The American Bar Association: The Ideal and the Actual in the Law. The Annual Address Delivered by James C. Carter ... at the Thirteenth Annual Meeting, August 21, 1890 ... (Google eBook)

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Dando Printing and Publishing Company, 1890 - Law reform - 31 pages
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Page 5 - Of its own beauty is the mind diseased, And fevers into false creation ; where, Where are the forms the sculptor's soul hath seized ? In him alone. Can Nature show so fair ? Where are the charms and virtues which we dare Conceive in boyhood and pursue as men, The unreach'd Paradise of our despair...
Page 12 - The executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatsoever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must...
Page 8 - Municipal law, thus understood, is properly defined to be "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right and prohibiting what is wrong.
Page 10 - That the judge can not make the law is accepted from the start. That there is already existing a rule by which the case must be determined is not doubted. Unquestionably the functions of making and declaring the law are here brought into close proximity; but, nevertheless, the distinction is not for a moment lost sight of. It is agreed that the true rule must be somehow found.
Page 10 - In all this the things which are plain and palpable ' are, (1) that the whole process consists in a search to find a rule ; (2) that the rule thus sought for is the just rule that is to say, the rule most in accordance with the sense of justice of those engaged in the search ; (3) that it is tacitly assumed that the sense of justice is the same in all those who are thus...
Page 10 - ... is to say, that they have a common standard of justice from which they can argue with, and endeavor to persuade, each other; (4) that the field of search is the habits, customs, business and manners...
Page 17 - ... now been pointed out. We find it to spring from and rest upon the habits, customs and thoughts of a people, and that from these a standard of justice is derived by which doubtful cases are determined. The office of the judge is not to make it, but to find it, and, when it is found, to affix to it his official mark by which it becomes more certainly known and authenticated.
Page 25 - It might be thought that, inasmuch as it is the sole office of the judicial tribunals to find existing customs and not to make any, they could not effect improvements, which is a creative function ; but, as I have heretofore pointed out, they are chiefly employed in the consideration of doubtful cases, in determining under what custom a particular transaction should be brought, and this enables them to prefer good customs to bai ones, to adopt what is fit, convenient and useful, and reject what is...
Page 9 - All the knowledge, therefore, which we really have of the law comes from the judge. But how does he get at the law '( Does he make it ? If he did, it would be his command, and he would be the sovereign, which would be, itself, fatal to the theory. Any such imputation of sovereignty to the judge would be contrary to the observed and manifest fact. No such function was ever yet assumed by a judge, either openly or tacitly. The exercise of any such power would be ground for his impeachment.
Page 9 - But in the great majority of cases, the statute book is silent, and what is the next resort ? Inquiry is made by the judge concerning what his predecessors have done, and if he finds that a similar state of facts has been considered by them and the law pronounced in reference to it, he declares the same rule.

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