The weekly democratic statesman. [volume] (Austin, Tex.) 1871-1883, 1871-08-24

colonel. who never rendered any
actnal military service other than
beinp once called out for a few
months. On the trial, the Secretary
at War was examined as a witness,
and Lord Chief Justice COckburn,
who presided, put this question to
him: "Was there any personal m
fuence used, or sought to be used,
upon you, to make you depart from
the ordinary course p Finally, the
Lord Chief Justice thus stated the
case: 81 shall tell the jury that If
they believe that his (the Seeretary's)
intention was to Cypress and injure
the plaintiff, he is liable; but that if
he made the recommendation to dis
miss him out of an honest sense Of
duty, even though he may have been
| mistaken, he is not liable in law"
That such decisions as these should
awaken surprise in the American
mind, shows only how far the present
generation has reeeded from the law
abiding and law-invoking character
of the same people of two generations
back. The military experience OF
the last decade and the encroaching
assumptions of the Legislative over
the judicial power, have practically
lessened every citizens right to ju>
dicial redress, and conversely thrown
certain idea of immunity around
public officers; or, as the opinion of
the Court of Claims puts it, "there
has grown up such q belief in the
divine right of public officers SO near
ly resembling all that was ever be-
| lieved of the divine right of kings,
that it is vain to look for more than
one personal action brought against
a high officer of state" That the
AngloASaxon judge has prevented
this in England, the court fully shows.
One noticeable case which might
throw a shade of fear over the hearts
of some Of our military governors is
that of the Governor of Minorca, who
imprisoned and banished poor Mi
norcan, "only by treaty made sub
iect of Great Britain" "It was in
1771-a hundred years ago; but an
English jury soon after cast him (the
GoVernor) in $4,000 damages, and
the Court of Kings Bench, with
Mansfield at its head, sustained the
verdict" Another curious case of
military governors is one brought
against the Governor of Gibralter,
who sent company of soldiers to
search a house for Spanish general
supposed to be there secreted. In
an adjoining house lived an English
merchant, who, coming to the door
to see what was the matter, was
stopped by sentrY's bayonet, and
compelled to remain within for few
minutes. The merchants house was
not entered, nor was the Governor
present at the search; but ''for this
constructed assault" and "this inn
aginary invasion of an Englishman's
CASTLE" can English jury fined the
Governor $50" "All of the judges
of the Common Pleas held that the
action would lie, and that the verdict
should stand. Wherefore, concludes
the Court of Claims, ''the divine
right of governors to do unlawful
acts may be considered now, as in
Great Britain, entirely at an end"
Another curious case was one before
Lord Eldon, when chancellor. Sir
William Congreve, the inventor of
the Congreve rocket, acting under
the order of the Ordnance Office,
had continued to use an article pat
ented by a Mr.. Walker, notWith-
standing an er parte injunction had
been granted. Tie Lord Chancellor
said, with frankness that to such
eminent jurists as Justices Barnard
and Cardozo must seem the weakest
puerility, that he ought not to have
granted the Injunction er parte; that
if he had read the affidaVits with strict
attention, he would not have done so.
But he then added, speaking with
all respect, I will treat Government
here as I would any sutton of the
court. Let an account be kept" etc.
And he then concludes with this very
broad hint to the official power, 81
would recommend to government to
pay the costs of the present applica-
ton, as there are grounds for believ-
ing the injunction violated. 1 can
only recommend the government;
but l would have it understood that
if the recommendation is not attended
to, I a05U make an order for the de-
PENDANT, SIR William COagreve, to
pay them."
A case cited from that somewhat
anomalous court of last resort, the
House of Lords, would furnish
healthy reading for many of our
judges, legislators, and public moral
ists-Ferguson q. The Earl of Kin
moul. Decided in 1912, it is 'illu-
mined with the concurring opinions
of Lyndhurst, and BrOugham, and
Cottenhau, and Campbell" Boldly
rebuking the idea that public Off
Ger, or any person whatever, can be
held liableonly for sins of commission,
it strongly lays down the broad do :
trine which includes all sins of omis-
sion in the legal liability. eff the
law casts any duty" is the language,
"upon a person which he refuses or
fails to perform, he is answerable in
damages to those whom his refusal or
failure Injuries" And we are struck
with another case where the decision
of the Privy Council, prepared by
Sir John Taylor COleridge, and read
by DR.. LushingtOn," firmly meets
those cases that appeal to our SYM
pathies-cases where an officer under