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; 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.2

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 anomaly, if they see fit; but if the legislature is intrusted with apportioning and providing for the exercise of the judicial power,

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

2 Washington Insurance Co. v. Price, Hopk. Ch. 2.

3 Commonwealth v. Reed, 1 Gray, 475.

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

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

we cannot understand it to be authorized, in the execution of this trust, to do that which has never been recognized [*413] 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.1

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.2 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.3

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

See Ames v. Port Huron Log-Driving and Booming Co. 11 Mich. 139.

2 Richardson v. Welcome, 6 Cush. 332; Dimes v. 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.

3 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 v. Justices of Suffolk, 18 Q. B. 416; The Queen v. Justices of London, ib. 421; Peninsula R.R. Co. v. Howard, 20 Mich. 26.

4 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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*CHAPTER XII.

LIBERTY OF SPEECH AND OF THE PRESS.

[*414]

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.1

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 official 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 have 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, write, and publish his sentiments on all subjects, being responsible for the abuse

[*415] * It is to be observed of these several provisions, that they recognize certain rights as now existing, and seek

of that right; and no law shall be passed to restrain or abridge the liberty of speech or the press. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury, and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted, and the jury shall have the right to determine the law and the fact. Art. 1, § 8. — New Jersey: Every person may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. Art. 1, § 5. — Pennsylvania: That the printing-presses shall be free to every person who undertakes to examine the proceedings of the legislature, or any branch of government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of the liberty. In prosecutions for the publication of papers, investigating the official conduct of officers or men in public capacity, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury shall have a right to determine the law and the facts, under the direction of the court, as in other cases. Art. 9, § 7. — Delaware: The press shall be free to every citizen who undertakes to examine the official conduct of men acting in public capacity, and any citizen may print on any such subject, being responsible for the abuse of that liberty. In prosecutions for publications investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels, the jury may determine the facts and the law, as in other cases. Art. 1, § 5. Maryland: That the privilege of the press ought to be inviolably preserved; that every citizen of the State ought to be allowed to speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that liberty. Declaration of Rights, Art. 40. — West Virginia: No law abridging the freedom of speech or of the press shall be passed; but the legislature may provide for the restraint and punishment of the publishing and vending of obscene books, papers, and pictures, and of libel and defamation of character, and for the recovery in civil action, by the aggrieved party, of suitable damages for such libel or defamation. Attempts to justify and uphold an armed invasion of the State, or an organized insurrection therein during the continuance of such invasion or insurrection, by publicly speaking, writing, or printing, or by publishing or circulating such writing or printing, may be by law declared a misdemeanor, and punished accordingly. In prosecutions and civil suits for libel, the truth may be given in evidence; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives, and for justifiable ends, the verdict

*

to protect and perpetuate them, by declaring that they [*416] shall not be abridged, or that they shall remain inviolate.

shall be for the defendant. Art. 2, §§ 4 and 5. Tennessee: Nearly the same as Pennsylvania. Art. 1, § 19.—Ohio: Every citizen may freely speak, write, and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge liberty of speech or of the press. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. Art. 1, § 11.- Iowa, Art. 1, § 7, and Nevada, Art. 1, § 9. Substantially same as Ohio. — Illinois: Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that privilege; and in all trials for libel, both civil and criminal, the truth, when published with good motives and for justifiable ends, shall be a sufficient defence. Art. 2, § 4. Indiana No law shall be passed restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print freely on any subject whatever; but for the abuse of that right every person shall be responsible. In all prosecutions for libel, the truth of the matters alleged to be libellous may be given in justification. Art. 1, §§ 9 and 10. — Michigan: In all prosecutions for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published with good motives and for justifiable ends, the party shall be acquitted. The jury shall have the right to determine the law and the fact. Art. 6, § 25. Wisconsin: Same as New York. Art. 1, § 3. Minnesota: The liberty of the press shall forever remain inviolate, and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right. Art. 1, § 3. — Oregon: No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever; but every person shall be responsible for the abuse of this right. Art. 1, § 8. California: Same as New York. Art. 1, § 9. — Kansas: The liberty of the press shall be inviolate, and all persons may freely speak, write, or publish their sentiments on all subjects, being responsible for the abuse of such right; and in all civil or criminal actions for libel, the truth may be given in evidence to the jury; and if it shall appear that the alleged libellous matter was published for justifiable ends, the accused party shall be acquitted. Bill of Rights, § 11. Missouri: That the free communication of thoughts and opinions is one of the invaluable rights of man; and that every person may freely speak, write, and print on any subject, being responsible for the abuse of that liberty; that in all prosecutions for libel, the truth thereof may be given in evidence, and the jury may determine the law and the facts, under the direction of the court. Art. 1, § 27. — Nebraska: Same as New York. Art. 1, § 3. — Arkansas: The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man, and all persons may freely speak, write, and publish their sentiments on all subjects, being responsible for the abuse of such right. In all criminal prosecutions for libel, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libellous is true, and was published