Page:Borden v. State ex rel. Robinson.pdf/16

534 the principles of justice we should condemn some of the proceedings of our own courts."

Finding then by this examination upon principle that notice before judicial sentence is no natural law in that sense that human laws would be strengthless before it, and also finding that the common law has not consecrated it as such by a strict conformity to its provisions, we are now at full liberty to examine into the common law for fixed and known principles, if any such there be, which may be inconsistent with the nullity of judicial sentence pronounced without previous notice to the defendant and an opportunity to defend.

If there be such fixed and known rules and they are well founded in public policy, that look to the stability of titles, the stated, peaceful and quiet administration of the laws and to the repose of society in general, they must be considered of paramount obligation, although in their enforcement cases of individual hardship may arise. And this upon the maxim, as old as the common law itself "that a private mischief shall be rather suffered than a public inconvenience." A rule that has application to all public sanctions in government and in legislation and is plainly recognized in some of the declarations in our bill of rights. And it has never been considered a valid objection to a rule of public policy that it may produce disadvantages to an individual, for partial inconvenience is the inevitable consequence of every such rule: nevertheless the production of the general good authorizes their establishment. Indeed, "partial evil is universal good."

It may be safely assumed that by the ancient common law, the idea that a judicial sentence was a nullity had no place at all; because so long as the King himself sat in judgment, such an imputation would have been a direct invasion of the principle that "the King can do no wrong." Nor subsequently, when his multiplying cases of state induced him to commission judges to dispense justice throughout his kingdom; for they so dispensed justice not for themselves but for the King, as the direct representative of majesty in the judgment seat, and as courts were