Official Immunity at Common Law

A healthy discussion is now underway about the legality and scope of qualified immunity. This is an area of law that should be substantially revamped, but given its deep roots in recent precedent that will be difficult.  Still, consider what the common law thought about this question, as crisply stated in a circuit opinion by Bushrod Washington from 1805 that addressed a maritime prize case:

The common law doctrine, as to torts, committed by officers acting under authority of law, is certainly very rigid. They act at their peril; and if they by mistake act wrong, there are but few cases in which they can be excused. But a reason may exist for this severity, in cases happening on land, which does not exist where similar cases occur at sea. In the former, the means of obtaining correct information are more within the power of the officer; and the officer may, in most cases, if he doubts as to the fact, insist upon being indemnified by the party. But at sea this cannot be done.


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