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.5 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.1 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.

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." 2

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. Nor is it essential that the

81; State v. Fitzpatrick, 11 Atl. Rep. 773 (R. I.). But the recognizance to the lower court on appeal must not be burdened with unreasonable conditions. Liquors of McSorley, 15 R. I. 608. Compare In re Marron, 60 Vt. 199. But that this could not be admissible in criminal cases was held in Matter of Dana, 7 Benedict, 1, by Judge Blatchford, who very sensibly remarks, “ In 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." On a charge of criminal conspiracy, a prisoner has a right to jury trial, "from the first moment and in whatever court he is put on trial for the offence charged." Callan v. Wilson, 127 U. S 540. If in a lower court one has had a jury trial and appeals to a higher nisi prius court, he cannot be deprived of a jury there. McGinty v. Carter, 48 N. J. L. 113. That the right to jury trial in civil cases may be waived by failure to demand it, see Gleason v. Keteltas, 17 N. Y. 491; Baird r. Mayor, 74 N. Y. 382; Garrison . Hollins, 2 Lea, 684; Foster r. Morse, 132 Mass. 854. That it is competent to provide that

the failure to file an affidavit of defence shall entitle the plaintiff to judgment, see Hoffman v. Locke, 19 Pa. St. 57; Lawrance v. Born, 86 Pa. St. 225; Dortic v. Lockwood, 61 Ga. 293.

1 See Rhines v. Clark, 51 Pa. St. 96. Compare Haines v. Levin, 51 Pa. St. 412; Haine's Appeal, 73 Pa. St. 169. Whether jury trial is of right in quo war ranto cases, see State v. Allen, 5 Kan. 213; State v. Johnson, 26 Ark. 281; Williamson . Lane, 52 Tex. 335; State v. Vail, 53 Mo. 97; State v. Lupton, 64 Mo. 415; s. c. 27 Am. Rep. 258; People v. Cicott, 16 Mich. 283; People v. Railroad Co., 57 N. Y. 161; Royal v. Thomas, 28 Gratt. 130; s. c. 26 Am. Rep. 335; and cases, p. 786, note 2, post.

2 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.

8 Washington Ins. Co. v. Price, Hopk. Ch. 2; Sigourney v. Sibley, 21 Pick. 101;

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.1 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 de cree 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 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 was 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." 2

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, 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

Freeman on Judgments, § 144. A judge of probate cannot act upon an estate of which he is executor: Bedell v. Bailey, 58 N. H. 62; or creditor, Burks v. Bennett, 62 Tex. 277. Compare Matter of Hancock, 91 N. Y 284. A justice may sit, although he has received for collection the note in suit. Moon v. Stevens, 53 Mich. 144.

1 Washington Ins. Co. v. Price, Hopk. Ch. 1; Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 759; Pearce v. Atwood, 13 Mass. 324; Kentish Artillery r. Gardiner, 15 R. I. 296; Peck v. Freeholders of Essex, 20 N. J. 457; Commonwealth v McLane, 4 Gray, 427; Dively v. Cedar Falls, 21 Iowa, 565; Clark v. Lamb, 2 Allen, 396; Stockwell

v. White Lake, 22 Mich. 341; Petition of New Boston, 49 N. H. 328. If the property of a judge from its situation will be affected like complainant's by his ruling he cannot sit. North Bloomfield G. M. Co. v. Keyser, 58 Cal 315. As to disqualification by relationship, see Russell v. Belcher, 76 Me. 501; Patterson v. Collier, 75 Ga. 419; Jordan . Moore, 65 Tex. 363; Hume v. Commercial Bank, 10 Lea, 1.

2 Dimes v. Proprietors of Grand Junction Canal, 3 House of Lords Cases, 759, 793.

3 Ranger v. Great Western R., 5 House of Lords Cases, 72, 88; Stuart v. Mechanics' & Farmers' Bank, 19 Johns. 496.

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 entrusted with authority to determine his own rights, or his own wrongs 1

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.2 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 of the State, when framing their constitution, may possibly establish so great an anomaly, if they see fit; but if the legislature is entrusted 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. To empower one party to a controversy to decide it for himself is not

1 Washington Insurance Co. v. Price, Hopk. Ch. 1. This subject was considered in Hall. Thayer, 105 Mass 219, 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.

2 Commonwealth v. Reed, 1 Gray, 475; Justices v. Fennimore, 1 N. J. 190; Commissioners v. Little, 3 Ohio, 289; Minneapolis v. Wilkin, 30 Minn. 140. See Foreman . Marianna, 43 Ark. 324, case of annexing territory; Sauls v. Freeman,

4 Sou. Rep. 525 (Fla.), case of changing county seat.

3 Commonwealth v. Ryan, 5 Mass. 90; Hill v. Wells, 6 Pick. 104; Commonwealth v. Emery, 11 Cush 406; State v. Craig, 80 Me. 85; In re Guerrero, 69 Cal. 88.

4 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.

CH. XI.]

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PROTECTION BY THE LAW OF THE LAND."

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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. 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.

1 See Ames v. Port Huron Log-Driving and Booming Co., 11 Mich. 139; Hall v. Thayer, 105 Mass. 219; 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; Reams v. Kearns, 5 Cold. 217. No power to make a municipal corporation party and judge in the same controversy can constitutionally be given. Lanfear v. Mayor, 4 La. 97; s. c. 23 Am. Dec. 477. 2 Richardson v. Welcome, 6 Cush. 332; Dimes. Proprietors of Grand Junction Canal, 3 H. L. Cas. 759. And see Sigourney v. Sibley, 21 Pick. 101; Oakley v. Aspinwall, 3 N. Y. 547. But it is held in Pettigrew v. Washington Co., 43 Ark. 33, that after judgment it is too late to object that relationship to a party disqualified a judge.

3 In Queen . Justices of Hertfordshire, 6 Q. B. 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, 18 Q. B. 421; Peninsula R. R. Co. v. Howard, 20 Mich. 18.

4 Richardson v. Boston, 1 Curtis, C. C. 250; Washington Insurance Co. v. Price, Hopk. Ch. 1; Buckingham v. Davis, 9 Md 324; Heydenfeldt v. Towns, 27 Ala. 423; State v. Judge, 37 La. Ann. 253. 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; Slaven v. Wheeler, 58 Tex. 23. So though the case in suit is not precisely the one in which he has been consulted. Newcome v. Light, 58 Tex. 141.