Factotum

“ For, my lords, what is the evidence of common fame, which has been so much exalted, and so confidently produced? Does not every man see that, on such occasions, two questions may be asked, of which, perhaps, neither can easily be answered, and which, yet, must both be resolved before common fame can be admitted as a proof of facts. ”

“ We are obliged, therefore, to resort to historical evidence, and to seek the meaning of the words in the use and in the opinion of those whose relations to the government, and means of knowledge, warranted them in speaking with authority. ”

“ Is fame, my lords, that fame which cannot err? a report that flies, on a sudden, through a nation, of which no man can discover the original; a sudden blast of rumour, that inflames or intimidates a people, and obtains, without authority, a general credit? No man versed in history can inquire whether such reports may not deceive. Is fame rather a settled opinion, prevailing by degrees, and for some time established? How long, then, my lords, and in what degree must it have been established, to obtain undoubted credit, and when does it commence infallible? ”

“ Those, therefore, who make use of the words property, or right, or obligation, before they have explain'd the origin of justice, or even make use of them in that explication, are guilty of a very gross fallacy, and can never reason upon any solid foundation. A man's property is some object related to him. This relation is not natural, but moral, and founded on justice. 'Tis very preposterous, therefore, to imagine, that we can have any idea of property, without fully comprehending the nature of justice, and shewing its origin in the artifice and contrivance of men. ”

“ How much nobler and safer is the doctrine of the Scriptures, and of the unsophisticated language of man's moral constitution, that truth is obligatory on its own account, and that he who undertakes to signify to another, no matter in what form, and no matter what may be the right in the case to know the truth, is bound to signify according to the convictions of his own mind! ”

“ It is first to be inquired, my lords, whether the reports of fame are necessarily or even probably true? A question very intricate and diffusive, entangled with a thousand, and involving a thousand, distinctions; a question of which it may be said, that a man may very plausibly maintain either side, and of which, perhaps, after months or years wasted in disputation, no other decision can be obtained than what is obvious at the first view, that they are often true, and often false, and, therefore, can only be grounds of inquiry, not reasons of determination. ”

“ In the legal sense, so far as it is true,—and it is so only if 'person' is used in the sense of Roman law,—it is an identical proposition. A person means a subject of rights and nothing more. Legal personality is derived from the possession of right, not vice versa. ”

“ When we remember that nearly all these decisions are upon questions of law, disengaged from mere accessories of fact, we are amazed at the treasures of science, erudition, and reasoning which are thus accumulating from age to age in these archives, and forming an inexhaustible reservoir, in which tradition stores itself and whence justice and truth flow out upon the world. ”

“ If you profess to believe in their truth, how do you reconcile their character with the universal aspect of human life, as it appears to us and to our friends? And finally, if you claim for them the assent to which proved facts have a right from every candid mind, to what extent of detail do you profess to believe in their authenticity? ”

“ In the case of a person whom I have lived with from his birth, and seen every day, the evidence, to a great degree, is sense and memory. Sometimes the sameness of an individual is proved in a court of justice, by evidence, such as is applicable to any other matters of fact; by written documents, marks on the body, articles of property found 168 with the child, and the testimony of those whose knowledge has been uninterrupted from one time to another. ”

“ 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. ”

“ Why should we go out of our way, one and all of us, to impute personal motives in explanation of the conversion of every individual convert, as he comes before us, if there were in us, the public, an adhesion to that absolute, and universal, and unalienable principle, as its titles are set forth in heraldic style, high and broad, sacred and awful, the right, and the duty, and the possibility of Private Judgment? ”

“ Now, these are the persons through whom, either directly or indirectly, is derived the greater part of the information which you gather in the Levant, and therefore you must make up your mind to hear an almost universal and unbroken testimony against the character of the people, whose ancestors invented Virtue. ”

“ The only duty which it imposes upon us is to refrain from appropriating the truth to ourselves, either by concealing it, or by accommodating it to the temper of the century, or by using it for our own interests. ”

“ The duty of private judgment, of searching after truth, the sacredness of belief which ought not to be misused on unproved statements, follow only on showing of the enormous importance to society of a true knowledge of things. ”

“ Ambassador Bryce said in a recent address: "To counsel you to stick to facts is not to dissuade you from philosophical generalizations, but only to remind you ... that the generalizations must spring out of the facts, and without the facts are worthless." In other words, a regard for fact, which is but another term for truth, is or should be as indispensable in law and politics as it is in philosophy. ”

“ Is not this the proper answer on all occasions, when the decrees of the Almighty are discussed? Facts only are obvious to our reason; we must judge of them by the evidence of their reality if that is sufficient to establish the facts ”

“ We are not concerned, for example, with the distinction between matters of fact and matters of right, or with that between matters of fact and matters of opinion. Everything is fact for us which is not predetermined by legal principles. It is clear that this is the sense in which this term must inevitably be used, if the distinction between questions of fact and questions of law is to be exhaustive and logical. ”

“ Such considerations should be kept in mind, in our judgments on such cases, and it should not be presumed, either in argument or judgment, that such classes of men have not a sense of truth fully up to their perception of moral obligation in its bearing upon those who do, from necessity, the rougher out-door work of life. ”

“ Taking the inspirations of the human mind, at that time necessarily weak and faulty, for axioms of eternal and unquestionable truth,—influenced by public opinion, enslaved by the popular religion,—they have invariably started with the principle (following in this respect the example of the theologians) that that is infallibly true which has been admitted by all persons, in all places, and at all times—quod ab omnibus, quod ubique, quod semper; as if a general but spontaneous opinion was any thing more than an indication of the truth. ”

“ It is a new wonder of the world. It is based upon falsehood in the main as to the facts--allegations of facts upon which it stands are not facts at all in many instances--and no decision made on any question--the first instance of a decision made under so many unfavorable circumstances--thus placed, has ever been held by the profession as law, and it has always needed confirmation before the lawyers regarded it as settled law. ”

“ For the concrete development of beautifully bewigged humanity, called a lawyer, I beg you to observe that I always express, and feel, extreme respect. But for Law itself, in the existent form of it, invented, as it appears to me, only for the torment and taxation of Humanity, I entertain none whatsoever. ”

“ If you deny that they are facts, I think I can furnish proofs which shall convince you that you are mistaken. If you admit that they are facts, then I shall be obliged for a reference to any law of language, law of States, law of nations, law of morals, law of religions, any law, human or divine, in which an authority can be found for saying those facts constitute "no aggression." ”

“ There remains many arguments to be published against 269the obsolete notion of justice; many jests to be passed upon those who still talk of probity in the old fashioned stile; many fresh proofs to demonstrate, that national, private, and especially personal interest, should be the sole rule of conduct. ”

“ It is, indeed, but too fashionable to put up fantastic reasoning against authority, and particularly against sacred authority; but reason, which knows to distinguish the nature of authority; reason, which is bold in the affairs of men, and humble in its permitted intercourse with God; reason, as Fox and Hume, and all historians worthy the title, convince us, steps not out of its province when it interposes to rectify misleading records or historical assertions ”

“ The first, essentially practical in its character, confined to a statement of facts, and buried in learning, cares very little by what laws humanity develops itself. To it these laws are the secret of the Almighty, which no one can fathom without a commission from on high. ”

“ We are told indeed that justice is a state or disposition of the mind, the disposition to render to everyone his right or, as put by Aristotle, is the disposition to distribute according to desert. It [Pg 28] was this statement that captured the medieval jurists and which they made their text, but it is now regarded as incomplete and even inaccurate. One may have the disposition, the desire, the will, to render to every one his right, but unless he can know what is his fellow's right he may unwittingly fail to accord it to him and thus unwittingly do injustice. ”

“ The conditions to-day, which happily obtain, are that the objection to the introduction of such evidence finds its source usually in the side seeking to obscure and hide the truth or facts, while the honest litigant or innocent individual hastens to advocate its employment. ”

“ That sort of evidence may properly be called moral, which appeals to the moral sense, and in assenting to which, as we often do with an irresistible conviction, we are unable, with any precision, to convey to another mind the grounds of our firm belief. It is thus often that we estimate the veracity of a witness or judge of the reality or spuriousness of a written narrative. ”

“ Experiments in thought and life, of even audacious description, were made, not in defiance of precedent—for precedent was hardly respected enough to be defied—but in innocent unconsciousness of precedent. ”

“ Even a court of judicature, with all the authority, accuracy, and judgement, which they can employ, find themselves often at a loss to distinguish between truth and falsehood in the most recent actions. ”

“ Everything which we speak of is entered in the returns and made up in a regular manner, without any interpolations or irregularities being foisted into the people's accounts, but while they are all made up with deliberation and accuracy. ”

“ In every judgment there is an act of verification or of contradiction, an approval or rejection, and the standard for these judgments, the idea of truth, must be something external to that on what it is acting. ”

“ He learned to pore over law papers, to seek out flaws and errors, to look for any thing that might convey a double meaning, to track the tortuous and narrow paths by which that power which bears the name of Justice reaches the clear light of truth, or falls into the thorny deep of error. ”

“ For that that person comes much nearer to the intention of the framer of a law who interprets it from his own writings, than he who does not look at the meaning of the framer of the law by that writing of his own which he has left to be as it were an image of his meaning, but who investigates it under the guidance of some private suspicions of his own. ”

“ In fact at the time of the second argument before the District Court respondents stated:↑ By 'issues of fact' we mean to refer to what are termed basic, primary, or historical facts: facts 'in the sense of a recital of external events and the credibility of their narrators * * *.' Brown v. Allen, 344 U.S. 443, 506, 73 S.Ct. 397, 446, 97 L.Ed. 469 (opinion of Mr. Justice Frankfurter) . So-called mixed questions of fact and law, which require the application of a legal standard to the historical-fact determinations, are not facts in this sense.↑ See Thomas v. ”

“ One should suppose, if the history of the human mind did not furnish abundant proof to the contrary, that no reasonable man would contend for an interpretation founded neither in the letter, nor in the spirit of an instrument. ”

“ The most that can fairly be expected in such cases, if the parties are living, from the frailty of memory, and human infirmity, is, that the material facts can be given with certainty to a common intent ”

“ If the principle that it is essential to institute a thorough examination of the individual's past and present condition before determining his state of mind is the right one, then the proceedings of lawyers are in complete antagonism to truth. ”