New Law

“ All the schemes of government, my lords, have been perfected by slow degrees, and the defects of every regulation supplied by the wisdom of successive generations. No man has yet been found, whose discernment, however penetrating, has enabled him to discover all the consequences of a new law, nor to perceive all the fallacies that it includes, or all the inconveniencies that it may produce ”

“ With the progress of society fresh perils emerge and fresh protections must be devised; the old legal right needs to be reconstructed to meet the new situation, or a new right must be created hitherto unknown perhaps, unless by analogy, to the law. ”

“ The result of adding a new law to this existing body of laws is that we get, not the simple consequence which the words, taken by themselves, would seem to require, but a resultant of forces from the new law taken in connection with all existing laws. A very large part of the litigation, injustice, dissatisfaction, and contempt for law which we deplore, results from ignorant and inconsiderate legislation with perfectly good intentions. ”

“ We do not want a new legal system with every sunrise, but we do want a method by which our law shall be capable of assimilating from day to day what it needs to act upon that life from which it has drawn its existence and to which it must minister. ”

“ Those who propose to make a law, in truth propose to alter what exists, and should give a good reason for the change in all cases. But most certainly should they do so when the new law is proposed on account of some alleged hardship or anomaly in the old law. ”

“ Moreover, it is declared that when the people alter or abolish one form of government, their right of establishing a new government is not absolute, but is limited, according to the law of nature and of nations, so that in establishing a new form of government they are obliged to "lay its foundation on such principles and organize its powers in such form, as to them shall seem most likely to effect their safety and happiness,"—that is, to secure the unalienable rights of the individual to life, liberty and the pursuit of happiness. ”

“ As is always the case, old laws and institutions were slightly altered by the use of legal fictions and by modifications in practice, to meet the needs of a new situation. It is unthinkable that an entirely new body of law, and a wholly new set of institutions, should have been created, to serve political contingencies that could by no means have been foreseen. ”

“ The modern judges for himself—makes his own laws, as a god, knowing good and evil. No doubt in time a new social law will emerge—with new sanctions. Meanwhile, here we are, in a moment of transition, manufacturing new types, exploring new combinations—by which let those who come after profit! ”

“ Let us not, therefore, my lords, reject with contempt what is proposed and solicited by men of this class; men whose experience and knowledge cannot but have enabled them to offer something useful and important, though, perhaps, for want of acquaintance with former laws, they may have imagined those provisions now first suggested, which have only been forgotten, and petitioned for the enaction of a new law, when they needed only an enforcement of former statutes. ”

“ The first species of capacity we assign to the people, operates between them and governments; the second, between governments and individuals, and between citizens. It is our policy to subject the whole field of this second capacity to legislation, and to exclude it from the whole field of the first. Law is allowed to regulate right and wrong in the latter cases, but not between the nation and its government. It cannot form a new government. ”

“ The process of devising and trying new laws to meet new conditions naturally leads to the question whether we need not merely to make new laws but also to modify the principles upon which our government is based and the institutions of government designed for the application of those principles to the affairs of life. ”

“ It is just cause for admiration—even wonder, that the provisions of the fundamental law should have been found so fully adequate to all the wants of government, new in its organization, and new in many of the principles on which it was founded. ”

“ When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory. They may be, notwithstanding the manner of their appearance. If truth were not often suggested by error, if old implements could not be adjusted to new uses, human progress would be slow. ”

“ Whoever introduces new laws, not being thereunto authorized by the fundamental appointment of the society, or subverts the old, disowns and overturns the power by which they were made, and so sets up a new legislative. ”

“ The great question of Law Reform seems to have a chance of being taken up in earnest; the new Government Bill is rather popular, and has been well received, and there appears to be something like a stir in the public mind and a disposition to insist on an attempt being made to cleanse this Augean stable. ”

“ It would require the making of a new rule in analogy to existing ones. The unwritten law possesses capacity for growth; and has often satisfied new demands for justice by invoking analogies or by expanding a rule or principle. ”

“ The leaders among the people, as has been done so many times before in the history of the world, began again the making of new laws, for the establishment of an ideal government and the forming of a new constitution which was to insure perfect and complete happiness to the individual and the race. ”

“ All new laws, though penned with the greatest technical skill, and passed on the fullest and most mature deliberation, are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications. ”

“ It is simply taking an old principle of law recognized for centuries, and applying it to new conditions. This is what we mean when we say that the principles of common law are capable of indefinite expansion; that the common law is always growing, or, as Mr. ”

“ The bill of rights which it promulgates, is of rights that are older than human institutions, and spring from the eternal justice that is anterior to the state. Two political theories divided the world: one founded the commonwealth on the reason of state, the policy of expediency, the other on the immutable principles of morals; the new republic, as it took its place among the powers of the world, proclaimed its faith in the truth and reality and unchangeableness of freedom, virtue, and right. ”

“ In other words, the rules of every system of law are continually changing to keep pace with the changes in public ideals, but all that can be said of this change is that it is dominated immediately by the needs of humanity; but who can say who or what dominates the evolution of humanity? ”

“ The people are not satisfied with any form of government, or statute law, until it comes up to their sense of justice; so every progressive State revises its statutes from time to time, and at each revision comes nearer to the absolute right which human nature demands. Mankind, always progressive, revolutionizes constitutions, changes and changes, seeking to come close to the ideal justice, the divine and immutable law of the world, to which we all owe fealty, swear how we will. ”

“ I do not allude to any reform in the law, though I believe much to be needed. I mean to confine myself to amendments which it is in the power of the people to make for themselves, and indeed, which no legislature, however enlightened, can make for them. ”

“ In the preamble to the Constitution, they specified certain objects for which, in their esteem, this government should be formed—union, domestic tranquillity, justice, liberty, welfare. Any government constituted by a document like that has for the basis of its existence the facts of human nature, as really as the law of gravity has for the basis of its existence the facts of the stars. ”

“ But, during the ages when men were as ignorant of the processes of legislation as they were implacably hostile to the theory of innovation upon which nearly all legislation proceeds, the only alternative was between an absolutely unprogressive condition of the law and an effort to bring it into harmony with the requirements of an ever-advancing society by a resort to such methods of amendment, however vicious or clumsy, as had then been efficiently evolved. ”

“ Sixth.—Popular Measure of Relief Discussed.—The Nature of the Reform Needed.—We recognize no higher human power than the will of the people. When the servants of the people, elected and appointed to represent their interests in legislative bodies, or to decide upon questions affecting public interests, prove recreant to the trusts and interests confided to them, the people—the sovereign power—can remove them in the method provided by the fundamental law, or, if this cannot be effected, then the people have the right, the God-given right, to resort to nature's first law for self-preservation. ”

“ Legislation, therefore, is the indispensable instrument, not indeed of legal growth, but of legal reform. As a destructive and reformative agent it has no equivalent, and without it all law is as that of the Medes and Persians. ”

“ Do you agree with me?”
“Yes,” they said.
“Take the laws of Moses, or any system of laws,” I went on, “and you will see that they were made by men, who realized in themselves the one supreme law, the law of progress toward the human whole. These systems of laws, if followed by people incapable of seeing the broad way for themselves, would lead toward that end. But the lesser laws change with circumstance, as a path changes with the landscape. ”

“ They have declared that "old things shall be done away, and all things shall become new;" that the government shall be taken out of the old political grooves in which it has been running; that it shall assume new life, with the rights of the people fully recognized. ”

“ However, there is nevertheless always advancement, otherwise legislators would be unnecessary. And the direct outward change of form is preceded by other change, laws which fall into disfavor by means of moral progress being modified, in application, within the possible limits of interpretation, and less and less rigidly enforced. There is good reason why law should have a certain permanence. ”

“ In the exercise of these natural rights, it has been supposed, men with a view to their general interest established political society. From that establishment is derived both the system of rights and obligations maintained by law as between man and man, and the right of the state to the submission of its subjects. ”

“ When the Chief Justice, with his colleagues, decides a constitutional question, his decision, though presented in a new shape, cannot be called a new doctrine, because it is based on the letter and spirit of the Constitution. ”

“ Sir, a new world has come into being since the Constitution was adopted. Are the narrow, limited necessities of the old thirteen States, indeed of parts only of the old thirteen States as they existed at the formation of the Constitution, forever to remain a rule of its interpretation? ”

“ The superiority of the new ideals of legislation rests here, that it is the general interest which is primarily consulted and becomes the norm, rather than the rights of the individual citizen. Progress in legislation includes its extension into all the affairs of life, retaining as much as may be the liberty of the individual while progressively establishing the interests of all. [131] Its evolution is traceable from the first poor laws, all down the long succeeding line of those dealing with education, health, labor and recreation. ”

“ And many of the best changes of later times, many of the most wholesome improvements in our Law and Constitution, have been only the casting aside of innovations which have crept in in modern and evil times. ”

“ As this author further remarks, "if all the statutes of the realm were repealed, we should have a system of law, though, it may be, an unworkable one; if we could imagine the Common Law swept away and the Statute Law preserved, we should have only disjointed rules torn from their context, and no provision at all for many of the most important relations of life." ”

“ The philosophical habit of the day, the frequency of legislation, and the ease with which the law may be changed to meet the opinions and wishes of the public, all make it natural and unavoidable that judges as well as others should openly discuss the legislative principles upon which their decisions must always rest in the end, and should base their judgments upon broad considerations of policy to which the traditions of the bench would hardly have tolerated a reference fifty years ago. ”

“ Against the evils, too, that might arise from the unrestricted control of a majority of the people over the fundamental law,—against the abuse of their power by frequent and passionate changes of the rules which limit its exercise for the time being,—they had discovered the possibility of limiting the mode in which the organic law itself was to be changed. ”

“ Possibly we can at last present a coherent translation of the record which lies half concealed and half revealed in the savage institutions with their uncouth names, and can trace the course of an evolution which, beginning in natural passions, emotions, and superstitions, reached a rudimentary social law. That law, again, from a period far behind our historical knowledge, has been deliberately modified by men, much as a Bill in Parliament is modified by amendments and compromises into an Act. ”