Page:Borden v. State ex rel. Robinson.pdf/19

Rh C. J. 3 P. 202.) Nor will such a judgment be the less obligatory because the error is apparent upon the record. 3 Peters 207.

And the corresponding doctrine laid down with equal distinctness, "That the judges of the superior courts are never to be made liable either by civil proceedings or by indictment for any thing done by them in a judicial capacity." (Hammon vs. Howell, 2 Modern R. 218. Miller vs. Seive, 2 Black. R. 1141. Doct. Grovevelt vs. Doct. Bomwell et al. 1 Ld. Raym. 454. 1 Salk. 396. 1 Swift's Dig. 496. Reed vs. Hood & Burdine, 2 Nott & McCord 168. Young vs. Herbert, ib. 172. 1 Day 315. 2 Bay 5. Brodie vs. Rutlege, ib. 69. 2 Gaines R. 312. Rambeel vs. Kelly, Const. Rep. 64 and note.) And according to Lord Mansfield, in Mostyn vs. Fabrigas, Cowper's R. 172, the same rule applied to every judge of a court not of record, provided such court be "subject to a superior review."

But although this doctrine is thus strongly laid down and is sustained by unbroken authority, still a judge who would commit a crime and by a mere evasion endeavor to screen himself under the pretext of exercising his official functions would doubtless be liable to prosecution. Because Sergeant says, and no doubt correctly, in his 6th Book, ch. 28, 5, 6, "If the Court of Common Pleas give judgment in an appeal of death or a justice of the peace, on an indictment of high treason and award execution, both the judge who sentences and the officer who executes may be guilty of felony, because these courts having no more jurisdiction over these crimes than mere private persons, their proceedings are merely void and without any foundation."

But this rule of exemption from liability has never been held applicable to the justices of inferior courts any longer than while they were acting within their jurisdiction, and the reason generally given is that their powers are limited and the mode of their exercise and the extent of their jurisdiction are marked out and defined. And in looking into this part of the subject, one cannot but be struck with the numerous statutes that have been passed