Law and order

“ Power was given to the common law courts to allow parties to be interrogated by their opponents, to order discovery of documents, to direct specific delivery of goods, to grant injunctions, and to hear interpleader actions, and equitable pleas were allowed to be urged in defence to common law actions. ”

“ To solve this contradiction we must discover its ground.
The state takes possession of the remainder, not in respect to its form, as remainder and as property, but in respect to its substance, as something which is necessary to sustain life.
In order to solve the contradiction thoroughly, form and substance must, therefore, be separated. The state must have the power of taking the substance without touching the form.
Without exhibiting here unnecessary profundity, I shall solve the problem at once. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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! ”

“ But law, strictly speaking, is simply the rule of action itself, as for instance, an Act of Parliament; but as in practice all such rules are enforced by a sanction of some kind, our conception of a law is also united with that of a lawgiver, who has both the right and the power to enforce it. ”

“ 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. ”

“ 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. ”

“ In the formation of the law, regard should be often had to the convenience, to the faculties, to the interests, and to the habits of the citizens, sometimes even to their prejudices, but in the interpretation of it, nothing but justice should be regarded. ”

“ 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. ”

“ 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. ”

“ For the convenience of analysis, we may treat the obligations correlative to rights, obligations which it is the proper office of law to enforce, apart from moral duties and from the virtues which are tendencies to fulfil those duties. ”

“ 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. ”

“ Mankind reaches out after the absolute right, makes its constitutions to establish justice, and provide for the common defence. We report the decisions of wise men, and of courts ; we keep the record of cases decided, to. help us judge more wisely in time to come. The nation would enact laws : it aims to get the justest men in the State, that they may incorporate their aggregate sense of right into a statute. We set twelve honest men to try an alleged offender; they are to apply their joint justice to the special case. The people wish law to be embodied justice, administered without-passion. ”

“ But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of his mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains;—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. ”

“ 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. ”

“ In the administration of law, both civil and criminal, the rule of practice shall conform, as near as possible, to that of the United States, but the forms and customs of no particular state shall be required or adopted. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ Law, according to the most comprehensive and intelligible definition, 'is a rule of civil action, prescribed by the supreme power of a state, commanding what is right, and prohibiting what is wrong;' or, according to a definition less technical, 'commanding what shall be done, and prohibiting what shall not be done.' It is a command from a superior to an inferior, to do or not to do. ”

“ A theory which regards the law as the command of the state and nothing more, and which entirely ignores the aspect of law as a public declaration of the principles of justice, would lose all its plausibility, if expressed in a language in which the term for law signifies justice also. ”

“ The law lays down the only standard by which the acts of the citizen are to be governed. What the law permits is right, else it would prohibit it. What the law prohibits is wrong, because it punishes it. ”

“ These are the general characteristics of that incomparable monument of jurisprudence whose noble conceptions of the ends of legislation are best expressed in its own concise and energetic language:
“The law is the rival of divinity, the messenger of justice, and the guide of life. It dominates all classes of the state, and all ages of humanity, male and female, the young and the old, the wise and the ignorant, the noble and the peasant. It is not designed for the promotion of private aims, but to shelter and [189] protect the general interests of all. ”

“ This Government can, by the Constitution of the country, and by the laws enacted in conformity with the Constitution, operate upon individuals, and has the right and the power, not to coerce a State, but to enforce and execute the law upon individuals within the limits of a State. ”

“ The Constitution guarantees the principle of legality, the hierarchy of legal provisions, the publicity of legal statutes, the non-retroactivity of punitive provisions that are not favourable to or restrictive of individual rights, the certainty that the rule of law shall prevail, the accountability of public authorities, and the prohibition of arbitrary action of public authorities. ”

“ The Courts must declare the sense of the law; and if they should be disposed to exercise will instead of judgment, the consequence would equally be the substitution of their pleasure to that of the Legislative body. ”

“ 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. ”

“ Remedies of a statutory character, where the right to be enforced was unknown at the common law, are to be followed with strictness, both as to the methods to be pursued and the cases to which they are to be applied. ”

“ Although it is my will that complete justice be observed in each case, I charge you that, in so far as may be possible, and can be rightly done, you settle the differences and suits which arise, without having recourse to the technicalities of the law or proceeding by the ordinary methods, or condemning to pecuniary fines; but observing throughout the provisions of the decrees that shall be given you. ”

“ Government implies the power of making laws. It is essential to the idea of a law, that it be attended with a sanction; or, in other words, a penalty or punishment for disobedience. ”

“ But the circumstances thus spoken of were the preliminary facts requisite to the exercise of the power, not the limits, fixed by law, of the objects and purposes for which the power could be exercised at all. ”

“ Surely it may be assumed as a postulate, that a court of justice, in adjudicating upon the rights of the citizen or of the State, should do, and can have power to do, nothing which is irregular, or vain, or useless. ”

“ What is government? The reverend gentleman who occupied this platform asserts that governments are divine, when all history teems with their sacrilegious proceedings. Or does he mean simply that this government is divine? If so, where is its sign-manual? The proper function of law as applied to society, is the protection of the rights of the individual. When it fails in this it is no longer binding on the conscience, according to the authority of one of the brightest lights in jurisprudence, whence this nation borrowed its common law. ”

“ These are metaphors that still commend themselves; for the honest man is still the straight and upright man, and the ways of wickedness are still crooked. In this sense, therefore, recht, droit, and diritto signify justice and right.
3. The first application being physical and the second ethical, the third is juridical. The transition from the second to the third is easy. Law is justice as recognised and protected by the state. The rules of law are the rules of right, as authoritatively established and enforced by tribunals appointed to that end. ”

“ 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. ”

“ A general or public act is an universal rule, that regards the whole community; and of this the courts of law are bound to take notice judicially and ex officio; without the statute being particularly pleaded, or formally set forth by the party who claims an advantage under it. ”

“ We should, therefore, encourage the fullest discussion of judicial decisions in constitutional cases in order that constitutional principles may be adequately explained and the necessity for the observance of constitutional morality brought home to the people. ”

“ But the settlement of private controversies, the administration of law between man and man, the distribution of justice and right to the citizen in his private business and concern, comes to every man's door, and is essential to every man's prosperity and happiness. Hence I consider the judiciary of our country most important among the branches of government, and its purity anti independence of the most interesting consequence to every man. ”