Page:Borden v. State ex rel. Robinson.pdf/32

550 Notice before judicial sentence, is not a law of nature; or, at least, not such in a sense that would make a human law non-obligatory, that would circumscribe the sphere of its operation. Nor has the common law consecrated it as such by a strict conformity to its mandates.

Then there may be an obligatory law paramount to the law of notice before judicial sentence.

By the common law the judgment of a superior court is not void but only voidable by plea on error. This is established not only by the common law books, but is also expressly recognized as the coimnon law by the supreme court of the United States.

As a consequence of this law the judges of these courts are protected absolutely and universally from prosecution or suit for what they do in their judicial capacity.

This rule of law and this consequence from it are reasonably to be accounted for when the origin of these courts is looked at, and the nature of the judicial powers vested in them is considered. The existence of this rule of law and this consequence, besides being thus established by authority, is also further established by a legitimate process of reasoning predicated upon the foundation that among the powers vested by law in these courts is the power to decide upon their own jurisdiction. A direct and emphatic authority for this foundation is the supreme court of the United States in the case cited.

The rule then, that by the common law the judgments of a superior court are not void but only voidable by plea on error, being reasonably accounted for by an examination into the origin of these courts, and an examination of the nature of the powers vested in them, and being preserved as a part of the common law in books of the highest authority and expressly recognized as such by the supreme court of the United States and sustained by a legitimate process of reasoning from premises laid down by that court in reference to a distinguishing characteristic of superior courts, must be considered as ascertained and fixed law.