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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 wrongdoer 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 serious 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."1

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 serious [*408] *obstruction to justice, in that it would render essential a large increase in the judicial force, not only as it would 'Floyd . Barker, 12 Co. 25; quoted in 13 Wall. 349.

multiply litigation, but as it would open each case to endless con troversy. 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 quiet 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 method 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 offcer is impeached, 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. But in a private suit the party would 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 persons.

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 mouth 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,'

1 Dicas v. Lord Brougham, 6 C. & P. 249; Fray v. Blackburn, 3 Best & S. 576; Yates v. Lansing, 5 Johns. 282; S. C. 9 Johns. 394; Lining . Bentham, 2 Bay, 1; Bradley v. Fisher, 13 Wall. 335. Lange v. Benedict, 73 N. Y. 12.

Floyd . Barker, 12 Co. 25; Mostyn v. Fabrigas, Cowp. 161; Lowther v. Earl of Radnor, 8 East, 113; Pike . Carter, 3 Bing. 78; Basten v. Carew, 3 B. & C. 652; Mills v. Collett, 6 Bing. 85; Holroyd v. Breare, 2 B. & Ald. 773; Fawcett v. Fowlis, 7 B. & C. 394; Brodie v. Rutledge, 2 Bay, 69; Evans v. Foster, 1 N. H. 374; Green v. Mead, 18 N. H. 505; Burnham v. Stevens, 33 N. H. 247; Jordan v. Hanson, 49 N. H. 199; Pratt v. Gardner, 2 Cush. 63; Kelly . Bemis, 4 Gray, 83; Am. bler v. Church, 1 Root, 211; Moore v. Ames, 3 Caines, 170; McDowell 0. Van Deusen, 12 Johns. 356; Cunningham v. Bucklin, 8 Cow. 178; Stewart v. Hawley, 21 Wend. 552; Ramsey v. Riley, 13 Ohio, 157; Stewart v. Southard, 17 Ohio, 402; Stone v. Graves, 8 Mo. 148; Lenox v. Grant, 8 Mo. 254; Taylor. Doremus, 16 N. J. 473; Morris . Carey, 27 N. J. 377; Mangold v. Thorpe, 33 N. J. 134; Little v. Moore, 4 N. J. 74; Hamilton v. Williams, 26 Ala. 527; Walker v. Halleck, 32 Ind. 239; Deal v. Harris, 8 Md. 40;

Morrison v. McDonald, 21 Me. 550; Downing. Herrick, 47 Me. 462; Bailey. Wiggins, 5 Harr. 462; Reid v. Hood, 2 N. & McCord, 471; Wasson v. Mitchell, 18 Iowa, 153; Londegan . Hammer, 30 Iowa. 508; Fuller . Gould, 20 Vt. 643; Kibling v. Clark, 53 Vt. 379; Trammell v. Russellville, 34 Ark. 105; Ely . Thompson, 3 A. K. Marsh. 70. If in the exercise of judicial functions upon a matter within his jurisdiction he acts corruptly or fraudulently, he is not liable civilly. Irion. Lewis, 56 Ala. 190; Kress . State, 65 Ind. 106. But see, Knell . Briscoe, 49 Md. 414, Hitch . Lambright, 66 Go. 228. In Phelps Sill, 1 Day, 315, it is held that an action will not lie against a judge of probate for neglecting to take security from the guardian of an infant, although such an infant had personal estate and the guardian was a bankrupt. Though a judge mistakes, it was said, it is sufficient for him that he acted judicially. For a remarkable case in which a justice was held not responsible, though he seems to have acted very improperly and in defiance of law, see Raymond . Bolles, 11 Cush. 315. The case of Stone v. Graves, 8 Mo. 148, was also one of great apparent misbehavior.

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 purpose of a levy of taxes; to commissioners appointed. to appraise damages when property is taken under the right of eminent domain; 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 they are not well founded, and the express decisions are against them, as the authorities above collected abundantly show. It is said in Garfield v. Douglass, 22 Ill. 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 discretion in determining to exclude persons from his court room while a trial is in progress. State v. Copp, 15 N. H. 212. In determining upon the authority of one person to appear for another; Morton v. Crane, 39 Mich. 520; In taxing an attorney fee; State . Jackson, 68 Ind. 58.

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

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

Sutton v. Johnstone, 1 T. R. 493; Grear v. Marshall, 4 Fost. & F. 485; Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; S. C. 9 Best & S. 768; Dawkins v. 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 v. Ferrand, 6 B. & C. 611.

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

4 Weaver . Devendorf, 3 Denio, 117. See Auditor v. Atchison, &c., R. R. Co., 6 Kan. 500, and a full discussion of the subject, with citation of numerous cases, in Cooley on Taxation, pp. 551 to 557. 5 Van Steenbergh Wend. 42.

v. Bigelow, 3

6 Sage . Laurain, 19 Mich. 137. The case of Turnpike Road v. 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 customs 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, Ch. J., says: "The powers given to selectmen by the statutes are to be exercised for purposes of public and private convenience and accommodation, and when honestly and properly exercised, the statute will be a sufficient warrant for the doings of selectmen. But if unmindful of the true objects of these statutes, selectmen lay out public or private ways for purposes of wrong and injury to individuals, they are not to be protected by these statutes, but, like other wrong-doers, must be held answerable for the damages that flow from their unlawful acts. There is nothing in the nature of the powers conferred in this instance that can protect selectmen from an action. They seem to stand in the situation of a moderator of a town meeting, who is unquestionably answerable for maliciously rejecting the vote of one who has a right to vote. If the selectmen should lay out a road around a turnpike-gate merely for the purpose of enabling travelers to evade the payment of toll, it is impossible to doubt that an action might be maintained for the injury. For the law affords no other remedy for the injury. On the other hand, should the public convenience require a road to be laid out [parallel] to a turnpike,

it might, without doubt be lawfully done, although it might enable passengers to evade the payment of toll. The public convenience and accommodation are in no case to be sacrificed to the local situation of a turnpike gate.

"In this case, the petition, upon which the defendant acted, stated as a reason why the road should be laid out, that the petitioners were griev ously burthened with paying toll at the gate. If for this cause only the defendants proceeded to lay out the road, their proceedings were most manifestly illegal. Such a grievance it was not their province to redress. They had no right to interfere. If the corporation have abused their privileges granted by the charter by erecting a gate at this place, there is, without doubt, a remedy; but it is not to be given by the selectmen in this manner."

1 Harrington v. Commissioners, &c., 2 McCord, 400.

470.

Freeman v. Cornwall, 10 Johns.

• Wall ⚫. Trumbull, 16 Mich. 228. Pappa v. Rose, L. R. 7 C. P. 32; Jones. Brown, 54 Ia. 74.

• Gould v. Hammond, 1 McAllister, 235. He is not liable, it is said, except for acting from corrupt motive.

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