Legitimate Functions of Judge-made Law: An Address Delivered Before the Virginia State Bar Association at Old Point Comfort, August 10th, 1905, Volume 19

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E. Waddey, 1905 - 18 páginas
 

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Página 15 - A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind.
Página 14 - I left the bench perfectly convinced that under a system so defective it would not obtain the energy, weight, and dignity which are essential to its affording due support to the national government, nor acquire the public confidence and respect which, as the last resort of the justice of the nation, it should possess.
Página 10 - THE most celebrated system of jurisprudence known to the world begins, as it ends, with a Code.
Página 7 - All nations," says the Institutional Treatise published under the authority of the Emperor Justinian, " who are ruled by laws and customs, are governed partly by their own particular laws, and partly by those laws which are common to all mankind. The law which a people enacts is called the Civil Law of that people, but that which natural reason appoints for all mankind is called the Law of Nations, because all nations use it.
Página 11 - As all lawyers are aware, a large part, and, as many would add, the best part, of the law of England Is judge-made law; that Is to say, consists of rules to be collected from the judgments of the courts. This portion of the law has not been created by act of Parliament, and is not recorded In the statute books.
Página 12 - It is the work of the courts ; it is recorded in the reports ; it is, In short, the fruit of judicial legislation. The amount of such judge-made law is in England far more extensive than a student easily realizes.
Página 7 - Before this new growth, watered by the learning of the jurisconsults, reached its maturity, the intellectual life of Rome passed under the dominion of her subjects in Attica and Peloponnesus, just after they had yielded to the ascendency of the Stoic philosophers who were ever striving to discover in the operations of nature, physical, moral, and intellectual, some uniform and universal force pervading all things that could be designated as the law of nature — the embodiment of universal reason.
Página 7 - BC the appointment of a praetor peregrinus, the praetor of foreigners, whose duty it became to administer justice between Roman citizens and foreigners and between citizens of different cities within the empire. As such praetor could not rely upon the law of any one city for the criteria of his judgments, he naturally turned his eyes to the codes of all the cities from which came the swarm of litigants before him. While the laws and customs of the Italic cities were no doubt similar to those of Rome...
Página 8 - ... its triumph is chiefly owing attempted, it need scarcely be said, to place it on an entirely new basis, and it is unquestionable that in the course of this displacement they altered much of its structure, though far less of it than is commonly supposed. Having adopted from the Antonine jurisconsults the position that the Jus Gentium and the Jus Naturae were identical, Grotius, with his immediate predecessors and his immediate successors, attributed to the Law of Nature an authority which would...
Página 15 - Madison, that it possessed both the right and the power to declare null and void an act of Congress in violation of the Constitution. The invincible logic employed in...

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