Necessity (law)

“ Since no law can be, in a final or true sense, established, but by right, (all unjust laws involving the ultimate necessity of their own abrogation) , the law-giving can only become a law-sustaining power in so far as it is Royal, or "right doing;"—in so far, that is, as it rules, not misrules, and orders, not dis-orders, the things submitted to it. ”

“ But to do such things is to admit that the laws affected are not based upon necessity and an inherent righteousness; that they are in fact restrictive and vexatious. The law-giver, of all beings, most owes the law allegiance. ”

“ The fundamental principle of law is that of a restriction imposed by the necessity of social existence. It is evident, therefore, to begin with, that seclusion for an unfixed period, as for life, is in no way irreconcilable with this principle of law, when

imposed by necessity. ”

“ A strict observance of the written laws is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the end to the means. ”

“ On the contrary, all will agree that the necessaries of life must be provided for every one who is in need of them ; but that they must, so far as the State is concerned, be given upon terms, and the terms hitherto accepted as the basis of our Poor Law have been the conditions laid down by the Commission of 1834. ”

“ It is that of the general will, which can neither be alienated nor represented. Is the prince above the law? The answer is, He is a member of the state, and cannot be so. Can the law be unjust? No one can be unjust to himself: therefore not the whole people to the whole people. How can we be free and yet subject to the laws? The laws are the register of our own will. (Ib.) Laws, in short, are properly those general 'conditions of civil association' which the associates impose on themselves. ”

“ On the other hand, the constitutions of all civilized governments, whether written or unwritten, the principles of the civil as well as those of the common law, and the teachings of wise men of ancient and of modern times, recognize as a duty the protection of individual or selfish interests. They recognize as just and necessary the restraint and punishment of wrong-doers, and the protection of the rights and interests of the individual in person and property. ”

“ I am properly obliged to those actions and forbearances which are necessary to the general freedom, necessary if each is not to interfere with the realisation of another's will. My duty is to be interested positively in my neighbour's well-being. And it is important to understand that, while the enforcement of obligations is possible, that of moral duties is impossible. But the establishment of obligations by law or authoritative custom, and the gradual recognition of moral duties, have not been separate processes They have gone on together in the history of man. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ And just as the recognised interest of a society constitutes for each member of it the right to free life, just as it makes each conceive of such life on the part of himself and his neighbour as what should be, and thus forms the basis of a restraining custom which secures it for each, so it constitutes the right to the instruments of such life, making each regard the possession of them by the other as for the common good, and thus through the medium first of custom, then of law, securing them to each. ”

“ Whereby any person may be deprived of life, liberty, or property without due process of law, or may be denied the equal protection of the laws, or whereby private property may be taken without just compensation ”

“ The obligation of every contract, then, will consist of that right, or power over my will or actions, which I, by my contract, confer on another. And that right and power will be found to be measured, neither by moral law alone, nor by universal law alone, nor by the laws of society alone; but by a combination of the three; an operation, in which the moral law is explained, and applied by the law of nature, and both modified and adapted to the exigencies of society by positive law. In an advanced state of society, all contracts of men receive a relative, and not a positive interpretation. ”

“ The duty of using one's goods for the benefit of one's neighbours was a fit matter for enforcement by the State, provided that the burdens imposed by legislation were equitable. 'Laws are said to be just, both from the end, when, to wit, they are ordained to the common good—and from their author, that is to say, when the law that is made does not exceed the power of the law-giver—and from their form, when, to wit, burdens are laid on the subjects according to an equality of proportion and with a view to the common good. ”

“ Though this doctrine may make sad havoc with constitutions and statute books, it is nevertheless law. It fixes and determines the real rights of all men; and its demands are as imperious as any that can exist under the name of law. ”

“ It is, indeed, not at all an easy thing to define what is meant by "having the necessary authority," or, in other words, to say in what relation a person or set of persons must stand to a community, if it is to be true that nothing can be a law of that community except what these persons have willed, or what can be deduced from something which they have willed. But still it may be true that there always is some person or set of persons whose will or consent is necessary to make a law a law. ”

“ It is the first and supreme necessity only, a necessity, that is not chosen, but chooses, a necessity paramount to deliberation, that admits no discussion, and demands no evidence, which alone can justify a resort to anarchy. This necessity is no exception to the rule; because this necessity itself is a part too of that moral and physical disposition of things, to which man must be obedient by consent or force. ”

“ It is an old principle of the Common Law, recognized by all our courts, as announced by Lord Coke, that, “where the law granteth anything to any one, that also is granted without which the thing itself cannot be.” ”

“ But it is clearly laid down as a fundamental principle of the all-pervasive common law, that rights given by the Creator are unalienable, [Pg 17] and that no human being, however emphatically he may declare, or will, or agree to the contrary, may by any possible act of any other human being or of any set of human beings, whether calling themselves a government or not, or by any possible means, deprive himself, or be deprived of the right of life, liberty and the pursuit of happiness—these being necessarily incidental to the original right of equality. ”

“ This primary right having been found unworkable in practice, has been deposited, for the convenience of all, with the State, from which, as the maker, guardian, and executor of Law, and as a common fund for the use of all, the rights of each are derived, and man thus made as free as he can be without harm to his neighbor. ”

“ There are rules anterior to all positive laws. I cannot grant that the action of conscience and the idea of right are the work of the legislator. It is not law that made the family, property, liberty, equality, the idea of good and evil. ”

“ The great principle of the common law, which is equally the teaching of Christian morality, so to use one's property as not to injure others, forbids any other application or use of the rights and powers conferred. ”

“ The people of the States, under every variety of change of circumstances, must remain unalterably, according to this construction, under the dominion of this supposed universal law, and the obligations resulting from 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. ”

“ And as it is pretty certain that men will make laws which seem to them convenient without troubling themselves very much what principles are encountered by their legislation, a principle which defies convenience is likely to wait some time before it finds itself permanently realized.
It remains, then, to seek for some ground for the protection of possession outside the Bill of Rights or the Declaration of Independence, which shall be consistent with the larger scope given to the conception in modern law. ”

“ He could demand, in short, any terms on which men would still consent to live on his land, and the law could not prevent him so long as it did not qualify his ownership, for compliance with them would assume the form of a free contract or voluntary act. ”

“ General laws are meant to regulate our conduct to each other, within certain rules; that the confidence necessary for the social union may be maintained. A principle laid down by the law, is promulgated as a general rule; and in the confidence that this rule will be respected by all; or that if violated, society will punish the violator, it is recognised as a general principle of action. ”

“ Certain general clauses, e.g., that pledging that justice should neither be bought nor sold, and that prescribing that a freeman might not be imprisoned, outlawed, or dispossessed of his property save by the judgment of his peers or by the law of the land, meant in effect considerably less than they sometimes have been interpreted to mean. ”

“ Such a possession is only possible in a state of civil society. In civil society, a declaration by word or act that an external thing is mine and making it an object of the exercise of my will is "a juridical act." ”

“ We see, then, that in all its provisions the civil law presupposes the natural law, of which it is but the complement and final determination. The rights which it establishes are real rights beyond doubt ”

“ Speaking of the origin of civil power and the objects of law, he lays down these principles: "The law, strictly speaking, is directed primarily and principally to the common good; and to decree anything for the common benefit belongs either to the whole body of the people, or to some one acting in their place." ”

“ The answer to this question arises out of the above consideration of the means which law employs to obtain the fulfilment of obligations, combined with the view of law as relative to a moral end, i.e. the formation of a society of persons, acting from a certain disposition, from interest in the society as such. ”

“ But behind and above these general principles which the law recognizes as ordinarily prevailing, there lies the legislative power, which, in the absence of organic restraint, may, for the general welfare of society, impose obligations and responsibilities otherwise nonexistent. ”

“ The general principle that the citizen must never act otherwise than as a citizen, does not carry with it an obligation under all conditions to conform to the law of his state, since those laws may be inconsistent with the true end of the state as the sustainer and harmoniser of social relations. The assertion, however, by the citizen of any right which the state does not recognise must be founded on a reference to an acknowledged social good. ”

“ There must be no undeterminedness whatever in a state organization. Each, of course, has possession of objects only so far as the ends of his occupation require it. 3. The end of all this labor is, to be able to live. All guarantee to each that his labor will achieve this end, and guarantee this end with all their means. These means belong to the rights of each, which the state must protect. The agreement in this respect is as follows: Each promises to do all that is in his power to do, in order to make his living from what has been ceded to him as his property and rights ”

“ That the law may be a rule of action, it is necessary that it be known; it is necessary that it be permanent and stable. The law is the measure of civil right; but, if the measure be changeable, the extent of the thing measured never can be settled. ”