may have sustained injury by such misconduct. If, however, a judge having a limited jurisdiction should exceed it, that is to say, should undertake to act in a matter not within his jurisdiction, then he becomes liable to a suit for damages, even if it was a mere mistake of judgment. Thus the court of Marshalsea, which had jurisdiction only of cases in which one of the parties was of the king's household or trespasses committed within the verge of the court, having given judgment for a debt of which they had no cognizance and imprisoned the debtor, the judges and even the ministerial officers were all held liable to damages, the proceedings being coram non judice (case of the Marshalsea, 10 Coke's Rep., 68) ; but in the same case it was said that where a court has jurisdiction of a cause and proceeds erroneously, an action will not lie against the party who sues or against the officer or minister of the court. The rule of exemption as above stated in cases of judges of general jurisdiction has been sustained by the most eminent English judges. (See Groenvelt v. Burwell, 1 Salk., 396; Miller v. Seare, 2 Bla. Rep., 1141; and Mostyn v. Fabrigas, Cowp., 161.) In the case last cited, a governor of Minorca was sued in England for a false imprisonment alleged to have been committed by him while governor. Lord Mansfield said, if it had been done judicially it would have been a complete bar to the action, but as governor he had no such exemption; and he mentioned several cases of naval officers in the British service against whom actions had been brought and damages recovered for acts done by them officially in foreign parts. There was an interesting discussion of this subject in the courts of the state of New York in the case of Yates v. Lansing, which was an action against the chancellor, and the English doctrine was fully considered and sustained. (5 Johnson's Rep., 282 ; 9 id., 375.) In the recent case of Bradley v. Fisher, 13 Wallace's Reports, 335, the supreme court of the United States has affirmed the same doctrine. The same exemption from private suit on account of judicial acts which is given to judges is also extended to jurors, who by the English and American law are judges of facts. Another important requisite for the proper administration of law is certainty in the rules of decision. A discretionary power has been shown by common experience to be unsafe, however specious the idea may be of determining each case upon its own equity. A general rule, known beforehand and rigidly adhered to, is preferable to an oscillating and precarious judgment, although cases of individual hardship will occur in the application of such rules. There will, however, be cases not foreseen or provided for; in respect to these, shall the judges exercise a discretionary power, or should there be a judicatory to take special cognizance of them, or lastly, should legislative action be invoked? The Roman prætors intermingled equitable relief with their judicial decisions. In the English judicial system the court of chancery has had an exclusive but still limited authority to give relief in certain cases upon principles of equity different from the strict rules of law. Yet even in the administration of equity that court soon became bound by its own precedents, from which it was not at liberty to depart, and the chancery law of England is at this day as well settled as the law administered in the other courts. Bacon proposed, in his aphorisms De Jutitia Universali, that there should be what he calls prætorian courts, having power as well of relieving from the rigor of the law as of supplying the defects of law, that is, prescribing the rule in cases not otherwise provided for. (De Aug., lib. 8, c. iii., aph. 31.) The English courts all decide according to precedents, or if no former decision can be found, then by analogy to what has been decided in similar cases, or upon some general principle which has been recognized; and in cases entirely new they have sometimes sought aid from the Roman law. There is one class of cases, however, in which positive law alone is acted upon, and that is in respect to crimes and their punishment. Crimes must be defined by law, which may be either by statute or by ancient prescription, but courts have no power to declare new crimes; and so in regard to punishment, courts can enforce no other penalty than what has been previously fixed by law. The parlements of France were in like manner bound by the arrêts réglementaires, rules of decision established in former cases. On the reorganization of the courts in 1790 an attempt was made to abrogate all power of deciding from analogy, or even by a resort to general principles of jurisprudence; and all cases not provided for by express law were to be referred to the national assembly for the purpose of having such law enacted as would be applicable to the particular case. This crude experiment was so unsatisfactory that in the Code Napoléon it was thought necessary not only to restore to the courts the power of deciding upon general principles and analogy, but it was even made penal to do otherwise. (Code Napoléon, art. 4.)—The courts of the United States have a general correspondence with the English judicial system. The modifications are chiefly these: 1. In the federal courts, as well as the courts of most of the states, the equity powers of the English chancery have been vested in the other courts, though the English system of equity is still substantially administered. Hence our courts may be said to have an equity and a common law side. 2. Local circuit judges have been generally substituted in place of the itinerant or nisi prius judges of England. 3. In most of the states the judges are elected like other public officers by popular vote. Under the federal government the courts consist of the following: 1, the senate as a court of impeachment; 2, the supreme court; 3, the circuit courts; 4, the district courts; 5, the court of claims; 6, the supreme court of the District
