and having the question submitted to a jury * * * ? Does an action lie against a man for maliciously doing his duty? I am of opinion that it does not * * * No Judge, no jury, no witness * * * could discharge his duty freely if not protected by a positive rule of law from being harassed by actions * * * and * * * that the position of the defendant manifestly required a like protection to be extended to him and to all other officers in the same position." "There is," Mellor, J., said, "little doubt that the reasons which justify the immunity in the one case do in great measure extend to the other."
Nowhere has this been better stated than by Lord Chancellor North, centuries ago, in Barnardiston vs. Soame:[1] "They who are intrusted to judge ought to be free from vexation that they may determine without fear."
As the Courts decide upon the real substance of things, let us inquire what this Act requires.
It has, again and again, been determined that the fixing of charges, etc., is a purely legislative function, to be exercised by the Legislature or its properly denominated substitutes. It, of course, follows, from the decisions already referred to, that both are immune from action or indictment. The Lever Act, departing from established custom, appoints each seller of certain commodities the price determining authority. His judgement, whatever it may be, must control the primary act. But he, unlike the others, has no volition whatever, for he must decide under penalty of losing not only his means of livelihood, but even his constitutional inalienable "right of pursuit."
But this is not all by any means. As the Supreme Court has itself pointed out, the legislative function
- ↑ Barnardiston vs. Soame (1674), 6 How. St. Tr. 1096.
