Page:Borden v. State ex rel. Robinson.pdf/8

526 nature that has been consecrated by the common law and by the immemorial usages of all civilized nations, and is therefore of paramount and universal obligation and must consequently have resistless sway. Man's laws being strengthless before God's laws (Noy's Maxims, 19,) consequently a human law, directly contrary to the law of God, would be an absolute nullity. Doctor & Student, lib. 1, ch. 6.

To sustain the position assumed upon the basis indicated the most imposing authority is relied upon. Among them, Fortescue [sic], who says, in the case of The King vs. Pecham, Carth. 406. "It is certain that natural justice requires that no man shall be condemned in judgment without notice." And again, in the case of Rex vs. Cleg, 8 ''Mod. R.,'' "As to want of notice natural justice requires that every man be heard before he be condemned in judgment unless through his own default." And Chief Justice, in the case of The Mary, 3 ''Peters' Cond. R. ''312, said, "It is a principle of natural law of universal obligation that before the rights of an individual can be bound by a judicial sentence he shall have notice, actual or implied of the proceedings against him." And Judge, in his commentaries (4 vol. p. 283,) when noticing the necessity of summoning a party defendant to give him an opportunity to defend, says, "A rule to which all municipal laws that are founded upon the principles of justice have strictly conformed; the Roman law requiring a citation at least, and our common law never suffering any fact, either civil or criminal, to be tried until it has previously compelled an appearance by the party concerned." Other authority of like import might be cited, but it is believed these fairly present the character of the whole of such.

In examining the question thus presented and supposed to be sustained, on one side, upon the basis assumed, we shall first inquire whether it be quite accurate to say that notice before judicial sentence is a law of nature, or at least of such universal application as seems to have been supposed, and whether indeed the common law has consecrated it as such by a strict conformity to its provisions. If we find it no law of nature at all,