Page:Harvard Law Review Volume 9.djvu/41

13 THE USE OF MAXIMS IN JURISPRUDENCE, 13 THE USE OF MAXIMS IN JURISPRUDENCE. Sense of Nations." — Sir James Mack- intosh (Motto on titlepage of Broom's Legal Maxims). " ' A maxime in law* A maxime is a proposition to be of all men confessed and granted without proofe, argument, or dis- course." — Co. Liu. 67 a. " Maxime, /. <?., a sure foundation or ground of art, and a conclusion of reason, so called quia maxima est ejus dignitas et certissima authoritas, atque quod maxime omnibus probetur, so sure and uncontrol- lable as that they ought not to be ques- tioned." — Co. Litt. 10 b- I a. " It seems to me that legal maxims in general are little more than pert head- ings of chapters. They are rather minims than maxims, for they give not a particu- larly great but a particularly small amount of information. As often as not, the ex- ceptions and qualifications to them are more important than the so-called rules." — Sir J. F. Stephen : History of the Criminal Law of England, vol. 2,94, note i. " We believe that not a single law maxim can be pointed out which is not obnoxious to objection." — Townshend on Slander and Libel, 4th ed., s. 88, p. 71, note I. HERE is certainly a remarkable difference of opinion. The truth is, that there are maxims and maxims ; some of great value, and some worse than worthless. And the really valuable maxims are peculiarly liable to be put to a wrong use. A proposi- tion, in order to gain currency as a maxim, must be tersely expressed. But the very brevity which gives it currency, also, in many in- stances, gives rise to misconception as to its meaning and applica- tion. A phrase intended to point out an exception may be mistaken for the enunciation of a general rule. An expression originally used only to state a truth may be mistaken for a statement of all truth ; as comprising in half a dozen words a digest of the entire law on a given topic. As Agassiz was said to be able from the view of a single bone or scale to reconstruct the entire animal of which the fragment once formed a part, so jurists some- times treat one brief maxim as containing all the materials needed to develop an entire subdivision of the law, ** a complete pocket precept covering the whole subject." ^ How common it is to meet with decisions on important points, where the only hint at an expression of the ratio decidendi consists in the quotation, without comment, of a legal maxim ! And, not unfrequently, a maxim implicitly relied on " as covering the entire subject *' is one origi- i 6 Harvard Law Review, 437.
 * Maxims are the condensed Good