Page:Harvard Law Review Volume 9.djvu/50

22 22 HARVARD LAW REVIEW. trouble if not kept where it belongs. ... If it is always remembered that the doctrine as to innocence on both sides operates only when other solutions are not available, or possibly in aid of proper solutions, very much of needless confusion will be avoided." There are phrases to be found in some collections of so-called legal maxims which were not intended by their original framers as statements of " law." They are " merely moral rules, which do not obtain as positive law." ^ Doubtless " the law rests its foundations on morality, but it does not cover all morality;. . ." and while there is *' no conflict " between the rule of law and the rule of morals, " the latter is broader than the former." ^ A writer on jurisprudence may have enunciated as rules " whatever maxims of justice or utility approved themselves to him as an individual moralist."^ *lt is sometimes difficult to discover whether such authors *^ are discussing law or rnorality ; " " whether they lay down that which is, or that which, in their opinion, ought to be." * What they believe ought to be law is liable to be treated by them as if it were law already; although it has never been made the basis of judicial action, and is not soon likely to be. But a proposition can properly be called " law " only when, and so far as, it is en- forceable by the courts. In this connection it should be noticed that " many of the say- ings that are dignified by the name of maxims are nothing but the obiter dicta of ancient judges who were fond of sententious phrases, and sometimes sacrificed accuracy of definition to terseness of ex- pression." ^ Moreover, a statement intended as a maxim may have gained currency as such out of deference to the reputation of its author, rather than by reason of its intrinsic correctness as a faithful representation of existing law. Thus it has been said of Bacon's misleading maxim relative to ambiguitas latens : ** The great name of the author of the maxim gave it credit. . . . When this was found clothed in Latin, and fathered upon Lord Bacon, it might well seem to such as did not think carefully that here was something to be depended upon." ^ It is not unreasonable to suppose that the old sages, in some in- stances, intentionally overstated a truth for the purpose of attract- . 1 See J. S. Mill's Review of Austin on Jurisprudence, ii8 Edinburgh Review, i6i. 2 Bishop's First Book of the Law, ss. i6 and 17. (It is to be regretted that this useful work should have been so long out of print.) 8 118 Edinburgh Review, 461. 63 New Jersey Law Journal, 160.
 * Maine's Ancient Law, ist Eng. ed. 98. » 9 Harvard Law Review, 437.