Legal opinion

“ Indeed the Court has held that Congress may for reasons adequate to itself confer bounties upon persons and, by consenting to suit, convert their moral claim into a legal one enforceable by litigation in an undoubted constitutional court. ”

“ The act itself, with all the circumstances of the inhabitants before and at the time of its passage, have formed the subject of legal judgments and professional opinions upon which mighty interests have grown up and now repose. ”

“ 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. ”

“ Personal statutes are of universal validity; real statutes have no extra-territorial authority. The determination of the class under which a particular law ought to fall is one of great difficulty, and one in which there is often a conflict of legal opinion. ”

“ 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. ”

“ This legal presumption is not founded on the belief, alone, that the fact existed, but much more on those principles which enforce justice and honesty between man and man, and tend to the security of possessions which have remained undisturbed. ”

“ That the dispute turns upon questions of fact does not withdraw it, as the respondent seems to contend, from judicial cognizance. The legal consequences flow from the facts and it is the province of the courts to ascertain and find the facts in order to determine the legal consequences. ”

“ Among these he mentions a law which punishes a citizen for an innocent action; a law that destroys or impairs the lawful private contracts of citizens; a law that makes a man a judge in his own cause; and a law that takes the property from A. and gives it to B. 'It is against all reason and right,' says the learned justice, 'for a people to intrust a legislature with such powers ”

“ 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. ”

“ 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. ”

“ Comment on what a judge has done-criticism of the judicial process in a particular case after it has exhausted itself-no matter how ill-informed or irresponsible or misrepresentative, is part of the precious right of the free play of opinion. ”

“ 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 ”

“ Who would want to trust the lives of individuals or the rights of society to those who have previously formed opinions? Who having formed an opinion, can judge matters brought before him with due regard for the rights of all parties concerned? ”

“ The law is its own measure of right and wrong, of what it permits, or forbids, and the judgment of the courts cannot be set up against it in a supposed accommodation of its policy with the good intention of parties, and, it may be, of some good results.' Standard Sanitary Mfg. ”

“ Thus having established, as I hope, that the plain and natural meaning of the words “has reasonable cause” imports the existence of a fact or state of facts and not the mere belief by the person challenged that the fact or state of facts existed, I proceed to show that this meaning of the words has been accepted in innumerable legal decisions for many generations, that “reasonable cause” for a belief when the subject of legal dispute has been always treated as an objective fact to be proved by one or other party and to be determined by the appropriate tribunal. ”

“ When a statute alters the common law the meaning shall not be strained beyond the meaning of the words, except in cases of public utility, as when the end in view appears to be more comprehensive than the enacting words. ”

“ The outlook and feeling thus reflected are not merely relevant to our problem. They are important. The claims of dominant opinion rooted in sentiments of justice and public morality are among the most powerful shaping-forces in lawmaking by courts. ”

“ But while the realization in practice of public law and of criminal law is assured, because it is imposed as a duty on public officials, the realization in practice of private law is presented to individuals under the form of their legal rights; that is, it is left exclusively to them to take the initiative in its realization, left exclusively to their action. ”

“ Also we must realize that the authority that makes the law is itself superior to it, and that if it consents to apply to itself the rules that it applies to others the consent is free and may be withheld. ”

“ In other words, such a definition merely changes the question from what features are common to all rules of law, to what features are common to all rules of civil conduct. While most persons will agree that law is intended to promote justice, there is, as has already appeared, no consensus of opinion as to the test to determine when a law is just, or as to the yardstick to determine right from wrong. While I think the test is to be found in the opinion of the majority, many think it is to be found outside of human experience. ”

“ Under matured systems of jurisprudence a great variety of agreements are denied legal recognition, on the ground that their performance would involve a violation of law, or would be incompatible with good morals or public policy. ”

“ Given a definite rule of law, a departure from it by a hair’s-breadth is visible to all men; but within the sphere of individual judgment the differences of honest opinion are so manifold and serious that dishonest opinion can pass in great part unchallenged and undetected. Where the duty of the judicature is to execute justice in accordance with fixed and known principles, the whole force of the public conscience can be brought to the enforcement of that duty and the maintenance of those principles. ”

“ When we pass, then, from proved acts, and an inquiry as to the ends sought through them becomes necessary, the legal method is well established, though it has a duality of expression that is sometimes confusing. ”

“ We have freely exercised the right, which is allowed to every member of the profession, of controverting arguments and opinions advanced on any legal question by any individual, however distinguished by ability or position, so long as it is not judicially adjudged and settled. But upon the single point adjudicated, more deference is due to the deliberate judgment of the highest tribunal of the country. ”

“ Inevitably, therefore, the doctrine of a particular case 'is not allowed to end with its enunciation and * * * an expression in an opinion yields later to the impact of facts unforeseen.' Jaybird Mining Co. ”

“ 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. ”

“ The reasoning of the opinion, and the comments as to the character of public employment and the conduct required of one who would assert his rights when wrongfully deprived of them, are apposite here. ”

“ A dispute having arisen as to the legality of an unusual and occasional practice, the legislator thinks fit to declare it legal, trusting all the while, consciously or unconsciously, to habit, sentiment, or prejudice, to prevent its extending itself in a way which, to him, as doubtless to the great bulk of the community, would appear not merely mischievous, but revolting. ”

“ Like regulations often had been pronounced reasonable and valid in other jurisdictions [1] and while some differences of opinion upon the subject were disclosed in reported decisions, the weight of authority was on that side. ”

“ The law is what was once public opinion, or thought to be; is fixed, written, and supposed to be understood by somebody. Public opinion is not written, and not fixed; but the opinion of the controlling class overrides and interprets the law,—bids or forbids its execution. ”

“ In dealing, then, with such phrases as 'jura personarum' and 'personal rights,' we must keep in view the difference between the legal and ethical sense of the proposition that all rights are personal, or subsist as between persons. ”

“ Justice BLACK think that the findings in the opinion and decree below, while informal, are sufficient for purposes of decision, and that the case should therefore be decided now without further proceedings below; the more so because of the public interest involved. ”

“ Further, a great part of what I have written is sufficiently free from the technicalities and details of the concrete legal system to serve the purposes of those laymen who, with no desire to adventure themselves among the repellent mysteries of the law, are yet interested in those more general portions of legal theory which touch the problems of ethical and political science. ”

“ As to lawyers, their profession is supported by the indiscriminate defence of right and wrong, and I confess I have not that opinion of their knowledge or integrity, to think it necessary that they should decide for me upon a plain constitutional question. ”

“ He must decide between two claim- ants for control in a definite matter of life, property, or other privi- lege. For this reason the legal view is entirely separated from the scientific purpose of sociology, and, if projected by the legal mind into social theories, it tends to abstract the state from the remainder of society and to set it overhead as something external and mechanical. Political science, which has borrowed its con- cepts from jurisprudence and has been prosecuted by lawyers, falls also into this fault. ”

“ Nevertheless the gigantic bulk and bewildering difficulties of our own labyrinthine system are far beyond anything that is called for by the necessities of the case. Partly through the methods of its historical development, and partly through the influence of 26that love of subtilty which has always been the besetting sin of the legal mind, our law is filled with needless distinctions, which add enormously to its bulk and nothing to its value, while they render great part of it unintelligible to any but the expert. ”

“ Without stopping, however, to review the subjects in detail, we content ourselves with saying that we think neither the reference to expressions in debate, upon the concession for the sake of argument that they are competent to be looked at, nor an opinion of the Attorney General upon which reliance is placed, are adequate to control or modify the conclusion we have reached as to the meaning of the provision. ”

“ It is surprising how seldom we find in judicial utterances 176any explicit recognition of the fact that in deciding questions on principle, the courts are in reality searching out the rules and requirements of natural justice and public policy. The measure of the prevalence of such ethical over purely technical considerations is the measure in which case-law develops into a rational and tolerable system as opposed to an unreasoned product of authority and routine. ”

“ That nothing is considered as established by them, except that without which they could not have been pronounced; that is, the points of right; and the points of fact, as related to the questions of the right specially under adjudication. ”

“ In cases of prescriptive rights and customs, and other claims of a public nature, tradition and reputation have been in like manner admitted. They are all cases of a general right, affecting a number of persons, having a common interest. ”

“ but the opinion of all lawyers, the unanimous cry of the nation, and the good of the state, are in themselves a law. ”

“ 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. ”

“ With respect to itself no reason is perceived for yielding to them a further conclusiveness than is allowed to the judgments and decrees of Courts of common law and equity. They bind the subject matter as between parties and privies. ”

“ For, being totally disengaged from the detail of juridical practice, we come something perhaps the better qualified, and certainly much the better disposed, to assert the genuine principle of the laws, in which we can, as a body, have no other than an enlarged and a public interest. ”

“ The first is absolute but, in the nature of things, the second cannot be. Conduct remains subject to regulation for the protection of society.' The Court today allows belief, not conduct, to be regulated. ”