Page:Harvard Law Review Volume 8.djvu/263

247 SOVEREIGNTY IN ENGLISH LAW. 247 But this opinion has never been acted upon; and indeed the ex- ample is not wholly fortunate, for the settled rule of law is that although a judge had better not, if it can be avoided, take part in the decision of a case in which he has any personal interest, yet he not only may but must do so if the case cannot be heard other- wise. Nowadays the objection of personal interest in the judge commonly presents itself in the form of the judge being a share- holder (for his own behoof or as trustee) in some railway or other public company whose matters are before him ; and it is also com- monly waived by the parties.^ It is now quite well understood that the judges will not discuss the validity of an Act of Parliament. They will not even entertain allegations that a private Act was obtained by fraud or improper practices. If Parliament has been deceived, the remedy is with Parliament alone. Within our own time the late Mr. Justice Willes, a great master of the Common Law, and always ready on fitting occasions to maintain the dignity of the law and its officers, laid this down in the plainest terms. An attempt had been made to found an argument on the suggestion that a local railway com- pany's Acts had been obtained, in effect, by a fraud on Parliament. "It is further urged," said Willes, J., ''that the company is a mere non- entity, and there never were any shares or shareholders. That resolves itself into this, that Parliament was induced by fraudulent recitals to pass the Act which formed the company. I would observe, as to these Acts of Parliament, that they are the law of this land ; and we do not sit here as a court of appeal from Parliament. It was once said — I think in Hobart^ — that, if an Act of Parliament were to create a man judge in his own case, the court might disregard it. That dictum, however, stands as a warning, rather than an authority to be followed. We sit here as servants of the Queen and the legislature. Are we to act as regents over what is done by Parliament with the consent of the Queen, Lords, and Commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it : but, so long as it exists as law, the court are bound to obey it. The proceedings here are judicial, not autocratic. 1 For a reported example see Reedie v. L. & N. W. R. Co. (1849), 4 Ex. 244, 20 L. J. Ex. 65, where Parke, B. stated that, being interested in the defendant company, he took part in the case only at the request of counsel on both sides. equity, as, to make a man judge in his own case, is void in itself; lor jura naturce sunt immutabilia^ and they are leges legum"
 * In Day v. Savadge, Hob. 87 : " Even an Act of Parliament made against natural