(2) Public Officers.—In Macbeth v. Haldimand (f) it was held that public officers cannot be sued, either personally or in their official capacity, upon contracts made by them in their official capacity; and in such a case the only remedy apparently would be by Petition of Right; (g) unless the circumstances of the case make it apparent that they intended to make themselves personally liable. (h) This principle applies equally to a Secretary of State as to any other public officer. (i) The Lords Commissioners of the Admiralty are, however, in certain cases empowered by statute to sue and to be sued, (k) and other government departments may, it seems, sometimes be sued in their corporate capacity, (l) and government departments or public officers may be made directly liable in their official capacity by express statutory provisions. In actions of tort, public officers generally are liable to be sued in their personal or individual capacity, and no malice or want of probable cause need be shown; (m) though they are not liable apparently in their official capacity, at any rate in cases of trespass. (n)

(3) Judges are exempt for all acts done in their official capacity, whether maliciously or not, (o) and this exemption extends to acts done outside their jurisdiction unless they had the knowledge or means of knowledge that the act complained of was outside their jurisdiction. (p)

(f) (1786) 1 Term Rep. 172; and see O'Grady v. Cardwell (1872), 20 W. R. 342; Dunn v. Macdonald, C. A., [1897] 1 Q. B. 555.

(g) See Palmer v. Hutchinson (1881), 6 App. Cas. 619.

(h) Samuel Bros., Ltd. v. Whetherly, [1907] 1 K. B. 709, 715; [1908]

1 K. B. 184, C. A.

(i) See O'Grady v. Cardwell, supra.

(k) See Williams v. Lords Commissioners of the Admiralty (1851), 12 C. B. 420.

(1) See Graham v. Commissioners of Public Works, [1901] 2 K. B. 781, per Phillimore, J., 790, 791.

(m) See Brasyer v. Maclean (1875), L. R. 6 P. C. 398; Cobbett v. Grey (1850), 4 Ex. 729; and see Entick v. Carrington, post, p. 39.

(n) Raleigh v. Goschen, [1898] 1 Ch. 73.

(0) Hamond v. Howell (29 Car. II.), 2 Mod. 219.

(p) Calder v. Halket (1839), 3 Moo. P. C. 28.

(4) Justices of the Peace are not protected to the same extent as judges, and by Jervis' Act (g) an action. lies against them for wrongful acts done maliciously or without reasonable and probable cause within their jurisdiction, (r) or for acts done outside their jurisdiction without any such limitation. (s)

cases, however, for acts done in their official capacity, justices of the peace, and in certain cases mayors, constables, and certain other officials (t) are subject to certain special procedure by the same Act, which provides that the action must be commenced within six months of the offence; (u) and it is provided more generally by the Public Authorities Protection Act, 1893, that actions against public officers in respect of acts done, or neglects or defaults, in the execution of Acts of Parliament, or of any public duty or authority, must be commenced within six months of the act or default, or in the case of continuing injury or damage, within six months after the ceasing thereof. (x)

Apart from these exceptions, however, the law is, in general, the same for all. Aminister of the Crown cannot plead the orders of the Crown as an exemption from liability for an illegal act, (y) and since the Bill of Rights (1688) the Crown can no longer dispense with the provisions of Acts of Parliament in favour of individuals. Moreover, since the Act of Settlement (1700) a pardon by the Crown is no longer a bar to an impeachment in the Commons. (z)

The English standpoint is clearly seen in the case of Entick v. Carrington, (a) which was an action against the king's messenger for seizing the plaintiff's papers under the warrant of a Secretary of State, the plaintiff being suspected of being the author of a seditious libel. It was held that the warrant was illegal, and Lord Camden, C.J., said in the course of his judgment," With respect to the argument of State necessity, or a distinction that has been aimed at between State offences and others, the common law does not

understand that kind of reasoning, nor do our books take any notice of such distinction." Again, a soldier or a policeman cannot plead the orders of his superior officer; they are liable equally with ordinary citizens to be sued for illegal acts, and triable by the same tribunals. (b) A soldier, indeed, is in a less favourable position than the ordinary citizen, for whilst he remains subject civilly to all the liabilities of the ordinary subject, he is subject to further liabilities under military law, and he must run the risk either of rendering himself civilly liable by obeying the orders of his superior officers if such orders are clearly and manifestly illegal, or, on the other hand, of committing a military offence and rendering himself liable to be punished by court martial for disobedience to the commands of his superior.

Droit Administratif. Such a state of things is expressed by saying that there exists in England no such thing as droit administratif, which obtains in certain countries, and more especially in France.

Under that system officials are not liable to be tried by the ordinary civil courts for acts done in their official capacity, but in special courts created for that purpose, and generally composed of a large proportion of officials. The result of such a system is to create a distinction between offences committed by officials and those committed by ordinary persons, and that distinction is not likely to err on the side of harshness towards the official, whilst the power and dignity of the civil courts obviously suffer through the withdrawal of such causes from their cognizance. Another result of this system is the necessity for the creation of a tribunal to settle questions of conflicting jurisdiction which must inevitably arise. In France this function is performed by the Tribunal des Conflits, composed of an equal number of officials and of the ordinary civil judiciary.

In our own country the doctrine put forward under the Tudors and Stuarts of excluding the prerogative from the cognizance of the courts and the writ de non procedendo

(b) Though he may be sued in all cases for illegal acts, the subordinate will not be held liable unless the commands of his superiors were clearly and manifestly illegal. In other cases the superior and not the subordinate is liable. See Keighly v. Bell (1866), 4 F. & F., p. 790.

Rege inconsulto forms the nearest approach to such a system which history affords. At the present day the only instances at all analogous are the few cases in which government servants are subject to the special methods of procedure referred to above. (c)

(4) The Induction of General Principles from Decisions in Particular Cases.

In the written constitutions of most foreign countries there are usually to be found general declarations of popular liberties relating to such matters as the freedom of the Press, the right of public meeting, and kindred subjects. The law of the English constitution does not, however, contain in distinct terms any recognition of the rights of the subject with regard to such matters, and the general principles governing such questions must be sought for in the judicial decisions pronounced from time to time in individual cases. The importance of such a body of what has been termed judge-made law to our Constitution may well be gathered from the consideration that such vastly important principles as the independence of juries, and the immunity of judges for acts done in their official capacity, were only established by judicial decisions in particular instances. Until 1670 juries might be, and, in fact, frequently were, severely punished for verdicts proved wrong on appeal, or even for a verdict contrary to the direction of the court.

Bushell's Case.-In Bushell's Case, 1670, (d) a jury had been fined and committed in default by the Recorder of London for having acquitted Penn and Mead, who were charged at the Old Bailey with preaching in a London street. A writ of habeas corpus having been applied for, the return was made that the prisoners had been committed for having returned a verdict against the plain and manifest weight of evidence, and against the direction of the court on a point of law." It was held by Vaughan, C.J., that a jury could not be punished in a criminal case for not finding in accordance with the weight of evidence and the judge's direction.

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(c) See ante, p. 37, et seq.

(d) (1670) St. Tri. 999; Vaugh. 135.

The immunity of jurors with regard to suits brought against them by persons injured through a wrongful verdict had previously been established in the case of Floyd v. Barker, 1607, (e) and it speaks well for the respect paid by Englishmen to the weight and force of judicial precedent, that so important a principle should have become established beyond the possibility of question by two isolated decisions.

Howell's Case. The decision in Howell's case, 1678, (f) establishing the immunity of judges, was not less important; this was a suit arising out of Bushell's case, and was an action for false imprisonment brought against the Recorder by one of the jurors in that case. It was held unanimously by the whole Court of Common Pleas that no action would lie against a judge for wrongful acts done in his judicial capacity.

But it is principally with regard to such questions as freedom of discuss fon and the right of public meeting that judicial decisions are important at the present day as determining where the rights of the general public begin and where they end; and these questions are of such general importance that a closer consideration of them may not be out of place.

The Right to Freedom of Discussion.-In English law there is no distinct recognition either by the statute or common law of freedom of speech, or of the liberty of the press, and what is meant when it is said that every Englishman has the right to freedom of discussion is simply thisthat every person is by law permitted to say, write, or publish what he pleases, so long as he does not bring himself within the law relating to slander or defamatory libel, or blasphemous, obscene, or seditious words written or spoken.

False defamatory words, if spoken, constitute a slander; if written and published, a libel; and words are defamatory when they are "calculated to convey an imputation on the plaintiff injurious to him in his trade, or holding him up to hatred, contempt, or ridicule." (g) For both slander (h) and

(e) (5 Jac. I.) 12 Co. Rep. 23.

(f) Hamond v. Howell (1678), 2 Mod. 219.

(g) Per Lord Blackburn in Capital and Counties Bank v. Henty, H. L. (E) (1882), 7 App. Cas., p. 771.

(h) In cases of slander it is necessary to prove special damages except in three cases: (1) for words imputing unchastity to a girl or woman.