The opinion of the court was pronounced by
Mattocks, J.
— The main question in this case is, whether the justice, who was a rated inhabitant of the town where the offence was committed, and into the treasury of which town the fine was to be paid, had jurisdiction of the cause. Considerable learning and research have been shown by the respondent’s counsel, to shew that by the common law, witnesses, jurors and judges, are incapacitated by being interested. This as to witnesses and jurors, is clearly shown by the authorities cited, and as to judges, that they are not to try causes wherein they are parties; but that an interest in the cause or question, shall exclude a judge from sitting, does not so clearly appear, and what degree of interest or that the smallest fraction of interest, as contended for shall render them incompetent to decide a causa. The cases cited to this point, are first, where [485]*485the mayor of Hertford unlawfully sat in a cause, “ where he himself was lessor of the plaintiff in ejectment.” He sat then in his own cause. In Hesketh vs. Braddock, (3 Bur. 1847,) the objection was, that the sheriff and jurors were interested, being of the corporation, and Mr. Davenport contended the interest was too small and remote to do harm, and urged, to sharpen bis argument, that the objection would equally effect the judge, mayor, as he was of the corporation also. But Lord Mansfield, who uspally dilated with great fluency and force upon broad general principles, did so in this case as to witnesses and jufors, and as to the -sheriff who summoned the jury, of the importance of their being free from every particle of- interest; but as to a judge, only says of the case of city of London vs. Wood, in answer to what Baron Ward had said, to wit: That the objection to a mayor sitting as judge in a cause, was not so much in point of interest as inconsistency, says, “ But is not the interest a great ingredient in that inconsistency, and hence comes the rule, that no man shall be judge-in his own cause.” In 1 Salkeld, 395, where it states that the mayor of Hertford 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, the marginal notéis, “ judge and party,” which'goesto confirm the rule named by Lord Mansfield. In 2 Chitty’s Blackstone, 23~, we find that where a- privileged person of the universities is sued in the courts of Westminster Hall, t.he chancellor or vice-chancellor may put in a claim of cognizance, and among other exceptions to this claim, is where an action is brought against a person himself, who claims the franchise, unless he hath power in such a case to make another judge ; and in a note it appears that the chancellor of Oxford claimed cognizance of an action of trespass brought against himself, which was disallowed, because he should not be a judge in his own case; but neither here, nor is it believed elsewhere in Blackstone, is it said, that a judge can try no cause wherein he is interested. In 3 Comyn’s Dig. 336, under the head of misdemeanor in the judge or officer, it is said: “ So for a misdemeanor in the steward or judge of an inferior court, an attachment lies against him, as for a contract, as if ha give judgment where he himself is party.” — 1 Salk. 201-396. In 4 Comyn’s Dig. 436, title justices, among other cases it says: “ So. if any judge has an interest, he or his deputy cannot hear the canse [486]*486or sit in court, and if be does, in Chester, 8zc. a prohibition goes and R. Hard. 503, is cited. This last quotation is the 'only direct case or dictum that has been noticed in the books, that says a judge who is merely interested cannot try a cause, for the pauper cases might come within the spirit of the rule againstjudge and party. It is obvious, however, that the refined learning which relates to objections to witnesses and challenges to jurors does not exist in the case of judges, and what there is but rarely used ; for in cases in the supreme courts, a judge like Lord Raymond in a pauper case from his own parish, whenever delicacy or propriety shall so dictate, will leave the bench, and when a prohibition is sought against the proceedings of an inferior court, which upon the point in modern tunes, from the dearth of precedents seems to have been very rare, probably some judicial discretion would be exercised as to the degree of interest, if interest alone should be deemed a ground for prohibition. Perhaps after all, this part of the case is scarcely worth the labor that has been bestowed upon it, as the cause must depend mainly on the construction of our own statute and the policy of our own government.
In our revised statute of 1797, justices of the peace “ were fully authoized and empowered to hear, try and determine all pleas and actions of a criminal nature, where the fines and forfeitures are within the sum of seven dollars.” At that time and even since, there have been penal statutes in which the penalty goes to the towns; and the statute upon which the present prosecution is founded, is of that description; and during this time, now nearly forty years, the uniform and invariable practice has been, for justices to hear and determine these criminal cases in the same manner as those where the forfeiture or fine goes to the state, and this without dispute or question. It is also observable, that this statute of 1797 is a transcript of 1787. The latter only substitutes {$7 for 40s.; so that the practice has the sanction of nearly half a century. But it is now contended, that this has been contrary to the fundamental principles of jurisprudence, and the very nature and structure of justice, and against the evident meaning of the legislature. Nothing is more true in theory, than that every judge or justice who tries a cause, should not have the slightest interest in its determination, and nothing more true in fact and in practice, than that, as it respects state -eases in general, there is no such judge op-justice in Vermont. Still crimi[487]*487nal justice must be administered. Every magistrate, like other citizens, is a stockholder as it respects the funds of the state and subject to proportional loss or gain by public prosecutions. Yet this trifling state interest in effect is just nothing. Apply it to a'town, the fine can in no case be over $1. Ordinarily much less, and the cost, if the respondent is a man of property. If the justice is rich, it is beneath his consideration ; if poor, his proportion of the tax, to be saved or lost, is entirely nominal, and though it be possible, it may sometimes have an influence, that is not the ordinary effect, and in no case are these trials final against the respondent. If all criminal trials could be purified of the least scintilla of interest that the judge or justice has, it might be well enough for the legislature or court to do it; but as they cannot, to endeavor to lessen the interest of the justice, when it is so minute already that it will require the philosopher’s principle of the divisibility of matter, to do it, yet it cannot be annihilated. It would be sacrificing convenient practice to useless theory to attempt it, besides the trouble and expense of going abroad for a justice to regulate the police of a town. These travelling justices which this doctrine would create, would not be so likely to know the character of the party and witnesses, and therefore not so likely to do justice in these petty offences.
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The opinion of the court was pronounced by
Mattocks, J.
— The main question in this case is, whether the justice, who was a rated inhabitant of the town where the offence was committed, and into the treasury of which town the fine was to be paid, had jurisdiction of the cause. Considerable learning and research have been shown by the respondent’s counsel, to shew that by the common law, witnesses, jurors and judges, are incapacitated by being interested. This as to witnesses and jurors, is clearly shown by the authorities cited, and as to judges, that they are not to try causes wherein they are parties; but that an interest in the cause or question, shall exclude a judge from sitting, does not so clearly appear, and what degree of interest or that the smallest fraction of interest, as contended for shall render them incompetent to decide a causa. The cases cited to this point, are first, where [485]*485the mayor of Hertford unlawfully sat in a cause, “ where he himself was lessor of the plaintiff in ejectment.” He sat then in his own cause. In Hesketh vs. Braddock, (3 Bur. 1847,) the objection was, that the sheriff and jurors were interested, being of the corporation, and Mr. Davenport contended the interest was too small and remote to do harm, and urged, to sharpen bis argument, that the objection would equally effect the judge, mayor, as he was of the corporation also. But Lord Mansfield, who uspally dilated with great fluency and force upon broad general principles, did so in this case as to witnesses and jufors, and as to the -sheriff who summoned the jury, of the importance of their being free from every particle of- interest; but as to a judge, only says of the case of city of London vs. Wood, in answer to what Baron Ward had said, to wit: That the objection to a mayor sitting as judge in a cause, was not so much in point of interest as inconsistency, says, “ But is not the interest a great ingredient in that inconsistency, and hence comes the rule, that no man shall be judge-in his own cause.” In 1 Salkeld, 395, where it states that the mayor of Hertford 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, the marginal notéis, “ judge and party,” which'goesto confirm the rule named by Lord Mansfield. In 2 Chitty’s Blackstone, 23~, we find that where a- privileged person of the universities is sued in the courts of Westminster Hall, t.he chancellor or vice-chancellor may put in a claim of cognizance, and among other exceptions to this claim, is where an action is brought against a person himself, who claims the franchise, unless he hath power in such a case to make another judge ; and in a note it appears that the chancellor of Oxford claimed cognizance of an action of trespass brought against himself, which was disallowed, because he should not be a judge in his own case; but neither here, nor is it believed elsewhere in Blackstone, is it said, that a judge can try no cause wherein he is interested. In 3 Comyn’s Dig. 336, under the head of misdemeanor in the judge or officer, it is said: “ So for a misdemeanor in the steward or judge of an inferior court, an attachment lies against him, as for a contract, as if ha give judgment where he himself is party.” — 1 Salk. 201-396. In 4 Comyn’s Dig. 436, title justices, among other cases it says: “ So. if any judge has an interest, he or his deputy cannot hear the canse [486]*486or sit in court, and if be does, in Chester, 8zc. a prohibition goes and R. Hard. 503, is cited. This last quotation is the 'only direct case or dictum that has been noticed in the books, that says a judge who is merely interested cannot try a cause, for the pauper cases might come within the spirit of the rule againstjudge and party. It is obvious, however, that the refined learning which relates to objections to witnesses and challenges to jurors does not exist in the case of judges, and what there is but rarely used ; for in cases in the supreme courts, a judge like Lord Raymond in a pauper case from his own parish, whenever delicacy or propriety shall so dictate, will leave the bench, and when a prohibition is sought against the proceedings of an inferior court, which upon the point in modern tunes, from the dearth of precedents seems to have been very rare, probably some judicial discretion would be exercised as to the degree of interest, if interest alone should be deemed a ground for prohibition. Perhaps after all, this part of the case is scarcely worth the labor that has been bestowed upon it, as the cause must depend mainly on the construction of our own statute and the policy of our own government.
In our revised statute of 1797, justices of the peace “ were fully authoized and empowered to hear, try and determine all pleas and actions of a criminal nature, where the fines and forfeitures are within the sum of seven dollars.” At that time and even since, there have been penal statutes in which the penalty goes to the towns; and the statute upon which the present prosecution is founded, is of that description; and during this time, now nearly forty years, the uniform and invariable practice has been, for justices to hear and determine these criminal cases in the same manner as those where the forfeiture or fine goes to the state, and this without dispute or question. It is also observable, that this statute of 1797 is a transcript of 1787. The latter only substitutes {$7 for 40s.; so that the practice has the sanction of nearly half a century. But it is now contended, that this has been contrary to the fundamental principles of jurisprudence, and the very nature and structure of justice, and against the evident meaning of the legislature. Nothing is more true in theory, than that every judge or justice who tries a cause, should not have the slightest interest in its determination, and nothing more true in fact and in practice, than that, as it respects state -eases in general, there is no such judge op-justice in Vermont. Still crimi[487]*487nal justice must be administered. Every magistrate, like other citizens, is a stockholder as it respects the funds of the state and subject to proportional loss or gain by public prosecutions. Yet this trifling state interest in effect is just nothing. Apply it to a'town, the fine can in no case be over $1. Ordinarily much less, and the cost, if the respondent is a man of property. If the justice is rich, it is beneath his consideration ; if poor, his proportion of the tax, to be saved or lost, is entirely nominal, and though it be possible, it may sometimes have an influence, that is not the ordinary effect, and in no case are these trials final against the respondent. If all criminal trials could be purified of the least scintilla of interest that the judge or justice has, it might be well enough for the legislature or court to do it; but as they cannot, to endeavor to lessen the interest of the justice, when it is so minute already that it will require the philosopher’s principle of the divisibility of matter, to do it, yet it cannot be annihilated. It would be sacrificing convenient practice to useless theory to attempt it, besides the trouble and expense of going abroad for a justice to regulate the police of a town. These travelling justices which this doctrine would create, would not be so likely to know the character of the party and witnesses, and therefore not so likely to do justice in these petty offences.
Perhaps some light can be thrown upon the views of the legislature in relation to the effect that a corporation interest should have upon the jurisdiction of justices, even in civil cases, by recurring to the poor laws. The first act of 1797, authorized two justices, not of the same town, to make an order of removal. Why this exception, unless it was supposed that without it they might ? These orders are in favor of the town, and unappealed from, are conclusive and often of great value, and what did experience prove? Why, that it was a precaution of delicacy and not of use, that it made expense and trouble without benefit. By a preamble in the middle of the pauper act of 1801, the difficulty is remedied, and by the 5th section it is provided that the justices of the town may act, which provision is again enacted in 1817; and now justices try these important though comparatively rare causes in favor of their own towns, and who suffer therebya.? But it is said that the 23d section of the justice act declares that no justice shall try any cause, where he is directly or indirectly interested in the matter or cause to be determined. Probably [488]*488the intention of this clause was to affect civil causes ; because thete are few if any state cases in which the trial of a person before a justice will affect the interest of another, so as to prevent his ever being a witness. But if this is not so, yet the clause cannot be construed according to the letter, for that would exclude a justice from trying any state cause, for in all these there is an interest direct or indirect, and whether this town or corporate interest is to be regarded as anything different from the state interest, is still the question. But if it was the intention in this compilation of 1797, to exclude the justice from trying these criminal'causes, where these towns were interested, it would have been more natural to have so expressed it like the ease of removing paupers, than to have left it to be inferred in the clause under consideration. A case has been cited from 2 Mass. R. 554, in which it was decided, that the judges of the common pleas could try no causé for or against the county where they resided, and in many cases the court think there must be a failure of justice, unless the legislature interfere, but in the 5th vol. 90, Commonwealth vs. Ryan, the court held that a grand jury living in Boston can find a bill of indictment, although the fine is going to the town of Boston, and of course a judge or justice, and a petit jury can try the offence. The judge thinks this results from necessity, as Bos-is nearly a county itself. He admits that the legislature can disregard these trifling corporate interests, if they like, and that though they appear specious on paper, yet that in practice, they are nothing. Upon the whole we are not disposed to disturb the long practice upon this subject — we think that the interest of the justice was but nominal and may be regarded as such and not to be computed interest, and that the common place maxim of de minimis lex non curat, may properly be applied to it.
As to the amendment, the authorities and the practice are both in favof of it, and we see no objection thereto, because the complaint is signed by the town grand juror, that is, because it-is a complaint rather than an information or indictment. Either of those can be amended by those who presented them by leave of the court, and so was this.
The judgment of the county court is affirmed.