Page images
PDF
EPUB

that the presentment was bad." The only recourse open to the suitor in such a case was to attack the record by writ of error, founded either on the record or on a bill of exceptions to a ruling of the judge.1 It was because this was his only recourse that the legislature provided a remedy against a judge who refused to seal such a bill;2 just as, in later law, the importance of protecting the liberty of the subject induced it to depart from its usual practice, and to penalize a judge who in the vacation refused to issue a writ of Habeas Corpus.3

It will be observed that in the case just cited the judge was acting within his jurisdiction. It is quite clear from other decisions of the same period that the courts did not apply this reasoning to cases where a judge had acted wholly outside his jurisdiction. In such a case the matter was not coram judice, the record could be traversed, and the judge was not protected from the aggrieved litigant's action. "If," said Pigot in 1482, "their patent does not give them power and authority, then it is coram non judice, as if in the Common Bench an appeal of death or robbery or any other appeal is brought, and the party is attainted, it is coram non judice, to which all assented." 5 "A man," said Suliard in the same case, "shall have a traverse to a matter of record, and also to a matter of fact, in order to avoid such a record, when the court has no jurisdiction." "

8

The rules laid down in the Year Books were elaborated and restated by Coke and many other judges of the sixteenth and early seventeenth centuries.7 Thus, in The Case of the Marshalsea, "a difference was taken when a court has jurisdiction of the cause, and proceeds inverso ordine or erroneously, there . . . no action lies. . . . But when the court has not jurisdiction of the cause, then the whole proceeding is coram non judice, and actions

1 For the bill of exceptions, which was given by Stat. West II. c. 31, see vol. i 223-224.

2 Register of Writs f. 182; Co. Second Instit. 427; the statute provides a writ to compel a return, and Blackstone, Comm. iii 372, states that if the judge makes a false return an action will lie against him; this rests on a statement by the judges in Bridgman v. Holt (1693) Shower P.C. at p. 117; but the statute does not seem to contemplate such an action, nor have I seen any case reported in which such an action was brought; for difficulties made by the judges in the fourteenth century when asked to seal such bills, see Plucknett, Statutes and their Interpretation in the Fourteenth Century 67-68.

331 Charles II. c. 2 § 10, 2.

4 See Y.BB. 9 Hy. IV. Mich. pl. 1; 21 Ed. IV. Mich. pl. 49 per Pigot arg.
5 Y.B. 22 Ed. IV. Mich. pl. 11 (p. 33).
6 Ibid.

7 Windham v. Clere (1589) Cro. Eliza. 130; Metcalfe v. Hodgson (1633) Hutton 120; Nichols v. Walker and Carter (1635) Cro. Car. 394; and see the cases cited by Powell, J., in Gwinne v. Poole (1693) 2 Lut. at pp. 1565-1567; the number of actions brought against justices of the peace and other officers was the cause of the Act 7 James I. c. 5, vol. iv 524.

8 (1613) 10 Co. Rep. at f. 76a.

"2

will lie." For this Pigot's dictum in the Year Book of Edward IV.,1 and other Year Books, were vouched, and further illustrations were given. Thus "if the court of Common Pleas holds plea in debt trespass, etc., without an original, it is not void for they are judges of those pleas, and it cannot be said that the plea is coram non judice.' But there is little doubt that, at the beginning of the seventeenth century, there was a tendency to magnify the consequences of the immunity of the judges which flowed from their status as judges of a court of record. As we have seen, the consequences of this status were a useful argument to prove the independence of these courts from the interference of rival courts, such as the court of Star Chamber. Therefore, in the case of Floyd v. Barker, Coke emphasized this immunity; and though he did not wholly dissociate it from its early dependence upon the technical conception of a court of record, he put it for the first time on its modern basis of public policy. "Records," he said, "are of so high a nature, that for their sublimity they import verity in themselves; and none shall be received to aver anything against the record itself; and in this point the law is founded upon great reason; for if the judicial matters of record should be drawn in question, by partial and sinister supposals and averments of offenders, or any on their behalf, there will never be an end of causes; but controversies will be infinite." The judges are "to make an account to God and the King only. Otherwise "those who are the most sincere would not be free from continual calumniations." Clearly we have reached the basis upon which this immunity is based by the modern cases. 8

[ocr errors]

But two characteristics of the law as laid down in Floyd v. Barker, and the later seventeenth century cases, should be noted. In the first place, though the law had thus been placed on its modern basis by the beginning of the seventeenth century, though this modern basis led the courts to give a wide construction to this immunity both in the seventeenth century and later, it did not enlarge this immunity so as to include a case

1 Above 236.

3 Vol. v 159-160.

6 At p. 25.

2 At f. 76b.

4 (1608) 12 Co. Rep. 23.
7 Ibid.

5 At p. 24. 8"It is a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and corruptly. . . . The public are deeply interested in this rule, which, indeed, exists for their benefit, and was established in order to secure the independence of the judges, and prevent their being harassed by vexatious actions," Fray v. Blackburn (1863) 3 B. and S. at p. 578 per Crompton, J.; and this language is in substance repeated in Scott v. Stansfield (1868) L.R. 3 Ex. at p. 223 per Kelly, C.B.; and in Anderson v. Gorrie [1895] 1 Q.B. at p. 670 per Esher, M.R.

"See e.g. Gwinne v. Poole (1693) 2 Lut. at p. 1566, where it was laid down by Powell, J., that, when the jurisdiction of the inferior court is limited in respect of place, the judge is only liable if it appeared or might reasonably appear that he had

where a judge had acted without jurisdiction. From the days of the Year Books to the present day, this distinction between an abuse of jurisdiction and an absence of jurisdiction has been maintained. Indeed, the fact that, from the sixteenth to the nineteenth centuries, a large part of the local government of the country was carried on by justices of the peace acting under judicial forms,3 made the preservation of this distinction and its consequences a necessary safeguard to the liberty of the subject. In the second place, neither the Year Books nor the sixteenth and early seventeenth century cases draw any distinction between judges of the superior courts of record and the judges of any other courts of record. As late as 1840, in the case of Calder v. Halket, Parke, B., laid it down without qualification that English judges, "when they act wholly without jurisdiction, whether they may suppose they had it or not, have no privilege ";" and it is clear from the context that he meant to include judges of the superior courts of record."

6

5

Nevertheless, during the latter part of the seventeenth century, we can see the beginnings of the modern distinction between the immunity accorded to the judges of the superior courts of record, and the judges of inferior courts. That distinction springs from the two connected but divergent roots upon which Coke had grounded the immunity of all judges of courts of record. In the first place, it is grounded upon the fact that, while the jurisdiction of the judges of inferior courts is limited by definite restrictions of subject matter, persons, or place, the jurisdiction of the judges of the superior courts is not so limited. Hence we get the rule, stated in 1666 in the case of Peacock v. Bell, "that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be

knowledge of his lack of jurisdiction; Groenvelt v. Burwell (1698) 1 Ld. Raym. 454; Doswell v. Impey (1823) 1 B. and C. 163.

841.

1 Above 235-236.

2 Terry v. Huntington (1668) Hardres 480; Houlden v. Smith (1850) 14 Q.B.

3 Vol. iv 144, 165.

4 In Y.B. 2 Rich. III. Mich. pl. 21 a distinction is drawn in that, "Omnes curiæ ad communem legem sunt Curiæ Domini Regis, et quilibet Curia ligatur cognoscere consuetudines alterius Curiæ. Sed non de aliis Curiis in civitatibus et patriis"; there is no hint of any other distinction; we have seen that in the Case of the Marshalsea (1613) 10 Co. Rep 76b Coke copies the Year Book of Edward IV. (above 236-237), and uses as an instance of a court acting without jurisdiction the case of the Common Pleas entertaining a criminal appeal.

53 Moore P.C. 28.

6 At p. 75.

7 Thirdly, the object may have been to put the judges of the native courts on the footing of judges of the superior courts of record protecting them from actions for things done within their jurisdiction, though erroneously or irregularly done, but leaving them liable for things done wholly without jurisdiction," ibid at pp. 74-75.

81 Wms. Saunders at p. 74.

so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged." It follows that a superior court has jurisdiction to determine its own jurisdiction; and that therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction, and not an act outside its jurisdiction. On the other hand, as an inferior court cannot determine its own jurisdiction, an erroneous conclusion as to its ambit is an act outside its jurisdiction. In the second place, it is grounded upon the fact that, while the judges of the superior courts are answerable only to God and the king,' the judges of the inferior courts are answerable to the superior courts for any excess of jurisdiction. They can obviously be controlled by the prerogative writs, so that it cannot be said that they are not amenable to the jurisdiction of any court. It follows that their judges can be made liable by the machinery of the courts if they have acted outside their jurisdiction, so that their acts are coram non judice. Theoretically the judge of a superior court might be liable if he acted coram non judice; but there is no legal tribunal to enforce that liability. Thus both lines of reasoning led to the same conclusion-the total immunity of the judges of the superior courts.

2

I think that, at the end of the seventeenth century, the courts were feeling their way to the distinction upon which the total immunity of the judges of the superior courts rests; but that the gradual way in which it was being arrived at prevented any very clear apprehension of its juridical basis. Indeed, though we get statements of this rule in the eighteenth century, I doubt whether we get any very clear statement of its juridical basis until the judgment of Willes, J., in 1867, in the case of The Mayor of

1 Floyd v. Barker (1608) 12 Co. Rep. at p. 25; so also it was said in Hamond v. Howell (1677) 2 Mod. at p. 221, “If he [the judge] doth anything unjustly or corruptly, complaint may be made to the king, in whose name judgments are given, and the judges are by him delegated to do justice."

2 Vol. i 226-231.

This can be illustrated by what was said by the court in Hamond v. Howell (1677) 2 Mod. at p. 220-" There hath not been one case put which carries any resemblance with this; those of justices of the peace and mayors or corporations are weak instances; neither hath any authority been urged of an action brought against a judge of record for doing anything quatenus a judge "; as justices of the peace were judges of record, this sentence seems to make a distinction without a difference; but I think it shows that the court is feeling its way to the distinction between superior and inferior judges.

4 Thus in Miller v. Seare (1777) 2 W. Bl. at p. 1145, De Grey, C.J., said, "First, it is agreed that the judges in the king's superior courts are not liable to answer personally for their errors in judgment. . . . Second, the like in courts of general jurisdiction as gaol delivery. Third, in courts of special and limited jurisdiction a distinction must be made, but while acting within the line of their authority they are protected as to errors in judgment; otherwise they are not protected."

London v. Cox. The fact that this distinction between the judges of the superior and inferior courts was not directly laid down, but only established as the indirect result of the ambit of the jurisdiction of these superior courts, and the absence of any judicial tribunal to which they could be made legally accountable, explains why so many cases have arisen in the nineteenth century in which the extent of this immunity has been questioned. The older authorities limited the immunity of all judges of courts of record to their acts in matters which fell within their jurisdiction; they drew no distinction in this respect between the judges of superior and the judges of inferior courts; and so a trap was laid for those who had not fully considered the consequences of the differences between the extent of the jurisdiction, and nature of the control to which these two classes of judges were subject. I think, therefore, that although it cannot be said that the modern immunity of the judges of the superior courts was fully established at the time of the Revolution, its juridical basis existed, and the judges were gradually becoming conscious of it. To the other effects of the Revolution settlement we must now return.

(iv) The two branches of the prerogative which Charles II. and James II. had most signally abused were specifically dealt with by the Bill of Rights. The suspending power was absolutely condemned. The dispensing power was not condemned absolutely, but only "as it hath been assumed and exercised of late." was intended to regulate this power by further legislation. But the task was found to be too difficult; and the attempt was abandoned. The result is that the recent dispensations were

It

1" Another distinction is, that whereas the judgment of a superior court unreversed is conclusive as to all relevant matters thereby decided, the judgment of an inferior court, involving a question of jurisdiction is not final. If the decision be for the defendant there is nothing to estop the plaintiff from suing over again in a superior court, and insisting that the decision below had turned, or might have turned, upon jurisdiction. If the decision were in favour of the plaintiff it is not conclusive, because the rule that in inferior courts ... the maxim omnia præsumuntur rite esse acta does not apply to give jurisdiction, never has been questioned," L.R. 2 H. of L. at pp. 262-263; hence "there is yet another difference worth noticing between courts of general and courts of limited jurisdiction, namely that the judge and officers [executing the process of the court] are liable to a civil action if they knew of the defect of jurisdiction," ibid at p. 263.

21 William and Mary sess. 2 c. 2 § i 1-“That the pretended power of suspending of laws, or the execution of laws, without consent of Parliament, is illegal.' 3gi 2; cp. as to the interpretation of this clause the case of Eton College (1815) Special Report by Williams; for a list of James II.'s dispensations and pardons see Hist. MSS. Com. 12th Rep. App. Pt. vi 300-308.

1 William and Mary sess 2 c. 2 § 12-" From and after this present session of Parliament, no dispensation by non obstante of or to any statute, or any part thereof, shall be allowed, but that the same shall be held void and of no effect, except a dispensation be allowed of in such statute, and except in such cases as shall be specially provided for by one or more bill or bills to be passed during this present session of Parliament."

The judges agreed that the king had a dispensing power, Hist. MSS. Com. 12th Rep. App. Pt. vi 29, 346 347, 348-349; a bill was introduced to get rid of certain

« PreviousContinue »