Wednesday, June 01, 2011

"The icecold law, from which no friction will excite sparks"

A colleague sends us this quote, from the MSSC's 1900 op in Illinois Central R.R. Co. v. Johnson:
By the wisdom of the common law, so profound as to be quite undiscernible ....
That's 28 So. 753, 754, for those of you itching to use it in a brief.

The whole opinion, by one Calhoon, J., is charming.
We should be glad, if we had space, to follow by quoting the subsequent remarks of this very able brief, since they illustrate true eloquence,--the lightning of passion playing along the links of thought. But we must content ourselves with the icecold law, from which no friction will excite sparks. The common law must govern us, except where it is modified by statutory enactment. Accepting, as we do, the description of the status of bastards at common law furnished us by appellee's counsel, it may be noted that the basis of the rule was the discouragement of immorality in the promiscuous intercourse of the sexes, not sanctioned by the public contract of marriage. The effect of the law on the millions who were governed began, after the lapse of many centuries, to dawn on the minds of the select few who governed them. These few, at occasional intervals between the numerous avocations of the multitudinous pleasures offered by wealth, began to observe that bastardy continued to prevail; that illegitimacy of birth, notwithstanding the thunders of the law from parliament house, the right reverend clergy, and the wigs and gowns of the courts, continued to be, as it always had been before, a “condition, and not a theory.” Bastards still dotted and spotted the kingdom as before, and, while the particular kingdom was in no worse situation in this shocking regard than the other kingdoms, empires, and suzerainties of earth, still it was in no better, to say the least of it. It was seen to prevail still. So, the premises being well considered for 700 years or so, it finally dawned on the benevolent minds of a few of “my lords and gentlemen,” who we must assume were not at all interested personally in the question, that the unoffending, unconsulted, and innocent offspring of unhallowed natural appetite ought to have some sort of consideration. Thereupon a law was enacted magnanimously recognizing that bastards were in its eye, as in fact, the children of their own mothers.
... Having had the fortune to be Episcopalian, Justice Calhoon's career is epitomized here.

1 comment:

  1. I'm going to have to add this to my favorite list of Miss Sup Court opinions.