And then he says, in memorable language, which has made his name famous:—
“Even an Act of Parliament, made against natural equity, as, to make a man judge in his own case, is void in itself; for jura naturæ sunt immutabilia, and they are leges legum.”[9]
Thus strongly and completely did he cover the present case, reaching forward with judgment. According to him, even an Act of Parliament making a man judge in his own case is void. But, Sir, he was not alone. His great contemporary, and our teacher at this hour, Sir Edward Coke, in a very famous case, known as Bonham’s, which I have not before me now, but which is referred to in other cases, lays down the same rule,—that a court of justice will not even recognize an Act of Parliament, if it undertakes to make a man judge in his own case.[10]
But another judge, who, as lawyer and authority in courts down to this day, perhaps excels even the two already cited,—I mean Lord Chief Justice Holt,—has explained and developed this principle in masterly language. I refer to what is known as Modern Reports, in the case of The City of London v. Wood, where he says:—
“I agree, where the city of London claims any freedom or franchise to itself, there none of London shall be judge or jury; for there they claim an interest to themselves against the rest of mankind.”
He then explains the principle:—
“It is against all laws, that the same person should be party and judge in the same cause, for it is manifest contradiction; for the party is he that is to complain to the judge, and the judge is to hear the party; the party endeavors to have his will, the judge determines against the will of the party, and has authority to enforce him to obey his sentence: and can any man act against his own will, or enforce himself to obey? The judge is agent, the party is patient, and the same person cannot be both agent and patient in the same thing; but it is the same thing to say that the same man may be patient and agent in the same thing as to say that he may be judge and party, and it is manifest contradiction. And what my Lord Coke says in Dr. Bonham’s Case, in his 8 Co., is far from any extravagancy; for it is a very reasonable and true saying, that, if an Act of Parliament should ordain that the same person should be party and judge, or, which is the same thing, judge in his own cause, it would be a void Act of Parliament; for it is impossible that one should be judge and party, for the judge is to determine between party and party, or between the Government and the party; and an Act of Parliament can do no wrong, though it may do several things that look pretty odd, for it may discharge one from his allegiance to the Government he lives under and restore him to the state of Nature, but it cannot make one that lives under a government judge and party.”[11]
These are the words of Chief Justice Holt. It will be observed that three eminent judges, Hobart, Coke, and Holt, all found the inevitable conclusion on the immutable principles of Natural Law, that law which is common to all countries. It is the very law of which Cicero spoke in the memorable sentence of his treatise on the Republic, when he said that there was but one law for all countries, now and in all times, the same at Athens as in Rome.[12] It is also that universal law to which the great English writer, Hooker, alluded, when he said that her seat is the bosom of God; all things on earth do her homage,—the least as feeling her care, and the greatest as not exempt from her power. To this Universal Law all your legislation must be brought as to a touchstone; and all your conduct in this Chamber, and all your rules, must be in accordance with it. Therefore I say, as I began, the practice of calling the roll of the Senate must be interpreted in subordination to this commanding rule of Universal Law.
This is not all. I said that it was forbidden, not only by Natural Law, but also by Parliamentary Law. Of course, Parliamentary Law in itself must be in harmony with Natural Law; but Parliamentary Law has undertaken in advance to deal with this very question. There is no express rule of the Senate on the subject, but here is a rule of the other House:—
“No member shall vote on any question in the event of which he is immediately and particularly interested.”[13]