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TIMES &> SEnSTTIISHEL
“* COLUMBUS, GEORGIA.
“TUESDAY EVENING, AUGUST 3,
Oar Agent.
The services of Mr. B. R. Folsom, have been
to the Times & Sentinel office for one year. •e is
rized to receive subscriptions, advertisements, **
receipt for the same. Our friends will o ige us
sponding to his call.
l,oe*l Items.
~ Nfw Church —Sabbath (August ” Ist,)
w""fthe dedication of the l.ule Metho
di^Chapel in the lover part of the city The services were
conducted by the Rev. W. G. Conner,late President of the
LaGrango Female College. lie preached a very appro
priate and beautiful sermon. His style is happy, language
well selected, voice melodious, and above all, he makes
no display, but leaves a deep religious impression upon the
minds of his hearers. The chapel is situated on Church
Street, below the Catholic Church, and has in connection
with it a large and flourishing Sabbath School, of which
Mr. T. J. Jackson is SuperiDtendant. We believe it is to
be called Soule Chapel. We would suggest that it be
named “Pierce Chapel,” in honor of Rev’d Dr, JLovick
Pierce, father ol Bishop Pierce.
Alabama Election.
Monday 2d inst. was the election day lor county officers
throughout Alabama.
In Russell county, the race for the office of sheriff was
an exciting one. Both parties claimed the victory and
both candidates were popular with their respective parties.
The result ehows the electioh of Whittaker, the democra
tic candidate, over T. J. Holland, the American candidate
The following is the vote of the several precincts:
Whittaker’s maj. Holland’s maj.
Girard 31
Wacoochee ~...55
Oswitchee 47
Sandfort 70
Crawford.... 20
Himes 15
Uchee 52
Opelika 76
Salem.... 2
Whitaker’s majority 105 votes.
Barbour County.—Aug. 3,3 P. M.—Thomas Robin
son probably elected Sheriff; J. G. McDuffie, Tax As
sessor; Wm. H. Lock, Clerk.
Montgomery County.—Waller (Am.) has 14G maj.
over Mastin (dem.) for Sheriff in the city; Mastin will
have a majority in the county—vote close.
Crawford, Aug. 3, 1858.
Whitaker’s majority in Russell County is 129. All the
returns have come in and this is the official majority.
Yours truly,
R. N- HOWARD.
Judge Henning’s Revilers.
The Chronicle 65 Sentinel of Augusta, speaking ol Judge
Benning’s presiding in the Bank case recently tried at Ma
con, says, “he has made the most palpable effort to pros
titute Judicial power to the protection of fraud and wrong
that has ever occurred in Georgia.” This is strong lang
uage towards a high-toned officer.Happiiy Judge Benning’s
character needs no defence in this community. It would
be an act of supererrogation* Suffice it to say, he is the
soul of honor, the embodiment ol integrity. Seldom do
we find a man with the moral courage to rise above the
base fear of public opinion, and discharge religiously what
he believes to be his duty. The height of such a man’s
motives is seldom brought to the level or appreciation of
common minds.
Savannah Republican vs. Southern Rights.
The Savannah Republican rejoices that there is nothing
f ‘deader than the disunion or Southern Rights principle
at the South!’ It would fain believe it! So would Gree
-1 y and Garrison. What a glorious reflection it is that the
principle of Southern Rights—rights guaranteed our sec
tion by the Constitution—the corner stone of our institu
tions—no longer animates tne Southern heart! We dis
card it —it is disunion, it is treason, it must not live, it will
offend the North, it will preserve slavery! Oh, Union!
source of all blessing, all power, all freedom, we sacrifice
our rights to thee! We offer to thee our house-hold gods,
our homes, our all ! We will not offend thy majesty by
cries of unjust oppression and tyranny! We will crush
the principle of Southern Bights and hail with joy the
day which will welcome the last loot prints of slavery—
the last vestige ol our rights, to pay homage to thee! No
ble King, we are thy most obedient, most obsequious ter
vants! Smite us, we are fawning spaniels at thy feet—we
kiss thy rod!
Laws and Journals.
A correspondent of the Georgia Citizen wants to know
why the Laws and Journals have not been printed. They
have been delivered from this office to Miliedgeville for
some time past. The Governor has been waiting on the
publishers of Hines’ Legal Forms. He desires to send the
Laws and Journals and the Legal Forms to the different
counties at tbe same time.
P taula Circuit —Nomination. —We learn from the
Lumpkin Palladium, that the nomination for Judge and
Solicitor General, of the Pataula Circuit, will take place
at Cnthbert on the 14th September. Judge David Kiddoo
and Col. David B. Harrell are the present incumbents.
There are many gentlemen, who are worthy of wearing
the Judicial ermine with great dignity and ability in this
Circuit. We might mention the name of Col. John A.
Tucker of Stewart, who ranks deserved high at tho bar
and who represents Stewart county with groat fidelity in
the State Senate. Judge Wm-C. Perkins of Randolph,
the predecessor of tne present incumbent, gave, we under
derstand, universal satisfaction during his term ol service.
Maj. Wm. C. Cook, of Early county, who received the
same number of votes with Judge Kiddoo in the last nom
inating convention —though no candidate—would make
an upright, honest, worthy Judge. Col. Hood, Col.. Ba
rry, D. B. Harrell, Esq., and others, will perhaps have
friends in the Convention. Let all abide by the nomina
tion and move on harmoniously together.
To Mr. Trippe—3d District,— The Enquirer, an
Amer ican organ, speaking of the re-election of Hon. Geo
S. Hawkins of Fla. to Congress, says, it wants him de
feated, “so as to lay on the shelf one of the willing
supporters of the English scheme!” Having voted for
that bill, you will please take warning! Ihe opposition
of so leading a Know Nothing Journal in your District,
will seriously damage your prospects for re-election!
You must be laid on the “shelf.” You are a traitor.
The Americans had better look for your successor. Wo
recommend Col. D. P. Hill, the State Senator from
Harris county,
Interesting News from Nicaragua.
New York, July 31.—The steamship Granada, from
Grey town has arrived, with dates from that port to the *2oth
July.
Among the passengers is Maxims Jerez, in the plac e
of Yrissari, as Minister to this country from Nicaragua.
He brings the Cass-Yrissari treaty as modified and ratified
by Nicaragua; also |he complete negotiations for the tran
sit ronte with Vanderbilt.
Nicaragua is much excited at the rumors of another in*
* aaoa by Gen W alker.
Martinez has placed Castillo in a state of defence.
Hines’ Legal Forms.
We have received a copy of this valuable book, which
is now being distributed to the countv officers through*
ought the State, by an act of the Legislature. We are of
opinion that it is a better book than,Cobb’s Analysis and
Forms. It is not so clumsy, and contains every thing that
is necessary for the lawyer, or county officer. The au
thor is Richard K. Hines of Albany—a young lawyer of
great promise and distinction. The book is for ale at
the book store of J. M. Cooper &■ Cos. in Savannah, and
J. M. Boardman in Macon.
Mr. Dougherty’s Letter.
We publish with pleasure the letter of Mr. William
Dougherty of this City in relation to his objections to
Judge Benning’s presiding in a recent bank case at Macon.
Mr. Dougherty thinks that a fair version of the affair has
not been given by the letter writers. We give place by
request to the reasons given by Judge Benning for pre
siding in some of the Bank cases as found in the lGth vol.
Georgia Reports. The people can now .decide the merits
of the question for themselves.
The “Scene” in the Supreme Court—Letter from Wm.
Dougherty, Esq.
Columbus, July 24th.
To the Editor of the Savannah Republican:
Dear Sir—l noticed in your paper of
intant, a letter written from Macon,
give an account of a “scene” which ti. i %'nred
before the Supreme Court, on Saturday last. The
statement of your correspondent is made, avowed
ly, on the information of others; and to that cause
may be attributed its inaccuracies and omissions;
and which it is my purpose to correct by this com
munication.
Your correspondent says, “that the objections
•‘to Judge Benning were that he had been coun
sel in one of the cases brought against the banks
“4*c.” No such objection was urged. Another
was “that he had made promises when in Milledge
“vilie during his election, that he would not sit in
“any case he had been counsel in in the lower
“courts: and that he, Judge Benning, indignantly
“denied ever having made any promises of any
“kind to anybody whereby his conduct as Judge
“might be influenced.”
The objection urged, was that Jndge Benning
had pledged himself not to preside in any of the
bank cases in which he had been engaged as
counsel.
The denial was, that he had made no pledge
whatever, not to preside, in any particular case
or class of cases. The difference between the two
is, I admit, not very important. In the objection
as stated by your correspondent, he makes the
promises applicable to all cases; as made in
court it was confined to a particular class of cases,
to wit: Bank cases, as they are termed. The term
promise is used in one and pledge in the other. I
do not think this at all material, for I think, as here
used, they are synonymous.
But the great error of your correspondent, or his
informant, is, in omitting to state what occurred
afterwards. One would suppose from reading the
account given in your paper, that the matter clos
ed with Judge Benniug’s denial, &c. Such was
not the case. A conversation betweeu Judge Ben
ning and myself, immediately followed, in which
was disclosed facts, showing, as I think, that the
charge that Judge Banning before his election had
made pledges, &c., is substantially, if not literally,
true.
In that conversation Judge Benning was under
stood to admit, and such is the fact, that during his
canvass before the Legislature objections were
made to his eleclion, on the ground of his connec
tion with these Bank cases, as counsel. That he
came to the determination not to preside in any
in which he had been employed, .and that he an
nounced in Miliedgeville, before his election, that
determination, and that bis position and course, if
elected, in regard to these cases was well known
and understood then. Does not this, under the
circumstances, amount to a pledge? I then thought
and yet think that it does —Judge Benning thinks
that it does not.
Our difference was not as to what transpired in
Miliedgeville before the election, but as to the name
by which it ought to be called. For the purpose
for which it was introduced into this controversy,
it is wholly immaterial whether it be called a pledge
promise, agreement or understanding, or by any
other name. It is evident that these things were
done with some purpose —that they meant some
thing—that expectations were raised which would
be disappointed if Judge Benning was to preside
in that class of cases.
1 then proceeded to show—and think I did so
conclusively—that by Judge Benuing’s presiding in
the case then before the Court, he would as effect
ually decide that class of cases, to wit: the Bank
cases, against former clients, as if he presided on
their trial. This is also entirely omitted in the
statement given by your correspondent.
This is not all; three out of five of the objections
to Judge Benning are not mentioned at all. It
was stated as an objection to him, that whilst at the
bar he united with the other counsel for the stock
holders, in the preparation and defence of their
Bank cases generally. That he, or Jones & Ben
ning, aided and contributed largely in constructing
the long argument, used by Col. Holt at Americus
some years since in one of their Bank cases in the
question of the Statute of Limitations, the main
question in the case before the Court. And also,
that the case called had been tried in the Court be
low, and brought to this term of the Supreme
Court, with the avowed purpose that Judge Ben
ning might preside in it; and that a similar case
against the estate of Daniel McDougald had been
tried at the same term in the Court below,, and if
carried to the Supreme Court would be retained to
the next term, whilst this case, although tried last
is brought to this term. It would have been fair
and justfto all parties that the grounds ol objection
should have been| given as they were urged, and
more especially when not one of them was denied
or controverted except fthe one in regard to the
pledges ot Judge Benning.
In thisjrespect the statment made to your cor
respondent, resembles that made by the editor of
the Georgia Telegraph, and tends to confirm the
suspicion that the information given him and your
correspondent, came from the same source. It is
to be regretted that he, occupying so important a
position as to become the source of information
for the press, was not more fortunate in compre
hending and recollecting that which he attempts to
communicate.
In regard to the gremark of your correspondent,
as to the manner and extent which Judge Ben
ning’s course is sustained by the Bar, I know no
thing, and can have nothing to say. But without
intending in the least to impugn the correctness of
the statement, I would suggest that it may be pos
sible, that that portion of the Bar with whom your
correspondent was thrown in communication,might
have been counsel for the stockholders, as they are
numerous, and generally about the court when
their cases are up for a hearing.
My connection with this affair will, I hope, be
deemed a sufficient apology for suggesting the er
rors and supplying the omissions in the account
given of it by vour correspondent, and that jou
will as cheerfully publish the corrections as you did
the original statement.
Very respectfully, yours, &c.,
W. DOUGHERTY.
JUDGE BENNING’S REASONS.
When this case was called Dougherty,
one of the Counsel for the plaintiff, objected to m\
presiding in it on three grounds—First. That a
case or cases like this was pending in the bupenor
Court of Muscogee county, in favor ot the plaintiff
in this case, against Mrs* McDougald, as the exe
cutrix of Daniel McDoughald, deceased, and that
at the time of mv being elected a Judge ot this
Court, I was of Counsel for her in the case or
C&S6S ‘
Secondly. That cases like this were pending in
that Court in favor of other persons than this
plaintiff, against Col. Seaborn Jones, as a stockhol
der in another bank—the Chattahoochee Rail-road
&. Banking Company, and that Col. Jones was my
father-in-law, and had been, at the time of my elec
tion as Judge, my clitnt in those cases.
Thirdly. That the Counsel for the defence, in
each of the cases commonly called the “bank
cases,” to which cases belonged this, had agreed,
among themselves, to make, or had made “com
mon cause” in the defence of all the bank cases ;
and so, that all ot those Counsel were to be consid
ered as substantially engaged in the defence of
each and every one of the cases; that, consequent
ly, I was to be considered as having been, at the
time of my election, substantially one of tho Coun
sel for the defendant in this very case.
These grounds I did not think sufficient to sup
port the objection, and therefore notwithstanding
the objection, I presided in the case. Was I right
in this ? That I was, 1 will state my reasons for
thinking.
First, then, as to the third ground. That ground,
as far as it concerns me, has no foundation, in fact.
I never made any agreement with anybody, to make
common cause in tbe defence of the bank cases,
generally, or of this case, in particular. I never
took part in the defence of the cases generally, or in
the defence of this.
As to the other two grounds, I shall admit them
to be substantially true, although F might say, if I
pleased to say it, that Col. Jones, as to all the cases
of any consequence against himself viz : those in
favor of the Bank of Columbus, has defences differ
ent from any which this defendant, Harris, appears
to have, or as I think can have, and that in my
opinion these special defences are, of themselves,
for him, sufficient.
I take this to be a true principle of law—that it
is the duty of a Judge to preside in all cases in
which he has had given him authority to preside.
This principle, it seems to me, necessarily results
from the relation of principal and agent—that rela
tion in which the State and a Judge stand toward
each other. The State delegates to a citizen au
thority to decide cases. Why ? I can conceive of
no reason why, except that the State, wishes him
to decide the cases. As to the purpose of the
State, in the delegation of the authority to him,
there are but three things that occur to me as sup
posable—one, that the State wished the authority
to be used—one, that the State wished the au
thority not to be used—one that the State was in
different whether the authority should be used or
not. To say that the State wished the authority
not to be used, is to say that the State is so foolish
as to do an act which is not merely superfluous,
but an act which can have no result, whatever, ex
cept a result which defeats the State’s wishes. To
say that the State was indifferent whether the au
thority should be exercised or not, is to say that
the State is both so foolish as to do a superfluous
act, and is indifferent whether wrongs don>e by one
of her citizens to another shall go unrediessed—
whether wrongs done to herself shall go unpunish
ed—whether right public or private, shall be left
without a guard: and to say this, is to say that the
State has prepared the whole body ofher law, both
civil and criminal, without an object ; for if the
State be indifferent whether her laws be executed
or not, what motive can she have had for prepar
ing those laws? To say that the State’s purpose
was, that the authority should be exercised, re
mains the only thing supposable.
Now, what is the will of the principal, is the law
of the agent; and the more especially, if the prin
cipal be the sovereign, and the agent a subject or
citizen. And whatever is the law to a man, he is.
bound to obey. A Judge being the State’s agent,
and having had the authority given him by the
State to preside in certain cases, and thus having;
been notified of the will of the State, that he should
preside in those cases, it follows that he is bound to
preside in them —bound to preside in all the
cases.
It is not for the Judge to elect one sort of case
for presiding in, and to reject another. If anything
of the kind is to be done, it is to be done by the
State. As to the Judge, the cases all stand upon
the same looting.
If, when the Judge lias been authorized to sit in
all cases, it is not his duty to sit in all, which are
to be the excepted ones—and what is to be ground
of exception ? Are they to be cases in which, for
some reason or other, it would be disagreeable to
the Judge for him to preside ! If so, whether the
Judge shall preside in any case whatever or not,
will depend upon the Judge’s pleasure. Are they
to be cases in which, for some reason or other, it
would be disagreeable to the parties, or to any par
ty, for the Judge to preside? If so, whether the
Judge shall preside in any case whatever, or not,
will depend upon the pleasure of any party in the
case. And what cases remain to be the excepted
cases ?
But as to the Judges of the Supreme Court, this
duty, it seems to me, has been prescribed to them
by the Act organizing that Court. That Act, in its
third section, says, “It shall be the duty of all the
Judges of said Court to attend, at each term; but
if, from Providential cause, any of said Judges can
not attend a Court, such Court may be holden by
two Judges.” Why is it made the duty of each
Judge to attend at every Court? There can be
but one answer—that each may sit and take a part
in deciding the cases returned to every Court—in
deciding one of such cases as much as another,
provided that the authority to each Judge to sit in
one, is the same as it is to sit in another. When
the authority to sit in one case, is the same as it is
to sit in another, is not the duty to sit in one, the
same as it is in another? If the intention was not
this, here was the place to say so, and to specify
the cases on which it was not to be any Judge’s
duty to sit. And here is specified one single case,
in which a Judge is excused from sitting—and
that case is, when he is kept from being in atten
dance, by Providential cause. No other is speci
fied. And inclusio unis exclusio alterius.
Consider it, then to be true, that it is the duty
of a Judge to sit in all cases in which has been
1 given him authority to sit, I proceed to the
question —what cases are they in which no author
iiy to sit has been given a Judge? What cases
are they which a Judge is disqualified to preside
in? These being seen, those which a Judge is
qualified to preside in will also be seen.
It is a maxim of the Common Law, that a man
cannot be judge in his own cause. “Aliquis non
debet esse judex in propria causa” (1 Coke Litt.
141 a)
Within this maxim a number of cases have been
held to fall, although not cases in which the Judge
was a party, viz: cases in which the Judge,
though not a party, had an interest.
(14 Vin. Abr. 584-6 )
Then there have been a number of other cases,
in which individual Judges have held themselves
disqualified to sit, although they were neither par
ties in the cases nor interested in them. A Judge
has declined to sit on account of “being connected
with the parties,” (5 Maule <l* Sel. 21,) or being
connected with one of the parties,” (5 Dunford
cf- East 5,) or for having, when at the bar, been
“Counsel in the cause,” (1 Barn <s• Adolph. 605.
1 Brod. 4- Bing. 161,) or for having been “con
sulted” in the cause, (Barn 4* Cr. 566. 3 Barn
dr Adolph. 2,) or for having been “concerned” in
the cause, (2 East 272, do. 389, do. 478, do. 520,
do. 555, 3 do. 245, do‘ 393, 2. Bos. Pul. Neio. R.
451.” There have been cases in which two out of
four” Judges have declined to give any opinion, “as
they had been engaged in the case while at the
bar,” ( Maule. <sp Sel. 103.) In Doe ex dem.-
Early of Jersey vs. Smith, 5 Maule 4* Sel. 475,)
a case of this sort, Lord Ellenborough said “that
only two Judges were in a situation tc pronounce
any judgment, the other two having, when at the
bar, been engaged in the case.”
The example of these English Judges has been
followed by the Judges of this Court. Instances of
that are to be found in 1 Kelly , 25, 275, 348, 365,
402, 466, 481, 513, 525, 598, 639.
To bring all of these cases within the maxim,
that a man shall not be a judge in his own cause,
it is necessary, it must be confessed, to read that
maxim most liberally, according to its spirit and not
to read it according to its letter. But if they cannot
be brought within it, they have to stand without jus
tification, for there is no other maxim or law, of
which I am aware, within which they may be
brought.
Admitting them to be within the maxim, it may
be doubted whether the maxim, itself, has not been
repealed by the part of the Constitution of the
State which provides for the establishment of this
Court, and by the Act of the Legislature which es.
tablishes the Court.
In the Constitution are these words: the Su
preme Court shall consist of three Judges,” &c.—
“And the said Court shall, at each session in each
district, dispose of and finally determine each and
every case on the docket of such Court, at the first
term,” &c.
The expression “each and every case,” is broad
enough to include all cases of the kinds above enu
merated. And all cases which it includes, the
Court is required to determine; and the Court is
declared to be a something which shall consist of
three Judges, and it is not clear that what consists
•of but two Judges does not consist of enough to
constitute that something ? Did not the Constitu
lion intend that it should take all three of the
Judges to make a Court? If it did, then, when it
required the Court to determine “each and every
case” on its docket, it required each of the three
Judges to sit in each an every such case ; for the
sitting of each Judge is essential to the making of
the Court, and so is essential to a determination of
any case by the Cour*. In short, if the Constitu
tion intended it to take all three of the Judges to
make a Court, then when it said the Court should
determine “each and every case” on its docket, did
it not repeal the maxim, a man ought not to be
a judge in his own cause ? The notion that this
part of the Constitution intended it to take all three
of the Judges to constitute a Court, derives sup
port from other parts of the Constiution.
The third section of the fiist article has these
words:—“The Senate shall be elected biennially”
“and shall consist of forty-seven members,” &c.
The seventh, these: “The House of Represen
tatives shall be composed of one hundred and thirty
members,” &c.
The twelfth, these: “a majority of each branch
shall be authorized to proceed to business, but a
smaller number may adjourn from day to day, and
compel the attendance of their members in such
manner as each House shall prescribe.”
In the old Constitution, that of 1777, are to be
found provisions similar to these, and also a pro
vision in these words: “All causes” shall be tried
in the Supreme Court,” “which Court shall consist
of the Chief Justice and three or more of the Jus
tices residing in the county. In case of the absence
of the Chief Justice, the senior Justice on the bench
shall act as Chief Justice,” &c.
This language in the third and seventh sections,
which the Constitution applies to both branches of
the Legislative department, is the same, or the
same in substance, as that in another section, which
we have seen it to apply to as much of the Judicial
department as is constituted by the Supreme Court.
The Supreme Court shall consist of three Judges.”
The language, therefore, it is to be presumed, was
applied to the Supreme Court in the same sense in
which it had been applied to the two branches of
the Legislative department. But as to those
branches, is it not clear that the Constitution con
sidered the language as saying, that to make a
senate, it should take full forty-seven members; to
make u House of Representatives, full one hun
dred and forty ; for if the Constitution did not con
sider the language to say this, what reason had it
for inserting the provision contained in the twelfth
section. The provision that “a majority of each
branch shall be authorized to proceed to busi
ness”!
Now this provision in the twelfth section, is con
fined to the two branches of the Legislature. It is
not said of the Supreme Court that a majority of
its members shall be authorized to proceed to busi
ness. And exciusio unius exciusio alterius.
Indeed, an argument of the same sort is to be
drawn from the 6tb section of the 3rd ariicle which
concerns the Inferior Court, in which it issaid,“the
Inferior Court shall have power to vest the care of
the records and other proceedings therein, in the
Clerk, or such other person as they may appoint,
and any one or more Justices of the said Court,
with such Clerk or other person, may issue citations
and grant temporary letters,” &c.
The Act of the Legislature for organizing the
Court is, in this particular, stronger in some re
spects, perhaps than the Constitution. It uses this
language: “the said Court shall consist of three
Judges,” &c. “It shall he the duty of all the
Judges of said Court to attend at each term of said
Court: but if, from Providential cause, any one of
said Judges cannot attend a Court, such Court may
be holden by two Judges. If only one Judge shall
attend a Court, it shall be his duty to open the
Court and to adjo iitto a day not more than two
days beyond the regular term, at which time, if two
Judges do not attend, the Court shall, in that case,
he adjourned to the next regular term.” (Sec. 3.)
“The Supreme Court shall proceed, at the first
term, (unless prevented by Providential cause) to
hear and determine each and every case) which
may, in manner aforesaid, be sent up,” &c.
“If, from Providential cause, any one of said
Judges cannot attend a Court, such Court may be
holden by two Judges,” Is not the implication this:
that if the cause which keeps a Judge absent be
Providential, then the other two Judges may hold
the Court: but if the cause be any thing else than
Providential, then the other two may not hold it
If so, again inclusio unius exciusio alterius.
And if the idea was that a majority of the
Judges might, in general, be sufficient to make
a Court, it may be asked why was imposed
upon each Judge the duty in terms so peremptory,
“to attend a: each term.” Why was not atten
dance left to the discretion of each Judge—to the
sense which each might entertain of his own duty,
in the same manner as the attendance of members
of the Legislature is left to each members sense of
his duty ?
In other respects, the Act is like the Constitu
tion—like that, it requires the Court “to hear and
determine each, and every cause which may be sent
up” to the Court.
All these things taken together, not to mention
the rules of the general law, as to the strict con
struction of naked powers, and as the manner of
of executing powers delegated to more persons than
one, I think there is enough to make it most doubt
ful whether both of the following propositions ar
not true: First. That it takes all three of the
Judges ofthe Supreme Court to make that Court
on all occasions, except those on which Providen
tial cause prevents one of the Judges from sitting.
Secondly. That the Court, thus made, has to hear
and determine each and every case before it.
If it be assumed that both of these propositions
are true, then it follows that the rule, a man ought
not to be a judge in his own cause, is repealed
unless the words “each and every case” be restric-’
ted in their meaning.
Let it be assumed that both of these propositions
are true, then it follows that the rule, a man ought
not to be a judge in his own cause, is repealed, un
less the words “each and every case” be restricted
m their meaning.
Let it be assumed, that these words are not to
be restricted in Iheir meaning, and that with these
words, in their unrestricted meaning the proposi
tions are true.
This assumed, let us apply the propositions to a
possible case, and see how they will work.
Suppose the case before the Supreme Court to
be a case in which one of the Judges of that Court
is an actual party —say the defendant in error.—
What would be the effect of these propositions, if
true, on such a case ? This : First. All three of
the Judges would have to sit in the case. Second
ly. There would be a chance for reversing the
judgment. Two of the three Judges would be dis
interested, and they, if the other dissented, could
render the judgment of the Court. The other might,
himself, after hearing argument, come to concur
with his associates. It is at least certain, that there
would be a chance for the judgment to be reversed
—a better chance than there would be if all three
ofthe Judges were the defendants in error. And
there is Common Law authority to the effect, that
when all of the Judges of a Court are parties
defendants in the case, they must neverthe
less sit in the case “for necessity.” (14 Vtn.
Abr. “ Judges ” (A.) 7 Grant on Corporations ,
281.) It does not, it seems, take all ofthe Judges
of the King’s Bench or Common Pleas, to make a
Court. And so, if only one of the Judges of those
Courts is interested in a case, his fellow Judges
may decide it.
The effect, then, of these propositions, if true,
upon the case supposed, would be to give the plain
tiffin error, ■ the party opposed to the Judge, a
chance for a judgement in his favor—a chance lor
a reversal.
Suppose, now, the plaintiff in error to object
that the Judge who happens to be the party de
fendant in error, ought not to sit; and that that
Judge yields to the objection, what is the effect of
that ? It amounts to an affirmance of the judg
ment below. The effect |is to make the Judge
certainly gain the case, and the ‘objecting plaintiff,
his adversary, certainly lose it.
Now, the only difference between this supposed
case and the real case is, that in the real case, the
Judge, {against whose sitting the objection was
made, was not all a party in the case. He was
only of Counsel in a like case—only ?lhe connex
ion of a party in a like case.
But suppose the words, “each and every case”
in the latter of the two propositions, are to be re
stricted in their meaning—restrictedto such cases
as by the law existing at the time when those
words were {used by the Constitution and the
Statute, it was lawful for a Judge to preside in r
viz: cases ini which he was not a party and so
forth, then what would be the effect of the propo
sitions upon the case supposed ? The certain
affirmance of the judgement of the ('curt below.
One of the Judges would he the defendant in er
ror. He conld not sit. The other two would not
be sufficient to make a Court—and without a Court
no judgment, of any sort, could be rendered in the
case; and therefore, the judgment of the Court be
low would have to stand good—that is to say, the
effect of the law’s not allowing the Judge to sit
in his own case, would be to make him gain it to
a certainty. This being the law, whether sitting or
not sitting would be to the interest of the Judge,
would depend simply upon whether he was plain
tiff in error or defendant in error.
The difference between this supposed caee and
the real case has been above stated. The effect of
yielding to the objection, that the Judge ought not
to preside in the “real case would, these proposi
tions, in this restricted sense of the words, “each
and every casa,” considered as true, have been to
make the party (objecting certainly lose his case.
The effect of not yielding to the objection, was to
give him a chance to gain it—a chance which, as
it happened, resulted Jn success.
Now I have not said that I consider to be true,
both or either of these propositions, viz : first, that
it takes all three of the Judges of the Supreme
Court to make a Court, on all occasions, except
those on which one Judges is, by Providential
cause, kept from sitting. Secondly, That tha
Court, thus made up of all three Judges, must de
termine “each and every case” before it. What
I say is, that it is very doubtful to my mind wheth
er they are true.
If true, and the words, “each and every case” in
the second, are to have their literal meaning, then
I think it clear that the law expressed by the prop
ositions, repeals the maxim, [that a person ought
not to be a judge in his own cause.
If true, and these words are not to have their
literal meaning 4 but are to have a meaning restric
ted to cases in which, by law, it was lawful for
Judges to preside, viz: Jcases in which they were
not parties or the relations of parties, or in which
they hed not been of Counsel before they became
Judges, then the law expressed by the proposition
does not repeal that; but it is capable of produc
ing, in some cases, an effect which it was the ob
ject of that maxim to prevent from being produced
in any case—the effect to make it certain, that if
the case be that of a Judge , who is defendant in
error, his not sitting will amount gaining of
his case.
The questions involved in these propositions
have never, as far as I know, received any consid
eration from the Supreme Court. The Judges of
the Court, however, have, from the begining, acted
upon the notion that two Judges could make a
Court and render a judgment, not only in cases in
which the cause that kept the other Judge from
sitting with those two was Providential, but also in
cases in which the cause was other than Provi
dential, as in cases in which the Judge was a re
lation of one of the parties, or had been of Coun
sel for one of them.
It has frequently happened that’one Judge has
declined to sit in a case for one of the reasons
afoesaid, and the other two have rendered a judg
ment in the case. The example thus set by the
other Judges, I have felt myself, not without some
difficulty, at liberty silently to follow. The prac
tice, as far as I know, has not been complained ot
by those on whom it has had direct operation
the parties in such cases, or by any others —still,
I must say that I have never yet made up my
mind, as to whether a judgment pronounced by
two only of the Judges of that Court, in a case
in which the third did not^sit —did not sit for some
reason that was not Providential, was valid.
Admit, therefore, that the old maxim—a man
cannot be a judge in his own case, has not been
repealed or at all effected by the parts ot the Con
stitution, and of the Statute organizing the Supreme
Court, to which I have referred, yet, it is certainly
true that by these parts, the maxim has not been
enlarged. It is certainly true, that no reason can
be found in those parts of the Constitution, and