tuting him a judge, &c. When he issues his warrant as conservator of the peace, the Court punishes the officer who disobeys it by attachment. Why? Because it is the act of a judge in his judicial capacity."

The libel is on his conduct in his official capacity of judge, for what he does in his chamber, "imputing to the King a breach of that oath which he takes at the coronation, to administer justice, to his people"; and p. 265: Striking a judge in walking along the streets would not be a contempt "; but it is otherwise if he is in the exercise of his duty; it is "for the sake of the public." Such is the powerful reasoning of that upright man of authoritative wisdom. It remained for times like the present to make such an experiment as this. The silence of the law through all the history of its records is equal to a trumpet-tongued argument against this novel attempt, and overpowers the loudest and most plausible advocate that would make the worse appear the better reason. And you find the opposite doctrine recognised almost as an axiom in the well-known case of Sutton v. Johnstone, 1 T.R. 493 (see p. 513), that no action lies against a judge for acts done in that capacity. The law raises a presumption in favour of the judge, and will not (as in ordinary cases) suffer that presumption to be rebutted. If otherwise, it would deter them from doing their duty.

In Le Caux v. Eden, 2 Dougl. 602, an "universal silence in Westminster Hall is a strong argument to prove that no such action can be sustained; and "there is no Court equal to the trial of a superior judge."

Yet here the Court of Common Pleas is called upon to try the Chief Justice of the King's Bench for having acted in the preservation of the public peace, over which he has the primary superintendence and jurisdiction, and over which we have no jurisdiction whatsoever. Is that great Court to have its functions paralysed in the cause now vested and in progress there, and to wait until the Common Pleas examines the conduct of the Chief Justice and the nature of the offence which he has presumed to bring within his cognisance by means of that very process which is the subject-matter of our present investigation, and which has held the present plaintiff to be amenable in alieno foro? As to the arguments that have been adduced by the plaintiff's counsel from the case of Bridgman v. Holt, Show. P.C. 122, they are founded on the statute of Westminster, which gives the remedy to the party aggrieved when the judge shall refuse to put his seal to a bill of exceptions, and gives an action against the sheriff for a false return-2 Inst. 427, 452. That particular right of action flows from the statute; and so it is in all statutes commanding a thing to be done as a ministerial act; and so says Lord Keeper North. Suppose no such statute existed as that which I have just mentioned, the reasoning in Bridgman v. Holt demonstrates that the right of action in that particular case is founded on the statute only; and it was strongly contended by the plaintiffs in that cae that the proper mode of redress was by appeal to Parliament, and no record exists of any such action

having been brought, and no opinion was given by the Lords in Bridgman v. Holt.(a) At all events there is nothing in that case that bears upon the present. The question here comes to this, whether this Court can erect itself into a court of control over the Chief Justice and his brethren of the Court of King's Bench in matters of their peculiar jurisdiction. But let us pause for a moment to consider the character, station, and public responsibility of the Lord Chief Justice of the King's Bench. The law has imposed upon him the high duties incident to his judicial office of being a principal conservator of the peace. He is the trustworthy guardian of that portion of the King's prerogative which affords the protection of the law to his people. "He should be ready," say the books, 4 Inst. 71, and 11 Rep. 98, " to act with promptitude and vigour pro salute reipublicæ. He is intrusted with the highest jurisdiction, not only in capital cases, but also as to all misdemeanors whatsoever of a criminal nature, tending to a breach of the peace or oppression of the subject, or of the raising of faction or any manner of misgovernment; and it is not necessary to show a precedent of the like crime having been acted against; wherever it is against the principles of justice, or dangerous in its consequences, it should be restrained by the custos morum and principal conservator of the peace of the realm." Of such description is the defendant, against whom the plaintiff brings his suit to be reprised in damages by a jury for having exercised his bounden duty as a judge.

I have mentioned the privileges with which the Common Law has clothed the judge, as emanating from the King as the fountain of justice and the general conservator of the peace of the kingdom. 27 Hen. 8. c. 2., after reciting many of the prerogatives of the Crown touching the administration of justice, declares the sole power of the King to make judges. To that King in his Parliament the judges have an awful responsibility. By the 12 & 13 Will. 3. c. 2. s. 3, at the era of renovating the liberties of England, the judges' commissions were made "quamdiu se bene gesserit."(b) By the uniform usage of many ages our Kings have delegated their whole judicial power to the judges of the several Courts. In the first year of the auspicious reign of his present Majesty, the statute 1 Geo. 3. c. 23. recites the monarch's declaration from the throne," that the independency and uprightness of the judges are essential to the administration of justice"; and it continues their commissions beyond the demise of the Crown, with a proviso that they may be removed by address of both Houses of Parliament. By the 21 & 22 Geo. 3. c. 50. (Ir. Stat.) these great privileges are confirmed to the judges of Ireland(c); the power of removing them for misconduct is recognised; and the right to impeach them before the King in Parliament, according to ancient law and usage, is matter of right to those who

(a) The suit was compromised on the mediation of the King. Foss, Judges, 7, 391. (b) See 38 & 39 Vict. c. 77. s. 5. (c) See 40 & 41 Vict. c. 57. s. 13.

As to the objection that there is no averment in this plea of an information upon oath to ground the warrant. Were the plaintiff brought up on habeas corpus to be enlarged without bail, upon a return of the warrant and commitment, this Court would remand him. The warrant is good on the face of it. In Wilkes's case, 2 Wils. 151, on a similar motion and objections, Lord Chief Justice Pratt said that the setting out the evidence was not essential to the validity of the warrant; and he takes the distinction as to Rudyard's case, 2 Vent. 22, which was a commitment in execution on a conviction of an inferior court, which conviction must set out the evidence that the superior court may judge of it; but that Coke, Hale, and Hawkins had not considered that essential in a warrant to arrest; and he goes on, "I rely on the silence of the case of the Seven Bishops when the similar warrant was not objected to by defendants' counsel, the greatest lawyers of the day, and all lovers of liberty."(d) But the argument as put here would be to disarm the conservator of his most salutary powers. If all the formalities contended for are to be observed by the Chief Justice and his brethren, what will become of the public safety in the variety of instances mentioned in Hale P.C. and 2 Roll. Abr. 134, where the judge may order his tipstaff to arrest ore tenus and without warrant? If there was not such a power justifiable and ready in acting on the pressing occasions of imminent danger, the sudden bursts of outrage would scoff at the impotence of the first magistrate in the law. (e)

But he

may suffer from their corruptions or oppressions; | is sought to be converted into a species of and, as Buller, J.,(a) says in Mostyn v. Fabrigas, certiorari to remove that original cause into "For error of judgment or mistake a judge is this Court. In the case of Burdett v. Abbot, as not answerable to the King or the party; for fully reported in 14 East, 64, Holroyd for the that this would expose the justice of the nation, plaintiff in arguing the demurrer to the defenand no man would undertake the office at peril dant's plea which set forth the order of the of action or indictment for his judicial acts." Commons and relied upon it, Holroyd for the And such is the language of Bushell's case, plaintiff there admitted that if the matter had Vaugh. 134: "If judges have given corrupt come before the Court on a return to a habeas judgments they have in all ages been com- corpus the Court would have remanded the plained of to the King in the Star Chamber or plaintiff; "because," said he," he is, as it were, Parliament; and so says Andrew Horne in bis in custody in the committing court" (so situate Mirrour of Justices (b); and so in the case of exactly is the plaintiff here); and Holroyd goes Ship Money." (c) on to argue that if the Court were to discharge the plaintiff it would be assuming a jurisdiction over proceedings of another court. proceeds to argue that the party may have his action if aggrieved, disputing the privilege to commit. Lord Ellenborough immediately observed, "Then you give up Bushell's case(a) which was a similar interference." Holroyd then makes the distinction that Bushell's case was a committal by a court of oyer and terminer. Lord Ellenborough then questions the position in Bushell's case that the committal and the cause of it ought to be made appear to the Court where the habeas corpus is returned as it appeared to the court committing. Holroyd then starts another distinction between a committal as in Burdett's case being a sentence of punishment, and a committal for trial which must take place in a reasonable time or the prisoner be discharged, in which case Holroyd's argument necessarily infers that in such a case of an arrest (as here) by way of process to hold to bail in another jurisdiction (and that, too, the first criminal court), it cannot be questioned. In page 123 of the volume last cited, during Mr. Holroyd's very ingenious argument, Bayley, J., observes to him that he had not answered the question that was put to him, viz., "whether an action could lie in the Court of Common Pleas against an officer of this Court (of King's Bench) executing its warrant for a contempt, to question the legality of such a commitment; " or "whether an action would lie against the judges, or either of them, who signed the warrant?" Holroyd answers," Certainly no action would lie against judges; they are accountable in another way; no common proceedings in the ordinary way can go against them."(b) Here, then, the counsel for Mr. Taaffe in Ireland have got a full answer and refutation from Sir Francis Burdett's counsel in Westminster Hall. Holroyd there supposed a case where the judges might issue a warrant in a matter of which they had no jurisdiction, and which appeared so on the face of the warrant on return to the habeas corpus. Lord Ellenborough asks, "Is there any case in which when the discharge of a person committed for contempt has been refused on habeas corpus that any court has held out by way of consolation to him that though they could not discharge him for fear of breeding a

I come now to a part of the plaintiff's argument which would endeavour to obviate the glaring consequence of clashing jurisdictions. Upon this plea thus demurred to it appears that in consequence of the warrant and arrest the party plaintiff and the cause in which he is held to bail are in contemplation of law sub judice in a cause in the King's Bench. The present action

(a) Counsel for the plaintiff in error. (b) P. 296; ibid. 265 (Fr. ed. 1646). (c) 3 St. Tr. 826.

(d) In the report in 2 Wils. 158, the passage is slightly different. "In the case of the Seven Bishops their counsel did not take this objection, which no doubt but they would have done if they had thought there had been any weight in it."

(e) A passage of no legal importance is here omitted for the sake of brevity, as in the note in 3 Moo. P.C. on p. 67.

(a) 6 St. Tr. 999; S.C. Vaugham 135; T. Jones, 13; 1 Freem. 1.

(b) The language of Hatchell's Report is here slightly altered so as to give the extracts from East verbatim.

been condemned as a dead letter, and become rusty as old armoury in the Tower; the factious might then exult that they had worked a virtual repeal of the law. In the case of The King v. Despard, 7 T.R. 736, when Fergusson moved for the prisoner's discharge, who was committed for treasonable practices, as the warrant had not delineated his offence with certainty, and it was argued there as here that there was no adjudged case upon the point, it was well ́answered (a) that if no point is to be considered as law unless it has been judicially decided, then farewell the law of the land, and it is sufficient if it has been considered law at all times. It has been observed also that no such plea as the present ever was judicially sanctioned; that is probably true, for no such action was ever brought before; and, as Lord Kenyon observed in the case I have last cited, "though experiments of this kind have been frequently made in courts of justice, they seldom succeed. I will not overturn the law of the land as it has been handed down to me; it is not for the judges, who are to watch over the law, to overset it. I am clearly of opinion that if we were to yield to this application we should forget the duty we owe to the public."

those clubs and societies in imitation of the | had not been so conducted the law might have similar societies in France were founded on what were called the rights of man; they were rights, however (as they explained them), such as were incompatible with law, religion, order, and morality. These societies had eloquent partizans; petitions crowded the table of the House of Commons; and Magna Charta and the Bill of Rights were sounded forth with popular confidence. Lex denique lata. This law of the Irish legislature was, in principle, adopted in England; and the political fame of Sir William Grant in the course of the debates on that subject raise him to conspicuous eminence by his luminous argument which settled the vibrating opinion. (a) The laws in each country in pari materia were the same in principle. The licentious spirit in England was put down by the vigour of the law and the returning good sense of the people. When it was of late unfortunately become imperatively necessary to bring that Convention Act into operation here I cannot subscribe to the confident assertion of its having been unbecoming to the high office of the Chief Justice to grant a warrant which might have been issued by a common magistrate. As this argument has been obtruded upon the case I think it right to say that in my opinion it was a well-advised measure to resort to the highest judicial authority who was competent to give his sanction to the warrant which delineates and defines the offence with legal and technical accuracy. The present action is a bold effort to render the law inoperative in Ireland. If the defendant had been an inferior magistrate, slanderous publications and liability to action might create terror in the humble mind of an ordinary justice of the peace to deter him from issuing his warrant in the first instance of acting upon the statute; but the Law Officers of the Crown would have been culpable in the extreme, where the peace of the country was at stake, if they had not taken the most effectual means to prevent the inchoate mischief with the aid of the first criminal judge, to make the party amenable to the highest criminal tribunal, to be dealt with according to law. If matters (a) See 32 Parl. Hist. 397.

Before I conclude let me compose the hitherto undisturbed ashes of Lord Chief Justice Wilmot, of whose character and opinions much has been misconceived. On the present occasion I cannot humiliate that great man's memory by entering into a laboured vindication of one of the purest judicial characters that ever adorned Westminster Hall. There Wilmot has ever been considered clarum et venerabile nomen. His opinions and his judgments are there, as I hope they will be here, of high authority, and are treated with respect whenever they are cited, as in the late case of Burdett v. Abbot, when the Attorney-General resorts to his admirable argument as he calls it in The King v. Almon.(b)

(a) Per Lord Kenyon, C.J., on p. 742. (b) Wilmot, Notes of Opinions, 243. The remainder of the judgment continues the panegyric on Lord Chief Justice Wilmot.

APPENDIX E.(a)

In answer to a question put to the Law

The Attorney General and Solicitor General, Officers at the instance of the Secretary of Law Officers, gave the following repl; (b) :— State"We are of opinion that under the 17th sec"Whether the Secretary of State can disposetion of 5 Geo. 4. c. 84, the Secretary of State can of the Canadian prisoners by ordering their re- dispose of the three prisoners pardoned after moval to convict hulks under the 5 Geo. 4. c. 84. conviction by ordering their removal to convict s. 17, or to the general penitentiary under the hulks, but that he cannot so dispose of prisoners 7 Will. 4. c. 13. s. 1, until their sentences can pardoned before arraignment under the provibe carried out,"

(a) See above, p. 963.

sions of the local Act.

(b) Opinion Book, 1837-42, 214.