It is suggested by the petition of the respondent, that the decision of this court by which the judgment of the superior court in his favor was reversed and a new trial ordered in this case, was entered through inadvertence, and he prays that both the judgment of this court and the remittitur may be vacated, and that the appeal may be reargued. This application is based on several grounds, the most important of which is, that the appeal was argued before seven members of the court, one of whom, Judge Strong, was related to the appellants Aspinwall within the seventh degree, and was therefore disqualified to sit as a judge and to take part in the decision of this cause. That two members of the court voted to affirm the judgment of the court below, and five, including Judge Strong, voted for reversal; and that without the vote of the latter the judgment would not have been reversed.
It appears that upon the appeal being moved for argument, Judge Strong informed the counsel for both parties of his relation to the Messrs. Aspinwall, the appellants, and that because of it he should decline to sit in the case; but that the counsel *Page 549 consented that he should sit, and that he was particularly urged to it by the counsel for the respondent; that he finally consented to hear the cause upon its being suggested, that the appellants Aspinwall were not parties in interest, and would not suffer by the judgment, as they were indemnified by a Mr. Baker, who had the real interest in the matter in litigation. Under these circumstances the judge retained his seat — but his opinion and vote were adverse to the party whose counsel was mainly instrumental in inducing him to serve, and hence this motion, which is made by the same counsel, who now alledges that he was not authorized by his client to consent in the premises, and that if he were, such consent is not an answer to the present motion.
It is difficult, under the circumstances, to regard this application with favor, since the position in which the court is placed in respect to this cause has been brought about mainly by the officious intermeddling of the counsel for the moving party, with the scruples of a judge who, with a proper sense of duty, promptly declined to sit in the cause. But the unfavorable aspect of the motion in this point of view, must not cause us to overlook the principles upon which it is founded, which are of too great importance in the administration of justice ever to be lost sight of.
The appellants Aspinwall were defendants in the judgment from which this appeal was taken — they were personally liable to pay it, as between them and the respondent, and execution to enforce it might have gone against their property. They may have been indemnified — but that did not exempt them from primary liability on the judgment, and hence did not divest them entirely of interest in the case. They were then parties to the suit, and having such an interest as to give rise to the objection now taken to Judge Strong's participation in the decision of the cause, because of consanguinity to them; and the question is, what effect had such participation upon the judgment pronounced by this court?
The first idea in the administration of justice is that a judge must necessarily be free from all bias and partiality. He can *Page 550 not be both judge and party, arbiter and advocate in the same cause. Mankind are so agreed in this principle, that any departure from it shocks their common sense and sentiment of justice. It was long ago reported; on the authority of Holt, that the mayor of Hertford was laid by the heels for sitting in judgment in a cause when he himself was lessor of the plaintiff in ejectment, although he, by the charter, was sole judge of the court. (1 Salk. 396.) No information has reached us at this day tending to show that the treatment which the mayor received on this occasion was deemed too severe by his cotemporaries, although his apology, to wit — that he was sole judge of the court — has been held by some modern judges to excuse them for determining upon matters and causes in which their relations were parties or were interested. But it seems to me far better, that causes as to which the sole judge of a court is presumed to be biased in favor of one of the parties should remain undetermined until the legislature should provide an appropriate tribunal for their decision, than that the principle which demands complete impartiality in a judge should ever be violated. The urgency of a particular case is not so much to be regarded as the elevation and honor of courts of justice, whose dignity and purity constitute a main pillar of the state.
Partiality and bias are presumed from the relationship or consanguinity of a judge to the party. This presumption is conclusive and disqualifies the judge. A justice of the peace who was a son-in-law of the plaintiff, insisted on retaining jurisdiction of a cause, notwithstanding it was objected against by the defendant; and the supreme court held that this was of itself evidence that the trial was not fair and impartial, and reversed the judgment. (Bellows, c. v. Pearson, 19 John.R. 172.) In the case of The Washington Ins. Co. v. Price etal. (1 Hopkins' Ch. R. 1,) Chancellor Sanford declared that it is a maxim of every code in every country that no man should be a judge in his own cause; that it is not left to his discretion or to his sense of decency whether he shall act or not; that when his own rights are in question he has no authority to determine the cause; that so well was this principle understood *Page 551 that in every court consisting of more judges than one, the judge who is a party in a suit takes no part in the proceedings or decision of the cause, and that he knew of no example of the contrary conduct in this country.
The provisions of our revised statutes on this subject profess to be merely declaratory of universal principles of law, which make no distinction between the case of interest and that of relationship, both operating equally to disqualify a judge. Hence the statute declares, that "no judge of any court can sit as such in any cause to which he is a party or in which he is interested, or in which he would be disqualified from being a juror by reason of consanguinity or affinity to either of the parties." (2 R.S. 275 § 2; Revisers' Notes, 3 R.S. 694.)
After so plain a prohibition, can any thing more be necessary to prevent a judge from retaining his seat in the cases specified? He is first excluded by the moral sense of all mankind; the common law next denies him the right to sit, and then the revisers of our law declared that they intended to embody this universal sentiment in the form of a statutory prohibition, and so they placed this explicit provision before the legislature, who adopted it without alteration and enacted it as the law. The exclusion wrought by it is as complete as is in the nature of the case possible. The judge is removed from the cause and from the bench; or if he will occupy the latter, it must be only as an idle spectator and not as a judge. He can not sit as such. The spirit and language of the law are against it. Having disqualified him from sitting as a judge, the statute further declares that he can neither decide nor take part in the decision of the cause, as to which he is divested of the judicial function. Nor ought he to wait to be put in mind of his disability, but should himself suggest it and withdraw, as the judge with great propriety attempted to do in the present case. He can not sit, says the statute. It is a legal impossibility, and so the courts have held it. (Edwards v. Russell, 21Wend. 63; Foot v. Morgan, 1 Hill, 654.)
The law applies as well to the members of this court as to any other; or if there be any difference it is rather in favor of its *Page 552 more stringent application to the judges of a court of last resort, as well, because of its greater dignity and importance as a tribunal of justice, as that there is no mode of redress appointed for the injuries which its biased decisions may occasion. The law and the reasons which uphold it apply to the judges of every court in the state, from the lowest to the highest.
It was however urged at the bar, that although the judge were wanting in authority to sit and take part in the decision of this cause, yet that having done so at the solicitation of the respondent's counsel, such consent warranted the judge in acting, and is an answer to this motion.
But where no jurisdiction exists by law it can not be conferred by consent — especially against the prohibitions of a law, which was not designed merely for the protection of the party to a suit, but for the general interests of justice. (Low v. Rice, 8 John. 409; Clayton v. Per Dun, 13 id. 218; Edwards v.Russell, 21 Wend. 63; 21 Pick. 101.) It is the design of the law to maintain the purity and impartiality of the courts, and to ensure for their decisions the respect and confidence of the community. Their judgments become precedents which control the determination of subsequent cases; and it is important, in that respect, that their decisions should be free from all bias. After securing wisdom and impartiality in their judgments, it is of great importance that the courts should be free from reproach or the suspicion of unfairness. The party may be interested only that his particular suit should be justly determined; but the state, the community is concerned not only for that, but that the judiciary shall enjoy an elevated rank in the estimation of mankind.
The party who desired it might be permitted to take the hazard of a biased decision, if he alone were to suffer for his folly — but the state can not endure the scandal and reproach which would be visited upon its judiciary in consequence. Although the party consent, he will invariably murmur if he do not gain his cause; and the very man who induced the judge to act, when he should have forborne, will be the first to arraign his decision as biased and unjust. If we needed an illustration of this, the attitude which the counsel for the moving party in *Page 553 this case assumed toward the court, the strain of argument which he addressed to it, and the impression which it was calculated to make upon an audience, are enough to show, that whatever a party may consent to do, the state cannot afford to yield up its judiciary to such attack and criticism as will inevitably follow upon their decisions made in disregard of the prohibitions of the law under consideration.
The constitution of 1846 has been referred to, but so far as I can perceive it is silent on this subject. It declares that there shall be a court of appeals composed of eight judges, but does not define its jurisdiction nor enter into the details of its organization; and in the absence of an express declaration to that effect, it is not to be intended that the framers of the constitution designed to abrogate the great and salutary rule which disqualifies a judge from acting in the cases referred to. There is so much reason and fitness in the rule, that nothing short of a solemn and express declaration of the sovereign will ought to be deemed sufficient to abrogate it. In the absence of such an expression in the constitution, it seems proper to hold that the jurisdiction conferred on the judges of this court in general terms, is subject to an implied exception in favor of the operation of the rule by which they would be excluded from sitting in cases where they may be interested or related to the parties. Such an exception is implied under the most comprehensive grant of jurisdiction by statute; (5 Coke's R. 118 b; Wingale's Maxims, 170;) and I perceive no reason why it should not be, under a constitutional grant of power.
The views expressed by Judge Bronson in Pearce v.Delamater, (1 Comst. 1,) in reference to the right of a judge of this court to sit in the review of cases, where he has taken part in the decisions in the court below, do not, I think, necessarily conflict with the doctrine I have endeavored to maintain, as there may be reason to believe that the framers of the new constitution designed to change the law on that subject; and as was said in that case, "there was nothing in the nature of the thing which made it improper for a judge to sit in review upon his own judgments." But the present case is different; the disqualification *Page 554 under consideration exists at common law, and is necessary in order to preserve the moral dignity of courts and the due administration of justice; and since it was not embraced in the former constitution of this state, the silence of the new constitution on the subject can not be urged to show that it was the design to abrogate it.
But it may be said that this court consists of eight judges; that a less number can not constitute it, and therefore from necessity its members must sit in all cases.
The constitution declares that it shall be "composed of eight judges," and omits to provide that a less number may constitute the court. The absence of such customary provision has led some to suppose that the framers of the constitution designed to fix the number of judges inflexibly at eight, although it would be extremely difficult to assign any reason for their having done so. I think it is rather to be presumed that the design was to create an efficient court, one capable in view of the accidents of life, of assembling and conducting business with reasonable facility, and that no unnecessary obstacle was designedly presented in its very constitution, to the convenient discharge of its duties. It is, I think, safe to conclude, that the omission to declare that a less number than eight might constitute the court, was either accidental, or it was designed that the legislature should determine what number should make a quorum. I incline to adopt the latter view, which seems to derive support from section 25 of article 6 of the constitution, which directed that the legislature at its first session after the adoption of the constitution should provide for the organizationof the court. The constitution did not prepare the court for service. It declared that such a tribunal should exist, provided from what number and class of judges it should be constituted, enjoined upon the legislature the duty of organizing it, and left its jurisdiction and course of procedure to be defined by law.
Legislative action was necessary before the court could be said to exist for any practical purpose. Without this it could not have assembled and given audience to suitors; and it owes its being not more to the constitution than to the act of 1847, *Page 555 and subsequent statutes which fashioned it and endowed it with form and legal vitality. The constitution called for the court, and presented the materials of which it might be formed, and the legislature, under the express authority of the constitution, organized it. The authority to organize implied a right to ordain whatever was necessary or fit in order to form the court and give it efficient action, without going counter to the constitution, which is silent on the subject of a quorum. The legislature then having before them the material for composing the court, and rejecting none of it, were at liberty, I think, to dispense with the attendance of so many of the judges as in their wisdom might be deemed expedient in order to guard against accident, render the court capable of efficient action, and to avoid the necessity of any judge's sitting when interested or related to a party to a suit. This was the first step to be taken in the act of organization, and most necessary to its success; and I am inclined to concede to the legislature complete authority over this subject to the extent assumed by the statutes referred to.
It being provided by law that six members of the court shall constitute a quorum, a judge who is interested or related to a party to a suit, can not be required to act from necessity, unless when at least three of the judges may be so circumstanced — a case not likely to occur.
It appearing then that Judge Strong could neither lawfully hear nor take part in the decision of this cause — but that he did both — I am of the opinion that no proper determination has been made upon this appeal — that the judgment thus inadvertently entered, and the remittitur, ought to be vacated, and that the cause ought to be reargued.