Prior restraint

“ That ceremonial restraint, preceding other forms of restraint, continues ever to be the most widely-diffused form of restraint, we are shown by such facts as that in all intercourse between societies, civilized, semi-civilized, or barbarous, as well as in all intercourse between members of each society, the decisively governmental actions are usually prefaced by this government of observances. ”

“ Once experience with a particular kind of restraint enables the Court to predict with confidence that the rule of reason will condemn it, it has applied a conclusive presumption that the restraint is unreasonable. ”

“ And if restraints, however named, and through whatever apparatus of means exercised, are one in their action upon men, it must happen that those who are patient under one kind of restraint, are likely to be patient under another; and conversely, that those impatient of restraint in general, will, on the average, tend to show their impatience in all directions. ”

“ For the essence of restraint is power; and power may arise merely out of position. Wherever a dominant position has been attained, restraint necessarily arises. And when dominance is attained, or is sought, through combination-however good the motives or the manners of those participating-the Sherman Law is violated, provided, of course, that the restraint be what is called unreasonable. ”

“ Constrain refers almost exclusively to moral force, restrain frequently to physical force, as when we speak of putting one under restraint. To restrain an action is to hold it partially or wholly in check, so that it is under pressure even while it acts; to restrict an action is to fix a limit or boundary which it may not pass, but within which it is free. To repress, literally to press back, is to hold in check, and perhaps only temporarily, that which is still very active; it is a feebler word than restrain; to suppress is finally and effectually to put down ”

“ It is sometimes expedient to use restraint even in good desires, lest through unseasonable effort thou art distracted of mind; lest by thy want of self-government thou beget a scandal unto others; or again, being thwarted by others and resisted, thou become suddenly confounded, and so fall. ”

“ If the superior man prosecute his measures (in such circumstances) , there will be evil.
IX. The name Hsiâo Khû is interpreted as meaning 'small restraint.' The idea of 'restraint' having once been determined on as that to be conveyed by the figure, it is easily made out that the restraint must be small, for its representative is the divided line in the fourth place ”

“ Restraint—restraint—not that imposed by arbitrary and irresponsible power, but by the people themselves, in their own written constitutions, is the great law which has rendered Democratic Representative Government so successful in these latter times. The best security which the people can have against abuses of trust by their public servants, is to ordain that it shall be the duty of one class of them to watch and restrain another. Sir, this Federal Government, in its legislative attributes, is nothing but a system of restraints from beginning to end. ”

“ This mode of representing the inconveniences of restraint as light and insignificant, was a kind of sophistry in which he delighted to indulge himself, in opposition to the extreme laxity for which it has been fashionable for too many to argue, when it is evident, upon reflection, that the very essence of government is restraint; and certain it is, that as government produces rational happiness, too much restraint is better than too little. ”

“ The first and most important thing to be remembered in this connection is that the doctrine has no application whatever to tortious or involuntarily suffered restraints, its sole application being to cases of voluntary or contractual restraint, involving in its accomplishment no wrongful means or end. This is constantly overlooked in argument, and leads but to confusion and error. The doctrine of "tendency," indeed, if properly understood and limited, comprises the whole doctrine of "indirectness" within itself. ”

“ And the chief thing demanded by these intricacies of civilisation was control, restraint--a poise of self that was as delicate as the fluttering of gossamer wings and at the same time as rigid as steel. ”

“ As has been indicated, the reason is that while the acquisition of "power" to restrain may be viewed with such just suspicion as to make it prima facie dangerous, illegal, to require explanation, that still, if that explanation satisfy the court that there was neither purpose nor interest amounting to dangerous temptation to misapply it, the justly and lawfully acquired power can be lawfully retained; because neither restraint nor the power acquired with interest or intent to restrain exists, necessary to constitute that tendency, which is equally illegal with restraint itself. ”

“ It might be that we could afford to put up with what that implies, if we attained thereby all that is hoped; still it is terrible to think of army discipline extending itself over society in all its ramifications. To many—to the majority—the restraint would be a very great evil. ”

“ The principal objects which human punishments have in view, are undoubtedly restraint and example: restraint, or removal, of an individual member, whose vicious habits are likely to be prejudicial to the society. ”

“ Restraint was unknown to him—his will was his law, and he tried to make it everyone else’s. When thousands of men have 126 the same idea the result is trouble; hence the practice of cluttering up one’s person with artillery. ”

“ When we look upon such conduct as the reaction arising out of their former state, we cannot so much blame them, and are obliged to own that it is the natural result of a sudden emancipation from former restraint. ”

“ I have never been able to understand how men could endure any restraint which they were able to throw off, I mean an unjust restraint, which does not necessarily result from the nature of man, such as sickness or death, or from the nature of society, such as law and order, but which one set of men have exercised over another, from arbitrariness, avarice or hard-heartedness, and which the others have borne out of stupidity, denseness or cowardice. ”

“ A condition in partial restraint of marriage is valid, and may be either to restrain marriage with a particular class of persons, e.g. a papist, a domestic servant, or a Scotsman, or under a certain age.
3. Restraint of Trade.—A contract in general restraint of trade is void as being against public policy. In the leading case of Mitchell v. Reynolds, 1711, 1 Smith L.C., it was laid down that “it is the privilege of a trader in a free country, in all matters not contrary to law, to regulate his own mode of carrying it on according to his own discretion and choice. ”

“ Thus when we look at the men in whose hands at this time such a fateful power of decision was placed, we find them, as the great crisis approaches, themselves stunned by the enormity of the forces about to be unchained, seeking still and hoping for some fortunate escape ”

“ It may yet go further, and prohibit such indulgence to all who have lost the power of self-control. But in general it has been found impossible to enforce restriction upon vicious indulgence except where such acts occasion direct suffering upon others, or help to maintain an immoral business. [pg 324] The right of restraint and constraint, even to prohibition, of that which fosters vice and extends its range must be admitted by all thoughtful persons. ”

“ If ultimately a division has to be made, human reason will have to decide in what shape the legal sanction, 'or, in other words, disciplined and systematic physical force,' shall be used. We shall then come to the ultima ratio, after all compromises have been tried. ”

“ All the higher forms of intellectual or moral power suggest the idea of reserve force, and of nothing is this truer than the self-controlled indignation of a really strong man like Franklin or Washington. ”

“ There has been an absolute terror of fixing upon any settled course, and the result has been that, when the time came that external pressure forced a decision on some definite course, the moment for satisfactory action had already passed, and the measures that were taken were taken in haste, with little preparation, and often with little fitness for the emergencies with which they had to cope. The conduct of the government has been an alternation of periods of slumber and periods of rush. ”

“ Lack of restraint is failure to construct a properly-working hierarchy. That is a very simple example. Less easy to analyse but equally vicious, are the innumerable cases in which some sort of equilibrium is only attained not by a free interaction of dominant and subordinate parts, but by repression. Conflicts arise, which persist, either in an open form or in the subterranean regions of the unconscious. ”

“ All associated life is regulated by a system of restraints; but restraint implies self-control, and self-control is directly opposed to fatalism. Let a criminal plead that he could not help committing a certain crime ”

“ It is true, that some who shun drawing-rooms do so from inability to bear the restraints prescribed by a genuine refinement, and that they would be greatly improved by being kept under these restraints. But it is not less true that, by adding to the legitimate restraints, which are based on convenience and a regard for others, a host of factitious restraints based only on convention, the refining discipline, which would else have been borne with benefit, is rendered unbearable, and so misses its end. Excess of government defeats itself by driving away those to be governed. ”

“ When command is so explicit and, moreover, is reinforced by necessity in order to make it operative, nothing short of express limitation or abuse of discretion in finding that the necessity exists should undermine the action taken to execute it. ”

“ For example, in what well regulated private family will you ever find numerous restraints enforced, which obviously have nothing else in view but the more ease and convenience of the heads of the establishment, entirely apart from all moral influence to be produced on the individuals upon whom these restraints are imposed? ”

“ All these points are covered by the settlement of the last year, which I consider to be a complete vindication of the passive resistance, and I venture to state that if more has not been gained more was not and could not be asked for as an item in the passive resistance, for a passive resister has to frame his minimum as well as his maximum, and he dare not ask for more nor can he be satisfied with less. ”

“ They find the advanced positions tacitly abandoned, and the cause of administrative reform driven back into the last line of defense within the narrow entrenchment of the civil service law,—and even that entrenchment in spots by no means impregnable. They see no longer an advancing, but a retreating cause; and let us not forget that while a strong, aggressive movement commands esteem and acquiescence, a halting, retreating one invites contempt and attack. ”

“ Public policy therefore requires a continuance of the restraint, however painful to the individual. If there be one case which admits of relaxation less than another, it is where injuries of the head have produced the insanity. ”

“ It is not the purpose of this study to detail minutely the workings of the system, — the reports of the Civil Service Commission are too candid and too easily available to make that necessary, — but certain plausible methods of evading restrictions must be mentioned. One of the most dangerous is reinstatement. It seems just that, if a man be dismissed without just cause or because of a reduction in force, he should be readmitted without having to run the gantlet as a novice. ”

“ Every gain on the wrong side undoes the effect of many conquests on the right. The essential precaution, therefore, is so to regulate the two opposing powers that the one may have a series of uninterrupted successes, until repetition has fortified it to such a degree as to enable it to cope with the opposition, under any circumstances. ”

“ Because it forces us to consider the disruption that our new decisional rules cause, retroactivity combines with stare decisis to prevent us from altering the law each time the opportunity presents itself. ”

“ It is beyond prediction what the consequences may be, of uncertainty, or hardship, of injustice in deprivation of rights, in windfalls of right to others, in laying on new and wholly unexpected liabilities and in relieving from anticipated ones, if retroactive administrative refashioning becomes the general practice. ”

“ The policy of drift, which we seem to favour, is bound to lead us to disaster, and when we couple with it inefficacious resistance and bigoted obstruction we cannot be surprised if, in the end, it only yields us bitter disappointment, extensive losses, enmity and derision. ”

“ A plan for concerted action will have to be arranged, and every precaution taken. The slightest slip would mean failure, and merciless punishment. Even if I succeed in gathering together all these better elements on board, we shall yet be outnumbered two to one, perhaps more, and our only hope rests in surprise. ”

“ A merciless despot, who had never known the need for restraint in all these years, he was doomed by ironic fate to practise restraint in the very moment when his feelings had reached their most violent intensity. ”

“ The frequent and unforeseen necessities of his affairs, and frequent difficulties and opposition, will force him for his own preservation, or for the preservation of his power, to try expedients, to tempt dangers, and to do things which he did not foresee, nor intend, and perhaps, in the beginning, abhorred. ”

“ In reflecting on this course of incidents, the thought forces itself upon our mind, that the mandate was given, not in cool blood, nor when there was time and opportunity for deliberation and for calculating upon the means and chances of safety, but upon the instant, on a sudden unexpected renewal of the engagement from a quarter from which no danger was anticipated ”