A. The Early Law
The special status of the record of a court of record had its origin in the royal assertion that the King's word on events that had taken place in his presence was indisputable. When this privilege was extended from the King to his judges, the court of record was born and the foundation for limited judicial immunity was set. Since the record of the court was incontrovertible, no party could allege that an act noted therein was wrong, and thus the source of the record - the judge - could not be subject to civil or criminal liability for an abuse of power.
This interpretation, established by the middle of the fourteenth century,16 had as corollaries the notions that a judge of a court not of record had no such protection and would be subject to various actions at the hands of disappointed litigants, and that the immunity of a judge of a court of record was limited to acts within his jurisdiction.17 Acts outside his jurisdiction were unprotected by the record; in such cases, a judge was perceived to be acting as a private person and therefore he could not assert immunity based on his official position.18 Thus, through the sixteenth century the common law provided a limited immunity for a limited group of judges on the basis of a technical proposition concerning the nature of the record of a court of record.19
In Floyd, a judge of assize, Barker, presided at the murder trial of William Price and, upon a verdict of guilty, gave judgment and sentenced Price to death. Subsequently, Barker was charged in the Star Chamber with conspiracy. Coke held that neither Barker nor others involved in the prosecution of Price "ought to be charged with any conspiracy, in the Star Chamber, or elsewhere,"23 and that "the said matters done at the Bar were not examinable in the Star Chamber.”24 The immunity was total: "And as a Judge shall not be drawn in question in the cases aforesaid, at the suit of the parties, no more shall he be charged in the said cases before any other Judge at the suit of the King.”25 His reasoning was related to the sanctity of a record on one hand and to broader policy considerations on the other.
The record was a potent weapon to use in the political struggle because of the unimpeachable authority of its origins, the King himself. Impugning the integrity of the record verged on impugning the integrity of the monarch.26 Coke drew on the traditional basis for immunity, the record, and thereby provided the law courts a dual advantage over their rivals, the Star Chamber and other allies of the crown. First, no actions of a judge would be subject to examination against the record in the Star Chamber or elsewhere. Furthermore, such protection would not be available to judges of the rival courts, such as the Star Chamber, which were courts not of record.27 Thus, Coke was able to use effectively an ancient distinction based on the King's position against the King himself.
Coke's analysis of judicial liability preserved the distinctions of prior law. Judges of courts not of record still had no protection against reexamination of their acts; Coke's example was a judge of a hundred court.28 Moreover, because judges of courts of record derived their immunity from the record, they had immunity for certain judicial acts done outside the courtroom, but lost that immunity for acts taken outside their judicial capacity.
[If he hath conspired before out of Court, this is extrajudicial; but due examination of causes - out of Court, and inquiring by testimony, et similia, is not any conspiracy, for this he ought to do; but subornation of witnesses, and false and malicious prosecutions, out of Court, to such whom he knows will be indictors, to find any guilty, &c. amounts to an unlawful conspiracy.29
In short, Coke's analysis was based on the particular status of a court of record and resulted in a formulation consistent with the doctrine that a judge of a court of record was immune from suit for all acts within the scope of the record, but like a judge of a court not of record, was liable for all other acts for which he could not invoke the protection of a record.
Coke introduced a new element into this area of the law by explaining on policy grounds why a judge of a court of record was entitled to immunity. One of his reasons is still today the principal policy argument advanced for judicial immunity - the potential for a multiplicity of suits, frivolous and otherwise, against judges. Coke's statement of the problem is succinct: without a rule of immunity, "there never will be an end of causes: but controversies will be infinite...."30 The difficulty with this formulation is identical to the difficulty with similar arguments in later times; any rule other than an absolute rule of immunity for all judges that gives no consideration to jurisdiction or the nature of the act committed has the potential for generating suits of great, if not "infinite," numbers.
Coke's second policy argument concerned the necessity of maintaining respect for the judiciary and the government. The origins of judicial office lay in the role of the monarch as the dispenser of justice to his subjects.31 Even though the administration of justice had become formalized by the time of Coke, the relationship between judges and King was still quite clear. For Coke, because the administration of justice "concerns the honour and conscience of the King, there is great reason that the King himself shall take account of it, and no other."32 If the King's judges were liable to answer to others inferior to the King (including, specifically, the Star Chamber), it would tend to the "slander of the justice of the King."33 Thus, royal judges "are only to make an account to God and the King."34
Coke's second major opinion on judicial immunity followed three years later in The Case of the Marshalsea,35 in which he explored the limits of jurisdiction that developed out of the characterization of a court as a court of record. An act outside the jurisdiction of the court, as noted in Floyd,36 was not considered to be the action of a judge and therefore was not within the record. An erroneous decision by a judge on a matter within his jurisdiction, however, was viewed as a matter of record, and therefore the judge was immune from suit for such a decision. Coke gave the example of the Court of Common Pleas holding plea in an appeal of felony and attainting the defendant as representative of an act coram non judice,37 which would render the judge liable. Coke's example of an erroneous decision was a plea of debt by the common pleas court awarding a capias against a duke; this was illustrative of error because the law prohibits issuance of a capias under these circumstances.38 The capias, though void, arose in a matter within the court's jurisdiction, thus shielding the judge issuing the writ from liability. Coke preserved the limitation of immunity from earlier law and his examples suggest that he also sought to preserve the qualification that a judge would be immune only if he did not and could not know of the facts limiting his jurisdiction.
Thus, the law of judicial liability at the time of Coke was clear and simple. The basic principle was liability, not immunity. A judge of a court not of record was liable for all his wrongful acts. A judge of a court of record only was liable for wrongful acts committed outside his authority. Following the seventeenth century formulation of those basic principles of judicial liability and immunity, development proceeded along the following lines:
(2) creation of the distinction between superior and inferior courts; and
(3) creation of the distinction between malicious and non-malicious acts.
Holdsworth has suggested59 that two sources of the distinction between superior and inferior courts lay in Coke's analysis of judicial liability in The Case of the Marshalsea60 and Floyd v. Barker.61 First, because the jurisdiction of a superior court is not limited, the law presumes that nothing is outside the jurisdiction of such a court except as specially appears, and the court itself may determine its own jurisdiction. Accordingly, an erroneous conclusion concerning jurisdiction by a court that has power to determine its own jurisdiction is an abuse of jurisdiction, not an act in absence of jurisdiction, and thus it imports immunity from suit under the basic rule of immunity. On the other hand, an inferior court has no authority to determine its own jurisdiction and a wrong decision by it concerning its jurisdiction is an act in absence of jurisdiction, not an abuse of jurisdiction, and thus there is no immunity. Second, a judge of an inferior court is answerable to a superior court by prohibition or other process for acts in absence of jurisdiction, but superior court judges answer only to God and King. Thus, judges of the latter type of court, but not the former, are immune from suit in another court for acts in absence of jurisdiction.
Holdsworth, like others, uses the terms "superior" and "inferior" in an ambiguous manner.62 In his first point, he defines a superior court as one presumed to have jurisdiction in all cases. His second use of the term is to describe a court that is not subject to prohibition. The two definitions are not coextensive, the second use of the term being more limited than the first. Other commentators have offered different definitions of superior and inferior courts.63 To understand the meaning of the concepts in the judicial liability context, we turn to the case law.
The first case that suggested the present distinction between superior and inferior courts, although not an immunity case, was Peacock v. Bell,64 which involved a complaint in the Court of County Palatine of Durham. The complaint did not state specifically that the defendant had been indebted at a place within the jurisdiction of the court. The King's Bench held the complaint to be good because the palatine court was a superior court, so the action would be presumed to be within the jurisdiction of the court. The palatine court was a superior court, even though it was inferior to the courts at Westminster and could be restrained by prohibition,65 because executions on its judgments could not be stayed by writ of error without security. Although not an immunity case, Peacock v. Bell is important because it usually is cited for the proposition that a superior court has unlimited jurisdiction.66 In this different context, the King's Bench used the broader interpretation of superior court.
Terry v. Huntington67 was the first judicial immunity case to address the distinction between inferior and superior courts. Chief Baron Hale held that remedial action, including actions against judges in appropriate cases, was available for errors committed outside the jurisdiction of a court for all courts except the "King's courts at Westminster."68 This decision suggests a restricted view of which courts are superior courts, including only a few royal courts.
This narrow view was echoed in Taaffe v. Downes,69 which is usually cited as one of the leading cases stating a rule of absolute immunity for superior court judges.70 The court's definition of "superior court" was quite narrow indeed, consistent with the view in Terry v. Huntington that only the King's judges at Westminister were entitled to so high a status. Taaffe was an action in trespass for assault and false imprisonment on a warrant against William Downes, Lord Chief Justice of the Court of King's Bench in Ireland. The Court of Common Pleas in Ireland held that the action would not lie, stating reasons characteristic of such cases, including the relation of the judges to the King, judicial independence, and the prevention of vexatious suits. Justice Mayne drew the distinction between superior and inferior courts:
The difference between the Judges of the superior and inferior courts has not been sufficiently attended to. The King's Judges stand next to, or with the King, or for him, appointed by him, and responsible to him; and he will have his justice done by them, and by them alone. The inferior Judges stand under, and represent the authority of subjects; they have only the responsible power of subjects entrusted to them; or they are placed at a distance in responsibility from the King, and are subject to the control and direction of the superior Courts. An action before one Judge for what is done by another, is in the nature of an Appeal; and is the Appeal from an equal to an equal.71In this and subsequent passages, the court made clear that only the judges who "stand next to, or with the King"72 were the highest royal judges. Inferior judges "are subject to the control and direction of the superior Courts,"73 presumably by writ of prohibition, writ of error, or other means of judicial control. The final sentence quoted above indicates that only the few judges who are "equals" are granted the immunity. Actions could be brought "in the nature of an Appeal" before high court judges to review the decisions of many inferior judges, and all of those in the latter category lacked judicial immunity. Superior judges, however, answered only in "the high Court of Parliament" for their conduct.74 The advancement of this argument was especially easy in this case, since the court repeatedly emphasized the unique position of the defendant, the Chief Justice of King's Bench in Ireland, who possessed the most general jurisdiction of any judge; this position contrasts sharply with that of a justice of the peace, an officer of limited and defined jurisdiction. Finally, another specific indication of the court's interpretation is the statement of Justice Mayne,75 reviewing the authorities, that no action against a judge was ever sustained and only two such actions were ever attempted, one against the Lord Lieutenant of Ireland76 and one in King's Bench in England.77 Justice Mayne could not have been ignorant of the numerous actions against lower judges prior to 1813 heretofore discussed and the inescapable implication is that he referred only to actions against high court judges.
The foregoing discussion of the distinction between superior and inferior courts should not be considered definitive. The law from the seventeenth century forward was somewhat confused, in part because of the paucity of cases in the area, especially cases involving superior court judges. This confusion is, however, important for our purposes, because it could not have permitted an easy adoption of English law in the United States; the English law was just not that straightforward. Holdsworth is instructive:
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 bases.... 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... 1867...78
The question of liability for malicious acts arose most frequently with inferior judges and other lower judicial officers, particularly justices of the peace; the absolute immunity of superior court judges extended even to acts done maliciously.80 Although there is considerable disagreement on this proposition,81 we conclude that inferior judges were liable for malicious acts within their jurisdiction.82 This liability developed in part to deal with malfeasance by election officials acting in a judicial capacity,83 but it was extended to all inferior judges.84 The basic principle was summarized in Taylor v. Nesfield:85 "If the act of a magistrate is done without jurisdiction, it is a trespass; if within the jurisdiction, the action rests upon the corruptness of the motive; and, to establish this, the act must be shewn to be malicious.86
The rules regarding malice have a two-fold origin. First, the notion apparently existed that a malicious act as much as an act in absence of jurisdiction could be characterized as coram non judice and therefore unprotected. Second, the rule concerning malice developed as an adjunct to the doctrine ubi jus, ibi remedium - where there is a right, there is a remedy. Chief Justice Holt's dissenting opinion in Ashby v. White87 has been described as the zenith of the influence of this principle88 and the adoption of his dissent by the House of Lords in reversing the decision of King's Bench89 added considerable weight to that position. In any event, the rule concerning malice continued in English law90 and was carried over into American law.91
Parliament's response was a series of acts regulating the manner in which a civil action could be brought against a justice, although the substantive rules of liability were not changed. The earliest of these was enacted in 1609 and was designed to deter "causeless and contentious suits" brought by "evil-disposed and contentious persons."97 The preamble of the Act of 1751 illustrates the duality of the problem, protection of the justices and protection of the people:
Whereas Justices of the Peace are discouraged in the Execution of their Office by vexatious Actions brought against them for or by reason of small and involuntary errors in their Proceedings: And whereas it is necessary that they should be (as far as is consistent with Justice, and the Safety and Liberty of the Subjects over whom their Authority extends) rendered safe in the Execution of the said office and trust: and whereas it is also necessary that the Subjects should be protected from all willful and aggressive abuse of the several Laws and Statutes committed to the Care and Execution of the said Justices of the Peace....98The remedies and procedures provided by the acts included the assessment of double costs against a losing plaintiff,99 the requirement of written notice to a defendant justice at least one month before any action was brought, during which time the justice could offer a settlement to the party and pay the offered sum into the custody of the court,100 and the limitation of damages to nominal amounts for certain wrongful acts except when done "maliciously and without reasonable and probable cause."101
The Justices Protection Act of 1848102 continued the procedures of the earlier acts and, for our purposes, demonstrates the substantive rules of liability. Section 1 of the Act, providing that actions alleging acts by a justice "done maliciously, and without reasonable and probable cause"103 could be brought in case, demonstrates the lack of immunity for malicious acts. Section 2, providing that actions alleging acts by a justice "in a matter of which by law he has not Jurisdiction, or in which he shall have exceeded his Jurisdiction"104 could be maintained as previously provided by law, demonstrates the jurisdictional basis of immunity.
A brief review of the English law of judicial liability through the nineteenth century provides a perspective for the examination of the area in American law. The earliest English law provided for judicial liability. When a rule of immunity developed, it began and remained a limited exception to a general rule of liability to suit. The exception was based on formal notions of the judicial process and judicial office, as well as political considerations, although it later was justified by reference to policy issues. The policy arguments, however, were of limited force, and the exception never was extended very far. Most of those performing judicial functions continued to be liable for erroneous acts outside their jurisdiction even if done in good faith, and for malicious acts. This liability was regarded as a necessary check on improprieties in the administration of justice, although at times even this check had to be counterbalanced by legislative action. The necessity for legislative action itself illustrates the scope of liability.
