Law practice

“ At the same time he sought to simplify and cheapen the operation of justice. By the Administration of Justice Acts (1873 and 1874) and the Judicature Acts of 1880 and 1881 he effectively assimilated the practice and procedure of the common law and equity courts. ”

“ 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. ”

“ But when the forms of legal proceedings were fixed, when the rules of decision were committed to writing, and collected into a body, law became a science, the knowledge of which required a regular course of study, together with long attention to the practice of courts. ”

“ Both the theories and practice of lawyers, both legal definition and the regular working of regularly constituted courts of justice, have here given an amount of system and rigidity to classes of people connected with the land, and to their rights and duties, which it would be an error to seek in old hill-states where there were no lawyers, and practically no law but custom and the will of the chief ”

“ Such, upon principle, and the analogies of the common law, would be the just result; and the authorities clearly establish the doctrine, and it is confirmed as a matter of practice by the best text writers on the subject. Adams on Ejectment, 294. Runnington on Ejectment, 432. Bac. Abridg. ”

“ Next to the ministry I know of no more noble profession than the law. The object aimed at is justice, equal and exact, and if it does not reach that end at once it is because the stream is diverted by selfishness or checked by ignorance. Its principles ennoble and its practice elevates. ”

“ Each society has its own system of laws, and all the systems, so far as they are known, constitute the appropriate subject matter of jurisprudence. The jurist may deal with it in the following ways. He may first of all examine the leading conceptions common to all the systems, or in other words define the leading terms common to them all. Such are the terms law itself, right, duty, property, crime, and so forth, which, or their equivalents, may, notwithstanding delicate differences of connotation, be regarded as common terms in all systems. ”

“ PRECEDENT, n. In Law, a previous decision, rule or practice which, in the absence of a definite statute, has whatever force and authority a Judge may choose to give it, thereby greatly simplifying his task of doing as he pleases. As there are precedents for everything, he has only to ignore those that make against his interest and accentuate those in the line of his desire. Invention of the precedent elevates the trial-at-law from the low estate of a fortuitous ordeal to the noble attitude of a dirigible arbitrament. ”

“ 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. ”

“ The two are, in fact, only earlier and later developments of the same social fact, depending for their evolution upon the play of human qualities in the necessary relations of society.
The second great practical lesson which will be taught by comparative jurisprudence is, as I have said, the knowledge of the true relations of custom and law to legislation. Law is the statical, legislation the dynamical side of the same fact. The lawyer studies what is, the legislator what ought to be. The jurist is he who studies what has been, what is, and what ought to be. ”

“ 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. ”

“ Rules, that is, definite, detailed provisions for definite, detailed states of fact, are the main reliance of the beginnings of law. In the maturity of law they are employed chiefly in situations where there is exceptional need of certainty in order to uphold the economic order. With the advent of legal writing and juristic theory in the transition from the strict law to equity and natural law, a second [Pg 116] element develops and becomes a controlling factor in the administration of justice. ”

“ Almost all of the problems of jurisprudence come down to a fundamental one of rule and discretion, of administration of justice by law and administration of justice by the more or less trained intuition of experienced magistrates. ”

“ 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 ”

“ Based on the notion that the law is definite and knowable, the common law presumed that every person knew the law. This common-law rule has been applied by the Court in numerous cases construing criminal statutes. ”

“ 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. ”

“ 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 lawyer finds in the Latin language the system of civil law most conformable with the principles of justice of any which has ever yet been established among men, and from which much has been incorporated into our own. ”

“ In this situation they are frequently to decide, and that upon their oaths, questions of nice importance, in the solution of which some legal skill is requisite; especially where the law and the fact, as it often happens, are intimately blended together. ”

“ The words 'due process of law,' when applied to judicial proceedings, 'mean a course of legal proceedings according to those rules and principles which have been established in our systems of jurisprudence for the protection and enforcement of private rights.' Pennoyer v. ”

“ One is the business of the legislature ... of the law-makers; the other the business of the courts, and the judges ... the law-expounders. You are to try a particular case by a particular law; to that, your whole attention is to be directed. If the law be a bad law, that is neither your business nor our business. ”

“ General Aspects.—The provisions of the Statuto respecting the administration of justice are brief and general. Justice, it is declared, emanates from the king and is administered in his name by the judges whom he appoints. These judges, after three years of service, are irremovable. Proceedings of courts in civil cases and hearings in criminal cases are required to be public. No one may be withdrawn from his ordinary legal jurisdiction; and no modification may be introduced in respect to courts, tribunals, or judges, save by law. ”

“ 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 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. ”

“ As is true of many problems in the law, the answer is to be found not in legal learning but in the realities of the record. Though variously expressed in the decisions, the governing principles are clear. ”

“ Considering the peculiar nature of the jurisdiction in this class of cases, I cannot admit that doctrine. Proceedings in this class of cases are very different from the proceedings in suits at common law. ”

“ This practice of Judge Marshall, of travelling out of his case to prescribe what the law would be in a moot case not before the court, is very irregular and very censurable. ”

“ But since the days of the Ten Commandments it has been recognised that statute law, carefully considered and simply expressed and written down on tables of stone or otherwise, is a better-class article for ordering the affairs of a modern community. ”

“ In Justice the young advocate who appears for the defence is not so much pleading for the client under the law, as arraigning the present legal system, setting up a new conception of law based upon common sense, human insight, and a morality finer than legalism. ”

“ The same considerations which have been urged to show that an act alone, by itself, does not and ought not to impose either civil or criminal liability, apply, at least frequently, to a series of acts, or to conduct, although the series shows a further co-ordination and a further intent. ”

“ What the difference may be, and what the consequences of such difference, between this lucrative function, and the true duty of Civil Law,—namely, to fulfil and continue in all the world the first mission of the mightiest Lawgiver, and declare that on such and such conditions, written in eternal letters by the finger of God, every man’s house, or piece of Holy land, is his own,—there does not, it appears, exist at present wit enough under all the weight of curled and powdered horsehair in England, either to reflect, or to define. ”

“ In the widest of its applications the term jurisprudence means the science of law, using the word law in that vague and general sense in which it includes all species of obligatory rules of human action. Of jurisprudence in this sense, there are as many divisions as there are kinds of law which have been deemed sufficiently important and well developed to serve as the subject-matter of distinct branches of learning. ”

“ To that legal or artificial person, once created, the common law of every State, of itself, annexes all those incidents and attributes which are represented as a prostration of the main pillars of their jurisprudence. ”

“ All legally recognized interests of substance in developed legal systems are normally individual interests. To the historical jurist of the nineteenth century, this fact, coupled with the development of ownership out of possession, served to show us the idea which was realizing in human experience of the administration of justice and to confirm the position reached by the metaphysical jurists. ”

“ In truth, the case comes up de novo, and is reviewed as from the beginning, and a judgment made up without regard to the proceedings below further than to determine from the record of facts and law sent up, holding in all cases jurisdiction as well of facts as law—and in truth it is nothing more than a high court of chancery. ”

“ When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. ”

“ We are aware that the propriety of this doctrine has been questioned by some writers; but if repeated judicial decisions for more than a century are to be received as the best exposition of what the law is, the question will not admit of argument. ”

“ It was the task of the jurists to build and shape the law on the basis of the old local materials so as to make it an instrument for satisfying the wants of a whole world while at the same time insuring uniformity and predictability. ”

“ When one of the superior courts of law has, after solemn argument and full consideration, laid down a certain principle as one fit to be applied to the case in hand, there is a reasonable presumption that this decision is correct, and that the principle is a just one fit to be applied to all similar cases in the future, that is to say, fit to receive permanent recognition as a new rule of law. ”

“ The reform movement has brought into prominence many public-spirited lawyers, who, either as attorney-generals or as district attorneys, have sought vigorously to enforce the law and punish its violators. ”

“ 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. ”