Prescriptive right

“ They have, they appear to think, a kind of prescriptive right to an equal portion with their neighbours of all relief administered, irrespectively of their own moral or social character, and of their circumstances and wants as compared with those of others. ”

“ Is it not a maxim of universal jurisprudence, of reason and common sense, that an instrument or deed of writing shall be so construed as to give validity to all parts of it, if it can be done without involving any absurdity? ”

“ The public have a right to lay out ways for purposes of business, amusement, or recreation, as to markets, to public parks or commons, to places of historic interest or beautiful natural scenery.1 And such ways may be established by prescription, by dedication, or by the acts of the proper public authorities. Twenty years' uninterrupted use by the public will make a prescriptive highway. Many of the old roads in our towns and cities have become public thoroughfares by prescriptive use, which began in colonial days, and perhaps then followed Indian trails, or were first used as bridle-paths. ”

“ For the present we declare, as we have a perfect right to do, that the deduced conception, X, the reality whereof has been proven in our deduction, is to be called in this our investigation the conception of Law or Rights, holding ourselves responsible to prove by it whatever questions common sense may raise concerning Law. ”

“ When a man requires you to sign an assent to Scripture, he requires you to assent to a doctrine as contrary to your natural understanding, and to your rights of free inquiry, as those who require your conformity to any one article whatsoever. ”

“ It is there said, that general presumptions are raised by the law, upon subjects of which there is no record or written instrument, not because there are the means of belief or disbelief, but because mankind, judging of matters of antiquity from the infirmity and necessity of their situation must, for the preservation of their property and rights, have recourse to some general principle, to take the place of individual and specific belief, which can hold only as to matters within our own time, upon which a conclusion can be formed from particular and individual knowledge. ”

“ In the nature of things, it seems almost impossible that a complete and absolute right to any portion of America can exist, unless it be by prescriptive and undisputed actual possession and settlements, or by virtue of a treaty. ”

“ Rights are dim abstractions, while material things are visible realities; and it is easier to think and speak of the latter than of the former, even though the substitution is a mere figure of speech. ”

“ We repeat that a preceptive system thus estimated could not, even had the principles to which it gave expression in the mandates of law been no other than those of the soundest morality, have impressed them with the weight of sanctity on the conscience. ”

“ It is wisely ordered, therefore, that the principles and axioms of law, which are general propositions flowing from abstracted reason, and not accommodated to times or men, should be deposited in the breasts of the judges, to be occasionally applied to such facts as come properly ascertained before them. ”

“ But the slightest exercise of reflexion makes us see that, instead of being principles of this kind, both law and latin are results. Distinctions between the lawful and the unlawful in conduct, or between the correct and incorrect in speech, have grown up incidentally among the interactions of men's experiences in detail; and in no other way do distinctions between the true and the false in belief ever grow up. Truth grafts itself on previous truth, modifying it in the process, just as idiom grafts itself on previous idiom, and law on previous law. ”

“ I do not tell you that the law hath always, at least, security in its favour against the pretext, because the obligation of the law is clear and precise, in place of which, the pretext, which introduces the exception, is always doubtful; and, that, consequently, to prefer the pretext to the law, is to leave a safe way, and to make choice of another, for which no person can be answerable to you. ”

“ As men whose intentions require no concealment generally employ the words which most directly and aptly express the ideas they intend to convey, the enlightened patriots who framed our Constitution, and the people who adopted it, must be understood to have employed words in their natural sense, and to have intended what they have said. ”

“ But that there must be a code of morality common to all as the basis of our civilized jurisprudence, in which the rights of all center or unite and are equally protected, every reasonable mind must admit. But where do we get our ideas of what is morally right, and what is morally wrong, as the basis of our common law and jurisprudence? What book or books contain the best code of morals? We answer, the Bible. ”

“ The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. ”

“ I believe in law and order; but I believe, as a condition precedent, that law and order should be predicated upon right and justice, pure and simple. Law is, intrinsically, a written expression of justice; if, on the contrary, it becomes instead written injustice, men are not, strictly speaking, bound to yield it obedience. ”

“ Ethics and jurisprudence are liable to the remark in common with logic. Almost every writer having taken a different view of some of the particulars which these branches of knowledge are usually understood to include; each has so framed his definition as to indicate beforehand his own peculiar tenets, and sometimes to beg the question in their favour. ”

“ God breathes, not speaks, his verdicts, felt not heard—Passed on successively to each court, I call Man's conscience, custom, manners, all that make More and more effort to promulgate, mark God's verdict in determinable words, Till last come human jurists—solidify Fluid results,—what's fixable lies forged, Statute,—the residue escapes in fume, Yet hangs aloft a cloud, as palpable To the finer sense as word the legist welds. ”

“ 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. ”

“ These philosophers say, that there is a right and a wrong, original, fundamental; and that things ought to be, or ought not to be, according as they do, or do not, conform to that standard. If asked, whence we derive a knowledge of this right and wrong in the abstract, which is the foundation and standard of what we call right and wrong in the concrete, they speak dogmatically, and convey no clear ideas. ”

“ When it pronounces an action right, it does so because it recognises it to be conformed to law; when it pronounces an action wrong, it does so because it recognises it to fall short of or to transgress law. ”

“ It is in such ways and under such conditions that constitutions and great principles of jurisprudence are written; the letter and spirit are ever on the side of liberty; and highly organized minds, governed by principle, invariably give true interpretations; while others, whose law is expediency, coarse and material in all their conceptions, will interpret law, Bible, constitution, everything, in harmony with the public sentiment of their class and condition. And here is the reason why men differ in their interpretations of law. ”

“ It is scarcely necessary to say, that the phrase, "moral law," is a technical expression of theology, and refers to the Ten Commandments, which are so called, because they define the regulations necessary for the government of the morals and manners of men. ”

“ At times, the atmosphere in which an opinion is written may become so surcharged that unnecessarily broad statements are made. In such a case, it is our duty to look beyond the broad sweep of the language and determine for ourselves precisely the ground on which the judgment rests. ”

“ On the other side, the speaker will urge, that laws depend upon the intention of the framer of them, and upon the general advantage, not upon words, and also, how scandalous it is for equity to be overwhelmed by a heap of letters, and defended in vain by the intention of the man who drew up the law. ”

“ 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. ”

“ Our first assents, right or wrong, are often little more than prejudices. The reasonings, which precede and accompany them, though sufficient for their purpose, do not rise up to the importance and energy of the assents themselves. As time goes on, by degrees and without set purpose, by reflection and experience, we begin to confirm or to correct the notions and the images to which those assents are given. ”

“ The Protestant, reduced to the sacred text, even supposing he has the genuine and authentic text, and his private judgment, would be reduced to the condition of the lawyer who should undertake to explain the statutes of any one of our states, in total ignorance of the Common Law, or without the least reference to it or the decisions of the common-law courts. ”

“ All the while, however, we pretend that the eternal is unrolling, that the one previous justice, grammar or truth is simply fulgurating, and not being made. But imagine a youth in the courtroom trying cases with his abstract notion of 'the' law, or a censor of speech let loose among the theatres with his idea of 'the' mother-tongue, or a professor setting up to lecture on the actual universe with his rationalistic notion of 'the Truth' with a big T, and what progress do they make? Truth, law, and language fairly boil away from them at the least touch of novel fact. ”

“ As our law develops it becomes more and more important to give definiteness to its phraseology; discriminations multiply, new situations and complications of fact arise, and the old outfit of ideas, discriminations, and phrases has to be carefully revised. Law is not so unlike all other subjects of human contemplation that clearness of thought will not help us powerfully in grasping it. ”

“ The certain law imposes a certain obligation. On the other hand, if an opinion is probable and acknowledged as such by five or six experts, good, prudent, and learned men, it is impossible that there should be a law contrary to the probable opinion. ”

“ May people honestly and amicably differ about the interpretation of the constitution or of a law, in a particular case? If important interests are dependent on the interpretation, how can the true one be found out? ”

“ I answer that, Just as an assertion is a dictate of reason asserting something, so is a law a dictate of reason, commanding something. Now it is proper to reason to lead from one thing to another. Wherefore just as, in demonstrative sciences, the reason leads us from certain principles to assent to the conclusion, so it induces us by some means to assent to the precept of the law. ”

“ The nominalist is right in so far as he denies that law as an abstract thing (considered apart from a person—as his thought) is anything: the realist is right in so far as he affirms that law, apart from {64} any particular manifestation, is an eternal reality. The reconciliation of nominalism and realism is found in God. Applying this to the case in hand—you admit that the Ten Commandments are the ground of morality; therefore, I say, they must be an expression of a thought of God, the Author of morality. ”

“ The very conception of a set of principles, invested with a higher sacredness than those of the original law and demanding application independently of the consent of any external body belongs to a much more advanced stage of thought than that to which legal fictions originally suggested themselves. ”

“ The writer of a philosophical treatise may, I imagine, at this advanced era of human intellect, be held excused from entering into a controversy with those reasoners, if such there are, who would claim an exemption from its decrees in favour of any one among those diversified systems of obscure opinion respecting morals, which, under the name of religions, have in various ages and countries prevailed among mankind. ”

“ Among the laws of which the desire of extending authority, or ardour of promoting knowledge, has prompted the prescription, all which writers have received, had not the same original right to our regard. Some are to be considered as fundamental and indispensable, others only as useful and convenient; some as dictated by reason and necessity, others as enacted by despotick antiquity; some as invincibly supported by their conformity to the order of nature and operations of the intellect ”

“ The importance of examining the preamble for the purpose of expounding the language of a statute has been long felt and universally conceded in all juridical discussion. It is an admitted maxim ... that the preamble is a key to open the mind of the matters as to the mischiefs to be remedied and the objects to be accomplished by the statute.... ”

“ No man has a right to prescribe terms on which to receive [289] any man. The terms are already prescribed in the law of the great King. We must not go to man, but to the King, to know who shall be received. ”

“ In this respect of course the law of truth differs from the law of duty, that duties change, but truths never; but, though truth is ever one and the same, and the assent of certitude is immutable, still the reasonings which carry us on to truth and certitude are many and distinct, and vary with the inquirer; and it is not with assent, but with the controlling principle in inferences that I am comparing phronesis. ”