JUSTICE.-Conformity to what is right, that is to divine and natural law.1 1. Suit being brought as for money loaned, the evidence showed that the plaintiff had deposited with the defendant a certain sum of money to keep for him. The court held that the action was not supported by this evidence and that a demand was necessary to be made for money specially deposited for safe keeping before suit is brought, and reversed the judgment entered in the lower court for the plaintiff. Counsel for the plaintiff having asked for a rehearing the court adhered to its former judgment, ROBERTS, J., saying: "Each party presents a case, strongly demanding the claims of justice in its behalf, abstractly considered. The plaintiff below shows that he has money in the hands of the defendant which he has the right to demand as his own, and urges that this is the matter of substance to be regarded by the court; that whether the proof showed the transaction to be, strictly speaking, a loan of money or a special deposit of bank bills, the substance of the matter is in justice the same, that if it be a special deposit a previous demand was only material in reference to costs, the suit being a demand; and if a demand was necessary, the failure to allege it on the part of the plaintiff is cured by its being admitted in one of the pleas of defendant, although denied generally in another. This, it is admitted, presents a strong case, invoking justice in its behalf, and unless the plain and inflexible rules of law stand in its way, the natural inclination of every mind must be to yield to it. On the other hand, the defendant claims damages to a much larger amount than the money of plaintiff in his hands, to which he is entitled by reason of the trespass of plaintiff upon his property, and that plaintiff being a transient person and not able to respond in damages for said trespass, he will entirely lose the damages to which he is entitled, if he is compelled to pay out the money in his hands, and that, therefore, his retention of the money is his only means of redress. Surely the defend ant may invoke the claims of justice (abstractly considered) in his behalf, with a force and plausibility not surpassed by the case of the plaintiff. Although the counsel upon both sides rely upon the rules of law as respectively presented by them, it is obvious that the great argument, whether expressly developed or not, by which those rules are sought to be discovered, interpreted and enforced, consists in an appeal to the sense of justice of the court. The opinion of the court in this case does not yield to the force of that appeal. Having written it, I avail myself of the opportunity afforded by this application to present my views upon the foundation and force of this appeal to the sense of justice of the court, whether used as an influencing consideration in interpreting and enforcing the rules of law or directly urged as the basis of judicial action. A frequent recurrence to first principles is absolutely necessary in order to keep precedents within the reason of the law. "Justice" is the dictate of right, according to the common consent of mankind generally, or of that portion of mankind who may be associated in one government, or who may be governed by the same principles and morals. Law is a system of rules, conformable, as must be supposed, to this standard, and devised upon an enlarged view of the relations of persons and things as they practically exist. "Justice" is a chaotic mass of principles. Law is the mass of principles classified, reduced to order and put in the shape of rules, agreed upon by this ascertained common consent. Justice is the virgin gold of the mines, that passes for its intrinsic worth in every case, but is subject to a varying value, according to the scales through which it passes. Law is the coin from the mint, with its value ascertained and fixed, with the stamp of government upon it, which insures and denotes its current value. The act of moulding justice into a system of rules detracts from its capacity of abstract adaptation in each particular case, and the rules of law, when applied to each case, are most usually but an approximation to justice. Still mankind have generally thought it better to have their rights determined by such a system of rules than by the sense of abstract justice, as determined by any one man, or set of men, whose duty it may have been to adjudge them. Whoever undertakes to determine a case solely by his own notions of its abstract justice breaks down the barriers by which rules of justice are erected into a system and thereby annihilates law. A sense of justice, however, must and should have an important influence upon every well organized mind in the adjudication of causes. Its proper province is to superinduce an anxious desire to search out and apply, in their true spirit, the appropriate rules of law. It cannot be lost sight of. In this it is like the polar star that guides the voyager, although it may not stand over the port of destination. To follow the dictates of justice, when in harmony with the law, must be a pleasure; but to follow the rules of law, in their true spirit, to whatever consequences they may lead is a duty. This applies as well to rules establishing remedies as to those establishing rights. These views will, of course, be understood as relating to my own convictions of duty and as being the basis of my own judicial action." Duncan v. Magette, 25 Tex. 245, 251. Such also is the reasoning of MR. JUSTICE WALKER, in the dissenting opinion in the case of Borden v. State, 6 English (Ark.) 553, in which he says: "In Rex v. Clegg, 1 Strange 475, FORTESQUE, J., said: 'It is certain that natural justice requires that no man should be condemned without notice.' In Bloom v. Burdick, 1 Hill (N. Y.) 130, BRONSON, J., said: 'It is a cardinal principle in the administration of justice that no man can be condemned or divested of his rights until he has had the opportunity of being heard.' In Bustard v. Gates, 4 Dana (N. Y.) ROBERTSON, C. J., said: 'It is a general rule of the common law and of common sense, as well as of common justice, that a court has no jurisdiction to render a judgment against a perwho has had no notice whatever of the proceedings against him' In the case of Mary, 3 Peters Cond. Rep. (U. S.) 312, MARSHALL, C. J., said: But notice of the controversy is necessary in order to become a party. And it is a principle of natural justice, of universal obligation, that, before the rights of an individual be bound by a judicial sentence, he shall have notice, either actual or implied, of the proceedings against him.' In Boswell's Lessee v. Otis et al., 9 How. (U. S.) 350, McLEAN, J., said: 'No principle is more vital to the administration of justice than that no man shall be condemned in his person or property without notice and an opportunity to make his defence.' In the face of these authorities, embracing the opinions of the most dis son tinguished and profound jurists in the highest English and American courts, including their latest published opinions, can it be said that this right to be heard in defence of property is not a 'natural right of universal obligation"? And if such, then it is evident that such notice is indispensably necessary to the validity of a judgment against the person." The majority of the court, on the other hand, in the same case, appear to have regarded "justice" as that which is due to man, not as some divine or natural right, but only under the obligation of some human law, SCOTT, J.,saying, after the citation of the authorities given above, "The same author (Burlamaqui) defines 'justice in a judicial sense' to be 'nothing more or less than exact conformity to some obligatory law;' and, therefore, he says that 'all human actions are either just or unjust as they are in conformity to or in opposition to law. The doing of justice, then, in a judicial sense, is the performance towards another of whatever is due to him in virtue of a perfect and rigorous right, the execution of which he may demand by forcible means unless we satisfy him freely and with good will. While, on the other hand, the performance of duties to another only in virtue of an imperfect or nonrigorous obligation which cannot be insisted on by violent methods but the fulfilling of which is left to each man's honor and conscience, are compre hended under humanity. charity or benevolence in opposition to justice. Now according to these principles and definition, which we have laid down from an author of the most unquestionable authority on these points, if it be contrary to natural justice that a man should be condemned without notice and an opportunity to be heard, as is said by FORTESQUE, such is because it is a principle of natural law, as is said by JUDGE MARSHALL, that before the right of an individual can be bound by a judicial sentence he shall have notice, actual or constructive, of the proceedings against him. Because otherwise there could be no nonconformity to an obligatory law to bring such an action within the definition of injustice. Such a natural law is then assumed by the remark of FORTESQUE and its existence is affirmatively asserted by JUDGE MARSHALL with the further remark that it is of 'universal obligation.' We would feel that it was Sometimes used in the sense of conformity with human law.1 a presumption in us even directly to gainsay these great authorities, if we did not feel sure that they did not use these expressions in a scholastic sense, but only in that loose and general sense in which strong language is often used to affirm the existence of any highly important general rule of very extensive application. We feel, therefore, in what we shall say on this point, that there is more of vindication from heretical inference from these general expressions than of assault, even covert upon these great names." The court, therefore, held upon this reason that the law of notice before judicial sentence was not such a law of nature, as expressed by the term natural just ce, as would make a human law nonobligatory that would circumscribe the sphere of its operation. Borden v. State, 6 Eng. (Ark.) 519, 528. In the wider sense this word was used by JUDGE MCLEAN in charging the grand jury upon the recent military expedition organized in the United States against the island of Cuba, when after citing the act of congress of the 20th of April, 1818, entitled "an act for the punishment of certain crimes," he said: "In passing the above law, congress has performed a high national duty. A nation, by the laws of nations, is considered a moral being, and the principle which imposes moral restraints on the conduct of an individual applies with greater force to the actions of a nation Justice,' says Vattel, is the basis of society, the sure bond of all commerce. Human society, far from being an intercourse of assistance and good offices, would be no longer anything but a vast scene of robbery, if there were no respect to this virtue, which secures to everyone his own.' It is still more necessary between nations than between individuals, because injustice produces more dreadful consequences in the quarrels of these powerful bodies politic, and it is still more difficult to obtain redress." 5 McLean (U.S.) 306. In this sense also was the decision that where street commissioners of a city are required by law to let contracts for city improvements to the lowest bidder, a violation of that provision is to be regarded prima facie at least as "affecting the substantial justice of the tax levied to pay for such an improvement, and therefore a provision in the city charter that no error or informality in the proceedings of any officers entrusted with the same (that is, levying and collecting taxes), not affecting the substantial justice of the tax itself, shall vitiate or in any way affect the validity of the tax or assessment" will not save the tax, where the contract, in payment of which it is imposed, has been let out without such proposals as would enable bids to be made for it. Wells v. Burnham, 20 Wis. 112. 1. Fleeing from Justice-Fugitive from Justice.-For examples of the secondary meaning of these words, the above phrase may be cited, as used in the constitution of the United States and kindred statutes of various States. For their meaning see EXTRADITION, 7 Am. & Eng. Encyc. of Law 645, and the cases there cited. See also United States v. O'Brien, 3 Dillon (U. S.) 381; United States v. Smith, 4 Day (Conn.) 121; State v. Washburn, 48 Mo. 240. Hands of Justice.-In construing the provision of a life policy of insurance that it should be void if the assured "shall die by his own hand," the court held that the self destruction of the insured while insane and incapable of discerning between right and wrong was not within the provision, WILLARD, J., saying: “It is material to determine, in the first place, what is meant by the term death by his own hand, which is to avoid the policy. If the words are construed according to the letter, an accidental death occasioned by the instrumentality of the hand of the insured would fall within the exception. Thus, should the insured by mistake swallow poison and thereby terminate his life, his representatives could not recover the policy, if the poison was conveyed to his mouth by his own hand. The same rule of construction applied to the words death by the hands of justice, in the same connection, would take the case out of the exception, if the death was occasioned by strangulation by a rope instead of the hands of the minister of justice. But it is too plain for argument that the literal meaning is not the true meaning of either phrase. Death by the hands of justice is a well known phrase, denoting an execution, either public or private, of a person convicted of crime, in any form allowed by law. The moral guilt of the party executed has nothing to do with the the meaning of any particular word is doubtful or obscure, or when the expression, taken singly, is inoperative, the intention of the parties using it may frequently be ascertained and carried into effect by looking at the adjoining words, or at expressions occurring in other parts of the same instrument, for quæ non valeant sinqula juncta javant. Bacon's Works, vol. 4, p. 26; 2 Buls.; Moore's Maxims 293. Besides, the words in this case are those of the insurer, and if susceptible of two meanings, should be taken strongly against him." Breasted v. Farmers' Loan & Trust Co., 4 Selden (N. Y.) 292. definition. Socrates, though he took the poison from his own hand, died by the hands of justice, in this sense of the term. It would be an abuse of language to charge him with an act of intentional self destruction. The martyrs who perished at the stake in like manner "died by the hands of justice." In popular language the term death by his own hand means the same as suicide, or felo de se. The first two, indeed, are not technical terms, and may be used in a sense excluding the idea of criminality. The connection in which they are used in this policy indicates that the phrase death by his own hand meant an act of criminal self destruc- Offences against public justice form tion. Provisos declaring the policy to the subject of ch. 10 of 4 Blackstone's be void in case the assured commit Commentaries. They are: embezzling suicide or die by his own hand are or vacating records, or falsifying cerused indiscriminately as expressing the tain other proceedings in a court of same idea. In the note to Borradale v. judicature; excessive duress of impris Hunter, 5 Man. & Gr. 648, are given onment by jailors, whereby to make the forms of the proviso, and by any prisoner accuse and turn evidence seventeen of the principal London in- against some other person; obstructing surance companies. In eight of them the execution of lawful process; escape, the exception is by death by suicide, which constitutes offence in the officer and in nine of a death by the assured's also, if through his negligence or conown hands. In two a separate pro- nivance; breach of prison; rescue; revision is made in case of a death by turning from transportation (the law as suicide, not felo de se, and in the to transportation has, however, been others in case of a death by his own greatly modified); taking reward under hands not felo de se. It is obvious, pretence of helping owner to his stolen therefore, that the phrase death by his goods was punishable as the original own hand and death by suicide mean felony was punishable under 4 Geo. I, the same thing, and that both, unless ch. 11, whereby the notorious Jonathan qualified by some other expressions, Wild was hanged; receiving stolen import a criminal act of self destruc- goods; compounding prosecutions, for tion. The connection in which they which the guilty offender was, unstand in this policy favors this con- der 18 Eliz., ch. 5, not only to struction. The first four exceptions in forfeit £10, but to stand on the the policy are of acts innocent in pillory for two hours, and to be forthemselves, three of which become in- ever disabled to sue on any popular operative if the defendants give their or penal statute; conspiracy to indict, consent and have it endorsed on the which the ancient common law punpolicy. Then follow the last four ex- ished with the villainous judgment, viz, ceptions, viz, if he shall die by his loss of credit as jurors or witnesses, own hand, or in consequence of a. forfeiture of goods and chattels and duel, or by the hands of justice, or in lands for life, to have those lands the known violation of any law. By wasted, houses rázed, etc. and the of the acknowledged rule of construc- fenders themselves imprisoned; perjury tion, noscitur a sociis, the first member committed relative to litigation, though of the sentence, if there be any doubt in by statute legislative committees, etc., its meaning, should be controlled by have sometimes been vested with power the other members, which are entirely to administer oaths making the witunequivocal and should be construed to nesses liable under the perjury laws; mean a felonious killing of himself. bribery, for which Chief Justice Thorpe Broome's Maxims 450, 293. It is a note was hanged in the reign of Edw. III, laid down by LORD BACON that copu- the offence being especially heinous in latio verborum indicat acceptionem a judge; embracery; false verdict; negin eodem sensu; the coupling of words ligence of public officers; opprestogether shows that they are to be un- sion by magistrates; extortion by offi derstood in the same sense. And when cers. JUSTICE OF THE PEACE (See also COURTS; JUDGE; JURISDICTION PLEADING; PRACTICE; TRIAL). III. Manner of Selecting in the United States, 394. IV. Qualifications, 395. V. De Jure or De Facto Justices, 396. VI. Ex Officio Justices, 396. VIII. Breach of the Bond, 397. X. Jurisdiction of Justices Gen- 1. Proceeding Without Jurisdiction, 400. 2. Jurisdiction, How Lost, 402. 3. Furisdiction, Where Exercised, 404. XI. Criminal Jurisdiction, 405. 1. Misdemeanors, 406. 2. Trial and Its Incidents, 408. (c) Execution, 412. [410. (d) Habeas Corpus; Certio rari, 412. (e) Appeal, 413. XII. Provisional and Precautionary Seizures, 421. 4. Proceedings in Bastardy,423. 5. Apprehending Fugitives from Justice, 425. XIII. Civil Jurisdiction, 425. 1. Jurisdiction of Subject Matter, 426. 2. Amount in Controversy, 426. (a) Offsets, Credits and Remittitur, 428. (b) Splitting Demand, 428. (c) Waiver of Defects in 5. Furisdiction of Property,439. (a) Attachment and Garnishment, 439. (b) Furisdiction by Appearance, 439. (c) Change of Venue or Place of Trial, 441. (d) Continuance or Adjournment, 442. (e) Pleading and Practice,445 (1) Plaintiff's Pleading, 445 (2) Parties - How to be Designated, 449. (3) Defendant's Pleading, [454. 451. (f) Trial and Its Incidents, (1) Order of Trial, 456. (2) Evidence, 457. (3) Burden of Proof, 457. (4) Preponderance of Evidence, 457 (5) Arguments of Counsel, 458. (6) Right to Begin and Reply, 458. (7) Fudgment on Justices' (8) Taking Case Under to (21) New Trials, 467. (22) Costs, 468. (23) Fudgment, 468, (24) Judgment by Confession, 470. (25) Judgment by Default, 470. (26) Alteration of Judg ment, 472. (27) Judgment Exceeding Jurisdiction, 472. (28) Irregularities in Fudgment, 472. |