Notes and Articles for Law students

User Tools

Site Tools


De fide et officio judicis non recipitur qusestio ; sed de scientia, sive error sit juris aut facti

Of the good faith, and intention of a judge a question cannot be entertained; but it is otherwise as to his knowledge, or error, be it in law or in fact.

No action will lie against a judge acting judicially for anything done within the scope of his jurisdiction ; and this, whether he be a judge of a superior or of an inferior court ; and, whether of record or not of record, ecclesiastical or civil. Judges are, however, amenable to the criminal laws, and liable to prosecution for corruption, neglect of duty, and other misconduct. The error of a judge, from want of knowledge of the law, the duties of his office, or through mistaking the facts of the case, will, however, be rectified, as in cases of misdirection, &c, by granting a new trial, or such other relief as the circumstances of the case may require. As, where the judge at the trial admit improper evidence, or reject evidence which ought to be admitted ; or misdirect the jury, where such misdirection is likely to influence their verdict ; or do not sufficiently direct the jury, as where he omit to give directions as to the mode of measuring the damages, or do not recapitulate the evidence where the trial has lasted many days ; or where he leave a question of law to the jury which he should himself decide ; in all which, and many other cases of a like nature, a new trial will be granted as of right.

And generally, as to the subject under consideration, it is stated — that the Legislature can of course do no wrong ; that the superior courts of justice are not answerable, either as bodies or as individual members, for acts done within the limits of their jurisdiction ; that even inferior courts, provided the law has clothed them with judicial functions, are not answerable for errors in judgment ; and, where they may not act as judges, but only have a discretion confided to them, they shall not answer for an erroneous exercise of that discretion, however plain the miscarriage may be, and however injurious its consequences. And this follows from the very nature of the thing ; being implied in the nature of judicial authority, and in the nature of discretion where there is no such authority. But, where the law neither confers judicial power nor discretion, but requires certain things to be done, everybody is bound to obey, and, with the exception of the Legislature and its branches, everybody is liable for the consequences of disobedience, and this constitutes the distinction between a ministerial and a judicial office.

It should be observed, that in order to protect a judge in the performance of even a judicial act, it is necessary that he be so acting within the limits of his jurisdiction ; and therefore it is that in all courts of record and not of record, superior and inferior, it is usual and necessary clearly to show, upon the face of the proceedings, the jurisdiction of the court or judge to act in the matter in question. This is particularly shown in proceedings by magistrates, as, for example, in convictions ; the order must distinctly show upon the face of it all the facts necessary to constitute the offence and to give the justices authority to deal with it. It is indeed said that, however high the authority, where a statutory power is exercised, the person acting must take care to bring himself within the terms of the statute. And whether an order be made by the Lord Chancellor or a justice of the peace, the facts which gave him jurisdiction must be stated.

Bac. llax. Reg. 17 ; 12 Co. Hi, 25 ; 2 Salic. G49 ; How r. Strode, 2 Wils. 269; Garnett v. Ferrancl, G B. & C. fil>; Barry r. Arnaud, 10 A. & E. 646; Ferguson v. Earl of Kinnoul, 9 C. & F. 2.“>1 ; Lord Trimlestown v. Kemmis, 9 C. & F. 749 ; Reg. v. Badger, 4 Q. B. 4(18 ; Dicas <•. Lord Brougham, G C. & P. 249 ; Newbould v. Coltman, 6 Exoh. 189 ; Smedley r. Hill, 2 W. Bl. 1105; Hadley v. Baxendale, 23 L. J. 179, Ex. ; Christie r. Unwm, 11 A. & E. 379; Day v. King, 5 A. & E. 366; Reg. ■.-. Johnson, 8 Q. B. 106.

Navigation: Home»Legal Maxims