Proviso

“ A comparison of the proviso to the permanent act, with that which had been introduced into the temporary act, will serve to illustrate the idea, that the proceedings under the execution were contemplated in the enacting clause, and supposed to be prescribed by the words 'modes of process,' in the one law, and 'modes of proceeding,' in the other. ”

“ When the purpose of the proviso is thus ascertained it becomes apparent that to maintain the construction which the argument seeks to affix to the proviso would cause it to produce a result diametrically opposed to its spirit and to the purpose it was intended to subserve.' 198 U.S. 213, 49 L. ed. ”

“ If the assured, being in the possession of his ordinary reasoning faculties, from anger, pride, jealousy, or a desire to escape from the ills of life, intentionally takes his own life, the proviso attaches, and there can be no recovery. ”

“ The act of Congress seems to reach only matter arising in the progress of the cause, and not afterwards, because the proviso is, 'that nothing herein contained shall prevent the cause from proceeding,' &c., and hence implies it must be in the progress of the cause. ”

“ The explanation proceeds,-'Provided, always, that in every action by the holder of any such note, whether against the drawer or indorsers, the defendant may set off and defalk, so far as the plaintiffs shall be indebted justly to him in account by bonds, specialty, or otherwise.'
The proviso subjects every holder for his own acts, and no further. ”

“ But a proviso is not always limited in its effect to the part of the enactment with which it is immediately associated; it may apply generally to all cases within the meaning of the language used. United States v. ”

“ This court has had occasion to hold more than once that language used in provisos shows the legislative intention to bring in new matter rather than to limit or explain that which has gone before. Georgia R. & Bkg. Co. ”

“ But the learned counsel for the defendant take a somewhat loftier flight still. They are more concerned, they assure us, for the law itself, than even for their client. Your decision in this case, they say, will stand as a precedent. Gentlemen, we hope it will. We hope it will be a precedent both of candor and intelligence, of fairness and of firmness; a precedent of good sense and honest purpose pursuing their investigation discreetly, rejecting loose generalities, exploring all the circumstances, weighing each, in search of truth, and embracing and declaring the truth when found. ”

“ Whenever the legislature has accurately determined what are the facts which shall give commencement, and what those which shall give termination to a right, the whole confused and intricate mass of what in English law is called Pleading, reduces itself to those clear and simple elements. A begins, by affirming some one of the facts which gives commencement to a right. ”

“ Can a judgment inflicting fine or imprisonment be reversed by a court of error, because that judgment proceeded on an indictment containing both bad and good counts, and in respect of which some of the findings of the jury were either defective or defectively entered?—Let us now listen to the decision of that venerable body of men, who are, in the language of our great commentator, "the depositaries of the laws, the living oracles, who must decide in all cases of doubt, and who are bound by an oath to decide according to the law of the land." ”

“ If then the probationer for the clerical profession was under some bias in his first investigation, how must it be expected to be with him, when he has already taken the vow, and received ordination? Can he with a calm and unaltered spirit contemplate the possibility, that the ground shall be cut away from under him, and that, by dint of irrefragable argument, he shall be stripped of his occupation, and turned out naked and friendless into the world? ”

“ In regard to all questions which come under the decision of the law, there are, in fact, two juries who decide upon the merits of the evidence--one, selected from our fellow men--the other in the bosom of the parties before which each man shall scrupulously try the justice of his own cause, and if the verdict be against him, should look upon himself but as an officer to carry the verdict into execution. ”

“ Every man, of any feeling or conscience, will answer, 'No.' It is not only his right, but his duty, in that case, to find the verdict according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.' 'The English law obliges no man to decide a cause upon oath against his own judgment.' 2 John Adams' Works, 253-255. ”

“ If a judge pronounces a judgment, renders a decision, delivers a verdict duly signed and sealed and afterwards alters his judgment, they shall call that judge to account for the alteration of the judgment which he had pronounced, and he shall pay twelvefold the penalty which was in the said judgment, and, in the assembly, they shall expel him from his seat of judgment, and he shall not return, and with the judges in a case he shall not take his seat. ”

“ The qualification that the refusal must be 'willful' fully protects one whose refusal is made in good faith and upon grounds which entitle him to the judgment of the court before obedience is compelled. ”

“ As a general rule a plea must be “issuable,” i.e. must put the merits of the cause in issue on the facts or the law, so that the decision of judge and jury thereon would put an end to the action upon the merits. ”

“ Such a process would be just as rational in courts of justice, as in halls of legislation; for it is of no importance to a man, who has his rights taken from him, whether it be done by a legislative enactment, or a judicial decision. ”

“ A rational trial before a tribunal, where each side of the question could have been produced, would have been the part of honorable men, conscious of their own rectitude, and of the justice of their cause. ”

“ Those who write upon the principles of jurisprudence, consider only what the person to whom the obligation is due, ought to think himself entitled to exact by force; what every impartial spectator would approve of him for exacting, or what a judge or arbiter, to whom he had submitted his case, and who had undertaken to do him justice, ought to oblige the other person to suffer or to perform. ”

“ The sufficiency and scope of pleadings, and the form and effect of verdicts, in actions at law, are matters in which the circuit courts of the United States are governed by the practice of the courts of the state in which they are held. ”

“ It is an old rule of pleading, which, in the modern progress of simplifying pleadings, has not lost its virtue, that whenever one justifies in a special plea an act which in itself constitutes at common law a wrong, upon the process, order, or authority of another, he must set forth substantially and in a traversable form the process, order, or authority relied upon, and that no mere averment of its legal effect, without other statement, will answer. ”

“ Under the responsibility of reputations as precious to them as those of the highest court, and under the sanction of an oath, they arrive at conclusions, and present their reasons for such conclusions, which form one, not the exclusive, element for a court and jury to arrive at a just judgment. ”

“ Back of precedents are the basic juridical conceptions which are postulates of judicial reasoning, and farther back are the habits of life, the institutions of society, in which those conceptions had their origin, and which, by a process of interaction, they have modified in turn. [12] None the less, in a system so highly developed as our own, precedents have so covered the ground that they fix the point of departure from which the labor of the judge begins. ”

“ You remember the decision of the circuit judge,—himself soon to be summoned by death before the Judge who is no respecter of persons,—not allowing the destined victim his last hope, "the great writ of right." ”

“ All I ask in the name of this illustrious foreigner is, that the court which tries him be pure, and the jury instructed in the cause; that the work be not condemned for wanting what it was not meant to have, and by persons nowise called to pass sentence on it. ”

“ When it came to a question of proof, reliance was placed, in the absence of any surer method of discovering the truth, upon the oath of the interested party or parties; and just as the security of a thane was sufficient, where that of a landless freeman had to be supplemented by the contributions of his neighbours, so would the oath of a man of fortune and position prevail in cases where that of a common man had to be fortified by the corroborating oaths of his fellows. ”

“ In truth, if the praetor, who allows the trials to proceed, never prescribes to a claimant what form of action he wishes him to adopt, consider how scandalous a thing it must be, when the matter is so far settled, for a judge to ask what might have been done, or what can be done now, and not what has been done. ”

“ Hunter, (1 Wheat. 355,) 'A final judgment of the court is conclusive upon the rights which it decides, and no statute has provided any process by which this court can revise its judgment.' See, also, Sibbald v. ”

“ He tells you, sir, this doctrine had been repeatedly decided on solemn argument and deliberation, twice in the same court, and once in that very case. What is this, but a confession, that he himself hath been the first man to venture on so daring an innovation on the forms of our criminal jurisprudence? To justify himself for having given a written opinion before counsel had been heard for the prisoner, he resorts to the example set by his predecessors, who had delivered the customary verbal opinion, after solemn arguments and deliberation. ”

“ In the civil cases in which judgments are pronounced after examination and review by our said president and auditors, they are to be executed without any further appeal or petition, or other recourse, except when the case involves so large an amount that there may be ground for a further appeal to our royal person, in conformity with the provision and decree of our laws and ordinances. ”

“ Pursue diligently the course which thou hast chosen, and let him that heareth the plaintiff act rightly. He who followeth a right course of action will not treat a plaintiff wrongly. When the arm is brought, and when the two eyes see, and when the heart is of good courage, boast not loudly in proportion to thy strength, in order that calamity may not come unto thee. ”

“ In proceeding to consider the various kinds of precedents and the methods of their operation, we have in the first place to distinguish between those decisions which are creative of the law and those which are merely declaratory of it. A declaratory precedent is one which is merely the application of an already existing rule of law; an original precedent is one which creates and applies a new rule. ”

“ If a judge, no proceedings shall be laid before him, and his sentences, where passed, shall be null and void; if an advocate, he shall not have faculty to plead; if a notary, his deeds shall be void; if a cleric, he shall be deposed from his office and benefices. ”

“ Judge. Will you speak to the indictment, and then you may plead? If you will not answer guilty, or not guilty, we will record it, and judgment shall go against you. Clerk, enter it.
Recorder. Mr. Crook, if you will answer, you may plead for yourself: or will you take the oath? The court takes no notice how you came hither; what say you? Will you answer? For a man may be brought out of Smithfield by head and shoulders, and the oath tendered to him, and may be committed, without taking notice how he came here. ”

“ Even a judgment in proceedings strictly in rem binds only those who could have made themselves parties to the proceedings, and who had notice, either actually or by the thing condemned being first seized into the custody of the court. ”

“ These authorities, to which many more might added, are full and express to the point, that where a deed is the foundation of the claim, and can still be regarded as subsisting and in full force between the parties, the action to enforce its provisions must be upon the instrument itself. ”

“ We ought to prove in general, that in whatever case a condition is imposed upon the will of a master or his agent, in bona fide trials, this is to be considered according to the judgment of a good man. ”

“ Whether one promise be the consideration for another, or whether the performance, and not the mere promise, be the consideration, is to be determined by the intention and meaning of the parties, as collected from the instrument, and the application of good sense and right reason to each particular case. ”

“ An implied promise is proved by circumstantial evidence; by proof of circumstances that show the party intended to assume an obligation. A party may assume an obligation by putting himself into a position which requires the performance of duties. ”

“ Even jurisprudence, for which loyalty to established and visible forms is peculiarly sacred, has its ways, direct and indirect, of recognizing that purposes develop, that the returns are never all in, that any purpose or meaning must sooner or later assume a new form, and so may even now be other than it seems. ”

“ One asked another why learning was always called a republic. "Forsooth," quoth the other, "because scholars are so poor that they have not a sovereign amongst them."
CDXCVIII.—CHALLENGING A JURY.
An Irish fire-eater, previous to a trial in which he was the defendant, was informed by his counsel, that if there were any of the jury to whom he objected, he might legally challenge them. "Faith, and so I will," replied he; "if they do not acquit me I will challenge every man of them." ”

“ The subordinate judgment, which I call private, is the judgment of discretion whereby every Christian,1058 for the certain information of his own mind, and the satisfaction of his own conscience, may and ought to try and examine, as well the decrees of councils as the doctrines of particular pastors, and in so far to receive and believe the same, as he understandeth them to agree with the Scriptures. ”