Discovery (law)

“ In that case, the court, after stating it to be a principle of universal law, that an uninhabited country, if discovered by a number of individuals who owe no allegiance to any government, becomes the property of the discoverers, proceed to say, that, 'if the discovery be made and possession taken under the authority of an existing government, which is acknowledged by the emigrants, acknowledged by the emigrants, it that the discovery is made for the benefit of the whole nation ”

“ The law cannot move, cannot act upon conjecture; facts of a crime, or even of a supposed crime, are necessary before the administration of justice can be called upon to adjudicate. Suggestions were thrown out as to the advisability of offering a reward for the discovery of the body, but who was to offer it? ”

“ That is, if it appears from the face of the instruments that extrinsic evidence is not needed to explain terms of art, or to apply the descriptions to the subject-matter, so that the court is able from mere comparison to say what is the invention described in each, and to affirm from such mere comparison that the inventions are not the same, but different, then the question of identity is one of pure construction, and not of evidence, and consequently is matter of law for the court, without any auxiliary matter of fact to be passed upon by a jury, if the action be at law. ”

“ Of course, any particular State may, by its Constitution and laws, prescribe what shall be conclusive evidence of the existence or non-existence of a statute; but, the question of such existence or non-existence being a judicial one in its nature, the mode of ascertaining and using that evidence must rest in the sound discretion of the court on which the duty in any particular case is imposed.
Not only the courts, but individuals, are bound to know the law, and cannot be received to plead ignorance of it. ”

“ The jurists of that period very commonly assert that the power of Testation itself is of Natural Law, that it is a right conferred by the Law of Nature. Their teaching, though all persons may not at once see the connection, is in substance followed by those who affirm that the right of dictating or controlling the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves. ”

“ Such considerations lead me to think that, in the longer view, the formulation of discovery rules can best be accomplished through use of the power which Congress has conferred upon us to establish general rules governing civil procedure in the federal district courts. By using this method of rule making, the advice of the Judicial Conference of the United States and its appropriate advisory committees could be obtained. [2] These bodies are well equipped to assess the dimensions of the discovery problem and devise apt solutions. ”

“ In administering the Rule, the availability of pretrial discovery, as well as matter actually discovered, is a factor to be considered in determining whether a 'genuine issue as to any material fact' is open. ”

“ The more modern the decision the more valuable for his purpose. That process by which old principles and old phrases are charged with a new content, is from the lawyer's point of view an evolution of the true intent and meaning of the old law; from the historian's point of view it is almost of necessity a process of perversion and misunderstanding. Thus we are tempted to mix up two different logics, the logic of authority, and the logic of evidence. What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better. ”

“ Usually, indeed, the best passport which a discoverer gives to his new observation consists precisely in his indication of its agreement with other facts. I have looked in vain through the whole history of science for a case in which a scientific authority came forward with the assertion of having discovered a new fact, at the same time adding to this assertion the assurance that all natural laws were overthrown by the fact, and that in the fact itself no kind of law or order was to be perceived. ”

“ Every citizen may assert: “This is true; that is just;” but his opinion controls no one but himself. That the truth which he proclaims may become a law, it must be recognized. Now, what is it to recognize a law? It is to verify a mathematical or a metaphysical calculation; it is to repeat an experiment, to observe a phenomenon, to establish a fact. Only the nation has the right to say, “Be it known and decreed.” ”

“ It is, no doubt, expected that, after carefully inquiring into the doctrines of every such existing system, the Society will be able to "reconstruct religion on a scientific, and science on a religious, basis, and elaborate a perfect system of thought and rule of life;" just as a body of jurists may construct a perfectly scientific system of jurisprudence after investigating and comparing the various codes of law which are in force in all the civilized countries of this world. ”

“ Discovery under Rule 16, even as now amended, is restricted by a number of carefully drawn limitations, each intended to 'guard against possible abuses.' Notes of the Advisory Committee on Rules, 39 F.R.D. 176. ”

“ When people, present the fact that science present the facts in court you would say that a law of that kind was reasonable, and I state to your honor, in my judgment, if you permit us to cone to the evidence your honor will come to the same conclusion on evolution that you have come to on the question of the Copernican theory, and I ask that it be put in as evidence in this case in order to inform this court and give us an opportunity to show whether that law is reasonable or not. ”

“ In another sense it is pure science, the investigation of all consciously formulated and actually practised rules, and of their conditions and foundations, in fact of the entire social life of existing and bygone nations, without a knowledge and understanding of which a knowledge and understanding of law as its outcome is, of course, impossible.” In this sense jurisprudence is a part of ethnology and of the comparative history of culture. But in order to grapple with such a tremendous task comparative jurisprudence has not only to call to help the study of scattered ethnological facts. ”

“ I think, if your honor please, that this act—that a correct construction of this act, as a matter of law, prohibits the introduction of this scientific testimony. If you place scientists on the witness stand, men who claim to know and who say they are versed and who no doubt are, no doubt you have many splendid and eminent gentlemen here, who say they are versed in matters of science and particularly in that branch of science which devoted itself to this theory of evolution. ”

“ I observe that not a few continental jurists have much difficulty in comprehending the nature of the connection between the conceptions blended in a universal succession, and there is perhaps no topic in the philosophy of jurisprudence on which their speculations, as a general rule, possess so little value. But the student of English law ought to be in no danger of stumbling at the analysis of the idea which we are examining. Much light is cast upon it by a fiction in our own system with which all lawyers are familiar. ”

“ His idea and purpose are to establish a positive science of jurisprudence in the widest and most comprehensive sense of the word, on the basis of an investigation of all the forms of law, available to research, that have ever appeared. A universal science of jurisprudence, according to this conception, would have for its subject-matter the contents of the jural sense or consciousness of the entire human race,—the jural facts of the totality of human society. ”

“ Such propositions, therefore, must be considered in connection with all the legal evidence exhibited in the record, and their accuracy must be tested by the true state of the facts as found by the court from the evidence, and by the rules of law applicable to that state of the case. ”

“ It may be said in passing that the highly complicated rules of evidence at the common law have practically nothing to do with our present subject, for they spring from very special conditions, and have been molded by very special purposes. Their object is to establish, so far as is possible, principles which will apply to all cases of a like nature; and they therefore rule out many facts and much evidence which outside the court we all use without hesitation in making up our minds. ”

“ Yet the fact is that the world does require legal documents. An interesting speculation would be to consider what proportion of the world's business affairs is conducted on a basis which could be provable or have the authority of enforcement in a court of law. ”

“ The right of property in the physical substance, which is the fruit of the discovery, is altogether distinct from the right in the discovery itself, just as the property in the instruments or plates by which copies of a map are multiplied is distinct from the copyright of the map itself.' And again, the enjoyment of the right in the discovery 'may be secured and protected by national authority against all interference ”

“ That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. ”

“ Evidence of the kind may be admitted for the purpose of defining what is uncertain, but it is never properly admitted to alter a general rule of law, nor to make the legal rights or liabilities of the parties other or different from what they are by the common law. ”

“ No doubt it is true that a legislative declaration of facts that are material only as the ground for enacting a rule of law, for instance, that a certain use is a public one, may not be held conclusive by the Courts. ”

“ This sketch would, of course, have to be modified in many ways if we attempted to treat the unofficial fragments of customary law in the same way as the paragraphs of royal codes, and even more so if we were able to tabulate the indirect evidence as to legal rules. ”

“ It is well known that public statutes require no proof besides the printed statute-book. [326] This was an original principle of English law, which has been adopted and fortified among us. Professor Greenleaf, who is such authority on the Law of Evidence, thus exhibits the value of the printed copy:—
“It is the invariable course of the Legislatures of the several States, as well as of the United States, to have the laws and resolutions of each session printed by authority. ”

“ Now I, as a lawyer, am prepared to maintain that the science of the law is just as accurate, just as complete, and just as reliable as any other science. As has been said, law in its practical operations is the application of principles to a certain condition of facts. There comes in the art. Where different judges differ, it isn't in the science of the law, it is in the art connected with that science.
"Now I am wandering a little. However, I was trying to show that pioneer lawyers were forced to do their own reasoning, to rely upon their own intellectual powers. ”

“ In consequence of this divergence, partly intentional and avowed, partly accidental and unavowed, between the law and the fact of possession, it is impossible that any abstract theory should completely harmonise with the detailed rules to be found in any concrete body of law. Such harmony would be possible only in a legal system which had developed with absolute logical rigour, undisturbed by historical accidents, and unaffected by any of those special considerations 238which in all parts of the law prevent the inflexible and consistent recognition of general principles. ”

“ Where the Court of Claims does not make a finding upon the ultimate question of fact upon which the rights of the parties depend, but merely makes findings as to subsidiary circumstantial facts which bear upon it, such findings will not support a judgment unless the circumstantial facts as found are such that the ultimate fact follows from them as a necessary inference and may be held to result as a conclusion of law. ”

“ The claims of logic must give way in great measure to those of established nomenclature and familiar usage; and the accidents of historical development must often be suffered to withstand the rules of scientific order. Among the various points of view of which most branches of the law admit, there are few, if any, which may be wisely adopted throughout their whole extent, and among the various alternative principles of classification, expedience allows of no rigidly exclusive and consistent choice. ”

“ For the present we declare, as we have a perfect right to do, that the deduced conception, X, the reality whereof has been proven in our deduction, is to be called in this our investigation the conception of Law or Rights, holding ourselves responsible to prove by it whatever questions common sense may raise concerning Law. ”

“ In the second sense, comparative jurisprudence is one of the aspects of so-called sociology, being the study of social evolution in the special domain of law. From this point of view it is, in substance, immaterial whether the legal phenomena subjected to investigation are ancient or modern, are drawn from civilized or from primitive communities. The fact that they are being observed and explained as features of social evolution characterizes the inquiry and forms the distinctive attribute separating these studies from kindred subjects. ”