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had in mind the equally familiar dictum of Lord Hobart — “Even an Act of Parliament made against natural equity, as to make a man judge in his own case, is void in itself :


legal maxims for restraining the application of general words, was this: “The censors cannot be judges, ministers, and parties; judges to give sentence or judgment; miuisters to make summons; and parties to have the moiety of the forfeiture, quia aliquis non debet esse juder in propria causa, imo iniquum est aliquem suæ rei esse judicem; and one cannot be judge and attorney for any of the parties.” And it appears in our books, that in many cases, the common law will control Acts of Parliament, and sometimes adjudge them to be utterly void : for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void.” 118 a. And see S. C. 2 Brownl. 265.

When this passage was made one of the points of attack against him, Coke called the king's attention to the fact (which had been omitted in the questions drawn up by his enemies, Lord Chancellor Ellesmere and Sir Francis Bacon) that the words of his report did “not import any new opinion, but only a relation of such authorities of law, as had been adjudged and resolved in ancient and former times, and were cited in the argument of Bonham's Case ; " "and therefore the beginning is, It appeareth in our books,

And so it may be explained, as it was truly intended.” 6 Bacon's Works (ed. 1824), 400, 405, 407. One of the authorities thus referred to was the remark of Herle, C. J., in Tregor v. Vaughan, 8 E. 3, 30, that "some statutes are made against law and right, which they that made them, perceiving, would not put them in execution." The others are either cases in which a limited construction had been given to general words in order to avoid an absurdity; or instances of rejecting repugnant or unfavorable provisions, as in other English and American cases. Case of Alton Woods, i Rep. 47. Cromwell's Case, 4 Rep. 13. Jenk. Cent, 196, pl. 4. Riddle v. White, Gwillim's Tithe Cases, 1387. United States v. Cantril, 4 Cranch, 167. Sullivan v. Robbins, 3 Gray, 476. Campbell's Case, 2 Bland, 232. Cheezem v. State, 2 Ind. 149.

In a later case Coke is reported to have said “that Fortescue and Littleton and all others agreed, that the law consists of three parts: First, Common Law: Secondly, Statute Law, which corrects, abridges, and explains the common law: The third, Custom, which takes away the common law: but the common law corrects, allows, and disallows, both statute law and custom; for if there be repugnancy in statute, or unreasonableness in custom, the common law disallows and rejects it, as it appears by Dr. Bonham's Case," &c. Rowles v. Mason, 2 Brownl. 197, 198. In his first Institute he repeats the same classification, adding, “The common law hath no controller in any part of it, but the High Court of Parliament.” Co. Lit. 115 b. Again he says, in a passage which seems to have been cited by Otis (ante, 56), “the surest construction of a statute is the rule and reason of the common law.” Co. Lit. 272)). S. P. Harbert's Cuse, 3 Rep. 13 b. And in his second Institute, in commenting on the 12th chapter of Magna Charta, declaring that assizes should “not be taken except in their own counties," and on the apparently repugnant decision that if a man be disseised of a commote or lordship marcher in Wales, holden of the king in capite," the assize should be taken in an adjoining county in England, he says, “the reason is notable, for the Lord Marcher, though he had jura regalia, yet could not he doe justice in his owne case.” "Hereby it appeareth (that I may observe it once for all) that the best expositors of this and all other statutes are our bookes and use or experience.” 2 Inst. 25.

The same rules of construction have prevailed ever since. Acts of Parliament are always to be construed according to the common law and natural right, even if it should be necessary for this purpose to adopt what would otherwise be a forced construction. Fulmerston v. Steward, Plow. 109. Sheffield v. Ratcliffe, Hob. 346. Williams v. Pritchard, 4 T. R. 3. The King v. Inhabitants of Cumberland, 6 T. R. 194. Dwarris on Sts. (2d ed.) 484, 623. The rule has been thus expressed by one of the most exact of mod. ern English judges: “The rule by which we are to be guided in construing Acts of Parliament is to look at the precise words, and to construe them in their ordinary sense, unless it would lead to any absurdity or manifest injustice; and if it should, so to vary

VOL. I. -4

for jura naturæ sunt immutabilia, and they are leges legum."1 Lord Holt is reported to have said, “What my Lord Coke says in Dr. Bonham's Case in his 8 Rep is far from any extravagancy, for it is a very reasonable and true saying, That if an Act of Parliament should ordain that the saine person should be party and judge, or what is the same thing, judge in his own cause, it would be a void Act of Parliament.”

and modify them as to avoid that which it certainly could not have been the intention of the legislature should be done." Parke, B., in Perry v. Skinner, 2 M. & W. 476.

For an example of American opinion upon this subject, it is sufficient to quote from Chief Justice Marshall the following “principles in the exposition of statutes :

“An Act of Congress ought never to be construed to violate the Law of Nations if any other possible construction reinains, and consequently can never be construed to violate neutral rights, or to affect neutral commerce, further than is warranted by the Law of Nations as understood in this country.” “Every part of the statute is to be considered, and the intention of the legislature to be extracted from the whole;” and “where great inconvenience will result from a particular construction, that construction is to be avoided, unless the meaning of the legislature be plain, in which case it must be obeyed.” Murray v. The Charming Betsey, 2 Cranch, 118. United States v. Fisher, Ib. 386.

The same doctrine has been applied to the construction of a written constitution. Chief Justice Parsons, and his associates (and afterwards in turn successors) Justices Sewall and Parker, in an opinion given to the Massachusetts House of Representatives in 1811, said: “The natural import of the words of any legislative Act, according to the common use of them, when applied to the subject-matter of the Act, is to be considered as expressing the intention of the legislature; unless the intention, so resulting from the ordinary import of the words, be repugnant to sound, acknowledged principles of national policy. And if that intention be repugnant to such principles of national policy, then the import of the words ought to be enlarged or restrained, so that it may comport with those principles; unless the intention of the legislature be clearly and manifestly repugnant to them. For although it is not to be presumed that a legislature will violate principles of public policy, yet an intention of the legislature, repug. nant to those principles, clearly. manifestly and constitutionally expressed, must have the force of law.” Opinion of Justices, 7 Mass. 524, 525.

Thus by weighing Coke's words, and comparing them with his own statements and later authorities, they are relieved from the misconstruction, which has occasioned modern commentators either, like Chancellor Kent, to praise a boldness which Coke never assumed, or, like Lord Campbell, to sneer at what they would not take the trouble to understand. 1 Kent Com. (6th ed.) 448. 2 Campbell's Lives of the Chancellors, 248, note. 1 Campbell's Lives of the Chief Justices, 290.

1 Day v. Saradge, Hob. 87. The dispute there was upon the liability of a freeman of London to pay wharfage to the city, and the question was whether this should be tried by certificate of the mayor and aldermen according to the customs of London (which had been confirmed by Act of Parliament) or by a jury. The very paragraph which contains the dictum quoted in the text shows that there was another sufficient reason for ordering a trial by jury. That paragraph, which concludes the opinion, is thus: “ By that that hath been said it appears, that though in pleading it were confessed that the custome of certificate of the customes of London is confirmed by Parliament, yet it made no change in this case, both because it is none of the customes intended, and because even an Act of Parliament, made against naturall equitie, as to make a man judge in his owne case, is void in it selfe, for Jura naturæ sunt immutabilia, and they are leges legum."

Bracton, with more accuracy, wrote, “ Jura enim naturalia dicuntur immutabilia, quia non possunt ex toto abrogari vel auferri, poterit tamen eis derogari vel detrahi in specie vel in parte.” Lib. 1, c. 5, $ 8.

2 City of London v. Wood, 12 Mod. 687. Approved by Wilde, J., in Commonwealth v. Worcester, 3 Pick. 472, and by Metcalf, J., in Williams v. Robinson, 6 Cush, 335, 336.

Nemo debet esse judex in sua propria causa has always been a fundamental maxim of

The law was laid down in the same way, on the authority of the above cases, in Bacon's Abridgment, first published in 1735; in Viner's Abridgment, published 174151, from which Otis quoted it; and in Comyn's Digest, published 1762–7, but written more than twenty years before. And there are older authorities to the same effect. So that at the time of Otis's argument his position appeared to be supported by some of the highest authorities in the English law.1


the common law. Chancellor of Orford's Case, 8 H. 6, 18; Bro. Ab. Patent, 15. Lit. $ 212. Co. Lit. 141 a. Derby's Case, 12 Rep. 114; 4 Inst. 213. 2 Rol. Ab. Judges, A. Hesketh v. Braddock, 3 Bur. 1858. The Queen v. Justices of Hertfordshire, 6 Q. B. 753. Dimes v. Grand Junction Canal, 3 H. L. Cas. 759. Egerton v. Brownlow, 4 H. L. Cas.

Pearce v. Atwood, 13 Mass. 340, 341. Commonwealth v. McLane, 4 Gray, 427. Hush y. Sherman, 2 Allen, 597. Washington Ins. Co. v. Price, Hopk. Ch. 1. Peck v. Freeholders of Essex, Spencer, 475; 1 Zab. 657. Governor Winthrop, when accused before the General Court of Massachusetts in 1645 for acts done by him as a magistrate, " coming in with the rest of the magistrates, placed himself beneath within the bar and 80 sat uncovered.” 2 Winthrop's Hist. N. E. 224. And so did Lord Holt upon the trial in 1693 of a suit brought by the Crown to test his right as C. J. Ř. B. to appoint the chief clerk for enrolling pleas in that court. Bridgman v. Holt, Show. P. C. 111. Yet an interested judge may act if no other has jurisdiction of the matter. Anon.cited 8 H. 6, 19 h, and Bro. Ab. Judges, 6. Great Charte v. Kennington, 2 Stra. 1173; Bur. Set. Cas. 194. The Quern v. Great Western Railway, 13 Q. B. 327. Ranger v. Great Western Railway, 5 H. L. Cas. 88. Commonwealth v. Ryan, 5 Mass. 92. Hill v. Wells, 6 Pick. 109. Commonwealth v. Emery, 11 Cush. 411. In re Leefe, 2 Barb. Ch. 39. Or if he is expressly authorized by statute. The King v. Justices of Essex, 5 M. & S. 513. Commonwealth v. Worcester, 3 Pick. 472. Commonwealth v. Reed, i Gray, 474, 475. And an interested judge may do formal acts necessary to bring the case before the proper tribunal.

The king v. Yarpołe, 4 T. R. 71. Dimes v. Grand Junction Canal, 3 H. L. Cas. 787. Jeffries v. Sewall, 2 John Adams's Works, 138, 139. Richardson v. Boston, 1 Curt. C. C. 251. Buckingham v. Davis, 9 Maryland, 329. Heydenfeldt v. Towns, 27 Alab. 430. But if a judge causes a suit in which he is interested to be brought before him, his judgment therein will void, although he is sole judge of the court. Mayor of Hereford's Case, cited 7 Mod. 1; 2 Ld. Raym_766; & 1 Salk. 201, 396. Richardson v. Welcome, 6 Cush. 332. Judge Rolle was of opinion that even consent of parties would not give jurisdiction to an interested judge, “because it is against natural reason.” Smith v. Hancock, Style, 138. But it is now well settled that the objection of interest may be waived, unless it is made by constitution or statute an absolute disqualification. Regina v. Cheltenham Commissioners, 1 Q. B. 475. Kent v. Charlestown, 2 Gray, 281. Tolland v. County Commissioners, 13 Gray, 13. Sigourney 5. Sibley, 21 Pick. 106. Puddock v. Wells, 2 Barb. Ch. 335. Oakley v. Aspinwall, 3 Comst. 547.

Bac. Ab. Statntes, A. Vin. Ab. Statutes, E. 6 pl. 15; ante, 51. Com. Dig. Parliament, R. 27. Story's Miscellaneous Writings, 125–133. Doct. & Stud lib. 1. cc. 2, 6. 1 Finch, c. 6. Noy's Max. 19. John Milton, in his Defence of the People of England, appealed to “that fundamental maxim in our law, by which nothing is to be counted a law, that is contrary to the law of God, or of reason." 6 Milton's Prose Works (ed. 1851), 204.

Even Sir William Blackstone in his Commentaries, first published in 1765, admitted that the rule is generally laid down that Acts of Parliament contrary to reason are void;" adding, however, “but if the Parliament will positively enact a thing to be done which is unreasonable, I know of no power that can control it.” 1 Bl. Com. 91. And so the law was stated in the editions published during his life, the eighth and last of which was published in 1778. In the posthumous editions his statement is thus moli. fied: “I know of no power in the ordinary forms of the Constitution, that is vested with authority to control it;" and the qualifying words appear in the corrections for the press made in his own handwriting in the margin of a copy of the eighth edition, DOW owned by Mr. Francis E. Parker of Boston. Perhaps the American Revolution

The same doctrine was repeatedly asserted by Otis,1 and was a favorite in the Colo nies before the Revolution. There are later dicta of many eminent judges to the effect

forced itself more distinctly upon the notice of the learned commentator between 1778 and his death in 1780.

Opposite the statements of the power of the Parliament in 1 Bl. Com. 49, 97, 161, 189, Quincy in his copy wrote “ Qu," and references to Vattel's Law of Nations, Bk. I, c. 3, pp. 15-19, and Furneaux's Letter to Blackstone, 81, 83. And at Blackstone's statement, " It must be owned that Mr. Locke and other theoretical writers have held that “there remains still inherent in the people a supreme power to remove or alter the legislature, when they find the legislative Act contrary to the trust reposed in them; for when such trust is abused, it is thereby forfeited, and devolves to those who gave it.' But however just this conclusion may be in theory, we cannot adopt it, nor argue from it, under any dispensation of government at present actually existing."i Bl. Com. 161, 162 — the words here printed in italics are underlined by Quincy, who adds in the margin, “ Tamen quære whether a conclusion can be just in theory, that will not bear adoption in practice.” This very passage affords another instance of Blackstone's careful revision of his work. In the sixth and subsequent editions the word“ practically” is inserted before the word “ adopt;" and for the words “argue from it” are substituted “take any legal steps for carrying it into execution.”

1 Jeffries v. Sewall, 2 John Adams's Works, 139. Rights of the British Colonies, 41, 61, 62, 71, 72, 73, 109, 110.

2 In the controversy of Massachusetts with the other Confederated Colonies of New England in 1653 upon the right of the Confederation to make offensive war, all parties agreed that any acts or orders manifestly unjust or against the law of God were not binding. 10 Plym. Col. Rec. 215-223; 2 Hazard Hist. Coll. 270-283. In 1688 “the men of Massachusetts did much quote Lord Coke." Lambert MS. quoted in 2 Bancroft's Hist. U. S. 428. And in 1765, Hutchinson, speaking of the opposition to the Stamp Act, said, “The prevailing reason at this time is, that the Act of Parliament is against Magna Charta, and the natural rights of Englishmen, and therefore, according to Lord Coke, null and void." Summary of the Disorders in the Massachusetts Province proceeding from an Apprehension that the Act of Parliament called the Stamp Act deprives the People of their Natural Rights,” 26 Mass. Archives, 180, 183. And see Hutchinson to Jackson, September 12, 1765, quoted ante, 441; Arguments of Adams and Otis on the Memorial of Boston to the Governor and Council, ante, 200, 201, 205, 206; 2 John Adams's Works, 158, 159, note. Even the judges appointed by the Royal Governor do not seem to have been prepared to deny this principle. John Cushing, one of the associate justices, in a letter to Chief Justice Hutchinson, dated “In a hurry, Feby. 7, 1766," upon the question whether the courts should be opened without stamps, wrote, “Its true It is said an Act of Parliament against natural Equity is void. It will be disputed whether this is such an Act. It seems to me the main Question here is whether an Act which cannot be carried into execution should stop the Course of Justice, and that the Judges are more confined than with respect to an obsolete Act. If we admit evidence unstamped ex necessitate Q. if it can be said we do wrong.” Mass. Archives, 55. And in 1776, after the Governor had left, and the Council and House of Representatives had assumed the government, John Adams, in answering a letter of congratulation upon his own appointment as Chief Justice of Massachusetts, from William Cushing, his senior associate, and who upon Adams's declination became Chief Justice in his stead, and afterwards a Justice of the Supreme Court of the United States, wrote, You have my hearty concurrence in telling the jury the nullity of Acts of Parliament.” 9 John Adams's Works, 390, 391, & note.

In a case before the General Court of Virginia in 1772, George Mason, as reported by Thomas Jefferson, argued that the provision of the statute of that Colony of 1682, that “all Indians which shall hereafter be sold by our neighboring Indians, or any other trafiqueing with us as for slaves, are hereby adjudged, deemed and taken to be slaves," was originally void, because contrary to natural right and justice," citing Coke and Hobart, ubi sup. The only authority cited on the other side was 1 Bl. Com.


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that a statute may be void as exceeding the just limits of legislative power;' but it is believed there is no instance, except one case in South Carolina, in which an Act of the Legislature has been set aside by the courts, except for conflict with some written constitutional provision.3

The reductiou of the fundamental principles of government in the American States to the form of written constitutions, established by the people themselves, and beyond the control of their representatives, necessarily obliged the judicial department, in case of a conflict between a constitutional provision and a legislative act, to obey the Constitution as the fundamental law and disregard the statute. This duty was recognized, and unconstitutional acts set aside, by courts of justice, even before the adoption of the

91. As the court held that the Act of 1682 had been repealed by a subsequent statute, it became unnecessary to decide the question. 2 Hening's Sts. at Large, 491. Robin v. Hardaway, Jefferson R. 114, 118, 123. And in the debates on the adoption of the Constitution of the United States, Patrick Henry said that the Virginia judges had opposed unconstitutional Acts of the Legislature. 4 Elliott's Deb. (2d ed.) 325. Et vid. sup. 519, note.

1 Ellsworth, in 3 Madison Deb. 1400; 5 Elliot's Debates, 462. Chase, J. in Calder v. Bull, 3 Dall. 388. Marshall, C. J. and Johoson, J. in Fletcher v. Peck, 6 Cranch, 135, 136, 143. Thompson, J. in Ogden v. Saunders, 12 Wheat. 304. Story, J. in W’ilkinson v. Leland, 2 Pet. 657, 658. Ham v. M'Claws, 1 Bay, 95. 5 Dane Ab. 248. Parker, C. J. in Foster v. Esser Bank, 16 Mass. 270, 271, and Ross's Cuse, 2 Pick. 169. Richardson, C. J. in Opinion of Justices, 4 N. H. 566. Prentiss, J. in Lyman v. Mower, 2 Verm. 519. Redfield, C. J. in Hatch v. Vermont Central Railroad, 25 Verm. 66. Hosmer, C. J. in Goshen v. Stonington, 4 Conn. 225. Spencer, C. J. in Bradshaw v. Rogers, 20 Johns. 106. Walworth, C. in Varick v. Smith, 5 Paige, 159, and Cochran v.

an Surlay, 20 Wend. 373. Bronson, C. J. in Taylor v. Porter, 4 Hill, 144, 145. Jewett, J. in Powers v. Bergen, 2 Selden, 367. Bland, C. in Campbell's Case, 2 Bland, 231, 232.

2 In 1792 the Superior Court of South Carolina held that an Act passed by the legislature of the Colony in 1712, which took away the freehold of one man and vested it in another, was “against common right, as well as against Magna Charta,” and “therefore ipso facto void.” Bowman v. Middleton, 1 Bay, 252. [This case is, in truth, no exception. It is to be noticed that the decision pronounces the Act invalid as of 1712, when it was passed. At that time the authority of Parliament, and so of the statute of Magna Charta, was paramount in South Carolina. The terms of the decision are as follows: “The court (present, GRIMKE and Bay, Justices), who [sic], after a full consideration on the subject, were clearly of opinion, that the plaintiffs could claim no title under the Act in question, as it was against common right, as well as against Magna Charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of third persons, without any compensation, or even a trial by the jnry of the couutry, to determine the right in question. That the Act was, therefore, ipso facto, void. That no length of time could give it validity, being originally founded on erroneous principles. That the parties, however, might, if they chose, rely upon a possessory right, if they could establish it.” It may be added that at the time of this decision the Constitution of the State expressly affirmed the principle of right,” which is here in question. — En.

* It was said hy Chief Justice Parsons, and repeated by Chief Justice Shaw, that " the legislature may make all laws not repugnant to the Constitution.” Stoughton v. Baker, 4 Mass. 529. Commonwealth v. Alger, 7 Cush. 101. Aud see Opinion of Justices, 7 Mass. 525; Patterson, J. in Vanhorne v. Dorrance, 3 Dall. 308 ; Iredell, J. in Cnlder v. Bull, 3 Dall. 398, 399; Washington, J. in Beach v. Woodhull, Pet. C. C. 6; Baldwin, J. in Bennett v. Boggs, Bald. 74; 1 Kent Com. 448; Verplanck, Senator, in Cochran v. Van Surlay, 20 Wend. 382; Bronson, J. in People v. Fisher, 24 Wend. 220; Cowen, J. in Butler v. Palmer, i Hill N. Y. 329, 330; Gibson, C. J. in Harvey v. Thomas, 10 Watts, 66, 67; Royers, J. in Commonwealth v. M'Closkey, 2 Rawle, 374 ; Huston, J. in Braddee v. Brownfield, 2 W. & S. 285.


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