Choice of law

“ If it be such an exercise of power 'as the settled maxims of law permit and sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the classes to which the one in question belongs,' it is due process of law. ”

“ It is a rule founded upon the first principles of natural justice, older than written constitutions, that a citizen shall not be deprived of his life, liberty, or property, without an opportunity to be heard in defense of his rights, and the constitutional provision that no person shall be deprived of these 'without due process of law' has its foundation in this rule. ”

“ But the essential questions are: (1) whether we are entitled to distinguish the rights and obligations which are anywhere actually enforced by law from rights and obligations which really exist though not enforced; and (2) , if we are entitled to do so, what is to be our criterion of rights and obligations which are really valid, in distinction from those that are actually enforced.
9. No one would seriously maintain that the system of rights and obligations, as it is anywhere enforced by law,—the 'jus' or 'Recht' of any nation—is all that it ought to be. ”

“ In proceeding to the establishment of laws, you wish to adopt them from ours, and such only for the present as suit your present condition; chiefly, indeed, those for the punishment of crimes, and the protection of property. But who is to determine which of our laws suit your condition, and shall be in force with you? All of you being equally free, no one has a right to say what shall be law for the others. ”

“ But where a constitution asserts a certain right, or lays down a certain principle of law or procedure, it speaks for the entire people as their supreme law, and is full authority for all that is done in pursuance of its provision. ”

“ It is that of the general will, which can neither be alienated nor represented. Is the prince above the law? The answer is, He is a member of the state, and cannot be so. Can the law be unjust? No one can be unjust to himself: therefore not the whole people to the whole people. How can we be free and yet subject to the laws? The laws are the register of our own will. (Ib.) Laws, in short, are properly those general 'conditions of civil association' which the associates impose on themselves. ”

“ An inordinate desire to interpret the fundamental law, to give it a new meaning, or, as it is commonly expressed, for amending the constitution by judicial legislation, seems to have seized the courts, and has been followed to such length as to make it almost impossible for even the courts themselves to decide when an act is constitutional and when it is not. ”

“ As we have said on more than one occasion, it may be difficult, if not impossible, to give to the terms 'due process of law' a definition which will embrace every permissible exertion of power affecting private rights, and exclude such as are forbidden. ”

“ Conceding, or better realizing, this inherently fluctuating character or quality of public policy, we see that the enactment of statutes to declare or define it must of necessity be a dangerous business, because such statutes, however accurately they reflect the public policy of the moment of their enactment, must almost immediately begin to be wrong. The Common Law, reposing, according to the legal fiction, in the bosom of the court, is flexible, and can change or be changed, as we have seen, with the change of condition ”

“ The adjudication of the conflicting interests of mankind, the interpretation of our statutes and [487] our common law the determination of rights and privileges of all men, is a judicial function. What rights we enjoy to-day have come in the final analysis from the courts. What rights we find ourselves to-day deprived of, and which we hope to enjoy to-morrow, must come, if at all, from the same source. The courts have the last word, and it is to that instrument of government we must appeal, and to that last word we must look for our safety, or fear our doom. ”

“ Would you favor legislation to permit the naturalization of a married woman in her own name, if personally acceptable, regardless of the alienage of her husband, or his failure to obtain or refusal to seek naturalization?
Would you favor reserving to a native-born American woman, if she desires it, the American citizenship which under the present law she sacrifices by marriage to a foreigner? ”

“ But, good or bad, as laws in this country are merely the expression of the people’s will, they should be respected as long as they remain laws. For law is just as necessary to the human race as is the air we breathe or the food we eat. ”

“ It is the unbroken tradition of our law, and of the laws of nearly all other nations—in so far as they recognize women as being individual citizens at all—that the nationality of a wife follows that of her husband. Of that tradition was born a section of the law of 1907 which seeks to confer upon any American woman marrying a foreigner the nationality of her husband. When an alien man becomes a citizen of the United States by naturalization, his wife, in ordinary circumstances, becomes a citizen with him ”

“ And why are judicial precedents, when formed on due discussion and consideration, and deliberately sanctioned by reviews and repetitions, regarded as of binding influence, or rather of authoritative force, in settling the meaning of a law? It must be answered, 1. Because it is a reasonable and established axiom, that the good of society requires that the rules of conduct of its members should be certain and known; which would not be the case if any judge disregarding the decisions of his predecessors, should vary the rule of law according to his individual interpretation of it. ”

“ It is equally true that it is the business of courts to decide what the law is, and not, by consideration or surmises as to the policy of the government, have the effect to adjudge that to be law which has not been so enacted by the legislature. ”

“ We can see the policeman on his beat, or the judge in court, or the members of the legislature—the men who, respectively, maintain, administer, and make the laws; and we can see the record of the laws in books. But the idea or principle of Law which has caused men to construct all this machinery for the making and enforcing of the laws, exists only in the mind. ”

“ Whatever might be the answer of a moralist to this question, a jurist must search for its legal solution, in those principles of action which are sanctioned by the usages, the national acts, and the general assent, of that portion of the world of which he considers himself as a part, and to whose law the appeal is made. ”

“ How striking and instructive to observe the abstract rules of justice brought to bear, with equal readiness and precision, upon ordinary and extraordinary combinations of circumstances!—to witness the dead letter of the law become animated with potent vitality for the regulation of human affairs! ”

“ Now every society has the right of providing for what concerns the general interest, so that in permitting the parties to choose the judges of facts, the State reserves to itself the power to name the judges of right, who are the interpreters of the law. ”

“ 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. ”

“ How far if at all the needful changes can or ought to be carried out by judicial decisions of the development of legal theory, and how far the intervention of the legislator will be called for, is a matter that will vary from one legal territory to another according to the accepted traditions as the binding force of precedents, the character of the enacted law, and the wider of narrower liberty of judicial interpretation. ”

“ We are enquiring what the law is, not what it ought to be. Reason may be applied to shew the impropriety or expedience of a law, but we must have either statute or precedent to prove the existence of it. At the same time, I do not mean to admit that the late resolution of the house of commons is defensible on general principles of reason, any more than in law. ”

“ If you want to ascertain whether your system will stand in all weathers, you must test it when the rule of law and order have replaced that of arbitrary will—when men present themselves, not as the scared recipients of bounty, but as the assertors of admitted rights. ”

“ Justice Field, in The Moses Taylor, said: 'That clause only saves to suitors 'the right of a common-law remedy, where the common law is competent to give it.' It is not a remedy in the common-law courts which is saved, but a common-law remedy. ”

“ In these circumstances there will arise the habit, both on the part of lawyers and of citizens, of reverencing the forms of law more than the principles which lie behind them. The purposes by which all legislation should be animated and determined will come to be habitually overlooked. Questions of right and justice will be ruled out as irrelevant, the highest and only solicitude being as to the binding phraseology of specific clauses. ”

“ When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the state as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the state courts in reference to this law, and defining what is the law of the state as modified by the opinions of its own courts, by the statutes of the state, and the customs and habits of the people, that the trouble arises. ”

“ The whole future will of each individual is concentrated into the one moment when he declares his willingness to participate in the commonwealth; and this extending the present will so as to embrace the whole future, changes the expressed common will into LAW. In so far as the common will determines how far the rights of each person shall extend, the law is called Civil Law; and in so far as it determines the punishment which shall follow a violation of the law, it is called Penal or Criminal Law. ”

“ The civil law which forbids it is contrary to the natural law, and exceeds, consequently, the power of the legislator, who, being himself submitted to the natural law, can ordain nothing contrary to that law. ”

“ It is as difficult now to be naturalized as it used to be easy. And it is quite natural that it should be so, in the reaction of public sentiment from the old happy-go-lucky days, with the law’s administration in the hands of a corps of men who, from top to bottom, answer any test of honesty and zeal. In all the wide inquiry upon which this volume is based, there was no hint anywhere of any manner of corrupt practice on the part of anyone in the service. Such faults and shortcomings as may be attributed to the Naturalization Service are of an entirely different character. ”

“ The doctrine of stare decisis
permits society to presume that bedrock principles are founded in the law, rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact. ”

“ The training of the examiners always has been of the most haphazard, inadequate character. Even under the operation of the Civil-Service laws, it was held that the kind of experience a man ought to have for the field service was that of general contact with the public—that of policemen, street-car conductors, and the like. Yet, as the practice has grown up, these men have to appear in important courts virtually in the guise of attorneys for the government; they must know the law, not only as set forth in the statutes, but as interpreted in innumerable decisions of Federal and state courts. ”

“ The courts may not refuse to give to the explicit words of a law their natural meaning, because of the ill consequences that may follow; but they may well take account of consequences in construing doubtful phrases, and resolve the doubts so as to save the purpose of the law-makers, where, as in the case of the constitutional provision we are considering, that purpose is well known. ”

“ That shows, therefore, that the rule which the learned judge, whose opinion is now before the House, thought depended upon some rule of common law, regardless of policy, was founded upon public policy, and has been restrained and limited and qualified up to this very hour, and beneficially so, by that very policy which it is supposed had no bearing at all upon the foundation of the rule. ”

“ The reasoning by which it is attempted to support it is too artificial to be applied to such an instrument as the constitution,-the organic law of a great nation,-which deals only in generals, and cannot, from its nature, be expected to descend into details. ”

“ Visigothic Theory Of Law.
Legislation is almost always imperative; it prescribes or interdicts; each legal provision usually corresponds to some fact which it either ordains or prohibits. Rarely does it happen that a law, or code of laws, are preceded by a theory on the origin and nature of power, the object and philosophic character of law, and the right and duty of the legislator. ”

“ The consequence was that every rule bristled with exceptions, and legislation grew proportionally more complicated and difficult of application than would have been the case had all men been equal in the eye of the law. ”

“ The nervous language of the Common Law, the impressive forms of our courts and the precision and substantial truth of the legal distinctions, are the contribution of all the sharp-sighted, strong-minded men who have lived in the countries where these laws govern. ”

“ 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." ”