Page:Harvard Law Review Volume 9.djvu/44

16 l6 HARVARD LAW REVIEW. more than the truism : An unlawful act is unlawful. This is a mere beg- ging of the question ; it assumes the very point in controversy, and can- not be taken as a ratio decidefidU' ^ Various defences of this maxim have been attempted. It is said that the objection urged by Sir William Erie " may be made against all legal maxims and rules; none are absolute. "^ Undoubtedly, every legal principle is frequently liable to be modified in its operation by the concurrent application of some other legal principle or principles. The effect of the particular principle is curtailed or extended (as the case may be) by bring- ing another principle into combination with it, " so that the two together will produce a result not within the terms of either one alone ; as two diverse propelling forces, applied to an inert body, will send it to a point which neither one of itself would do." 3 "What is thought to be an exception to a principle, is always some other and distinct principle cutting into the former; some other force which impinges against the first force, and deflects it from its direction." * But a legal principle which deserves its place will always be of appreciable value in the solution of problems fall- ing within its scope, whenever it is not controlled by some other principle which, under the circumstances of the case, is entitled to superior weight. And it is precisely here that the defence of this maxim labors. It is frequently used as affording a solution of a legal problem, which in fact it never solves. It is also asserted that this maxim, though it may often have been made to do " extra legal duty," is, really, " indispensable in the place where it belongs, and that is in case of concurrent rights, whether equal or different in degree, in respect to the same prop- erty." " Here," it is said, " the maxim is the boundary, and does determine the right and define the obligation of the parties, as between each other, in the use of their respective estates." ^ This argument is not well founded. The maxim does not, even in that class of cases, " determine the right or define the obliga- tion of the parties, as between each other." At the utmost it merely asserts that certain rights of property are not absolute but relative, that the right of one man is limited by the correlative 1 Ingersoll, Sp. J., in Payne z'.W. & A. R. Co., 13 Lea, Tennessee, 507, p. 527, 528. 2 I Am. Law Rev. 5. 8 Bishop on Written Laws, s. wZa. 6 7 Alb. Law Journal, 32.
 * Mill on Logic, Harper's ed. of 1850, p. 259.