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Oliver Wendell Holmes Jr.

Do Right While We Help Ourselves

August 12, 2017 by Jim Leave a Comment

If you read last week’s column (hey, I can dream can’t I), you know I am preparing to help the National Judicial College teach Rural Court Judges. Last week we talked about the theory that our law arises from our history and culture, our Volksgeist. Or as Oliver Wendell Holmes, Jr. (1841-1935) put it, “The life of the law has not been logic; it has been experience”.

Posey County, Indiana has produced several influential thinkers on what our law should be and do, that is, what is the proper purpose of our legal system? Our most famous citizen was and still is Alvin P. Hovey (1821–1891). Hovey was an attorney, a Posey Circuit Court judge, a general and the only governor to ever come from Posey County (1889–1891). He also sat on the Indiana Supreme Court when it decided a poor person was entitled to the same protection of our laws as a rich person.

Another of our famous predecessors was the brilliant and courageous Frances (Mad Fanny) Wright (1795–1852) who gave her entire adult life to an effort to free slaves and secure equal rights for women. Unfortunately, her good deeds were often overshadowed by her lifestyle. Still she fought for those who could not fight for themselves.

Frances Wright’s companion and fellow traveler was former Congressman Robert Dale Owen (1801–1877). Owen knew Abraham Lincoln from having served in Congress in 1843–1847 while Lincoln served in Congress 1847–1849. Owen’s 1863 letter to Lincoln urging him to free the slaves is credited with influencing the President to issue the Emancipation Proclamation.

Robert Owen and Alvin Hovey were also Posey County’s delegates to the Indiana Constitutional Convention of 1850–1852 that produced our 1852 Constitution in which our legal system demands fair and equal treatment regardless of a person’s ability to pay. The Preamble sets forth the first principle of our government is to establish justice and, as set forth in Article I, “That all people are created equal”.

Article I, Section 12, guarantees equal justice to rich and poor alike: 

“All courts shall be open and every person for injury done to him in his person, property, or reputation, shall have remedy by due course of law. Justice shall be administered freely, and without purchase; completely, and without denial; speedily, and without delay.” 

While there are many reasons we need justice from our legal system, I suggest the two most important areas concern whether our government wants to lock us up or take away our children. Of course, there are many wealthy people who are charged with crimes and even some wealthy people who the rest of us believe should lose their children to state care. However, it is simply a fact that most people who go to jail are poor as are most parents whose children are removed by the courts.

It is usually the poor and powerless who are caught up in the terrifying, confusing and expensive legal system. And frequently these poor people are not highly educated nor do they have friends in high places. They need help and both Indiana and federal law guarantee that help to them, including representation by an attorney. If the rest of us want to lock someone up or take away their children, the least we can do is follow the law ourselves and provide these people with legal assistance as our Constitutions demand. This is not only required by law, fair, just and reasonable, it is good for all of us. If the innocent are not locked up or the guilty are fairly sentenced or children are not removed when unnecessary or when necessary are removed carefully and with efforts to help the children and the parents, such justice is in our own self interest. In other words, not only is it right, it is smart and in the long run saves us money as it helps people recover so they may contribute to society. And it helps families remain united or reunite.

If we can spend trillions on matters beyond our borders, we should not be mean-spirited and self-destructive with our own citizens. Plus, it complies with the law, especially those state and federal Constitutions some of us are fond of saying we revere.

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Filed Under: America, Circuit Court, Democracy, Gavel Gamut, Internet class, Judicial, Law, National Judicial College, Posey County, Rule of Law Tagged With: Abraham Lincoln, Alvin P. Hovey, Congress, Congressman Robert Dale Owen, Emancipation Proclamation, equal rights for women, fair and equal treatment regardless of person's ability to pay, fair just and reasonable, Frances (Mad Fanny) Wright, free slaves, general and governor from Posey County, Indiana Constitutional Convention of 1852, Indiana Supreme Court, James M. Redwine, Jim Redwine, legal system, National Judicial College, Oliver Wendell Holmes Jr., poor people, Posey Circuit Court Judge, Posey County Indiana, required by law, Rural Courts Judges, volksgeist, wealthy people

The American Volksgeist

August 4, 2017 by Jim Leave a Comment

During August and September this year, as for several years before, the National Judicial College will be presenting Internet courses to judges from across America. Other members of the NJC faculty and I will discuss with student judges via computer and telephone how to bring more just results in our courts.

The faculty is comprised of volunteer judges and staff in Nevada, Colorado, Indiana, Mississippi and Tennessee. My experience over several years of judging and continuing judicial education by both Internet and brick and mortar classes has led me to the conclusion judges should not concentrate on techniques but rather systems of thought, i.e., legal theory. “How to” knowledge is helpful but “why to” understanding is vital.

Friedrich Karl von Savigny (1779 – 1861) was a German legal philosopher who believed a nation’s legal system arises from the volksgeist or national spirit of a people, that is, law is determined by the unique character of a nation. Or, as put by the American legal philosopher Oliver Wendell Holmes, Jr. (1841 – 1935):

“The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.”

Common Law is a term used to mean judge made law, law developed through the courts, not the legislature or an executive such as a king.

America’s common law in the years before the Revolution of 1776 arose as an effort by American judges, lawyers and juries to curb the abuses of King George, III, and the British Parliament. The 1735 case of John Peter Zenger (1697 – 1746), a New York printer who published articles about the king and parliament, illustrates the national spirit of the Colonies. Zenger was charged by the Crown with seditious libel but a jury refused to find him guilty because what he published was true.

This American spirit of rebellion permeated the Declaration of Independence and is enshrined in our Constitution that was designed to keep government power in check and protect individual citizens.

Our volksgeist is our sense of a distrust of centralized power and the preservation of individual civil rights. America and her judges need constant reminders of where we came from and who we are. That’s what I plan to both study and teach.

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Filed Under: America, Democracy, Gavel Gamut, Internet class, Judicial, Law, National Judicial College Tagged With: American Volksgeist, British Parliament, Common Law, Constitution, Declaration of Independence, distrust of centralized power, Friedrich Karl von Savigny, Internet courses, James M. Redwine, Jim Redwine, John Peter Zenger, judge made law, judicial education, King George III, legal theory, National Judicial College, Oliver Wendell Holmes Jr., preservation of individual civil rights, the Colonies, the Crown, the Revolution of 1776

© 2022 James M. Redwine

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