to the modesty of their sex. He acknowledged, however, that where by custom or privilege they have ordinary jurisdiction, it is not doubted that they may themselves exercise the powers of judges."

The chief ground of recusation in continental practice, however, has not been a matter of age or infirmity. It has been on the salutary doctrine that the personal attitude of the judge toward the litigant, or toward the cause itself shall be above all suspicion. And this is set forth in the Codex of Justinian, with admirable emphasis.

The Codex, like the Digest, is not the work of a single authorship but was formed by a selection of legal declarations already in general acceptance, before their inclusion in the Imperial law. In this manner, there was inserted a paragraph from Lampadius and Orestes of Constantinople, dated April 27, A. D. 530, which has had a wide and beneficent influence on all tribunals following the civil law.10

A practical difficulty arose after the disqualified judge had withdrawn from the cause. The code spoke of the trial or proceeding before "eligendos arbitros," but it did not indicate how to bring about such a choice. The recusation thus left a chasm in the proceedings. The burden was originally placed on the actor (plaintiff) so that if he failed to name or agree on a suitable arbitrator, then Accursius maintained that the reus (defendant) was under no obligation to choose

""Cum quod mulierum maxima sit levitas, inconstantia et fragilitas, tum etiam, quod sit contra pudicitiam sexus muliebris, judiciis assidere, consiliis et concionibus interesse, ac reliqua quae virorum sunt peragere. Plane cum ex consuetudine vel privilegio possint habere jurisdictionem ordinariam, non dubitatur quoque, quin judices esse queant et illam per se ipsas exercere.' id. p. 155. 10Apertissimi juris est, licere litigatoribus judices, antequam lis inchoetur, recusare, quum etiam ex generalibus formis sublimissimae tuae sedis statutum est, necessitatem imponi judice recusato partibus ad eligendos arbitros venire, et sub audientia eorum sua jura proponere.

Licet enim ex imperiali numine judex delegatus est, tamen, quia sine suspicione omnes lites procedere nobis cordi est, liceat ei, qui suspectum judicem putat, antequam lis inchoetur, eum recusare, ut ad alium curratur; libello recusationis ei porrecto, quum post litem contestatam neque appellari posse ante definitivam sententiam, jam statuerimus, neque recusari posse, ne lites in infinitum extendantur.Codex of Justinian, lib. III, title 1, No. 16.

It is the clearest right under general provisions laid down from thy exalted seat, that before hearings litigants may recuse judges. A judge being so recused, the parties have to resort to chosen arbitrators, before whom they assert their rights.

Although a judge has been appointed by imperial power yet because it is our pleasure that all litigations should proceed without suspicion, let it be permitted to him, who thinks the judge under suspicion to rescuse him before issue joined, so that the cause go to another; the right to recuse having been held out to him; since we have already provided that after joining issue no appeal can be taken before final judgment, nor recusation be had, lest suits be prolonged without end.

such an arbitrator." Cujas, however, took the more practical ground-that if the parties failed to make an amicable arrangement, the arbitrators or other tribunal could be named by the officials of the province or by those of the Court, which solution has become the general practice.12 Commenting on this, Cujas says that by going on before a judge any objections available before issue joined (litis contestatio) are considered as waived. Comparing recusations of a judge with appeals, he points out that they differ, since one may recuse a judge before he could take an appeal from him; that the canon law is otherwise, however, for there an appeal lies from a judge both before issue joined and after, if any one considers that he has been aggrieved by the judge; also, recusation may be taken after issue joined, if from a new cause (i. e. one arising after issue). 13

In England, judges, having been differently appointed, and under the common law, not being triers of the facts, have not been subject to recusation. Blackstone refers to this right as formerly existing in the time of Bracton and Fleta, but declares that the law is now otherwise, and that it has been since held that judges and justices cannot be challenged.14

Nevertheless, disqualification of a judge to sit in his own cause, or in one in which he is interested, has always been recognized. Thus in Lord Holt's time, the Mayor of Hereford was imprisoned for sitting in judgment in a cause where he was interested as lessor of the plaintiff in ejectment, though he, by charter, was sole judge of the Court.15 The English Church Discipline Act, however, as construed by the courts, has authorized a Bishop to be judge in his own cause! It was decided that he might be promoter in a proceeding against a

11"Non actori, si non vult, sed reo, si actor vult."

12"Si non possunt consentire in unum judicem eligi debet immente praeside Provinciae et eos cogente ut consentiant in unum, vel defensore locorum ut magistratu municipali cogitur primus qui recusavit alium arbitrum optare non invito adversario per executorem intra triduum post recusationem prioris judicis per executonem ejus litis, scilicet qui initio litis datus est, id est per apparitorem, non, ut Accur. male ait, per judicem delegatum cui mandata esthujus modi causae exactio."-Cujas, in Libros Codicis, Recitationes Solemnes (Paris, 1668), p. 154. [An "apparitor" was an official attached to a court, or to a "faculty,' having duties of oversight, with the authority to execute process].

13"Nam appellari potest a judiciis et ante litis contestatam, et post, si quis se a judice gravari existimet, et recusari judex potest post litem contestatem, ex nova causa."-Cujas, L. Apertissimi, tome 5, p. 152 (Paris, 1668).

14Commentaries, Bk. III, ch. 23, p. 361. Notwithstanding the abundant historical evidence of this power under the Roman law to recuse a judge on the bench which Blackstone has confirmed, a learned author of Dublin University has advanced, as his personal opinion, that the recusatio justicis meant nothing more than the challenging of a juryman, instead of declining the jurisdiction of the sitting judge-a surprising misconception of this subject. 2 Browne, Civil Law and Law of the Admiralty, p. 369, note (2d ed. 1802).

15 Anonymous, I Salk. (Eng.) 396 (1699).

clergyman in orders, with power to sit and adjudicate, save as to imposing costs, which the court intimated would go beyond his powers."

16

In the play of Henry the Eighth, Shakespeare has introduced the scene of the trial of Queen Katharine of Aragon before an ecclesiastical court, wherein are seated the two Cardinals, Wolsey and Campeggio. In the play the queen appears in person, and not by proctor or advocate. She refuses to accept Cardinal Wolsey as a judge in her

cause.

Here is the ground of her refusal:

"I do believe,

Induced by patent circumstances, that

You are mine enemy, and make my challenge.

You shall not be my judge, for it is you

Have blown this coal betwixt my lord and me
Which God's dew quench. Wherefore I say again

I utterly abhor, yea, from my soul

Refuse you for my judge; whom yet once more

I hold my most malicious foe, and think not

At all a friend of truth."-Act II, scene 4.

After the speech by the Cardinal, the Queen repeats,

"I do refuse you for my judge, and here

Before you all appeal unto the Pope

To bring my whole case 'fore his Holiness

And to be judged by him."

Certain literary critics of Shakespeare's law have complained of this scene on the technical ground that such a challenge might be made to juries, but not to judges.17

Queen Katharine of Aragon, daughter of Ferdinand and Isabella, also aunt of Emperor Charles V, would naturally be advised of her rights in this public ordeal which had been long pending.

In advance of the trial she had asked to be allowed foreign counsel. She was permitted to have an advocate, and another proctor from Flanders, also a Spaniard named Vives.18 Later, however, they were excluded from appearing.

The ancient statute of Spain-the Siete Partidas-a body of Roman law codified into Spanish and in force in 1318 is still the fundamental

16 The Queen v. The Bishop of St. Albans, L. R. 9. Q. B. D. (Eng.) 454 (1882). "W. E. Devecmon, Shakespeare's Legal Acquirements, p. 37 (ed. N. Y. 1899).

18 Letter of Cardinal Campeggio, Brewer, Letters and Papers of Henry VIII, vol. IV, introduction, ccccxxi.

law of that country, and of the Spanish speaking republics of South America, as well as of the Philippines. In it are broad provisions to recuse a judge, even merely for fear and suspicion (miedo y sospecha, III, title 4; ley 22) as well as for the disqualification of personal hostility. The civil and canon law differed as to setting out the specific objections. The canon law required facts, showing some basis for the disqualification claimed. This was, however, so liberally treated, that in the time of Bartolus (about 1470) no less than forty grounds for recusation had been recognized.19

This Ecclesiastical Court at first had thought to proceed in the Queen's absence, treating her as contumacious; but her recusation was too well founded to justify any such action. Later a delegation of thirty privy councillors implored her to withdraw her appeal, but she declined to yield the point.

The speech of Cardinal Campeggio declining to proceed with the trial as preserved by a contemporary, Cavendish,who was an avowed friend of Wolsey, shows that the Queen asserted to the Court that she had not fair and impartial judges.20

The term "refuse" in the Queen's final reply is evidently an equivalent for "recuse," not then in common speech. So that after thus refusing Cardinal Wolsey, an appeal to Rome followed. The oral announcement of an appeal being apud acta was valid and effective.21

This speech, therefore, was no invention of a dramatist. The leading authority on the archives and state papers of that reign, has confirmed the accuracy of this striking scene.22

19"Et ibi etiam ponit quadraginta casus ex quibus potest recusari ut suspectus.'' -Bartolus, vol. VII, p. 95, L. Apertissimi (ed. Venitiis, 1590).

20Cavendish graphically describes the assemblage on the adjourned day set for delivery of judgment. King Henry was seated in the gallery near the door, whence the cardinals were to enter. "The King's counsel at the bar called fast for judgment. With that, quoth Cardinal Campeggio, 'I will give no judgment herein until I have made relation unto the Pope of all our proceedings, whose counsel and commandment in this high case I will observe. *the party defendant will make no answer thereunto but doth rather appeal from us supposing that we be not indifferent, considering the King's high dignity and authority within this his own realm which he hath over his own subjects; *therefore

to avoid all these ambiguities and obscure doubts, I intend not to damn my soul for no prince or potentate alive. I will therefore, God willing, wade no farther in this matter, unless I have the just opinion and judgment, with the assent of the Pope, and such other of his counsel as hath more experience and learning in such doubtful laws, than I have. Wherefore I will adjourn this court for this time according to the order of the court in Rome, from whence this court and jurisdiction is derived."-George Cavendish, Life and Death of Cardinal Wolsey, pp. 90-91 (Boston, 1905).

21 The second kind of appeals, viz., from a definitive sentence, may be viva voce, in the presence of the judge, apud acta at the time of the sentence. I Browne, Civil Law and Law of the Admiralty, p. 495 (ed. 1802).

22"It is to this occasion, and to no other, that we must refer the striking incident described by Shakespeare, and the no less impressive speeches put by the

But the stress laid on the personal enmity of Cardinal Wolsey as the primary cause of the Royal estrangement-characterizing him as her "bitter foe" made an unanswerable ground for recusation.23

Upon further delays and after the King had wedded Anne Boleyn, the Vatican gave Queen Katharine judgment. But at that later day the entire papal power had ceased in England.

The cession of Louisiana in 1804, with its civil law procedure, brought into the United States this remedy of recusation. Modern Spanish systems in South America and Mexico have seventeen distinct grounds to object to a judge of the regular courts.24 Even for the tribunals of commerce, there are ten such grounds.25

Although Louisiana was ceded to us by Napoleon, that territory had been under Spanish rule and administration since 1762. The cession from Spain back to France was only about a month before the formal transfer from France to the United States.28

In 1828 statutes were passed in the new State that continued the system of recusation. The courts had early to meet the question of such a former disqualification subsequently attacked on the ground that a decision had been made by a judge then actually poet into the mouths of the two chief personages of the drama. They were derived by him from the reports preserved in the chronicles of the time, and their authenticity is in the main unquestionable."-Brewer's "Letters and Papers of Henry VIII," Vol. IV, introduction cccclxxi.

"It is notable how the differing codes have adopted means to shield a litigant against an enemy upon the bench. Accursius, in his gloss on the section L. Apertissimi, said, “Item justissima causa supervenit inimicitiarum."

A gloss on the Siete Partidas quotes, "Quod si judex ordinarius est tuus inimicus, poteris ejus jurisdictionem declinare, protestando quod contra te non procedat; quo casu tu, cum tota domo tua, es exemptus ab ejus jurisdictione, et cum hoc dicto transit. Paulus de castr, in dicta L. Apertissimi; et nota bene, nam isto casu admittitur recusatio generalis."-Siete Partidas, vol. 2, p. 56, note (ed. Madrid, 1789).

The French Code of Procedure (sec. 378) has nine grounds for recusation. The last, the ninth, deals with the case of personal enmity. It must, however, be more than unfriendly feeling. It is to be recent inimitie capitale, shown openly since the beginning of the suit, or within six months, being aggressions, injuries, or threats, verbal or written.

In the admirable instructions to Sancho Panza, he was told by the Knight "If it happens that the cause of your enemy comes before you, fix not your mind on the injury done you, but upon the merits of the case."-Don Quixote, ch. XCIV, Jarvis Trans. (London, 1902).

This evidently was taken from Plutarch's account of Aristides sitting in judgment between two private persons. When one spoke up that his adversary had injured Aristides, he was answered, "Tell me rather good friend, what wrong he has done you, for it is your cause, not my own, which I now sit judge of."

The regulations for Courts-martial, U. S. Navy, provide for seven grounds of challenge to any member of the court, the last of which is "That he has a declared enmity against the accused.”—“Instructions for Courts-martial," sec. 623 (ed. 1922).

Eseriche, Diccionario razonado de Legislacion y Jurisprudencica, pp. 1489, 1490 (Paris, 1876).

25Eseriche, ibid, p. 1493.

26Thwaites, France in America, p. 294 (N. Y., 1905).