Private judgment

“ And even with help—it is a plague and a mystery till the true meaning has been settled—settled!—by adjudication: that is, by others in authority, the priesthood and the patriarchs, who, under the name of judges, are paid for all the thinking, as lawyers are paid for all the talking to no purpose, permitted at law: for, be it known to all whom it may concern, that is, to all the non-lawyers of our land, that no private interpretation of law is of any authority at law: nor is the right of private judgment recognized or allowed or tolerated or endured in courts of justice! ”

“ There is this obvious, undeniable difficulty in the attempt to form a theory of Private Judgment, in the choice of a religion, that Private Judgment leads different minds in such different directions. ”

“ How odious an usurpation of the right of private judgment should that law be considered, which should make the ties of friendship indissoluble, in spite of the caprices, the inconstancy, the fallibility, and capacity for improvement of the human mind. ”

“ How far the individual can ever be justified in following the dictates of his private judgment, in opposition to the laws and prevalent opinions of his time and country, must remain a question no less difficult than delicate of decision. ”

“ The duty of private judgment, of searching after truth, the sacredness of belief which ought not to be misused on unproved statements, follow only on showing of the enormous importance to society of a true knowledge of things. And any diversion of conscience from its sole allegiance to the community is condemned à priori in the very nature of right and wrong. ”

“ what I know is unofficial, what he knows is official. I have the right to private judgment, but he has none. ”

“ We are not to form our judgment on those dispositions from the rules and principles of a court of justice, but from those of private discretion,—not looking for what would serve to criminate another, but what is sufficient to direct ourselves. ”

“ These things are necessary consequences one of the other; and then, this judgment is an equal and a superior violation of private judgment; the right of private judgment is violated in a much greater degree than it can be by any previous subscription. You come round again to subscription, as the best and easiest method; men must judge of his doctrine, and judge definitively: so that either his test is nugatory, or men must first or last prescribe his public interpretation of it. ”

“ But if any man, whig or tory, shall take it into his head to think for himself, that he has a right to take my property without my consent, however tender I may be of the right of private judgment and the freedom of thought, this is a point in which I shall be very likely to differ from him, and to think for myself, that I have a right to resist him. ”

“ When gentlemen complain of the subscription as matter of grievance, the complaint arises from confounding private judgment, whose rights are anterior to law, and the qualifications which the law creates for its own magistracies, whether civil or religious. ”

“ The cases to which our attention has been called view the question in all its phases, and seem to consider the progressive steps in execution of judgment as mere formalities, less a matter of public policy than of private concern ”

“ For who can be secure of private right,
If sovereign sway may be dissolved by might? 780
Nor is the people's judgment always true:
The most may err as grossly as the few? ”

“ And as there are numberless cases in which, notwithstanding appearances, we are not competent judges, whether a particular action will upon the whole do good or harm, reason in the same way will teach us to be cautious how we act in these cases of uncertainty. It will suggest to our consideration which is the safer side; how liable we are to be led wrong by passion and private interest; and what regard is due to laws, and the judgment of mankind. ”

“ We recognize that the task of assessing benefits either to private property or to the city at large is a very difficult one, and that the temptation to the jury to indulge in conjecture is great, but still they ought to be admonished [Pg 253] that the law requires them to use their reason and judgment, and not their imagination. ”

“ It is a rule of fundamental and substantial justice, 'of public policy and of private peace,' which should be cordially regarded and enforced by the courts to the end that rights once established by the final judgment of a court of competent jurisdiction shall be recognized by those who are bound by it in every way, wherever the judgment is entitled to respect. ”

“ The judge must be disinterested and above suspicion; yet should he have from nature an itching palm, an eye servile and greedy of office, he will somehow contrive to indemnify his private conscience out of his public principle, and husband a reputation for legal integrity, as a stake to play the game of political profligacy with more advantage! ”

“ What judge of any court, what lawyer who wished to ascertain the true doctrine of a case, would search for the private opinions of the judge when the reports bristled with adjudicated cases from which he could learn the true doctrine which he had expressed under oath and in the discharge of his duties? When you search for the opinions of our ancestors to guide us as legislators, look at their conduct as legislators, and not their private opinions. Every lawyer, every sensible man, every rational man, knows that that is the true test of the opinions of our ancestors upon a given subject. ”

“ Well, in candour, I must admit that, by justifying, in courts of judicature, through the verdicts of juries, that mode of personal redress and self-vindication, to heal and prevent which was one of the original motives for gathering into social communities, and setting up an empire of public law as paramount to all private exercise of power, a fatal wound is given to the sanctity of moral right, of the public conscience, and [Pg 98] of law in its elementary field. ”

“ But all the same the law cannot become the guardian of our private manners. No Decalogue could cover the vast area of offences and no court could administer a law which governed our social civilities, our speech, the tilt of our eyebrows and all our moods and manners. ”

“ Thirdly, such offences which the conscience of a brother dealing with another privately, dares not as yet publish openly, coming to the notice of the magistrate accidentally, he ought not to make public as yet, nor to require the grand jury to present the same, no more than the other private brother, who is dealing with him, until he see some issue of the private way. ”

“ Everybody answers, “No; the authority of man is only the authority of the law, which ought to be justice and truth.” The private will counts for nothing in government, which consists, first, in discovering truth and justice in order to make the law ”

“ 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. ”

“ Let me be forgiven if I cannot speak with temper of such insolence as this: is a man without title, pension, or place, to suspect the impartiality or the judgment of those who are entrusted with the administration of publick affairs? Is he, when the law is not strictly observed in regard to him, to think himself aggrieved, to tell his sentiments in print, assert his claim to better usage, and fly for redress to another tribunal? ”

“ 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. ”

“ Now, let this doctrine be applied; for I hold it to be no unwarrantable invasion of private character to apply these principles to public men. When public men openly and notoriously practise vice, they make the vice public, and bring it within public jurisdiction. ”

“ But though now exposed to unexpected and unnatural scenes of distress by a contention with that Nation in whose parental guidance on all important affairs, we have hitherto, with filial reverence, constantly trusted, and therefore can derive no instruction in our present unhappy and perplexing circumstances from any former experience; yet, we doubt not, the purity of our intention, and the integrity of our conduct, will justify us at that grand tribunal before which all mankind must submit to judgment. ”

“ If we go outside the sphere of private, into that of public law, we find the list of personal rights greatly increased. Citizenship, honours, dignities, and official position in all its innumerable forms pertain to the law of status, not to that of property. ”

“ It is as to his past life, as to his past conduct, and as to his then sufficiency because of his past life and past conduct. His 'private and professional character shall appear to be fair,' said the rule. Moreover, we submit that every man stands here with a continuing condition of that sort upon him. The condition attaches every hour in which any man stands before the courts. It is not simply that he is, at the time he takes it, a man whose private and professional character appears fair. ”

“ The judicial process demands that a judge move within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. ”

“ The most they can do is to bring to the discharge of their duties a careful and diligent consideration of the particular case, a knowledge and experience of the general condition and business affairs of mankind, to which all are more or less subject, a sound and enlightened judgment, and honest desire to arrive at truth and justice between the parties. ”

“ And it is better that such a lawgiver should frame and promulgate his laws not for his contemporaries only but for posterity also, or for strangers with whom he neither has nor expects to have any private dealings. ”

“ At the same time, however wise, and in the event beneficent, may have been this judgment, one must also confess that in its wider bearings it reveals the dangers for society which may lurk in the unyielding logic of individual judicial opinion, should healthy public sentiment not be allowed, at least in some measure, to direct and mold the decrees of our courts of justice. ”

“ Such men alone could be partners in the true ownership of property, or sue and be sued in their own right, [16] and such an exclusive right to a full personality in private law they claimed in virtue of their public services or privileges—the duty of taking the field on horseback or in heavy armour, the right of uplifting their voices in the assembly when they acclaimed a king or ratified a law. ”

“ Can there exist in that body,—composed as it undoubtedly is of men, who, in the private relations of life, are distinguished for many good qualities,—an habitual disregard of decency, a contempt for public opinion, an absurd confidence, either individually or in mass, to which, absolving [181] themselves from the rules of common life, they look for protection against the censures of their fellow-citizens? ”

“ You rule over all; but you preserve his own for each individual; and justice has more weight with you than arbitrary will. Take counsel with your own liberality whether that which you have conferred on others ought to be considered public property. ”

“ Even in private life we have a judicial function, which, though often ignored and even resented, is also often sought and respected if we have the tact to praise and do not become censorious. Our approval or disapproval, even if mild and unspoken, may count for more than is admitted or even realized by our family and friends. ”

“ But on what ground will you support the principles of civil law, if you act always in your own interest and not in that of your fellow citizens? What, too, is to become of the legal formula in cases of trust, "as should be done among honest men"? For who can be called honest who does nothing except on his own behalf? What principle will you lay down "in dividing a common property," when nothing can be "common" among men who measure all things by their own pleasure? ”

“ Of the two words which, together with law, make up the title of our subject, private is justified by the fact that its application is between litigants in courts of law, and not between governments except so far as they may be such litigants. ”

“ When such reasons as these preclude the enforcement of responsibility, the conscience of the agent himself should step into the vacant judgment seat, and protect those interests of others which have no external protection ”

“ Constructive notice in such cases is held sufficient, upon the ground, that, when a party is about to perform an act which he has reason to believe may affect the rights of third persons, an inquiry as to the facts is a moral duty, and diligence an act of justice. ”

“ At any rate, the way to improve their judgment in their own concerns (and if they do not judge for themselves, they will infallibly be cheated both of liberty and property, by those who kindly insist on relieving them of that trouble) is not to deny them the use and exercise of their judgment altogether. ”

“ You can disagree with the judgment, the client can do everything possible to reject it, and refuse to accept it, but that judgment can be enforced through the law. If it is a civil case you will lose what you are claiming. ”