Speech in the Senate, on the Vote of Hon. John P. Stockton affirming his Seat in the Senate, March 26, 1866.
March 26th, immediately after the reading of the Senate journal, Mr. Sumner rose to what he called a question of privilege, and moved “that the journal of Friday, March 23, 1866, be amended by striking out the vote of Mr. Stockton on the question of his right to a seat in the Senate.” The circumstances of this vote appear at the close of the last article. On his motion Mr. Sumner said:—
There are two ways, I believe, if there are not three, but there are certainly two ways of meeting the question presented by the vote of Mr. Stockton. I use his name directly, because it will be plainer and I shall be more easily understood. I say there are two ways in which the case may be met. One is, by motion to disallow the vote; the other, by motion, such as I have made, to amend the journal. Perhaps a third way, though not so satisfactory to my mind, would be by motion to reconsider; but I am not in a condition to make this motion, as I did not vote with the apparent majority. I call your attention, however, at the outset, to two ways,—one by disallowing the vote, and the other by amending the journal. But behind both, or all three, arises the simple question, Had Mr. Stockton a right to vote? To this it is replied, that his name was on the roll of the Senate, and accordingly was called by our Secretary; to which I answer,—and to my mind the answer is complete,—The rule of the Senate must be construed always in subordination to the principles of Natural Law and Parliamentary Law, and therefore you are brought again to the question with which I began, Had Mr. Stockton a right to vote?
Had he a right to vote, first, according to the principles of Natural Law, or, in other words, the principles of Universal Law? I take it there is no lawyer, there is no man even of the most moderate reading, who is not familiar with the principle of jurisprudence, recognized in all countries and in all ages, that no man can be a judge in his own case. That principle has been reduced to form among the maxims of our Common Law,—Nemo debet esse judex in propria sua causa. As such it has been handed down from the earliest days of the mother country. It was brought here by our fathers, and has been cherished sacredly by us as a cardinal rule in every court of justice. No judge, no tribunal, high or low, can undertake to set aside this rule. I have in my hand the most recent work on the Maxims of Law, where, after quoting this rule, the learned writer says:—
“It is a fundamental rule in the administration of justice, that a person cannot be judge in a cause wherein he is interested.”[7]
In another place, the same learned writer says:—
“It is, then, a rule always observed in practice, and of the application of which instances not unfrequently occur that, where a judge is interested in the result of a cause, he cannot, either personally or by deputy, sit in judgment upon it.”[8]
This rule had its earliest and most authoritative judicial statement in an opinion by an eminent judge of England, who has always been quoted for integrity in times when integrity was rare: I mean Chief Justice Hobart, of the Court of Common Pleas. In his own Reports, cited as Hobart’s Reports, I call attention to the case of Day v. Savadge, where this learned magistrate said:—
“It was against right and justice, and against natural equity, to allow them [the Mayor and Aldermen of London] their certificate, wherein they are to try and judge their own cause.”