“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]
This is but an expression in parliamentary language of what I have
announced as the rule of universal jurisprudence. But, Sir, this rule
was borrowed from the rules of the British House of Commons, one of
which is,--
“If anything shall come in question touching the _return or
election_ of any member, he is to withdraw during the time the
matter is in debate.”[14]
I quote from May’s Parliamentary Law. From another work of authority,
Dwarris on Statutes, I now read:--
“No member of the House may be present in the House when a bill
or any other business concerning himself is debating; while the
bill is but reading or opening, he may.”[15]