1 E.g. Fleta, Bk. I, ch. XVII, “Est autem iudicium trinus actus trium personarum ad minus, actoris, iudicis et rei, sine quibus legitime consistere non potest.”
2 One of the principal texts of the civil law on the matter is Code 3.5.1, an imperial decree of A.D. 376 that “neminem sibi esse iudicem vel ius sibi dicere debere. In re enim propria iniquum admodum est alicui licentiam tribuere sententiae.” For the classics, see Digest 5.1.15–17 (iniquum est aliquem suae rei iudicem fieri).
3 Co.Litt. 141a, on sect. 212 of Littleton, where it is laid down that a lord cannot prescribe for a right to impose arbitrary fines for damage caused by straying cattle “pur ceo que il est encounter reason, que si tort soit fait a un home, que il de ceo serroit son judge demesne.” The whole field of self-help in the law to some degree imports the problem. And in relation to the case of straying cattle Doctor and Student employs the axiom in the reverse direction. “Doctor. I put the case that he that owneth the beasts offer sufficient amends, and the other will not take it, but keepeth the beasts still in pound; may not the owner take them out? Student. No, for he may not be his own judge, and if he do, an action lieth against him for breaking of the pound: but he must sue a replevin…” (Dialogue II, ch. XXVII).
4 Selected by the Donoughmore Committee (1932) Cmd. 4060, p. 76, as “the first and most fundamental principle of natural justice.” It is interesting to follow the reasoning of political philosophers on the point. E.g., Hobbes in his Leviathan, part 1, ch. 15, p. 78, has as his 17th law of nature: “And seeing every man is presumed to do all things in order to his own benefit, no man is a fit Arbitrator in his own cause: and if he were never so fit; yet Equity allowing to each party equall benefit, if one be admitted to be Judge, the other is to be admitted also; and so the controversie. that is, the cause of war, remains, against the Law of Nature.” Hobbes treats the duty to act impartially as a distinct and quite separate proposition.
5 A helpful survey of the early background is de Smith, S. A., Judicial Review of Administrative Action (3rd ed.), pp. 215–218.
7 Richardson, H. G., in Bracton, The Problem of His Text, pp. 148–149, gives Bracton's text and the parallel passage in Tancred's Ordo Judiciarius, and at p. 39 comments on Bracton's obtrusion of “an incongruous string of 'homo vel subditus, parens vel amicus vel inimicus tenentis.'” The modern canons are nos. 1613 and 1614, on which see the annotations of sources. And see Lyndwood, Provinciale (ed. 1679), p. 312 (V.14.1), sub. tit. De Purgatione Canonica: ne quis ad purgationem compellatur qui non est apud bonos et graves infamatus: et ne quis sit iudex in propria causa, a commentary on a constitution of Archbishop Stephen Langton.
8 Maitland, Roman Canon Law in the Church of England, p. 114.
9 de Smith, op. cit., p. 216, concludes “that the balance of probability is tilted against the view that the canon law rules were ever directly incorporated in the common law. The common-law judges came to adopt principles substantially the same as those of the canon lawyers, not by way of conscious imitation, but by moving independently towards a just and reasonable solution.” This conclusion seems correct and is not inconsistent with the fact of borrowing for other purposes, e.g., Glanvill, de Legibus, II, c. 12 (ed. G. D. G. Hall, p. 32), on jurors in the Grand Assize: “Excipi autem possunt iuratores ipsi eisdem modis quibus testes in curia christianitatis iuste repelluntur.”
10 E.g., the dismissal of William Inge C.J.K.B. in 1317 for misconduct before becoming a judge (Selden Soc., vol. 45, pp. xl–xliii). Maintenance was common in the Middle Ages; for an extraordinary Star Chamber case of 1505, see Selden Soc., vol. 75, pp. cxii–cxiv.
11 De Laudibus Legum Angliae, ch. L1 (ed. S. B. Chrimes), p. 128: “Nec unquam compertum est eorum aliquem donis aut muneribus fuisse corruptum.” The editor, at p. 206, comments that “Fortescue's memory is decidedly too short,” and gives some examples to the contrary.
12 Abbott, L. W., Law Reporting in England, 1485–1585, pp. 81–82.
14 R. v. Rand (1866) L.R. 1 Q.B. at p. 233.
16 Bacon in his Maxims of the Law (Regula XVII) wrote that the law would not allow any error to be assigned which impeached judges “in their trust and office and in wilful abuse of the same; but only in ignorance, and mistaking either of the law or of the case and matter in fact.” This was, in Bacon's view, to support “the certainty of judgments and the credit and authority of judges.” But from the cases discussed it is clear Bacon did not have the case of the interested judge in mind. That kindred with a litigant was not considered a disabling circumstance is clear. Roper relates in his memoir of his father-in-law, Sir Thomas More, that More as Chancellor once heard a case in which another son-in-law was party, and decreed against him. Roper mentions the episode as illustrating More's scrupulous sense of judicial integrity and impartiality. Professor R. W. Chambers in his biography of More traced the case in the P.R.O. where it is Early Chancery Proceedings, Bundle 643, no. 32: Giles Heron versus Nicholas Millisante.
18 He was, it may be noted, son of the Lord Chancellor and had married the daughter of Ferdinando, Earl of Derby. To complete the picture of “a family party” it may be noted further that his wife's mother was his father's third wife. The Chancellor himself had been formerly Chamberlain of Chester and his son had been one of the barons of the exchequer there.
19 Being the only available judge was not considered then or later as saving a jurisdiction to a litigating judge. Holt C.J. in 1698 (1 Salkeld at p. 396) recalled a case where “the Mayor of Hereford was laid by the heels for sitting in judgment in a cause where he himself was lessor of the plaintiff in ejectment, though he by the charter was sole judge of the court.”
20 That this was part of his argument may be seen from his own report of his celebrated confrontation with James in 1607 (Prohibitions del Roy, 12 Co.Rep. 63), for he did not rest his case entirely on the assertion, which so angered the king, that James was practically incompetent to judge according to the received doctrines of law.
21 Modern discussion tends to explain Dr. Bonham's Case, 8 Co.Rep. 107, 113, as based on no more than a rigorous interpretation of statute by employing notions of internal repugnancies and inconsistencies. See Gough, J. W., Fundamental Law in English Constitutional History, pp. 31–39. At p. 118 Coke records the notorious opinion that “in many cases the common law will controul 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 controul it, and adjudge such Act to be void.” The discovery by Dr. Baker of Coke's holograph provides proof that Coke did not write anything less than the words which got into print: [1972A] C.L.J. p. 77, n. 96.
22 Hobart 85 at p. 87, where the Chief Justice reports his own statement that “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 naturae sunt immutabilia, and they are leges legum.”. Cf. the statement in Bonham's case, supra, n. 21 at p. 118 that “if any Act of Parliament gives to any to hold, or to have conusans of all manner of pleas arising before him in his manor…yet he shall have no plea, to which he himself is party; for as hath been said, iniquum est aliquem suae rei esse iudicem.”
23 Liber Assisarum, pl. 3, p. 297.
24 Commonplace not because such accidents can have been very frequent, but because the system of associating persons to try assizes made this an area of real risk. See, e.g., Dyer 65a, pl. 3, where in an assize brought by the Earl of Arundel it was assigned for error “that Brice Rokewodde, who is one of the two associated to the two Justices of assize, was attorney for the Earl of Arundel in the assize at the day on which one of the Justices was absent.” In nominating commissioners even those embroiled in the feuds of fifteenth century Norfolk were careful on this score. Thus John Paston writing in 1450 about obtaining a special assize and a commission of oyer and terminer, adds, “And as for the commissioners in my &c. Sir John Fastolf must be [a] plaintiff as well as I myself, and so he may not be [a] commissioner; and as for all the rest, I can think them indifferent enough in the matter, except my Lord Scales, whose wife is aunt to the Lady Moleyns…” (Harding, A., The Law Courts of Medieval England, at p. 185).
25 Y.B. Hil. 9, Hen. 7, f. 21, pl. 18.
26 It is not clear from the report whether the plaintiff had been excommunicated before or after becoming involved in litigation with the defendant. The probabilities are that ecclesiastical sentence and common law writ were part and parcel of the quarrel. Ecclesiastical jurisdiction provides several instances of the principle being used to disable judicial acts. Thomas Brugge's Lent Reading of 1469 at Gray's Inn on Westminster II, c. 5 (ed. Thorne, Selden Society, Vol. 71, pp. 117, 127) gives a couple of examples. Quare impedit against a bishop who has collated to a vacant benefice: though an issue of plenarty or vacancy was usually determined by the bishop's certificate, in this case it must be found by jury “pur ceo que levesque est partie.” Similarly in quare impedit against the ordinary who has objected to the presentee, e.g., as a criminous clerk, the question of qualification “serra trie per le metropolitan pur ceo levesque est mesme partie.”
27 Pollock & Maitland, I, p. 589.
28 YB. (1370) Trin. 44 Edw. 3, f. 19a, pl. 14, at f. 19b.
29 YB. (1293) 21 & 22 Edw. I (R.S.), p. 157: to the objection that “if in his own court he could hold that plea where he himself was a party, he would be both party and judge, which cannot be,” the answer was, “the court is judge.” But in later times the maxim could be used to justify common law control of manorial disputes, as Coke in writing of copyholds stated that the copyholder could sue in trespass for wrongful eviction by the lord, “for it is against reason that the lord should be judge where he himself is the party.” (The Complete Copyholder, sect. 51.)
30 Commentaries III, p. 298.
31 From very early times it was considered essential to claim at the earliest opportunity. For an example in Blackstone's own time, see Welles v. Trahern (1740) Willes 233. The report by Willes C.J. is accompanied with the text of the written claim in the case, on behalf of Oxford University. For examples of medieval claims by the Abbot of Reading, see Ault, W. O., Private Jurisdiction in England, pp. 122et seq.
32 Though of vital importance to contemporary litigants it is not of much importance here to distinguish between Blackstone's second and third categories. The principal difference lay in the ability to invoke exemption. As Coke (4 Inst. 224) put it, “there is a diversity between a franchise to demand conusans, and a franchise, ubi breve domini regis non currit,: for in the first case the tenant or defendant shall not plead it, but the lord of the franchise must demand conusans, but in the other case the defendant may plead it to the writ.”
33 Phillips v. Eyre (1870) L.R. 6 Q.B. 1 at p. 22. Thus an entry made under authority of such a judgment before set aside by a competent authority cannot amount to a trespass.
34 E.g., the grant did not permit levying fines of land. There were numerous other exclusions.
35 In the tenth lecture. The text is Nott.U.L. Middleton MS. L,18b, at f. 56. I am indebted to Dr. J. H. Baker for drawing my attention to Spelman's Reading and lending me a copy of the manuscript.
36 YB. (1370) Trin. 44 Edw. 3, f. 17b, pl. 8 (construing Henry I's charter of foundation), infra, n. 53.
37 YB. Trin. 38 Edw. 3, f. 15b–16b. And see for possessory assizes (1357) 31 Lib.Ass. pl. 19, p. 188 (novel disseisin against mayor and citizens of Winchester; the justices eventually took the assize outside the city).
38 YB. Hil. 10 Hen. 4, f. 9a, pl. 10.
39 Sayles, G. O., Select Cases in the Court of King's Bench, Vol. V (Selden Society 76), pp. 81–83.
40 YB. (1334) Hil. 8 Edw. 3, f. 2, pl. 3.
41 For this franchise in relation to visitations of an eyre, see Clanchy, M. T., The Roll and Writ File of the Berkshire Eyre of 1248 (Selden Society, Vol. 90), pp. xxx–xxxi.
42 For the machinery by writ, see F.N.B. 229B, de libertatibus allocandis. In 1495 (YB. Hil. 10 Hen. 7, f. 13b, pl. 6) Hussey C.J. explained that ancient grants must be taken according to ancient allowance. “Car per ascun entent si le roy avoit grante a un auter Omnia jura sua regalia, et en ascun cas son grant est As free as tongue can speak or heart can think, uncore ceux grants ne seront pris solonque le purport des parols, eins solonque le ancient allowance, car en ascun lieu per reason de cest grant ils avoient pouvoir tantum de tener pies, et en ascun lieu d'aver conisance, et en ascun lieu ambideux.” He also drew a distinction between allowance by quo warranto where the king was bound, and in other proceedings in royal courts which left the king free later to question the franchise.
43 YB. (1411) Hil. 12 Hen. 4, f. 12b, pl. 3 (novel disseisin).
44 It is noteworthy that claims for conusance were made not only when the franchise holder was defendant in a royal court but also when he was plaintiff. But there is no hint that this circumstance was a ground for estopping the bailiff or steward from intervening to claim the case. Practically considered, the steward of a great monastery was often a local layman of considerable authority and influence, e.g., Lucas v. Bishop of Ely, 2 Dyer 156b, where Dyer reports from a plea roll of 1525 an action of annuity against the bishop for the remuneration of the plaintiff as steward of abbey lands in Cambridgeshire and Huntingdonshire. Lucas had been the king's Solicitor-General in the previous reign. In this case conusance was allowed on a general grant without the licet fuerit pars clause. For the medieval stewards of Ely, see Edward Miller, The Abbey and Bishopric of Ely, pp. 196 et seq., 260 et seq.
45 Glastonbury was one of the very few franchises (outside the palatinates) authorised to try pleas of the crown by their own justices. Ault, W. O., Private Jurisdiction in England, p. 115.
46 Thirning went out of his way to play the part of laudator temporis acti, particularly pointing out that the previous allowance had been given in the time of Edward 3 “en temps quant il aver le melior ley que unques fuist.” The earlier case seems to be that reported for 1360 in 34 Lib.Ass., pl. 14, p. 209, an assize against the Abbot of Glastonbury. Here there had been an adjournment into the Bench, and Brook, Abridgement, Conusans, 48, comments “racio videtur eo quod poet estre tenus devant le Senescall le Abbe qui poet estre cy indifferent entre labbe et la partie, come le Justice le roy sont enter le roy et son subject in accion enter eux.”
47 YB. Mich. 2 Hen. 4, f. 4b, pl. 14.
48 Thus placing the onus on the aggrieved litigant to except in time. In 1594 the King's Bench relied on this opinion and disallowed proceedings in error in a case where the plaintiff had become mayor pendente lite and the defendant had failed to except before the case reached judgment. Walsh v. Collinger, Cro.Eliz. 320.
49 E.g., per Prisot C.J. in YB. (1457) Hil. 35 Hen. 6, f. 54a, pl. 18, at f. 54b: “Sir, ceo que vous dits que ne puit estre entende que il ne voile estre indifferent en son cause demesne, per luy ou son balif, sir, ceo nest pas issint, car la ley entend que il voile estre indifferent, et sil ne voile le party nest a ascun mischief, car sil voile estre favorable ceo serra bon cause de resumer le matter arrerment. Et issint moy semble que le conusance serra grante.” His colleagues agreed with him, though conusance in this case was allowed to the Abbot of Battle on the strength of a former allowance. For conusance allowed to the Abbot of Battle as defendant in a real action, see YB. (1347) Mich. 21 Edw. 3, f. 38b, pl. 34. But see YB. (1501) Trin. 16 Hen. 7, f. 16a, pl. 17, where the claim of Battle Abbey in a replevin (based on the Conqueror's charter granting regalem potestatem) was refused, and the principal reason apparently was that conusance had not been allowed before justices in eyre within the limits of legal memory. (This last case is clearly misplaced in the printed YB. and is probably an expanded version of the case of 1495, supra, n. 42.)
50 After the Glastonbury case and in the same term (f. 19b, pl. 14) he took a leading part in a decision to remit a case to a court in ancient demesne notwithstanding that the bailiff there was retained by the plaintiff. His reason was that in the court below the suitors were the judges. But he took a highly technical distinction over the county court. There if the sheriff as president of the court was under retainer of the plaintiff and the case removed to Westminster, it would not be remitted because both the court in the shire and the court at Westminster were equally the king's courts.
51 One notion which long persisted was that the disqualification was strictly personal and that one judge's interest did not affect the decision of colleagues. In 1607 the King's Bench held that it was not error where the court at Newcastle gave judgment for a plaintiff who had become mayor, “for the judgment is given by the court and not by himself alone”: Case of the Baliffs of Newcastle, 2 Rolle Abr. p. 93, tit. Judges (A), pl. 12 and 14. And see Sir Nicholas Bacon's Case (1563) 2 Dyer 220b, where Bacon as Lord Keeper passed a recognisance in favour of himself and two other persons. The recognisance was held void as to Bacon, but valid as to the others.
52 Y.B. Mich. 21 Edw. 4, f. 44b, pl. 6, at f. 47a.
53 Though there are some few instances of implication (e.g., YB. (1370) Trin. 44 Edw. 3, f. 17b, pl. 8, conusance allowed to Abbot of Reading), the doctrine requiring express provision is pretty clear by the fifteenth century. YBB. (1399) Mich. 1 Hen. 4, f. 5a, pl. 8, (1405) Hil. 6 Hen. 4 (f. 4b), pl. 3. In YB. (1405) Mich. 7 Hen. 4, f. 5b, pl. 33, there is an unanimous decision that if the king grant the right of holding all pleas before bailiffs, steward or justices, and the grantee does not possess any such officers within his franchise at the time of the grant, the grant is void. This rather extraordinary decision is contradicted by Brooke, Abridgment, Conusans, pl. 58. Perhaps it is only an extreme assertion of the doctrine that a grant of conusance of pleas was valid if the grantee possessed a court, but invalid if he possessed no court at all. YB. (1487) Hil. 2 Hen. 7, f. 13a, pl. 16.
54 YB. Hil. 8 Hen. 6, f. 18b, pl. 6. See A Discourse upon the Exposicion and Understandinge of Statutes (ed. Thome, S. E., 1942), pp. 71–74.
55 Individual scholars of the University could not claim privilege; the chancellor's claim was the claim of the University.
56 Limited immunity was regularly granted by royal letters of protection.
57 Extreme though it is, the argument has been accepted in some modern instances, for which see de Smith, op. cit., p. 244.
58 This metaphor was the usual one for discussing what prerogatives were alienable and what inalienable.
59 I suspect that the Serjeant's “fable” was intended for light relief at the end of a morning's argument rather than anything else. The source of this legend is the story of Pope Marcellinus. See Döllinger's Die Papst-Fabeln des Mittelalters, where it is given full treatment. Briefly, the Pope was accused at a council at Sinuessa (no such council was held) of offering publicly incense to the pagan gods. The council refused to judge the head of the church. “Tu eris judex; ex te enim damnaberis, et ex te justificaberis, tamen in nostra praesentia. Prima sedes non judicabitur a quoquam.” The Pope pronounced his own deposition, 23 Aug. 303. The legend actually got into the Roman breviary in the 16th century under the saint's April feastday. Widely believed in the Middle Ages (Gerson made use of it) it was an early fabrication, and St. Augustine treated it as such. The purpose was to provide evidence for the proposition that the Pope has no earthly judge, not that a man can or cannot judge his own case. The “combustion” merely represents a “hotted-up” version of the legend.
60 The court accepted the proposition that the king could control the locality of trial but they denied strongly that the king by his prerogative could change the legal calendar of terms.
61 E.g. YB. (1433) Trin. 11 Hen. 6, f. 49b, pl. 7, on the right of the mayor of the staple to make a conclusive record of staple judgment in a case where he was defendant in the Common Pleas; cf. (1431) Trin. 9 Hen. 6, f. 19a, pl. 13.
62 The King and his Courts, pp. 201–202.
63 This was, and is, a well-entrenched discrimination of the common law, more easily stated than justified. There were of course many other mechanisms for dealing with the problem of bias in a judge both by prevention and punishment. One preventive device was the statutory prohibition on judges visiting on circuit their native counties, but the effectiveness of this device was much eroded by contrary dispensations from the Crown.