Page:Harvard Law Review Volume 9.djvu/49

21 THE USE OF MAXIMS IN JURISPRUDENCE, 21 spectatur, is by no means to be banished from the law. But it does not follow that the citation of this maxim, even with the addition of the first paragraph in Bacon's welUknown gloss, will afford an all-sufficient statement of the reasons for every decision upon a question of juridical cause. The maxim may properly be used as a starting-point, but it should not be mistaken for the goal. It " does not help us to tell when a cause is proximate, and when re- mote." ^ Taken literally, it would seem to put material antecedents on an equal footing with voluntary and responsible human actors. So also it might be understood as implying that the antecedent which is " nearest in time or space " is invariably to be regarded as the legal cause.^ Maxims relating to the interpretation of written instruments occupy (with the comments upon them) more than one-seventh of Mr. Broom's book. Yet these maxims, standing alone and taken as absolute statements, are liable to gross misuse. Most of them are, at the utmost, only prima facie rules; ** good servants, but bad masters." A rule of construction should always be understood as containing the saving clause, " unless a contrary intention appear by the instrument." ^ So, too, there are maxims intended to be applied only as last resorts in emergencies ; but which purport on their face to carry controlling weight under all circumstances. An illustration of this class is afforded in the following extract from the opinion of Finch, J., in the recent case of Rapps v. Gottlieb.* "A further argument is made founded upon the doctrine that, where one of two innocent parties must suffer from a wrong, he must bear the loss whose action enabled the wrong to be done ; but that doctrine ap- plies only in an emergency. It solves problems which have no other solution ; it supplies a ground of decision where all others are absent ; it operates as a reason when nothing else can master the situation ; it is a rule of last resort, applicable only where all others fail ; it is a doctrine subordinate and not dominant, which reverses no other, but submits to the authority of all, and is adequate to an ultimate decision only when it has the field to itself. Any wider view of it would make it a disturbing force, tending to unsettle and destroy the most firmly fixed doctrines of the law. It is good and useful, — in its place, — but will always make 1 4 Am. & Eng. Encyclopaedia of Law, 25, note. Torts, 2d ed. 88. 8 See Preface to Hawkins on WUls. * 142 N. Y. 164, 168.
 * See Thomas, J., in Marble v. Worcester, 4 Gray, p. 409. Compare Cooley on