Substantive law

“ This principle is so universal, in all systems of law known to Western civilization, that writers upon jurisprudence assume [3] (if they do not state) that no substantive right, whether absolute or relative, will ever support an action; that every action is founded upon a right resulting from the violation of a substantive right, the law imposing upon every person who violates a substantive right an obligation to indemnify the person injured, and of course vesting in the latter a correlative right to be indemnified for the injury ”

“ Justice Field, in The Moses Taylor, said: 'That clause only saves to suitors 'the right of a common-law remedy, where the common law is competent to give it.' It is not a remedy in the common-law courts which is saved, but a common-law remedy. ”

“ It is elementary that the meaning of a statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain, and if the law is within the constitutional authority of the lawmaking body which passed it, the sole function of the courts is to enforce it according to its terms. ”

“ We are enquiring what the law is, not what it ought to be. Reason may be applied to shew the impropriety or expedience of a law, but we must have either statute or precedent to prove the existence of it. At the same time, I do not mean to admit that the late resolution of the house of commons is defensible on general principles of reason, any more than in law. ”

“ In 1 Comyns's Digest, Action upon Statute, F, it is said, 'In every case where a statute enacts or prohibits a thing for the benefit of a person, he shall have a remedy upon the same statute for the thing enacted for his advantage, or for the recompense of the wrong done to him contrary to said law,' confining the remedy to such things as are enacted for the benefit of the person suing.' See, also, Pheasant v. ”

“ Upon this subject the Supreme Court, in treating of legislation providing that one man's property should be vested in another private person, says: [8] It "would, if effectual, deprive the former of his property without due process of law. * * * Such an enactment would not receive judicial sanction in any country having a written Constitution distributing the powers of Government among three co-ordinate departments, and committing to the judiciary, expressly or by implication, authority to enforce the provisions of such Constitution. ”

“ So great is the superiority of legislation over all other methods of legal evolution, that the tendency of advancing civilisation is to acknowledge its exclusive claim, and to discard the other instruments as relics of the infancy of law. The expressed will of the state tends to obtain recognition not only as the sole formal source of law, but as its exclusive material source also. Statute law has already become the type or standard, from which the other forms are more or less abnormal variations. ”

“ 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. ”

“ Questions of jurisdiction do not receive the same careful and constant attention which is bestowed upon questions of substantive right; and therefore, in dealing with such questions, the elements of haste, accident, caprice, the habits of lawyers, the leanings of individual judges, and the ever-changing temper of public opinion, have been factors of no inconsiderable importance. The jurisdiction of equity over torts in particular has grown up by slow, almost imperceptible degrees ”

“ Now, the question arises, What proceedings are meant by the phrase 'suits of a civil nature at common law or in equity,' in the latter section, conferring original jurisdiction, and the phrase 'a suit,' in the former section, giving the right of removal? ”

“ Any person, who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall subject, or cause to be subjected, any person within the jurisdiction of the United States, to the deprivation of any rights, privileges, or immunities, secured by the Constitution of [Pg 126] the United States, shall, any such law, statute, ordinance, regulation, custom, or usage of the State to the contrary, notwithstanding, be liable to the party injured in any action at law, suit in equity, or other proceeding for redress ”

“ Remedies of a statutory character, where the right to be enforced was unknown at the common law, are to be followed with strictness, both as to the methods to be pursued and the cases to which they are to be applied. ”

“ The rule is, that a perpetual statute, (which all statutes are unless limited to a particular time,) until repealed by an act professing to repeal it, or by a clause or section of another act directly bearing in terms upon the particular matter of the first act, notwithstanding an implication to the contrary may be raised by a general law which embraces the subject-matter, is considered still to be the law in force as to the particulars of the subject-matter legislated upon. ”

“ It is odd to speak of deciding a case on principle because there is no legal principle on which it can be decided. To avoid misapprehension, it may be advisable to point out that decisions as to the meaning of statutes are always general, and therefore establish precedents and make law. For such interpretative decisions are necessarily as general as the statutory provisions interpreted. A question of statutory interpretation is one of fact to begin with, and is decided on principle; therefore it becomes one of law, and is for the future decided on authority. ”

“ Moreover, these statutes, which at any moment may revolutionize a man's liberty or his property, are not as they were in old times—a mere codification, or attempt at the best expression of a law already existing and well "understanded of the people" ”

“ We shall see that certain forms of custom possess not merely constitutive, but also limited abrogative power, being capable of derogating from the old law, as well as of creating new. But no custom of any sort is of any validity as against statute law. The authority of legislation is in English law higher than that of custom. By no length of desuetude can a statute become invalid, and by no length of contrary usage can its provisions be modified in the smallest particular. The common law will yield to immemorial usage, but the enacted law stands for ever. ”

“ Where the expression is in general terms, statutes are to receive such a construction as may be agreeable to the rules of the common law in cases of that nature, for statutes are not presumed to make any alteration in the common law, beyond what is expressed in the statute. ”

“ There is no such difference except in the case of what is properly called “judicial legislation”—wherein an absolutely new rule is added for the first time to the law. The recognition of a custom or law is not necessarily the beginning of the custom or law. Where a custom possesses the marks by which its legality is determined according to well understood principles, the courts pronounce it to have been law at the time of the happening of the facts as to which their jurisdiction is invoked. ”

“ Its interpretation is accepted as the true interpretation, whatever may be our opinion of its original soundness. It becomes a part of the statute, as much so as if incorporated into the body of it, and in following the statute as thus interpreted we only apply to a local question the law of the place. ”

“ Deveaux, 5 Cranch 61, 87, 3 L.Ed. 38 (1809) ("The duties of this [C] ourt, to exercise jurisdiction where it is conferred, and not to usurp it where it is not conferred, are of equal obligation. The constitution, therefore, and the law, are to be expounded, without a leaning the one way or the other, according to those general principles which usually govern in the construction of fundamental or other laws") . ”

“ Statute law is rigid, straitly bound within the limits of authoritative formulae; case-law, with all its imperfections, has at least this merit, that it remains in living contact with the reason and justice of the matter, and draws from this source a flexibility and a power of growth and adaptation which are too much wanting in the litera scripta of enacted law. ”

“ But whether or no in any qualified sense of 'sovereign' or 'jus,' a sovereign that is not so 'de jure' is possible, once understand by 'sovereign' the determinate person or persons with whom the ultimate law-imposing and law-enforcing power resides, and by 'jus' law, it is then obviously a contradiction to speak of a sovereign 'de jure' as distinguished from one 'de facto.' The power of the ultimate imponent of law cannot be derived from, or limited by, law. ”

“ The correct rule of interpretation is, that if divers statutes relate to the same thing, they ought all to be taken into consideration in construing any one of them, and it is an established rule of law, that all acts in pari materia are to be taken together, as if they were one law. ”

“ But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied * * * (and) where individual rights * * * are sacrificed for national purposes * * * the court must decide according to existing laws, and if it be necessary to set aside a judgment * * * which cannot be affirmed but in violation of law, the judgment must be set aside.' At 110. ”

“ In the absence of all positive authority, it might be proper to resort to these principles, in aid of the manifest purposes of the law. But there are express statuteable provisions, which directly apply to the present case. ”

“ 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. ”

“ Whenever, therefore, any given country has several systems, whether of substantive or remedial law, what has been thus far said is intended to apply to them all in the aggregate,—not to each separately. ”

“ Personal statutes are of universal validity; real statutes have no extra-territorial authority. The determination of the class under which a particular law ought to fall is one of great difficulty, and one in which there is often a conflict of legal opinion. ”

“ That wherever there exists at law a complete and adequate power, either for the prosecution of a right or the redressing of a wrong, courts of equity, with the exception of a few cases of concurrent authority, have no jurisdiction or power to act. ”

“ The constitution as seen by the eye of the law may not agree in all points with the objective reality. Much constitutional doctrine may be true in law but not in fact, or true in fact but not in law. Power may exist de jure but not de facto, or de facto but not de jure. In law, for example, the consent of the Crown is no less necessary to legislation, than is that of the two houses of Parliament. ”

“ The courts may not refuse to give to the explicit words of a law their natural meaning, because of the ill consequences that may follow; but they may well take account of consequences in construing doubtful phrases, and resolve the doubts so as to save the purpose of the law-makers, where, as in the case of the constitutional provision we are considering, that purpose is well known. ”

“ When, therefore, in an ordinary trial in an action at law we speak of the common law we refer to the law of the state as it has been adopted by statute or recognized by the courts as the foundation of legal rights. It is in regard to decisions made by the state courts in reference to this law, and defining what is the law of the state as modified by the opinions of its own courts, by the statutes of the state, and the customs and habits of the people, that the trouble arises. ”

“ It is requisite that the law should postulate one or more first causes, whose operation is ultimate, and whose authority is underived. In other words there must be found in every legal system certain ultimate principles, from which all others are derived, but which are themselves self-existent. Before there can be any talk of legal sources, there must be already in existence some law which establishes them and gives them their authority. ”

“ For although courts sometimes have been slow to extend the effect of statutes modifying the common law beyond the direct operation of the words, it is obvious that a statute may indicate a change in the policy of the law, although it expresses that change only in the specific cases most likely to occur to the mind. ”

“ But it is doubtless this theory, that it is the statute law that is the democratic kind, which has given form and body to the vast mass of statutes we are here to consider. Certain of our legislators seem to be horrified when a court applies a precedent a hundred years old, still more when it is a thousand years old, although to the jurist, in most cases at least, if never since questioned and never grown obsolete, it is entitled to all the more respect for that reason. ”

“ Where a statute innovates upon the common law, and confers authority in derogation thereof to do a particular thing; as in this case, to surrender land to the commonwealth; the act must be performed in the manner directed by the statute, else it cannot prevail: not by the common law, for that does not at all permit it; not by the statute, because its requisitions have not been complied with. The statute declares that when certain things are done in the mode pointed out by it, they shall operate a relinquishment of the title. ”