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this, they preserve the historical jury of twelve men,1 with all its incidents, unless a contrary purpose clearly appears. The party is therefore entitled to examine into the qualifications and impartiality of jurors; 2 and to have the proceedings public; and no conditions can be imposed upon the exercise of the right that shall impair its value and usefulness. It has been held, however, in many cases, that it is competent to deny to parties the privilege of a trial in a court of first instance, provided the right is allowed on appeal. It is undoubtedly competent to create new tribunals without common-law powers, and to authorize them to proceed without a jury; but a change in the forms of action will not authorize submitting common-law rights to a tribunal in which no jury is allowed. In any case, we suppose a failure to award a jury on proper demand would be an irregularity merely, rendering the proceedings liable to reversal, but not making them void.

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nan's Liquors, 25 Conn. 278; Curtis . Gill, 34 Conn. 49; Reckner v. Warner, 22 Ohio, N. s. 275; Jones v. Robbins, 8 Gray, 329; Hapgood v. Doherty, 8 Gray, 374; Flint River, &c. Co. v. Foster, 5 Geo. 208; Murford v. Barnes, 8 Geo. 444; State v. Beneke, 9 Iowa. 203; Lincoln Smith, 27 Vt. 328, 360; Steuart v. Baltimore, 7 Md. 500; Common

V.

2 Palmore v. State, 29 Ark. 248; wealth v. Whitney, 108 Mass. 6. But Paul v. Detroit, 32 Mich. 108.

that this could not be admissible in

3 Watertown Bank, &c. v. Mix, criminal cases was held in Matter of 51 N. Y. 558.

4 Greene v. Briggs, 1 Curt. C. C. 311; Lincoln v. Smith, 27 Vt. 328; Norristown, &c. Co. v. Burket, 26 Ind. 53; State v. Gurney, 37 Me. 156; Copp v. Henniker, 55 N. H. 179. It is not inadmissible, however, to require of a party demanding a jury. that he shall pay the jury fee. Randall v. Kehlor, 60 Me. 37.

5 Emerick v. Harris, 1 Binn. 416; Biddle v. Commonwealth, 13 S. & R. 405; McDonald v. Schell, 6 S. & R. 240; Keddie v. Moore, 2 Murph. 41; Wilson v. Simonton, 1 Hawks, 482; Monford v. Barney, 8 Yerg. 444; Beers v. Beers, 4 Conn. 535; State v. Bren

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In

Dana, 7 Benedict, 1, by Judge Blatch-
ford, who very sensibly remarks,
my judgment the accused is entitled,
not to be first convicted by a court,
and then to be acquitted by a jury,
but to be convicted or acquitted in the
first instance by a jury."

6 See Rhines v. Clark, 51 Penn. St. 96. Compare Haines v. Levin, 51 Penn. St. 412; Haines' Appeal, 73 Penn. St. 169. Whether jury trial is of right in quo warranto cases, see State v. Allen, 5 Kan. 213; State v. Johnson, 26 Ark. 281; State v. Vail, 53 Mo. 97; People v. Cicott, 16 Mich. 283.

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 naturæ sunt immutabilia, and they are leges legum." 1

[* 411]

*This maxim applies in all cases where judicial functions 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.2 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.3 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: "It 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." "We have again and again set aside proceedings in inferior tribunals, because an individual who had an interest in a cause took

1 Co. Lit. § 212. See Day v. Savadge, Hobart, 85. We should not venture to predict, however, 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 never find such an intent in the statute, if any other could possibly be made consistent with the words.

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

3 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, 20 N. J. 457; Commonwealth v. McLane, 4 Gray, 427; Dively v. Cedar Rapids, 21 Iowa, 565; Clark v. Lamb, 2 Allen, 396; Stockwell v. White Lake, 22 Mich. 341; Petition of New Boston, 49 N. H. 328.

a part in the decision. And it will have a most salutary 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." "" 1

It is matter of some interest to know whether the legislatures of the American States can set aside this maxim of the common law, and by express enactment permit one to act judicially when * interested in the controversy. The maxim itself, [* 412] 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; 2 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.3

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.5 And it is very

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

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

3 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 his 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.
4 Commonwealth v. Reed, 1 Gray,

475.

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

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 of the State, when framing their constitution, may possibly establish so great an 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 [* 413] recognized as * being within the province of the judicial authority. 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.

1 Matter of Leefe, 2 Barb. Ch. 39. Even this must be deemed doubtful since the adoption of the fourteenth article of the amendments to the federal Constitution, which denies to the State the right to deprive one of life, liberty, or property, without due process of law.

2 See Ames v. Port Huron LogDriving and Booming Co., 11 Mich. 139; Hall v. Thayer, 105 Mass. 325; State v. Crane, 36 N. J. 394; Cypress

Pond Draining Co. v. Hooper, 2 Met. (Ky.) 350; Scuffletown Fence Co. v. McAllister, 12 Bush, 312.

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

4 In Queen v. Justices of Hertfordshire, 6 Queen's Bench, 753, it was decided that, if any one of the magis

Mere formal acts necessary to enable the case to be brought before a proper tribunal for adjudication, an interested judge may do;1 but that is the extent of his power.

trates hearing a case at sessions was Q. B. 416; The Queen v. Justices interested, the court was improperly of London, 18 Q. B. 421; Peninsula constituted, and an order made in R. R. Co. v. Howard, 20 Mich. 26. 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 v. Justices of Suffolk, 18

1 Richardson v. Boston, 1 Curtis, C. C. 251; Washington Insurance Co. v. Price, Hopk. Ch. 2; 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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