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jury trial, in cases where that privilege is reserved by the Constitution, does not render the proceedings void, but only makes them liable to be reversed for the error.1

There is also a maxim of law regarding judicial action which may have an important bearing upon the constitutional validity of judgments in some cases. No one ought to be a judge in his own cause; and so inflexible and so manifestly just is this rule, that Lord Coke has laid it down that “even an act of Parliament made against natural equity, as to make a man a judge in his own case, is void in itself; for jura naturae sunt immutabilia, and they are leges legum.2



· The several State constitutions preserve the right of trial by jury, with permission in some for the parties to waive the right in civil cases. Those cases which before the constitution were not triable by jury need not be made so now. Dane Co. v. Dunning, 20 Wis. 210; Crandall v. James, 6 R. I. 104; Lake Erie, &c., R. R. Co. v. Heath, 9 Ind. 558; Backus v. Lebanon, 11 N. H. 19; Opinions of Judges, 41 N. H. 551; Tabor v. Cook, 15 Mich. 322; Stilwell v. Kellogg, 14 Wis. 461; Mead o. Walker, 17 Wis. 189; Byers v. Commonwealth, 42 Penn. St. 89; State v. Peterson, 41 Vt. 504; Buffalo, &c., R.R. Co. v. Burket, 26 Texas, 588; Sands v. Kimbark, 27 N. Y. 147; Howell v. Fry, 19 Ohio, N. s. 556; Stockbridge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Guile v. Brown, 38 Conn. 243. And where a new tribunal is created without commonlaw powers, jury trial need not be given. Rbines v. Clark, 51 Penn. St. 96 ; Haines v. Levin, ib. 412. But the legislature cannot deprive a party of a common-law right, — e. g., a right of navigation, — and compel him to abide the estimate of commissioners upon his damages. Haines v. Levin, 51 Penn. St. 412. Where the constitution gives the right, it cannot be made by statute to depend upon any condition. Greene v. Briggs, 1 Curt. C. C. 311; Lincoln v. Smith, 27 Vt. 328 ; Norristown, &c., Co. v. Burket, 26 Ind. 53. Though it has been held that, if a trial is given in one court without a jury, with a right to appeal and to bave a trial by jury in the appellate court, that is sufficient. Beers v. Beers, 4 Conn. 535; Stewart v. Mayor, &c., 7 Md. 500; Morford v. Barnes, 8 Yerg. 444; Jones v. Robbins, 8 Gray, 329. But we concur in the views of Judge Blatchford, declared by him in the recent unreported case of Matter of Dana, that an unconditional guaranty of jury trial cannot be satisfied, at least in criminal cases, with the mere privilege to have a trial by jury on condition of first submitting to a trial without it, and then, in case of conviction, taking an appeal. The guaranty clearly intends a trial by jury in the first instance.

In Randall v. Kehlor, 60 Me. 37, objection was taken that the requirement of the payment of a jury fee was in violation of the right of jury trial, but the court held otherwise.

? Co. Lit. $ 212. See Day v. Savadge, Hobart, 85. We should not venture to predict, bowever, that even in a case of this kind, if one could be imagined to exist, the courts would declare the act of Parliament void ; though they would

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* This maxim applies in all cases where judicial functions [* 411] are to be exercised, and excludes all who are interested, however remotely, from taking part in their exercise. It is not left to the discretion of a judge, or to his sense of decency, to decide whether he shall act or not; all his powers are subject to this absolute limitation; and when his own rights are in question, he has no authority to determine the cause. Nor is it essential that the judge be a party named in the record ; if the suit is brought or defended in his interest, or if he is a corporator in a corporation which is a party, or which will be benefited or damnified by the judgment, he is equally excluded as if he were the party named. Accordingly, where the Lord Chancellor, who was a shareholder in a company in whose favor the Vice-Chancellor had rendered a decree, affirmed this decree, the House of Lords reversed the decree on this ground, Lord Campbell observing : is of the last importance that the maxim that no man is to be a judge in his own cause' should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest." 6 We have again and again set aside proceedings in inferior tribunals, because an individual who had an interest in a cause took a part in the decision. And it will have a most salutory effect on these tribunals, when it is known that this high court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and should be set aside. This will be a lesson to all inferior tribunals to take care, not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of laboring under such an influence." 3

It is matter of some interest to know whether the legislatures of the American States can set aside this maxim of the common


never find such an intent in the statute, if any other could possibly be made consistent with the words.

I Washington Insurance Co. v. Price, Hopk. Ch. 2; Sigourney v. Sibley, 21 Pick. 191; Freeman on Judgments, § 144.

Washington Insurance Co. v. Price, Hopk. Ch. 2; Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 759 ; Pearce v. Atwood, 13 Mass. 340; Peck v. Freeholders of Essex, Spencer, 457; Commonwealth v. McLane, 4 Gray, 427; Dively v. Cedar Rapids, 21 Iowa, 565.

3 Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 759.

law, and by express enactment permit one to act judicially [* 412] when * interested in the controversy. The maxim itself,

it is said, in some cases, does not apply where, from necessity, the judge must proceed in the case, there being no other tribunal authorized to act;1 but we prefer the opinion of Chancellor Sandford of New York, that in such a case it belongs to the power which created such a court to provide another in which this judge may be a party; and whether another tribunal is established or not, he at least is not intrusted with authority to determine his own rights, or his own wrongs.?

It has been held that where the interest was that of corporator in a municipal corporation, the legislature might provide that it should constitute no disqualification where the corporation was a party. But the ground of this ruling appears to be, that the interest is so remote, trifling, and insignificant, that it may fairly be supposed to be incapable of affecting the judgment or of influencing the conduct of an individual. And where penalties are imposed, to be recovered only in a municipal court, the judges or jurors in which would be interested as corporators in the recovery, the law providing for such recovery must be regarded as precluding the objection of interest. And it is very common, in a certain class of cases, for the law to provide that certain township and county officers shall audit their own accounts for services rendered the public; but in such case there is no adversary party, unless the State, which passes the law, or the municipalities which are its component parts and subject to its control, can be regarded as such.

But except in cases resting upon such reasons, we do not see how the legislature can have any power to abolish a maxim which is among the fundamentals of judicial authority.

The people, indeed, when framing their constitution, may establish so great an

1 Ranger v. Great Western R., 5 House of Lords Cases, 88; Stewart v. Mechanics and Farmers Bank, 19 Johns. 501.

? Washington Insurance Co. v. Price, Hopk. Ch. 2. This subject was considered in Hall v. Thayer, 105 Mass. 221, and an appointment by a judge of probate of bis wife's brother as administrator of an estate of which her father was a principal creditor was held void. And see People v. Gies, 25 Mich. 83.

3 Commonwealth v. Reed, 1 Gray, 475.

* Commonwealth v. Ryan, 5 Mass. 90; Hill v. Wells, 6 Pick. 104; Commonwealth v. Emery, 11 Cush. 406.

anomaly, if they see fit;? but if the legislature is intrusted with apportioning and providing for the exercise of the judicial power, we cannot understand it to be authorized, in the execution of this trust, to do that which has never been recognized as * being within the province of the judicial authority. [* 413] To empower one party to a controversy to decide it for himself is not within the legislative authority, because it is not the establishment of any rule of action or decision, but is a placing of the other party, so far as that controversy is concerned, out of the protection of the law, and submitting him to the control of one whose interest it will be to decide arbitrarily and unjustly.2

Nor do we see how the objection of interest can be waived by the other party. If not taken before the decision is rendered, it will avail in an appellate court; and the suit may there be dismissed on that ground. The judge acting in such a case is not simply proceeding irregularly, but he is acting without jurisdiction. And if one of the judges constituting a court is disqualified on this ground, the judgment will be void, even though the proper number may have concurred in the result, not reckoning the interested party.4

Mere formal acts necessary to enable the case to be brought before a proper tribunal for adjudication, an interested judge may do; 5 but that is the extent of his power.

1 Matter of Leefe, 2 Barb. Ch. 39.

2 See Ames v. Po Huron Log-Driving and Booming Co., 11 Mich. 139; Hall v. Thayer, 105 Mass. 325.

• Richardson v. Welcome, 6 Cush. 332; Dimes 0. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 787. And see Sigourney v. Sibley, 21 Pick. 106; Oakley v. Aspinwall, 3 N. Y. 547.

* In Queen v. Justices of Hertfordshire, 6 Queen's Bench, 753, it was decided that, if any one of the magistrates hearing a case at sessions was interested, the court was improperly constituted, and an order made in the case should be quashed. It was also decided that it was no answer to the objection, that there was a majority in favor of the decision without reckoning the interested party, nor that the interested party withdrew before the decision, if he appeared to have joined in discussing the matter with the other magistrates. See also the Queen 0. Justices of Suffolk, 18 Q. B. 416; The Queen v. Justices of London, ib. 421; Peninsula R.R. Co. v. Howard, 20 Mich. 26.

6 Richardson v. Boston, 1 Curtis, C. C. 251; Washington Insurance Co. v. Price, Hopk. Ch. 1; Buckingham v. Davis, 9 Md. 324; Heydenfeldt v. Towns, 27 Ala. 430. If the judge who renders judgment in a cause had previously been attorney in it, the judgment is a nullity. Reams v. Kearns, 5 Cold. 217.

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The first amendment to the Constitution of the United States provides, among other things, that Congress shall make no law abridging the freedom of speech or of the press. With jealous care of what is almost universally regarded a sacred right, essential to the existence and perpetuity of free government, a provision of similar import has been embodied in each of the State constitutions, and a constitutional principle is thereby established which is supposed to form a shield of protection to the free expression of opinion in every part of our land.

· The following are the constitutional provisions : Maine : Every citizen may freely speak, write, and publish his sentiments on any subject, being responsible for the abuse of this liberty. No law shall be passed regulating or restraining the freedom of the press; and, in prosecutions for any publication respecting the offiial conduct of men in public capacity, or the qualifications of those who are candidates for the suffrages of the people, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libel, the jury, after having received the direction of the court, shall have a right to determine, at their discretion, the law and the fact. Declaration of Rights, § 4, — New Hampshire: The liberty of the press is essential to the security of freedom in a State; it ought, therefore, to be inviolably preserved. Bill of Rights, $ 22. — Vermont : That the people bave a right to freedom of speech, and of writing and publishing their sentiments concerning the transactions of government; therefore the freedom of the press ought not to be restrained. Declaration of Rights, Art. 13. — Massachusetts : The liberty of the press is essential to the security of freedom in a State; it ought not, therefore, to be restrained in this Commonwealth. Declaration of Rights, Art. 16. Rhode Island: The liberty of the press being essential to the security of freedom in a State, any person may publish his sentiments on any subject, being responsible for the abuse of that liberty; and in all trials for libel, both civil and criminal, the truth, unless published from malicious motives, shall be sufficient defence to the person charged. Art. 1, $ 20, Connecticut : No law shall ever be passed to curtail or restrain the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence, and the jury shall have the right to determine the law and the facts, under the direction of the court. Art. 1, $$ 6 and 7. – New York : Every person may freely speak,

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