Kibling o. Clark, : Floyd o. Barker, 12 Co. 25; Mos- 53 Vt. 379; Trammell o. Russellville, tyn o. Fabrigas, Cowp. 161; Lowther 34 Ark. 105; Ely o. Tbompson, 3 0. Earl of Radnor, 8 East, 113; Pike A. K. Marsh. 70. If in the exercise of o. Carter, 8 Bing. 78; Basten o. Carew, judicial functions upon a matter with3 B. & C. 652; Mills o. Collett, 6 Bing. in his jurisdiction he acts corruptly 85; Holroyd 0. Breare, 2 B. & Ald. or fraudulently, he is not liable civilly. 773; Fawcett o. Fowlis, 7 B. & C. 394; Irion 0. Lewis, 56 Ala. 190; Kress o. Brodie o. Rutledge, 2 Bay, 69; Evans State, 65 Ind. 106. But see, Knell e. 0. Foster, 1 N. H. 374; Green o. Mead, Briscoe, 49 Md. 414; Hitch 0. Lam18 N. H. 505; Burnham 0. Stevens, bright, 66 G'o. 228. In Phelps & 33 N. H. 247; Jordan 0. Hanson, 49 Sill, 1 Day, 315, it is hell that an acN. H. 199; Pratt o. Gardner, 2 Cush. tion will not lie against a judge of pro63; Kelly o. Bemis, 4 Gray, 83; Am. bute for neglecting to take security bler o. Church, 1 Root, 211; Moore o. from the guardian of an infapt, alAmes, 3 Caiues, 170; McDowell o. though such an infant had personal Van Deusen, 12 Jobps, 356; Cunning. estate and the guardian was a bankhim o. Bucklin, 8 Cow. 178; Stewart rupt. Though a judge mistakes, it v. Hawley, 21 Wend. 552; Ramsey o. was said, it is sufficient for him that Riley, 13 Ohio, 157; Stewart o. South. he acted judicially. For a remarkaard, 17 Ohio, 402; Stone o. Graves, 8 ble case in wbich a justice was held Mo. 148; Lenox o. Grant, 8 Mo. 254; not responsible, though he seems to Taylor 0. Doremus, 16 N. J. 473; have acted very improperly and in Morris o. Carey, 27 N. J. 377; Man. defiince of law, see Ruymond e. gold o. Thorpe, 33 N. J. 134; Little o. Bolles, 11 Cush. 315. The case of Moore, 4 N. J. 74; Hamilton o. Wil- Sione o. Graves, 8 Mo. 148, was also liams, 26 Ala. 527; Walker o. Halleck, one of great apparent misbehavior. 32 Ind. 239; Deal o. Harris, 8 Md. 40; There are dicta in some cases that

and *it applies not in respect to their judgments merely, (*410] but to all process awarded by them for carrying their judgments into effect.'

Nor is this rule of judicial immunity restricted in its protection to the judges proper, but it extends also to military and naval officers in exercising their authority to order courts-martial for the trial of their inferiors, or in putting their inferiors under arrest preliminary to trial; and no inquiry into their motives in doing so can be suffered in a civil suit.' It extends also to grand and petit jurors in the discharge of their duties as such ; & to assessors upon whom is imposed the duty of valuing property for the pnrpose of a levy of taxes ;' to commissioners appointed to appraise damages when property is taken under the right of eminent domain ;s to officers empowered to lay out, alter, and discontinue highways;' to highway officers in deciding that a * person claiming exemption from a road tax is not [*411)

a justice is civilly responsible when he acts inaliciously or corruptly, but th-y are not well founded, and the express decisions are against them, as the authorities above collected abun. dantly show. It is said in Garfield 10. Douglass, 22 I11. 100, that if a justice corruptly, or from improper motives, alters his docket, he will be liable both civilly and criminally; but such an act would not be judicial, but purely unofficial and wrongful.

A justice exercises a judicial dig. cretion in determining to exclude persons from his court room while a trial is in progress. State o. Copp, 15 N. H. 212. Io determining upon the authority of one person to appear for another; Morton o. Crane, 39 Mich. 520; In taxing an attorney fee; State 0. Jackson, 69 Ind. 58.

* Hammond o. Howell, 1 Mod. 184; Dicas 0. Lord Brougham, 6 C. & P. 249. And, se cases cited in last pote generally. While for illegally issuing an execution a justice may be liable. Sullivan o. Jones, 2 Gray 570, he is not for issuing one on his judgment, not appealed from though erroneous,

at demand of judgment creditor, White 0. Morse, 139 Mass. 162.

2 Sutton o. Johnstone, 1 T. R. 493; Grear o. Marshall, 4 Fost. & F. 485; Dawkins o. Lord Paulet, L. R. 5 Q. B. 94; 8. C. 9 Best & S. 768; Daw. kins o. Lord Rokeby, 4 Fost. & F. 806, where the subject was largely examined. Coroners, in holding inquests, are judges, and are not liable for excluding persons they think should not be present. Garnett 0. Ferrand, 6 B. & C. 611.

3 Hunter 0. Mathis, 40 Ind. 356; Turpen o. Booth, 56 Cal. 65.

4 Weaver 0. Devendorf, 3 Denio, 117. See Auditor o. Atchison, &c., R. R. Co., 6 Kan. 500, and a full dis. cussion of the subject, with citation of numerous cases, in Cooley on Taxation, pp. 551 to 557.

5 Van Steenbergh 0. Bigelow, 3 Wend. 42.

• Sage 0. Laurain, 19 Mich. 137. The case of Turnpike Road o. Champney, 2 N. H. 199, is contra. The action in that case was for laying out a highway merely for the purpose of enabling passengers to avoid the

in fact exempt,' or that one arrested is in default for not having worked out the assessment;' to members of a township board is deciding upon the allowance of claims;: to arbitrators, and to the collector of cnstoms in exercising his authority to sell perishable property, and in fixing upon the time for notice of sale.

But it is an interesting and very important question whether, in the case of that class of officers who do not hold courts, but exercise what may be and often is called power quasi judicial, like assessors of lands for taxation, the immunity is not after all only partial and limited by good faith and honest purpose. There

plaintiff's toll-gate. RICHARDSON, it might, without doubt be lawfully Ch. J., says:

“The powers given to done, although it might enable pas. selectmen by the statutes are to be sengers to evade the payment of toll. exercised for purposes of public and The public convenience and accomprivate convenience and accommo- modation are in no case to be sacri. dation, and


honestly and ficed to the local situation of a turnproperly exercised, the statute will pike gate. be a sufficient warrant for the doings “In this case, the petition, upon of selectmen. But if unmindful of which the defendant acted, stated as the true objects of these statutes, a reason why the road should be laid selectmen lay out public or private out, that the petitioners were griev. ways for purposes of wrong and ously burtbened with paying toll at injury to individuals, they are not

the gate.

If for this cause only the to be protected by these statutes, defendants proceeded to lay out the but, like other wrong-doers, must road, their proceedings were most be held answerable for the damages manifestly illegal. Such a grievance that flow from their unlawful acts. it was not their province to redress. There is nothing in the nature of They had no right to interfere. If the powers conferred in this instance the corporation have abused their that can protect selectmen from privileges granted by the charter by an action. They seem to stand in the erecting a gate at this place, there is, situation of a moderator of a town without doubt, a remedy; but it is meeting, who is unquestionably an. not to be given by the selectmen in swerable for maliciously rejecting the this manner.” vote of one who has a right to vote. · Harrington o. Commissioners,&c., If the selectmen should lay out a road 2 McCord, 400. around a turopike-gate merely for the Freeman 0. Cornwall, 10 Johns. purpose of enabling travelers to evade 470. the payment of toll, it is impossible • Wall o. Trumbull, 16 Mich. 228. to doubt that an action might be * Pappa o. Rose, L. R. 7 C. P. 32; maintained for the injury. For the Jones 0. Brown, 54 Ia. 74. law affords no other remedy for the • Gould v. Hammond, 1 McAllister, injury. On the other hand, should 235. He is not liable, it is said, exthe public convenience require a road cept for acting from corrupt motive. to be laid out (parallel] to a turnpike,

« PreviousContinue »