the Week of Proper 28 / Ordinary 33
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Bible Encyclopedias
Legal Maxims
1911 Encyclopedia Britannica
or A maxim is an established principle or proposition. The Latin term maxima is not to be found in Roman law with any meaning exactly analogous to that of a legal maxim in the modern sense of the word, but the treatises of many of the Roman jurists on Regulae definitiones, and Sententiae juris are, in some measure, collections of maxims (see an article on "Latin Maxims in English Law" in Law Mag. and Rev. xx. 285); Fortescue ( De laudibus, c. 8) and Du Cange treat maxima and regula as identical. The attitude of early English commentators towards the maxims of the law was one of unmingled adulation. In Doctor and Student (p. 26) they are described as "of the same strength and effect in the law as statutes be." Coke (Co. Litt. II A) says that a maxim is so called "Quia maxima est ejus dignitas et certissima auctoritas, atque quod maxime omnibus probetur." "Not only," observes Bacon in the Preface to his Collection of Maxims, " will the use of maxims be in deciding doubt and helping soundness of judgment, but, further, in gracing argument, in correcting unprofitable subtlety, and reducing the same to a more sound and substantial sense of law, in reclaiming vulgar errors, and, generally, in the amendment in some measure of the very nature and complexion of the whole law." A similar note was sounded in Scotland; and it has been well observed that "a glance at the pages of Morrison's Dictionary or at other early reports will show how frequently in the older Scots law questions respecting the rights, remedies and liabilities of individuals were determined by an immediate reference to legal maxims" (J. M. Irving, Encyclo. Scots Law, s.v. " Maxims"). In later times less value has been attached to the maxims of the law, as the development of civilization and the increasing complexity of business relations have shown the .necessity of qualifying the propositions which they enunciate (see Stephen, Hist. Crim. Law, ii. 94 n: Yarmouth v. France, 1887, 19 Q.B.D., per Lord Esher, at p. 653, and American authorities collected in Bouvier's Law Diet. s.v. " Maxim"). But both historically and practically they must always possess interest and value.
A brief reference need only be made here, with examples by way of illustration, to the field which the maxims of the law cover.
Commencing with rules founded on public policy, we may note the famous principle - Salus populi suprema lex (xii. Tables: Bacon, Maxims, reg. 12) - "the public welfare is the highest law." It is on this maxim that the coercive action of the State towards individual liberty in a hundred matters is based. To the same category belong the maxims - Summa ratio est quae pro religione facit (Co. Litt. 34 1 a) - "the best rule is that which advances religion" - a maxim which finds its application when the enforcement of foreign laws or judgments supposed to violate our own laws or the principles of natural justice is in question; and Dies dominicus non est juridicus, which exempts Sunday from the lawful days for juridical acts. Among the maxims relating to the crown, the most important are Rex non potest peccare (2 Rolle R. 304) - "The King can do no wrong" - which enshrines the principle of ministerial responsibility, and Nullum tempus occurrit regi (2 Co. Inst. 273) - "lapse of time does not bar the crown," a maxim qualified by various enactments in modern times. Passing to the judicial office and the administration of justice, we may refer to the rules - Audi alteram partem - a proposition too familiar to need either translation or comment; Nemo debet esse judex in proprid suet causd (12 Co. Rep. I 14) - "no man ought to be judge in his own cause" - a maxim which French law, and the legal systems based upon or allied to it, have embodied in an elaborate network of rules for judicial challenge; and the maxim which defines the relative functions of judge and jury, Ad quaestionem facti non respondent judices, ad quaestionem legis non respondent juratores (8 Co. Rep. 155). The maxim Boni judicis est ampliare jurisdictionem (Ch. Prec. 329) is certainly erroneous as it stands, as a judge has no right to "extend his jurisdiction." If justitiam is substituted for jurisdictionem, as Lord Mansfield said it should be (I Burr. 304), the maxim is near the truth. A group of maxims supposed to embody certain fundamental principles of legal right and obligations may next be referred to: (a) Ubi jus ibi remedium (see Co. Litt. 197 b) - a maxim to which the evolution of the flexible "action on the case," by which wrongs unknown to the "original writs" were dealt with, was historically due, but which must be taken with the gloss Damnum absque injuria - " there are forms of actual damage which do not constitute legal injury" for which the law supplies no remedy; (b) Actus Dei nemini facit injuriam (2 Blackstone, 122) - and its allied maxim, Lex non cogit ad impossibilia (Co. Litt. 231 b) - on which the whole doctrine of vis major (force majeure ) and impossible conditions in the law of contract has been built up. In this category may also be classed Volenti non fit injuria (Wingate, Maxims ), out of which sprang the theory - now profoundly modified by statute - of "common employment" in the law of employers' liability; see Smith v. Baker, 1891, A.C. 325. Other maxims deal with rights of property - Qui prior est tempore, potior est jure (Co. Litt. 14 a), which consecrates the position of the beati possidentes alike in municipal and in international law; Sic utere iuo ut alienum non laedas (9 Co. Rep. 59), which has played its part in the determination of the rights of adjacent owners; and Domus sua cuique est tutissimum refugium (5 Co. Rep. 92) - " a man's house is his castle," a doctrine which has imposed limitations on the rights of execution creditors (see Execution). In the laws of family relations there are the maxims Consensus non kkconcubitus facit matrimonium (Co. Litt. 33 a) - the canon law of Europe prior to the council of Trent, and still law in Scotland, though modified by legislation in England; and Pater is est quem nuptiae demonstrant (see Co. Litt. 7 b), on which, in most civilized countries, the presumption of legitimacy depends. In the interpretation of written instruments, the maxim Noscitur a sociis (3 Term Reports, 87), which proclaims the importance of the context, still applies. So do the rules Expressio unius est exclusio alterius (Co. Litt. 210 a), and Contemporanea expositio est optima et fortissima in lege(2 Co. Inst. 1), which lets in evidence of contemporaneous user as an aid to the interpretation of statutes or documents; see Van Diemen's Land Co. v. Table Cape Marine Board, 1906, A.C. 92, 98. We may conclude this sketch with a miscellaneous summary: Caveat emptor (Hob. 99) - "let the purchaser beware"; Qui facit per alium facite per se, which affirms the principal's liability for the acts of his agent; Ignorantia juris neminem excusat, on which rests the ordinary citizen's obligation to know the law; and Vigilantibus non dormientibus jury subveniunt (2 Co. Inst. 690), one of the maxims in accordance with which courts of equity administer relief. Among other "maxims of equity" come the rules that "he that seeks equity must do equity," i.e. must act fairly, and that "equity looks upon that as done which ought to be done" - a principle from which the "conversion" into money of land directed to be sold, and of money directed to be invested in the purchase of land, is derived.
The principal collections of legal maxims are: English Law: Bacon, Collection of Some Principal Rules and Maxims of the Common Law (1630); Noy, Treatise of the principal Grounds and Maxims of Me Law of England (1641, 8th ed., 1824); Wingate, Maxims of Reason (1728); Francis, Grounds and Rudiments of Law and Equity (2nd ed. 1751); Lofft (annexed to his Reports, 1776); Broom, Legal Maxims (7th ed. London, 1900). Scots Law: Lord Trayner, Latin Maxims and Phrases (2nd ed., 1876); Stair, Institutions of the Law of Scotland, with Index by More (Edinburgh, 1832). American Treatises: A. I. Morgan, English Version of Legal Maxims (Cincinnati, 1878); S. S. Peloubet, Legal Maxims in Law and Equity (New York, 1880). (A. W. R.)
These files are public domain.
Chisholm, Hugh, General Editor. Entry for 'Legal Maxims'. 1911 Encyclopedia Britanica. https://www.studylight.org/encyclopedias/eng/bri/l/legal-maxims.html. 1910.
