Here is a total absence of any pretence of malice. The defendants acted
honestly and according to their best judgment. This is conceded. The
most that can be said against them is, that they have erred in judgment.
They are not lawyers, nor skilled in the law. They had presented to them
a legal question which, to say the least, has puzzled some of the ablest
legal minds of the nation. The penalty is the same, on which ever side
they err. If they can be convicted of crime, a test must be imposed upon
them, which no judge in the land could stand.
The defendants should be discharged by this Court.
Mr. Crowley then rose to make his argument, when the Court said:
THE COURT: I don't think it is necessary for you to spend time in
argument, Mr. Crowley. I think upon the last authority cited by the
counsel there is no defense in this case. It is entirely clear that
where there is a distinct judicial act, the party performing the
judicial act is not responsible, civilly or criminally, unless
corruption is proven, and in many cases not when corruption is proven.
But where the act is not judicial in its character--where there is no
discretion--then there is no legal protection. That is the law, as laid
down in the authority last quoted, and the authority quoted by Judge
Selden in his opinion.
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