Page:Harvard Law Review Volume 9.djvu/51

23 THE USE OF MAXIMS IN JURISPRUDENCE. 23 ing attention. *' A certain pleasant exaggeration, the use of the figure hyperbole, a figure of natural rhetoric which Scripture itself does not disdain to employ, is a not unfrequent engine with the proverb for the arousing of attention and the making of a way for itself into the minds of men." ^ But, in making practical applica- tion of so-called legal maxims, sufficient care has not always been taken to distinguish between the exaggeration and the reality. " Legal maxims do not change ; they are the fundamental princi- ples of law, and therefore no alterations in them can be noted. . . ." Such is the claim made in the preface to a recent collection of maxims.^ This statement apparently assumes, first, that all prom- inent legal maxims are correct representations of fundamental principles of law; second, that these so-called " fundamental prin- ciples of law" never change. The first assumption is not well founded, as appears from the extracts we have already given from high authorities. Nor is the second assumption correct, unless the term " fundamental principles of law" is so defined as to restrict the class to a very small number. On some subjects the law crys- tallized too early. Courts attempted to lay down hard and fast rules, which it has been impossible to adhere to. Notwithstanding the efforts made by some tribunals to conceal the fact that the law was being altered by their decisions, it is undeniable that the law has been changed in respect to points formerly considered essential. In very recent times some judges have had the frankness to admit this. A '' system of unwritten law," said Chief-Justice Cockburn, administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we Hve, so as to avoid the inconsistencies and injustice which arise when the law ia no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied." ^ It cannot be questioned that some maxims which were once ** law " are so no longer. They grew out of a state of society now happily obsolete. They are paraphrases of doctrines first adopted in barbarous ages, but which no longer obtain. Or they are deductions from those cast-off principles ; ** and the conclusions at which they arrive 1 " Proverbs, and their Lessons," by Archbishop Trench, 7th Eng. ed. 25. 2 Wharton's Maxims, 2ded., Preface, vi. 8 Wason V. Walter, L. R. 4 Q. B. 73, p. 93. Compare the admirable opinion of Lord Hobhouse in Smart v. Smart, L. R. (1892), Appeal Cases, 425 ; which is through- out an illustration of the above statement.
 * ' has at least this advantage, that its elasticity enables those who