Legal dissent

“ It is the application of that rule to the facts of this case which causes me to dissent. Although it may seem only a difference of view as to the facts of a particular case, it becomes important in the administration of the criminal law. ”

“ Legal interpretations of right have received judicial sanction, which have become so much part of our general political and social system that sudden reversal would be attended often with the gravest mischief. ”

“ It does real violence to reason and to morality to read § 672 as an openend power to change any promise willy-nilly. As I indicated in my dissent when the stay was before us, the phrase 'when otherwise authorized by law' has meaning when construed as referring to existing law alone. ”

“ If the people indorse the charges of the latter, they thereby declare their will to have been the true common will; and its substance being acknowledged as the true law, its want of legal form is now supplied by the indorsement of the people. If, on the contrary, the people pronounce their charges unfounded, then these persons become rebels, and are condemned as such by the people. ”

“ If the inhibition had been the mere creature of jealousy or prejudice, a returning sense of right and a conviction of public advantage, would, in this as in other instances falling within the power of the courts, have corrected previous errors. The very fact of the enactment of a statute, such as that referred to, is strong evidence to show that the jurisdiction it confers had no previous or rather no rightful existence. ”

“ My brief judicial experience has convinced me that the custom of filing long dissenting opinions is one 'more honored in the breach than in the observance.' The only purpose which an elaborate dissent can accomplish, if any, is to weaken the effect of the opinion of the majority, and thus engender want of confidence in the conclusions of courts of last resort. ”

“ If it shall fall out that, in the court consisting of magistrates and deputies, there be a dissent between them which may hinder the common good, that they now return for ending the same to their first principles, which are the free men, and let them be consulted with. ”

“ Most courts have refused to convert what would otherwise be ordinary state-law claims for false imprisonment or malicious prosecution or assault and battery into civil rights cases on the basis of conclusory allegations of constitutional violation. ”

“ It is obvious that all the rules, which were enumerated above as likely to be useful in almost any state of society, can also be defended owing to results which they produce under conditions which exist only in particular states of society. And it should be noticed that we are entitled to reckon among these conditions the sanctions of legal penalties, of social disapproval, and of private remorse, where these exist. ”

“ But, while it is the duty of the courts to put a construction upon statutes which shall, so far as possible, be consonant with good morals, we know of no legal principle which would authorize us to pronounce a statute of this kind, which is plain and unambiguous upon its face, void, by reason of its failure to conform to our own standard of social and moral obligations. ”

“ To burden the exercise of a constitutional right with conditions which materially impair its value, or which, practically, compel the abandonment of the right rather than to submit to the conditions, is, in law, an infringement of that right. ”

“ The genius, the nature, and the spirit of our State governments amount to a prohibition of such acts of legislation, and the general principles of law and reason forbid them. The legislature may enjoin, permit, forbid, and punish; they may declare new crimes, and establish rules of conduct for all its citizens in future cases; they may command what is right and prohibit what is wrong, but they cannot change innocence into guilt, or punish innocence as a crime, or violate the rights of an antecedent lawful private contract, or the right of private property. ”

“ Justice REED and Mr. Justice HARLAN join, dissenting.
Dissenters are not empowered to define the scope of a decision, but the way they read it may induce dissent. So it is with what the Court has here written. ”

“ Such facts as that, while public opinion is in favor of dueling, law fails to prevent it, and that sacred injunctions, backed by threats of damnation, are powerless to check the most iniquitous aggressions when the prevailing interests and passions prompt them, alone suffice to show that legal codes and religious creeds, with the agencies enforcing them, are impotent in face of an adverse sentiment. ”

“ The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. ”

“ But, if he intends to include in the category those flagrant crimes which stand first in the gradation of human offences, we must be permitted to dissent from that part of the view; and not only dissent, but claim that truth will generally require the very reversal of the picture, for of such crimes we believe it will be found, on examination, that the country ever furnishes the greatest proportion. ”

“ But the possession of the power being conceded, and its exercise being discretionary, there is in the hands of an unscrupulous, vindictive, or passionate judge, means of oppression and cruelty which should not be allowed in any free government. To disbar an attorney is to inflict upon him a punishment of the severest character. He is admitted to the bar only after years of study. The profession may be to him the source of great emolument. ”

“ But to experience the pain without taking to heart its warning to ward off the impending danger, to bear it patiently and take no measure of defense, is a denial of the feeling of legal right, excusable, perhaps, under certain circumstances, in a particular case, but impossible in the long run without the most disastrous consequences to the feeling of legal right itself. ”

“ Being a creature of law, no man can, like a parricide, stab that law, and claim at the same time all its privileges and all its honors. He would destroy the very government for which he asserts a right to act. ”

“ I am forced by process of elimination to consider whether the decision reflects either a hostility to the policy of the Act or an unarticulated belief that it is unconstitutional, if enforced as written. ”

“ The legal effect of these constitutional recognitions of the right of individuals to defend their property, liberties, and lives, ' against the government, is to legalize resistance to all injustice and oppression, of every name and nature whatsoever, on the part of the government. ”

“ To say that actions or prosecutions intended for the redress of such outrages are not 'causes affecting the persons' who are the victims of them, is to take, it seems to me, a view of the law too narrow, too technical, and too forgetful of the liberal objects it had in view. ”

“ To say that courts have inherent power to deny all right to defend an action, and to render decrees without any hearing whatever, is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. ”

“ For every statute in print there are a hundred that have no tangible existence, based on our sense of decency, of duty and of honor, which are equally controlling and which it has never been found necessary to reduce to writing, since their infraction usually brings its own penalty or infringes the more delicate domain of private conscience where the crude processes of the criminal law cannot follow. ”

“ If they are caught in their own toils, and are themselves the sufferers, it is a legitimate consequence of their violation of the rules of law and morality. Those who violate these laws must suffer the penalty. ”

“ To admit the judicial power on the one hand, and to deny on the other the very substance and essence of such power, is not only contradictory, but destructive of the fundamental conceptions upon which our system of government is based. ”

“ Perhaps a halfhearted dissent, like an extemporaneous speech, is only worth the paper it is written upon. We do no more than point out that we would prefer a more benign construction of these complex statutes which would be equally reasonable. ”

“ If they fail, all their acts hostile to the rightful government are violations of law, and originate no rights which can be recognized by the courts of the nation whose authority and existence have been alike assailed.' Chase's Decisions, 136. ”

“ There are many ways in which a person may be denied his rights, or be unable to enforce them in the tribunals of a State. The denial or inability may arise from direct legislation, depriving him of their enjoyment or the means of their enforcement, or discriminating against him or the class, sect, or race to which he belongs. ”

“ The power to punish for contempt-a power necessarily incident to all courts for the preservation of order and decorum in their presence-was formerly so often abused for the purpose of gratifying personal dislikes, as to cause general complaint, and lead to legislation defining the power and designating the cases in which it might be exercised. ”

“ The whole object of legislation, excepting that legislation which merely makes regulations, and provides instrumentalities for carrying other laws into effect, is to overturn natural law, and substitute for it the arbitrary will of power. In other words, the whole object of it is to destroy men's rights. ”

“ The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive [673] evils that [the State] has a right to prevent. ”

“ It is in this tendency that we find the key to much that is otherwise unaccountably harsh, technical, or absurd in early judicial remedies and procedure. Whenever any recognized legal right came to be regarded as unconscionable or otherwise objectionable, rules adapted to hamper or imperil the complainant in the pursuit of his remedy were sure to spring up. ”

“ If the reasons and principles of justice which support most of the decisions criticized could be explained to all classes in simple language and in terms intelligible to laymen as well as to lawyers, much of the misapprehension of judicial decisions and prejudice against the courts and constitutional restraints would be dispelled. To tell the man in the street or in the workshop that a statute is in conflict with the guaranty of due process of law or of the law of the land, conveys no meaning to his mind ”

“ To justify a court in refusing to enforce a right of action which accrued under the law of another state because against the policy of our laws, it must appear that it is against good morals or natural justice, or that, for some other such reason, the enforcement of it would be prejudicial to the general interests of our own citizens. ”

“ Should any private man, my lords, offer a reward to any that would give evidence against another, without specifying the crime of which he is accused, doubtless he would be considered by the laws of this nation, as a violator of the rights of society, an open slanderer, and a disturber of mankind ”

“ He who would unlawfully and wrongfully show contempt for a court of justice, sows the seeds of discord and breeds contempt for both the law and the courts, and thereby does an injustice both to the courts and good society. ”

“ Under the other system—the system of legislative and judicial authority—positive injustice is not only done in every suit arising under unjust laws,—that is, men's property, liberty, or lives are not only unjustly taken on those particular judgments,—but the rights of the whole people are struck down by the authority of the laws thus enforced, and a wide-sweeping tyranny at once put in operation. ”

“ A law that punishes a citizen for an innocent action, or in other words, which, when done, was in violation of no existing law; a law that destroys or impairs lawful private contracts; a law that makes a man a judge in his own case; or a law that takes property from A. and gives it to B.: it is against all reason and justice, for a people to intrust a legislature with such power ”

“ Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression. ”

“ When a poor miserable object like Callender, [274] without character and without influence, censures the measures of our Administration, or reprobates an unconstitutional law, the respondent considered him guilty of a crime and deserving of punishment. But a man elevated to the bench may declaim in the strongest language against any measure or law of the United States, or of an individual State with perfect impunity! Recollect, sir, that if the defendant be justified in reprobating a single law of the United States, he has the right to reprobate them all indiscriminately. ”

“ Governments see that if ignorance of the law were allowed to excuse a man for any act whatever, it must excuse him for transgressing all statutes whatsoever, which he himself thinks inconsistent with his rights and liberties. ”

“ They punish all who violate them, and reward all who obey them. They cannot be repealed, amended, dodged, or bribed, and it costs neither time, money, nor attention to apply them. It is time to stop legislating against them. We want to obey laws, not men, not the tricks of men. Statutes are human tricks. The law—the statute law—is the coward's weapon ”

“ It is the denial of this sacred right, which the constitution equally secures to the most hardened offender as to persecuted virtue—this daring outrage on the free principles of our criminal jurisprudence, that constitutes the respondent’s crime. ”