Judicial Acts. — We find the following floating around in the newspapers, purporting to be a discus sion in court between " Dr. Andrews, the appellee before the court of appeal " in England, and Lord Esher, Master of the Rolls : — "I submitted to the master of the rolls who was presid ing : ' Then if your lordship were to order a policeman in court to bring up to you on the bench a man from the body of the court, and your lordship were then to strike the man in the face, would the striking be a judicial act? ' And his lordship replied that it would be a judicial act On August 7, reverting to the point your petitioner had sub mitted as to whether striking a man in the face would be a judicial act, Lord Esher said : ' If I were to order a barris ter in court to sit down and he did not, and I shot at him and killed him, I much doubt if proceedings for murder would lie against me.'" We can hardly believe that this is a correct report of what his lordship said. If it is, it is arrant nonsense. Judges have always leaned violently toward the main tenance of their immunity concerning anything they might do or say on the bench, seeking to cover all their acts with the cloak of judicial inviolability; but we never before heard of any judge's going so far as to claim that he might commit a felony with impunity while sitting on the bench in the trial of a cause. We had occasion some years ago to investigate this gen eral subject very carefully, and the results may be found in a note, 25 Am. Rep. 694, and 29 ibid. 96. It is held that where a judge of a court of general jurisdiction has jurisdiction of a cause he is not civilly liable for anything he may do under guise of that jurisdiction, although he exceeds his jurisdiction. But there is no hint in the books, so far as we can discover, that a judge is not liable for a wanton and felonious act done on the trial of a cause, although he claims that it was done in furtherance of the proceed ings. It will be difficult to find any sanction for a judge to do what is forbidden by the laws of God and man, and is clearly unnecessary, excessive, and malicious. The distinction between acts that are protect ed and those that are not may be illustrated thus : if a man were on trial for murder, and the penalty were only life imprisonment, and on conviction the judge should sentence him to death and he should be hanged, the judge would not be criminally liable, and he would not be civilly liable in damages, for the act would be simply an excess of jurisdiction; he had power to sentence him, and he simply exceeded his authority. He was in the exercise of a judicial act in passing sentence. But suppose at the close of the testimony, the judge should say: " I pronounce you guilty and sentence you to death," and should then pull out his " gun,"' and kill him, or should shoot him without sentencing him, he would be guilty of murder, for his act would not merely be in excess of jurisdiction, but would be without the guise of juris
diction. No judge has power to punish without sentencing, nor to execute a sentence with his own hands. No judge has authority or guise of authority to slap a barrister's face for contempt, much less to kill him. Xo judge has authority to take a con demned prisoner out with his own hands and hang him. Lord Esher might as well contend that if he should order that woman, who has been vexing the English by her overmuch importunity in her own cause, to sit down, and she should refuse, and he should then commit a rape on her, this would be a "judicial act," and he could go free because he thought it was the only way to stop her mouth. Lord Esher, we fear, is feeling his judicial oats too much, and has become excited and uttered nonsense. His "doubt•' in this matter is not entitled to the respect given to Lord Chancellor Eldon's " doubts."
Law-Book Editing. — For naiveti or coolness, nothing can surpass the views which Mr. G. Pitt Lewis, Q. C, appears to entertain of the function of a law book editor, according to the Loudon Law Journal. This gentleman, it seems, has issued a new edition of Taylor on Evidence, in the preface of which he says : "A further large saving in this direction [/". e. of space] has been made by remorselessly pruning all exuberance of expression, even sometimes, it maybe, at a sacrifice of style and rhetorical effect. Some editors, indeed, consider the text of their author to be so absolutely sacred that not a word of it ought to be touched. The present editor, however, thinks that the true duty of the editor of a law-book is to strive his best to render the work which he is editing one that the author would have produced, writing at the present day : and that in carrying out his task, the editor of such a book must be bold, and must not shrink from responsibility."' We disagree with the editor of the Law Journal, who says of this passage : — "This view has much to be said in its favor, and he who in editing a book not only notes up, but also cuts out, is worthy of praise." We think that there is nothing to be said in its favor, and that such editing of celebrated legal trea tises deserves the strongest reprehension. Prav who has given to Mr. G. Pitt Lewis, Q. C, to know how Judge Taylor would have written if he had fortunately survived to this time? Who made him a judge of "exuberance "'? What right has he to " monkey" with Taylor's rhetoric? If he wants to write a dull and common-place book, let him do it without evasion or saddling his notions on Taylor. An edi tor in this country who should presume remorselessly to prune the exuberance of Story, or alter Kent or Greenleaf to his own idea of what they would have
