The Maxims of Equity.

I of Maxims Generally Author(s): Roscoe Pound Reviewed work(s): Source: Harvard Law Review, Vol. 34, No. 8 (Jun., 1921), pp. 809-836 Published by: The Harvard Law Review Association Stable URL: http://www.jstor.org/stable/1329723 . Accessed: 19/11/2011 22:13
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HARVARD

LAW
VOL.XXXIV

R

EVi1E

W
NO. 8

JUNE, 1921

THE

MAXIMS

OF EQUITY

-

I

OF MAXIMS GENERALLY ' I. PROVERBS AND MAXIMS

MAXIMS in modern law are either inherited or borrowedfrom
the Roman law or framed in the formative period of modern law "juxta exemplumRomanorum." But the maxims of Roman law had their model, in large part at least, in the proverbs and maxims which are to be found among all peoples in a certain stage of culture. A distinction is made between popular proverbialsayings and literary proverbs or gnomes. According to the accepted theory the former were originally uttered spontaneously; they were spontaneous utterances called forth by unusual and stirring incidents and experiences. They were not made deliberately but sprang up out of the soil of national character. This orthodoxdoctrine as to proverbssavors of the romanticexplanation of all social phenomenawhich came into vogue in the fore part of the last century, of which Savigny's theory of law as a spontaneousproduct of the Volksgeist anotherexample. In the light of recent philosophy is and folk-psychology we may suspect that proverbial sayings are rather traditional versions of the orally expressedreflectionsof individuals gifted with more than ordinary power of observation, homely wit, and a trenchant tongue. Aristotle suggested some1 Reference may be made to TRENCH, PROVERBS AND THEIR LESSONS (I905); GERBER, DIE SPRACHE ALS KUNST (i885), II, 397-442; Bois, LA POESIE GNOMIQUE

(i886).

I. V. 6 PRESOCRATIC HISTORY PHILOSOPHY (transl." 6 When conscious reflection begins. ? I8. 4 Ibid. II. OF MORALS (I894). by Titchener and others). The later throwing of ideals." WUNDT.2 Moreover. 5 ZELLER. As will be seen presently. 3 "The sayings attributed to the mythical or semi-mythical Seven Sages are crystallizations of popular morality which cannot be treated as the beginnings of a science. legal proverbs attained some importance in Germanic law. Such maxims may eliminate all the limitations and obstacles that are encountered in practice and put practically unattainable standards in order to fire the imagination or excite moral enthusiasm.3 Presently it may express the first stirrings of philosophical reflection upon life and conduct. and political advice to rulers which we find in Hesiod is the beginning of the reflection on life that was to lead to ethical and political philosophy. By all accounts the literary proverb is a product of conscious reflection. moral precepts.4 But Greek moral and political philosophy had its roots in the maxims and gnomes of Theognis and Phocylides and the gnomic poetry attributed to the Seven Sages. many of the earliest proverbs were responses of oracles. Our chief concern with these proverbial sayings is that they sometimes have to do with matters of law and are one of the forms of expression of customary law. Down to Socrates we find nothing but isolated maxims.7 They are related to the maxims of the beginning of ethical philosophy only in that in form they follow the model of the proverb. . ETHICS (transl. OF PHILOSOPHY (transl. 3. Bekker. I474. Thus maxims "stand on the threshold of philosophy"5 and "form the transition to philosophy proper. 2 Quoted by Synesius. rules of agriculture.8io HARVARD LAW REVIEW thing of this sort. I2I. The fusion of advice about practical life. PRINCIPLES ERDMANN. ARISTOTELIS OPERA. Originally it may but cast a popular saying into literary or perhaps poetical form. by Hough). not reflections on customary conduct. into the form of ethical maxims is quite another matter. For the rest. 293-294. II. by Alleyne). popular proverbial sayings furnished the model for the literary proverb or gnome and so ultimately for the legal maxim. 7 FOWLER AND WILSON. they bridge the gap between customary moral rules and ethical principles. saying that proverbs were remnants which because of their brevity and accuracy had been preserved out of the^ ruins of ancient philosophy.

43-46. II. DIG.. 2). the case in hand was decided by a simple method of distinctions and analogies. RECHTSWISSENSCHAFT ZUR ZEIT DER REPUBLIK. 6 ed. Some of them are referred to the auctoritas of named jurists of the older period. LENEL. Thus we see that the jurisprudenceof maxims comes in at the very thresholdof Roman legal science. as an example.. the phase of secularization and popularization. 6. I have relied largely on J6rs and on the texts he has collected. The title of the DIGEST.12 Moreover the way in which these maxims are treated by the later jurists shows that they came from an earliertime and had traditionalauthority.14 recognizethree phases of legal development in republicanRome. (i888). GEIST DES ROMISCHEN RECHTS. ORIGINE GESCHICHTE DE LA UND JHERING. ? i8o. R6MISCHE GEIST DES RECHTSWISSENSCHAFT ROMISCHEN NULLA RECHTS. 12 Dirksen cites GAIUS. I. ? 30. 15 JORS. 5. compare the maxim attributed to Cassius . 1915). MAXIMS IN ROMAN LAW8 Dirksen I and Sanio 10pointed out long ago that the maxims of which Roman juristic writing is full belong to the older legal science of the Republic and not to the classical period. E. 282-313.'6 Also the older juristic 8 Reference may be made to JORS. 14 MANUEL ELEMENTAIRE DU DROIT ROMAIN. 10 DE ANTIQUIS REGULIS iuRis (I833). They are cited as generally recognized truths or are even applied and interpretedas actual rules of law much as if they were statutory we provisions.Mucius Scaevola. BRUNSEN- REGLE IMPOSSIBILIUM DES OBLIGATIO QUELLEN ROMISCHEN RECHTS (HOLTZENDORFF. by name to 11 JORS.non possit III. ZUR ZEIT DER REPUBLIK RABEL. the esoteric phase in which the interpretation and application of the enacted and of the customary law were a monopoly of the pontifices. n. 2. 13 E.. Cato the Younger."3 If.with the interpretation by Iulianus: quod uolgo respondetur causam possessionis neminem sibi mutare posse. ut possessio non solum ciuilis sed etiam naturalis intellegatur. 7 ed. 85. 16 JHERING.. In the older practice. I. III. with Girard. ZYKLOPADIE DER RECHTSWISSENSCHAFT. DIUERSIS REGULIS IURIS ANTIQUI (50. I. DE causam possessionis sibi ipsa mutare (DIG." 3 RHEINISCHES MUSEUM FUYR JURISPRUDENZ. sic accipiendum est.THE MAXIMS OF EQUITY 8ii 2. I."5 belongs in the second stage. . namely. ? 40. g. (1907). See references in 291. ROMISCHE RECHTSWISSENSCHAFT ZUR ZEIT DER REPUBLIK. ? 49. 17). io6-io9 (I829). many are attributed R6mISCHE Q. and the phase of systematization. XLI. g. 9 " Ueber den Zusammenhang der einzelnen Organe des positiven Rechts der Romer mit der gleichzeitigen juristischen Doctrin. with whom the practice of framing maxims is held to begin. 289 ff. tells the same story." Others are expressly attributed to the ueteres. XLI. ? 3. 2.

). ueteresdecreuerunt(DIG. and. XLVII. or public disputations upon questions of law. it became important for the individual jurisconsult to state precisely and in terse language the point of view which he sought to expressin a rule of law. II. XLI. Evidently many of the maxims were first framed for the use of students. their phrases were as sharpand concise as possible.3."7 The responsaremained expert opinions as to the application of the law to particular cases.812 HARVARD LAW REVIEW writing was no more than a heaping together of legal materials in collections of actions and of responsa. BEVEN. 7. marks the end of this method. through their maxims.formulae of actions and forms for legal transactions and sought to express these points of view concisely in maxims. pr. 18 . compare the maxim-like sayings of Zeno. 5. 33. Another factor in the developmentof legal maxims is to be found in the disputationes fori. "As the lex declaredwhat should be law for the future.294." 18 It is likely that the model of proverbial sayings was before the minds of the jurists quite as much as the model of the terse and oracularphrases of the old statutes. pr. ciuilis constitutio est (DIG. i. Examples of the statutory form are: a ueteris praeceptum est (DIG. II. They did not seek to impart general legal information. I4. The analogy of a statutory provision was obvious and naturally enough was made use of. established what was rightful and legal for the present. these maxims at first are not addressed to the judge but to the jurist. says Jors. Ibid. I. as distinguished from laws and as distinguished from method of decision. The Tripertitaof Sex. But. 19 JORS. XXVIII. Of the proverbial form: quod uolgo dicitur (GAIUS. 32.sometimesin imperativeform. On the basis of these collections which handed down the results of juristic craftsmanship. Aelius Catus.'9 17 RMmiscHE RECHTSWISSENSCHAFT ZUR ZEIT DER REPUBLIK. The very name (regula)indicates a measurewhich the teacher gives to the pupil for the decision of legal controversies. a work of this type although it essayed to be something more. jurists began to think of the substance of the law. 2.). I9). STOICS AND SCEPTICS i8. as in the case of leges. As to the tendency of teachers to frame maxims or aphorisms. 5). so the jurists. solemus etiam dicere (DIG. 293. Accordingly they sought to find common points of view in the mass of collected or traditionalresponsa. Every teacher has had experience of the desire of students for a crisp phrase which they may put down in their notebooks. Yet in view of the bulk and the diversity of the recordedresponsaand the conflict of juristic opinion. sometimesin proverbialform. ? 49).

L. These maxims appear in two forms. I. III. II. i8. 5. e. "the agreement is to be interpreted against the seller" (DIG.not borrowing.. pr. stipulations. L.21 that words were to be interpreted in favor of promissors and against those from whom the transaction proceeds. 3.22 that the milder interpretation was to be preferredin certain cases. 24 DIG. . I7.lay at the foundation of application of law. 17. DIG. GEIST DES ROMISCHENRECHTS. DANZ. 3. freedom is to be fav- ored" (DIG. 26. letting and hiring. L. XLV. I. I. XXIII. not the promisor or debtor.23and generally that as between different possible interpretations the more intrinsically meritorious was to be adopted. 17. 39.. But it is significantof the stage of development at whichmaxims arise. I92. DIG. Later it is generalized. I7. L. DIG. "From recognition that certain regulae. I. 12). 20. 23 Here again the earlier form applies to penalties. I. 5. to be discovered and established by juristic research. In an older form we have special maxims as to particular transactions. DIG." DIG. 38. The words operate quite independent of the thought behind them. 21 E. maxims grew up announcingpolicies to be followed in interpretation in doubtful cases. I4. 85).Cf. 70. L. sales. 2. XXXIV. . as they begin to be influencedby philosophy to give over purely mechanicalmethods and to measure things by reason rather than by arbitrary will. I 7.24 The transition to the natural law of the classical jurists was easy. I. g. as lawyers begin to reflect and to teach something more than a tradition. I72). ? 142. a great numberof maxims have to do with principles of interpretation of statutes and of legal transactions."that is taken which is to the disadvantage of the seller" (DIG."Where the will of the manumitter is doubtful. Thus there were maxims to the effect that certain relations or certain situations were to be favored. DIG. When statutes and legal transactions were looked at in this way. I9. DIG. to like effect. I7. 3. it was a short 20 JHERING. i8. "In case of doubt it is better to decide in favor of dower" (DIG. ? 49. L. 99. Cf. L. "In penal causes the milder interpretation is to be made. 33). 179). g. L. XLV. I. 24.THE MAXIMS OF EQUITY 8I3 It is noteworthy that in Roman law. which suggest much as to the development of a jurisprudence of maxims into a jurisprudence of principles. I7. as in our law. L. 17. 155. a chief effect is to change the emphasis from form to substance. as later in the common law. 67. XVII. 22 It should be remembered that in Roman law the promisee or creditor speaks. GESCHICHTEDES ROMISCHENRECHTS. to the same effect. L. This is parallel development. The strict law takes no account of will or intention as such. XXXIV. 56.. from the letter to the spirit and intent.. "In testaments we interpret the will of the testators liberally" (DIG. 96. In a later form these are generalized. 17. I7.20 At the end of a period of strict law.

3. Roman legal science was never purely theoretical. R6MISCHE RECHTSWISSENSCHAFT 26 DIG. ZUR ZEIT DER REPUBLIK." DIG. which leads through natural law to the maturity of law. But that end might be sought in two ways. whether statutory or traditional or doctrinal. This continued to be used and the question as to proof of exceptions (equitable defenses) was met by another regula that "in an exception the defendant is a plaintiff. The jurisprudence of maxims carries this still further and enters definitely on the method of beginning with ideas. 2I. in that more and more the commentaries take account of general ideas of which the statutes are regarded as expressions and of spheres of interest and jural relations which the formulae are regarded as seeking to secure. One way was to begin with the cases which occurred in practice. 29 Jors gives the following example: When the burden of proof was first considered theoretically. I. abide with the jurisprudence of maxims to the end. 295. When the right line of evolution is followed. XXII. Application to concrete causes was the end of theory and the end was kept constantly in view. ZUR ZEIT DER REPUBLIK. But this did not suffice . It is "the first attempt at a theoretical formulation of law. 300.29 But Roman 25 JORS. the maxim develops into a fruitful legal principle and is merged therein.27 The older jurisprudence took the first course and the method of collecting responsa and formulae remained an important form of legal writing. DIG. Next came commentaries in which there is a transition from the method of beginning with cases to that of beginning with ideas. as but expressions of or attempts to formulate principles of natural law. The jurisprudence of maxims was a theoretical working over of the law for practical purposes. a regula was framed to the effect that the plaintiff had the burden of proving his assertion. I." 25 This leads to the philosophical view of the ratio iuris 26 and of all legal rules. R6MISCHE RECHTSWISSENSCHAFT 28 Ibid.8I4 HARVARD LAW REVIEW step to the wider thought that a lex also need not be regarded as a mere aggregate of precepts but that these precepts themselves are but forms or derivatives of ideas of right which should be formulated theoretically as regulae. I527 JORS. i." 28 Certain defects. XLIV. characteristic of the period of legal history in which maxims arise. 3. The other way was to begin with the ideas which were taken to be behind the law and to treat the phenomena of practice as realizations of these ideas. Application of maxims merely as solving phrases is a later abuse.

31 "One who remains silent certainly does not speak. the jurists came ultimately to the general proposition that "the burden of proof lies on one who asserts not on one who denies.of the time when juristic philosophy was finding itself and had not learned to make a proper use of concrete legal materials or of the time when it had exhausted itself for the time being and was unfruitful. 6." DIG. I7. 6. I047. L. 23I. of no practical import. "Ignorance of law will not help those seeking to acquire. Rules.30 In such cases there is a survival of the methods and modes of thought of the strict law in situations where the maxim was too narrowly conceived at too early a stage of the jurisprudence of maxims and acquired an authoritative stamp before it was critically examined and restated. I42. After further regulae for these cases (DIG." DIG. see my papers. 3. 9I. i6. DIG. 5532 As to rules." DIG. definite detailed provisions for definite detailed states of fact. AmERICAN BAR ASSN. 25.3" In these cases we have a-phenomenon of the beginnings of legal philosophy in the period of natural law or of the decadence of legal philosophy at the end of that period . that is. . But a legal system of any degree of development is more complex than this formula would indicate. I. principles. I. IO60-IO62. I7. 30 E. XLV. 3. 33. Others are diverted from their original function of standards for the decision of controversies or from the outset are theoretical and become vague high-sounding generalities. and may even serve to darken counsel and to retard the working out of a sound principle. XXII.32 In a later stage to meet cases where the defendant contended that he had paid or where the exception was met by a replication. conceptions. g. and become encrusted with exceptions and limitations or are turned into arbitrary special rules. XLI.THE MAXIMS OF EQUITY 8I5 maxims develop in two other ways. and standards. L. REV." DIG. 3. are the staple of the beginnings of law and continue to be employed in the maturity of law in situations where there is exceptional need for certainty to maintain the economic order. but nevertheless it is true that he does not deny. "No one is held to act wrongfully who makes use of his own right. but will not be prejudicial to those who are seeking their own. Writers on jurisprudence commonly speak of law as an aggregate of rules. "Juristic Science and Law. we have a characteristic phenomenon respectively of the transition from the strict law to natural law and of the transition from natural law to the maturity of law." 3I HARV. XXII. 3.. In short.. XXII. Some become fixed in form from the beginning. retain their form throughout the subsequent history of the law." 44 REP. 454-458. L. 2. L. 445. 2). and "Administrative Application of Legal Standards.

II. and it is not without significance that in the formal academic disputa33 SAVIGNY. This element comes into law with the advent of legal writing and juristic theory and its presence as a controlling factor is a mark of a developed legal order. maxims are an intermediate step between rules and principles. . MAXIMS IN THE CANON LAW33 Primarily the canonists were academic teachers. They were influenced immediately by the Roman law. Also they were under the immediate influence of scholastic philosophy and logic. when Greek influence. 84. GESCHICHTE DES ROMISCHEN RECHTS IM MITTELALTER. GESCHICHTE CANONISCHEN I. and had before them the sententious texts of the Digest. RECHTS. This explains why so many maxims fall down between the two and acquire neither the detailed precision of rules nor the tested universality of legal principles. SCHULTE. In Roman law. DER QUELLEN uND LITERATUR DES III. to meet new situations. or on the other hand empty oracular phrases. It explains also why it is that when principles come to be understood and to be worked out thoroughly. This element is a product of juristic study in the attempt to set the materials of the law in order. I96. A third element may be called legal conceptions. 3. the great subject of study in the Italian universities after the twelfth century. are just beginning. 567-570. The whole method of canonist and of civilian came to be shaped externally by the scholastic modes of disputation. to which we turn to supply new rules. to interpret old ones. so many maxims become on the one hand mere traditional rules to be interpreted like leges. to measure the scope and application of rules and standards and to reconcile them when they conflict. maxims appear when the jurisconsults begin to reflect on law. 2I3. when teaching of law compels the jurisconsult to begin to organize his materials through generalization. These are general premises for juristic reasoning.8i6 HARVARD LAW REVIEW legal principles become a-second element. handed down from the jurisprudence of maxims of the jurists of the Republic. and so philosophical influence. These are mrrore less exactly defined or types to which we refer or by which we classify cases so that when a particular case is so classified we may attribute to it the lgal consequences attaching to the type. Bridging the transition from the strict law to the philosophical jurisprudence of the classical natural law.

But the method remained the same. 2. and (5) citation of parallel passages from the authorities. GESCHICHTE DER LOGIK." SUMMULAE.ANAL. cap. 3 SCHULTE. Indeed our common-law use of "maxim " in this connection comes from thirteenth-century logic. Next followed observations as to the correct reading (corrigereor emendareliteram). In the lectures on the Decretum and later on the decretals the readings on particular sections were preceded by an introduction to their content (summa) in order to acquaint the hearers with the general features of the subject. (4) framing of general rules or maxims for the purpose of solving doubts or reconciling apparent contradictions. v. is analogous to that in which the jurists of republican Rome began to comment reflectively on the ius ciuile. After that time all the collections of decretals became the subject of study.3" The 34 It is first used in the sense of "a widely received general assertion or rule" by Albertus Magnus (II93-I280). see PRANTL. Moreover the stage of legal development in which jurists were constrained by authoritative texts of the Decretum or of the Digest. In the Oxford Dictionary several examples are given of its use in the fifteenth and sixteenth centuries to mean an axiom in mathematics or dialectics. and PETRUS (I226HISPANUS I277). GESCHICHTE DER QUELLEN uND LITERATUR DES CANONISCHEN RECHTS. because of his afterwards becoming Pope. I. giving students an opportunity to write it down in case they were unable to procure a copy.34 Thus the natural demand upon teachers to sum up their reflections in trenchant formulae was reinforced. involved in the text or suggested thereby.THE MAXIMS OF EQUITY 8I7 tions of the time a crisp formula of general currency was of much service to the disputant. or as an argument. Down to the last decade of the twelfth century the Decretum of Gratian was the sole basis of instruction in the canon law. (3) putting of cases. as a premise. I. (2) solution of the apparent contradictions between equally authoritative texts and of qaestions of law arising out of them. The term was used in this sense following the Summulae by Thomas Blundeville (I594). real or hypothetical. II. and it gave rise to similar phenomena. 264. As to the authority of Petrus Hispanus.lib. . POST. First the teacher simply read the text. The exposition of the text involved five points: (i) raising or noting actual or apparent contradictions of the particular text. 2I3. The latter says: "A maxim is a proposition than which no other is prior or better known. Thence through Bacon and Coke it came definitely into our legal usage in the seventeenth century. whether as a theme. which might be interpreted and applied but not questioned. and next in order an exposition of the text.

GESCHICHTE IM DES ROMISCHEN RECHTS IM MITTELALTER. defeudo marchiae (I. tit. DES ROMISCHEN RECHTS 38 SCHULTE. I2 ed. The Germans also say Rechtsregel. No. 569. The practical occasion of the Roman regulae was the need of deciding cases on the basis of leges and responsa. III. 40 It should be noted that the Sext uses the Roman term regula. I96. L. The canon law retains the Roman term regula. g.37 But the important collection for the canon law is that of Damasus. and were regarded as an essential part of the lectures.40 Some of them are taken from the title of the Digest. 14).36 They seem to have grown out of reflection on and attempts to solve real or apparent contradictions in texts which could only be interpreted. 36 SAVIGNY. a teacher at Bologna in the latter part of the twelfth century. The Italians also say massima giuridica. 84. FABREGUETTES. while the latter were needed primarily for academic purposes and were developed by men who primarily were teachers. In the common law we say "maxim. 41 E. 33 is DIG. he was the first to compile the maxims which up to that time were to be found only in the MSS. who taught at Bologna in the second decade of the thirteenth century. 34 (i68i).. The French very generally keep the term brocard. 44 is equivalent to . PRECIS DE DROIT CIVIL." following the writers on logic who influenced our classical texts in the seventeenth century. following the Sext. 37 BALDUS ON USUS FEUDORUM.. III. LA LOGIQUE JUDICIAIRE ET L'ART DE JUGER. I. I99 ff. note f. I. L. II. No. SAVIGNY. 567. GESCHICHTE 39 SCHULTE." STAIR. I7. MITTELALTER. i85. BAUDRY-LACANTINERIE. The older Scotch writers speak of "brockards. I 7) . IO. I7.38 Some time after I 234 Bartholomaeus Brixiensis revised the Brocarda of Damasus in his Brocardica iuris canonici. I03.39 The development of maxims in the canon law ends with the title De regulis iuris at the end of the Sext (I298) in which eighty-eight maxims are authoritatively laid down. Pillius. His compilation is entitled Brocarda siue regulae canonicae and contains one hundred and twenty-five maxims. called brocarda or brocardi or brocardica. But the former were required for and developed by men who primarily were practitioners. De diuersis regulis iuris antiqui (50. According to Schulte. The practical occasion of the brocards of the canon law was the need of settling the interpretation and application of authoritative texts. are to be found frequently in the glosses.8i8 HARVARD LAW REVIEW general rules or maxims. of the Decretum as part of the gloss. 6 is DIG. 75. No. INSTITUTIONS OF THE LAW OF SCOTLAND. is named by Baldus as the first to use the term brocarda in his book of disputations (Libellus disputorius) near the end of that century.

No. 39. Cf. Schulte says they are "generally rules taken from the Roman law. Largely it is due to the circumstances of the stage of legal development to which they were appropriate and in which they arose. 44. Partly this is due to a certain moral or theological flavor. above question and subject only to interpretation. 34. see SCHULTE. III. 37. "from the thirteenth to the nineteenth an English lawyer indulges in a Latin maxim. Here. g. 570. When they are not cautiously narrow they are uncritically broad and abstract and may easily acquire authority before they have been subjected to a thorough test. I42. OF ENGLISH LAW. "When in any century... 53. HISTORY OF ENGLISH LAW. more immediately they are in the right line of descent of the systematic treatment of law as a whole which begins with the Humanists. 30. 43. Nos. 47. L. of which particular positive rules were but declaratory. 206. 76-77. as in the Roman law. 55 is DIG. 570. I7. I7. POLLOCK AND MAITLAND. 35. 20. SYSTEM DES ROMISCHEN RECHTS IM MITTELALTER. 44. 7I. as they were in republican Rome. I96. 88. 46 I POLLOCK AND MAITLAND.45 They are among the solvents of the strict law. Nos. No." says Maitland. Partly it is due to their academic origin.THE MAXIMS OF EQUITY 8I9 But a great part are the work of the glossators. 8I. 3 ed." 46 DIG."44 Both the good and the bad features of a jurisprudence of maxims may be found in the maxims of the canon law. HISTORY . L. IO.43 The influence of this authoritative collection of maxims has been only second in importance to that of the last title of the Digest. quoting from the Sext. they help to lead the jurists from a body of hard and fast rules. III. I2. VIOLLET. Savigny's estimate. he is generally." I. 43 E. and it is significant how many of them have to do with interpretation 42 and procedure. 49. On the other hand. 40. I5. 45. discoverable by juristic theory and philosophy. Not only are they forerunners of the fruitful philosophical method of the following centuries. I II. authoritatively imposed. 80. 48 iS DIG. 42 E. 63. I. As to the authorship of this title. HISTOIRE DU DROIT CIVIL FRANgAIS. to a conception of principles of reason. I96. L. 26. 74. 8. Maitland does not hesitate to describe the whole title of the Sext as a bouquet of "showy proverbs. 45 SAVIGNY. 57. I7. 6i. though of this he may be profoundly ignorant. even more than the Roman maxims they tend to become empty abstractions. I6. 24.. I7. 42. g. Attempts at generalization in that stage are necessarily crude.

I92-273. PANDECTAE. the Roman eques a knight of the Middle Ages. and surroundings of decretist and of legist were the same. In academic theory the German (Holy Roman) emperors were the successors of Augustus and of Justinian." 50 Thinking of the Digest as a statute and so of every text as written at the same time. It was an age of authority. 3 ed. BESTA. as it seemed to them. III. de diuersis regulis iuris antiqui. there was no criticism. DEL (I896). and hence the Corpus Iuris Ciuilis was binding statute law for the civilized world. Accordingly the glossators treated the legislation of Justinian much as French jurists of the nineteenth century treated the Code Napol6on. 48 49 50 51 FABREGUETTES. the necessity of solutions which would reconcile conflicting authoritative texts dictated the more important features of teaching and writing. in their eyes the praetor was a podesta. BRINZ. Tit.820 HARVARD LAW REVIEW 4. In law. VECCHIO. IN TITULUM DE DIUERSIS REGULIS IURIS ANTIQUI COMMENTARIUS (I6I5). PANDEKTEN. PHILLIMORE. Ibid. GESCHICHTE DES ROMISCHEN RECHTS MATTHAEUS. the civil law could not grow in form and could be developed only by interpretation. ?? 204. I. . L'OPERA DI IRNERIO LANDSBERG. Indeed down to the period of the commentators the canonist was the more practical of the two. to solve the insoluble antinomies which it presents to analytical and dogmatic study.. Moreover. Ibid.5' As in the canon law and for like reasons. 47 SAVIGNY. DIE GLOSSEN DES ACCURSIUS (i888). PESCATORE. I. The assumptions. their chief concern was to reconcile or." 49 Their interpretation was purely textual. OF JURISPRUDENCE. Both were teachers. GENERALE DU DROIT FRANgAIS. PRINCIPLES HISTOIRE LA LOGIQUE JUDICIAIRE ET L'ART DE JUGER. 209. while the canon law was growing through new papal legislation. ? 12. Both expounded and explained authoritative texts. 2IO. as in other fields. the feudal emperor another Justinian reigning despotically over the anarchical society of the twelfth century. methods. IM MITTELALTER. ? 6i. DIE GLOSSE DES ACCURSIUS (I883). STORIA DEL DIRITTO ITALIANO.. Di IRNERIO E LA SUA SCUOLA (I869). AND MAXIMS BRISSAUD. On the glossators see PERTILE. II2. POTHIER. "they had too much respect for the text to disfigure it at all in order to satisfy the needs of practice.48 "In these laws of another age they saw a law made for their epoch. 2 ed. MAXIMS IN THE CIVIL LAW 47 For a time maxims had a concurrent development in the canon law and in the civil law.

? I4. But while his book seems to have gone by the name of Brocarda. ." 53 As has been said. 5 SAVIGNY. note 36. 569. MANUEL D'HISTOIREDU DROIT FRANSAIS. the maxim is followed by another." 52 As in the canon law. 33- . BRISSAUD.THE MAXIMS OF EQUITY 82I A contemporary account tells us how the teacher proceeded: "First. III. Finally there is the Distinctiones siue brocarda of Petrus de Bellapertica (t I308) containing one hundred and twenty-five maxims. SAVIGNY. I shall put cases of particular laws well and distinctly. 60 SAVIGNY. I63. 30. The first compilation of maxims as such is the Brocarda of Azo (II 50-I230). . but not always. Azo develops the maxims further and explains them and seeks to reconcile the conflict.55it is evident that it was entitled Libellus disputorius 56 and that it was a collection of disputations as to conflicts of the texts together with the solving formulae. SAVIGNY. note c. see SAVIGNY. likewise fortified by citations. was revised after I234 by Bartholomaeus Brixiensis. the brocardica are constructed to solve contradictions. which seems to contradict it. 53 Azo ON COD.54 Pillius was the first to use the term brocardi. III. brocardica. I shall give you summaries of each title before I come to the text. It consists of a number of short legal maxims. "Brocardica mat6ria dicitur que est contrariarumopinionum racionibus inuoluta. 56 57 58 SAVIGNY. On the Brocarda of Azo. . Fourth. '9 Ante. 54 Ante.60 It should be noted that this is the same number as the Bro52 Odofredus (Odefroy)." VOCABULARIUSUTRIUSQUE IURIS. note d. I shall repeat the case in brief terms. IV.VI. quoted in SAVIGNY. RECHTS GESCHICHTEDES ROMISCHEN IM MITTELALTER. S. 330. V. 329. citing authorities from the texts under each. Fifth. 553. already referred to. 208. IV. Often. I3. I shall solve contradictions. adding generalia (which are commonly called brocardica) and distinctions and subtle and useful questions with their solutions.IV. V.58 "a book on the canon law very like the Brocarda of Azo on the Roman law. note 37. After some observations. 33I. The purpose of this book seems to be to reconcile conflicts between the maxims. IV.57 Soon after comes the Brocarda of Damasus. as has been seen. Third. I shall read the text for the purpose of correcting it." 59 This. note a. Second. Hence both the framing of the maxim and the discussion with its final solution in the form of a maxim go by the name "brocardizare.

and had the result of putting the gloss. note i6. Hence in the period of the commentators the citations are of opinions and treatises. SAVIGNY." poses on a higher level than the texts. PERTILE." DEUTSCHE RECHTSGESCHICHTE. mechanical. SAVIGNY. I-25. 83. STORIA DEL DIRITTO ITALIANO. I. note h. ENGELMANN. There are references to him as Brocardus and to his book as Burgodus which give this derivation a certain plausibility.. although the texts were in theory absolute and final authority. BRISSAUD. 569.62 This gave authority to the maxims of the prior period much as those of the canon law got authority through the last title of the Sext. GESCHICHTE GESCHICHTE VI. General attacked this tendency. It has often been pointed out that Burchard's collection of decretals does not answer this dehas been sugscription. SAVIGNY. "in that these maxims often were given a wholly unwarranted extension. which applied the text to the needs of practice. I25. I. 38. Zoepfl says: "Burkhard already about the year iooo must have made a collection of legal rules which through alteration of his name came to be called Brocardica. Moreover. the attempt to make Justinian's law as such the law of mediaeval Europe could but fail." 63 The main reliance of the commentators was on dialectic and a rigid. I. OSSERVAZIONI SUL PERIODO STORICO DEI POSTGLOSSATORI IN ITALIA. still treated as authoritative because expositions of the authoritative text. I. RECHTSWISSENSCHAFT. II 2. 2I3 ff. DES RoMISCHEN DER DEUTSCHEN RECHTS IM MITTELALTER. author of a well-known collection of decreta. one of the steps was "the framing of general rules or maxims by abstraction. HISTOIRE GENEkRALE DU DROIT FRANgAIS. Calisse in CONTINENTAL HISTORY SERIES.. with which word subsequently the conception of maxims in general came to be connected." 64 61 It has been supposed to be derived from Burchard or Burkhard of Worms (tIO26). STINTZING. 569. GESCHICHTE DER DEUTSCHEN RECHTSWISSENSCHAFT. and as the maxims of the republican law at Rome got authority from being embodied in the writings of the ueteres.822 HARVARD LAW REVIEW is carda of Damasus. i-i6. SCHULDLEHRE I42-I47. not by the texts. in the first place. but by hypothetical cases in which the acumen and logical power of the jurist were given ample scope. III. 63 SAVIGNY. VI. One now for practical purresult was an "uncritical use of brocarda. 62 On the method of the Commentators reference may be made to BRUGI. Cinus (I270-I336) 64 STINTZING. A derivation from the Greek 3po'xos gested. DER POSTGLOSSATOREN. go. The derivation of the word brocardum in doubt.. logical form in which ingenious objections were raised and refuted and conclusions were tried. 4 ed. I06-I33. III.6" In the hands of the glossators the law admitted no possibility of independent reasoning as such. Survey. In the fully developed formal scheme of juristic treatment of a subject according to the mos Italicus. io8. These . 267 ff.

I94. They do nothing but point.68 But the period of the glossators and of the commentatorsis one of strict law." 67 As in the case of the needle." 66 The renewedand critical historical and systematic study of the texts which came in with the Humanists did not wholly put an end to this abuse since the mos Italicus long persisted for practical-purposesafter the mos Gallicushad captured the Universities. and the greater part of the current maxims of the civilian are Roman or at least are adapted from the Digest. 65 SAVIGNY. 67 68 FABREGUETTES. FABREGUETTES. The purposesfor which the method had been devised were achieved. loci communes and axiomata. 9-IO. and the superveningphilosophicaljurisprudenceof the lawof-natureschool. In modernlaw " they play the role of the needle with respect to the pole. In each case a jurisprudenceof maxims helps the law pass from rules to principlesand "bore the uncommon and unexplainable name of brocardica and later were called regulae. JUDICIAIRE ET L'ART DE JUGER. . I2I ff. systematizing the whole law on a scientific basis of history and analysis. The latter had the adin vantage of starting with the final form of the refinedproduct of the former.-were assumed to be generally valid.66 But the effect of the new method was to recall men to the Roman regulaein their Roman form. left the maxims no real function." Ibid. definitely supersedingauthority and logical manipulation of authority by reason and supersedinga jurisprudenceof rules by a jurisprudenceof principles. and the idea of authoritatively imposed rules admitting only of interpretation brought about the same results and was shaken off in the same way in the legal development of modern Europe as in the legal development of ancient Rome. LOGIQUE I96. To those who know the law they serve as convenient catch phrases to express certain ideas or describe certain doctrines. 66 STINTZING.THE MAXIMS OF EQUITY 823 The maxims of the civilians were shaped in this period and indeed some originated therein. For a season there was "a pernicious abuse of brocarda"which "on a superficialappearanceand often a misunderstandingof the sources. It will be seen that the developmentand decay of a jurisprudence of maxims in the Roman law was closely paralleled in the method of brocardica the modern Roman law. I. But the life was already out of them. VI. and the historical jurisprudence of the nineteenth century. there is much deviation and many things may serve to deflect.

it becomes conscious of itself. in the face of express provisions of the code. RECHERCHES SUR LES SOCIPTPS UNIVERSELLESCHEZ LES ROMAINS. HUEBNER. says: "In an unwritten law adages have a value which nowadays we do not suspect. 2. I4-I5. 71 Putting rules of law in the form of verse or rhyme or proverb is as old as law. the difficulties made for French law. IO. now it is caught up and summed up in brief and forceful formula in order to recall it continually. 5. GRUNDZUGE DER DEUTSCHEN RECHTSGESCHICHTE. transl. e. 71 ESMEIN. CEUVRES. ed. See 7 also MAINE." D'AGUESSEAU... HISTORICAL INTRODUCTION TO THE PRIVATE LAW OF ROME. CUSTOM. EARLY LAW AND. AMIRA." 75 Poisnel. COURS D'HISTOIREDU DROIT FRANgAIS. MAINE. chap. I392. MANUEL D'HISTOIREDU DROITFRANgAIS. NOUVELLE REVUIE HISTORIQUEDU DROIT. 43I. 74 "Verse is one of the expedients for lessening the burden which the memory has to bear when writing is unknown or very little used. quoted by Esmein. in verse or in rhyme. EARLY HISTORY OF INSTITUTIONS.824 HARVARD LAW REVIEW 69 for leaves a legacy of showy or oracular proverbs or for the befuddlement of the future. as distinguished from received written non-enacted law. I. 2 ed. GROWTH AND FUNCTION." MAINE. A custom is fluctuating. DEUTSCHE RECHTSGESCHICHTE. LAW: ITS ORIGIN. 75 76 . striking phrase. ed. BAUDRYLACANTINERIE. g. ? 5. 8I3-8I4. 73 I. MAXIMS IN GERMANIC LAW.72 Everywhere customary law truly so called 7 tends to be put in terse. which got the name of customary law in the books on jurisprudence because of the theories of the historical school. I3 ed. "They are as so many oracles of jurisprudence. These juridical proverbs were so well made that they were not forgotten.. CARTER. p. GRUNDRISS DES GERMANISCHEN RECHTS. 3 72 BRUNNER.74 "While law is still popular. BRISSAUD. They are proverbial sayings which have grown up with more or less immediate relation to a practical purpose. by Phil- brick. I. SIEGEL. Codes of written law have not the secret of the imperious language which the genius of a people creates in order to command its memory." 76 Such proverbs are a transition from ordinary popular proverbial sayings to legal maxims. e.. 8I3. Sometimes they 69 279. 442. EARLY LAW AND CUSTOM. See MUIRHEAD.PROVERBESDU DROIT GERMANIQUE(I89I). by the maxim contra non ualentem non currit praescriptio. HISTORY OF GERMANIC PRIVATE LAW. I3 ed... later it is fixed. PRECIS DE DROIT CIVIL. Io.70 the convenience 5. 9-IO. it condenses in proverbs like popular speech. III. 95... ?? I482-I496. ESMEIN. CHAISEMARTIN. COURS D'HISTOIRE DU DROIT FRANgAIS. 3 ed. 9. 70 Cf. See.

to the gods of the parents. .THE MAXIMS OF EQUITY 825 are expressions of extralegal observation of the operation of the legal order. are full of this. LIEBERMANN. "husband and wife have no separate goods. NOUVEAU INSTITUTION COUTUMIERE (I 730). PREVOT DE LA JANES. ita ius esto. g. ed. arising to meet different needs. as in our popular saying. FERRIERE. Ancient "codes.." a proverbial statement of the matrimonial property regime known as community property. the fragment attributed to Servius Tullus: "Si parentem puer uerberit ast olle plorassit puer diuis parentum sacer esto.SACHSEN. except in England. REGLES DU DROIT FRANgAIS (I 730). and although. . COUTUMI'ERES 79 LOISEL." ." MATTHAEUS. see L'HOMMEAU. At the end sof the sixteenth century and the beginning of the seventeenth century they began to be collected and published.79 in which the essential rules of the droit coutumier are put in the form of proverbs. Later it was largely put in legislative form or reduced to writing in law books." that is. That is. PRINCIPES DE JURISPRUDENCE (I770)." ETHELBERT'S DOOMS. E. -these maxims.. For collections of in addition to Loisel. as he speaks orally so be the law. Germanic law is in the proverbial form which is characteristic of primitive law. FRANgAIS (1614). by Dupin and Laboulaye (I846). it persisted and has contributed important elements to -the modern codes. Compare. g." "If a boy beat his 7 BELGARUM parent or abuse him. e.77 The juristic maxims of the transition from the strict law may contain echoes of these archaic legal proverbs." Sometimes they represent attempts to state the settled custom in a few easily remembered words.78 The important book is Loisel. GESETZE DER ANGEL55. 15. INSTITUTES (i6o8). but they are quite a different thing. -it was ultimately pushed into the background by the reception of Roman law. "Aet tham neglum gehwylcumscilling. "Man ende wijf hebben geen verscheyden goet. 6. g. MAXIMES GENERALES DU DROIT POCQUET DE LIVONNIERE. reductions to writing of primitive customary law. I3 ed.. and for the most part but imitate the sententious proverbial style.. "for every nail a shilling. Maxims were very numerous in French customary law. In the oldest form in which we know it. e. Still later it was worked over by jurists. For a long time they were preserved only in oral tradition." Compare the fragments of traditional customary law called the leges regiae. I. be the boy devoted 78 ESMEIN." i. PAROEMIAE JURISCONSULTIS USITATISSIMAE." COURS D HISTOIRE DU DROIT FRANgAIS.. Maxims of very different periods E. "possession is nine points of the law. In Germanic law we may see the two types and may mark the influence of the one upon the other as the customary law comes under the influence of the canon law and of the civil law."When he makes nexum or mancipium. 8I4. in the XII Tables: "Cum nexum faciet mancipiumque uti lingua nuncupassit.

ne vaut. 227-229. PAROEMIAE BELGARUM JURISCONVOLK(I 759. Some of them belong to a very old stock of Germanic legal proverbs.83 In Germany the maxims of the Germanic law were often called paroemiae. It is clear that several influences had been at work. THESAURUS RECHTS PAROEMIARUM (I715). ETUDE HISTORIQUE SUR LA REVENDICATIONDES MEUBLESEN DROITFRANgAIS.81 The exigencies of commenting on a theoretically fixed custom which might be interpreted and expounded but not consciously altered led to a jurisprudence of maxims.207. supra. It seems to have acquired its final form late in the eighteenth century.826 HARVARD LAW REVIEW of legal development are contained in these collections. . MATTHAEUS. HUEBNER. 3 ed. "Possession vaut titre" is a juristic maxim developed out of the same idea of the Germanic law. 82 See the books cited in note 78." This is a maxim of the Germanic law growing out of the idea of seisin of movables. 85 EISENHART.80 and even to teach it. 81 VIOLLET. 236. and they are put side by side without any historical critique. OSENSULTIS USITATISSIMAAE (I667). COLIN ET CAPITANT. 3 ed.84 They had a similar development to that of the maxims of French customary law and for like reasons. HISTORY OF GERMANIC PRIVATE LAW. The customary law was still close to the primitive form and was full of traditional legal sayings which were applied according to the "equity" of the tribunal. L'HISTOIRE DU DROIT FRANgAIS. to write upon it. PREiCIS DE L'HISTOIRE DU DROIT FRANgAIS. DEUTSCHE RECHTSSPRICHWORTER RECHTSSPRICHWORTER (I876). 3II. It will be noted that these maxims of the customary law are not in Latin. DIE DEUTSCHE DEUTSCHE RECHTSSPRICHWORTER GESAMMELT UND GRAF UND DIE- THERR. ERKLART (I864). MAR. Others are relatively modern and some are obvious phrasings of the law of the time in proverbial form. JOBBE-DUVAL. as we have seen like circumstances do in so many other systems. PAROEMIAE(I854). "Donner et retenir ne vaut. PAROEMIAE (I693). One was the Roman and the canon law. 83 E. note 2. 230. with their collections of maxims. HILLEBRAND. IN SPRtCHWORTERN (I858). trans.. g. PISTORIUS. But it had passed into a strict law.. Desjardins. I823). PRECIS DE."' 33 REVUE CRITIQUEDE LEGISLATION. as attempt to put it in Roman terms would also indicate. GRUNDRISS DES DEUTSCHEN 3 ed.. BRtGGEN. and jurists had begun to study it.85 Recently in the enthusiasm of revived study of Germanic law and of the Germanic element in modern law attempts have been made to utilize them 80 VIOLLET. DROIT CIVIL FRAN"Recherche sur l'origine de la regle 'donner et retenir gAIS. 774-776. II.. 84 HERTIUS. 426. by Philbrick. There was a considerable development of this jurisprudence of maxims down to the Revolution 82 and more than one of the maxims in use in modern French law are of customary and so ultimately of Germanic origin.

638-639. The older maxims of the Germaniclaw are marked by the vague and unprecise characteristics of an oral tradition. "Whence in English a proverb is had: Begge spere of side othe bere. GESETZE DER ANGELSACHSEN. which is to say. but not at all on Roman-law lines. HEILD'HIS- LEHRBUCH DES DEUTSCHEN BURGERLICHEN RECHTS. MANUEL FRON. a lesser MANUEL have value D'HISTOIRE DU DROIT FRANgAIS. Cf.86 Here. 6. HAND- PRIVATRECHTS.88 But the primacy of royal justice 86 BESELER. 3 ed. More may be said for the later type where the jurist has been at work and conscious reflection upon the rules of a body of primitive law which has passed into the stage of the strict law. "The legal proverbs in that they are often ambiguous and obscure. 49I.87 Although they have the unforgettable quality that attaches itself to a popular proverbial saying. nor was the Roman model before those who framedthem so directly and consciouslyas it was before those who framed the brocardica the canon law and of the civil law of of the Middle'Ages. BRISSAUD. I.. ? I93C. there is an older element representingthe socalled spontaneous formation of popular proverbial sayings. 22. i8i. MAXIMS IN THE COMMON LAW Legal proverbs of the kind of which Germaniclaw was full may be found in Anglo-Saxon law. 96. SYSTEM DES GEMEINEN DEUTSCHEN PRIVATRECHTS." STOBBE.THE MAXIMS OF EQUITY 827 for juristic purposes. they are of no more than historical interest in modern law. 336. 6.and in this respect there is striking analogy to the treatment of brocardica the by commentators. LIEBERMANN. LEHRBUCH DES BURGERLICHEN RECHTS. For juristic purposes the Roman model is infinitely to be preferredto the model of the popular proverb. as did the French compilations. I. and a later element due to conscious formulation of maxims often after the example of Roman law."' LEGES EDWARDI CONFESSORIS. in circumstances not unlike those in which the Roman maxim originally saw light. BRISSAUD. The compilationsoften confuse these and put them side by side. TOIRE DU DROIT FRANSAIS. but no real advantage has resulted. 87 I392. has yielded a stock of maxims in which we may see a first tentative toward principles. as in the French law. II. I. I. ed. 6 COSACK. BUCH DES DEUTSCHEN 88 .I2.. 'Buy spear from side or bear it. The later maxims had behind them neither the juristic skill nor the successive editings and reframingsthat were behind the Roman maxims.

I99.. 25. 9. melius est nocentem relinquere impunitum quam innocentem punire.II. I9 SELD. io6b (o308-9). I9 SELD. quotes a bit of verse containing quicquid plantatur solo. Rychemund. 38 (I3II).. 53. Hil. Anon. Halstede v. 129. (I345). 26 SEL. I. which is found also in the margin of some MSS. Melior est conditio possidentis (No. C. 36 SEID. Abbot of Newboth. Anon. Horwood. Trin.. 7I. 2 EDW.cf. xxii. 22 SELD. I2I. J. 2 EDW. 36 SELD. said: " Vostre maxime est trop large. 4 EDW. 9 Pike. Trin. I7 SELD. 200. App. I 89 90 (I293). lites ex litibus oriri non debent. 38 (I342). 88.fol. 2 (I3I3). 30 EDW. Soc. i5 EDW. Soc. I5 EDW. Anon. I29 (I308-9). 55. II. 4. 45 in the Sext .. chiefly in Latin and from the Sext91 (which is referred to as the "written law") . I99. Soc. II. J. 30-3I EDW. Pasch. in Hotot v. 88 (I3II). Horwood. mortuo mandatore exspirat eius mandatum. Trin. I (I302). Lilleburne v. At first there is a mere quotation of an occasional maxim of the Roman law. Pike. I7. I5 EDW. I37. I7.. II. I58-i6o. 68.. Anon.295. 27 in the title of the Sext De regulis iuris). Others are: Nemo obligatur ad impossibile (No. 627..II.90 The earlier Year Books show a small stock of maxims. Gravashale. Anon.89 Bracton adds an occasional maxim of the Germanic or feudal law. 200." Anon. Soc. 6 EDW. io in the Sext). (I34I). who may have been Bracton's teacher.. 538. 29 (I34I). 6 EDW. 20 EDW. 2 EDW. Horwood. 4 Edw. Mich. 3I. "A man shall not be received to his law touching a matter whereof the county may have knowledge.Trin.828 HARVARD LAW REVIEW after the conquest and the development of the common law through the king's courts put an end to the evolution of popular legal proverbs and led to the rise of the professional legal maxim. DIG.. 50 (I341). Soc. Horwood. III (I388). 4 EDW. Thus Thomas of Marlborough. Soc. solo cedit. 85 (I342)." Of this..92 sometimes from the civil law. 6 in the Sext). Putage ne tout pas heritage.. Pleas. L. III. Soc. 30 EDW. Horwood. Deyncourt. II9. I (I292). 30 EDW. II. 200. 94 Ubi est eadem racio ibi est idem ius. putagium non adimit hereditatem. 253. II. Rychemund. etc. Knyveton v. I5 (I309). 95 . I99. I7 SELD. Soc.. Hotot v. II. 309. Pike. Bracton and Azo. 20 (I3I3). by Bereford.. i9 EDW. Ratihabitio retrotrahituret mandato comparatur (No.94 but sometimes proverbial sayings of the customary law. Attemulle v. 9 E. Com. Hil. Anon.. 36 (I3Io-II). 88 (I3II). Bereford. of Bracton. 2I EDW.. III. I4 EDW. III.II. Anon.93 sometimes apparently from the writings of canonists or civilians. Anon. II. Beryhale.. II. Trin. Soc.Mich. III.2 and 4). Bayeux v. 55 Pike. Soc. Mich. Horwood.III. I6 EDW. fraus et dolusneminidebent patrocinari. pp. Trin. Mich. IIO. Collon.I (I302).. Mich. Audley v. i EDW. g. Pike. I54).. 22 SELD. Mich. I (I302). E. in negatis non est usus. Mich. Saundersville. 68. Anon. 22 SELD. 91 The most frequent are: Uolenti non fit injuria (No. i6 EDW.. 565.VII. g..95 Maxims of the common Maitland. 70. 2 (1308). Horwood.. 3 EDW. cited in Anon.II. Hotot v.II. III. Draper. Horwood. I9 SELD. Anon. 56. Le Marchaud v. Anon. Soc. Cornish Iter. uigilantibus et non dormientibus. 239. Rychemund. ex nudo pacto non oritur actio. 4 EDW. I9 (I308-9). Hereford Iter. 56. Cornish Iter. 9 The most frequent is: Res inter alios acta (COD.

the translation uses the term "maxim" but not the original. 3 EDW.the civilians call them regulaeiuris. I (I302). 30 EDW.THE MAXIMS OF EQUITY 829 law on the Roman model. 2i EDW. . 4 EDW."107 but it is also a maxim that "he which hath an estate but for term of life shall neither do homage nor take homage. Soc.II. Horwood. Soc. vouches uolenti non fit iniuria .98 The term "maxim" occurs twice. Hil. Soc. 99 Bayeux v. Anon. 97 "Et ideo discat unusquisque terminarius quod habeat terminum suum sub tali tempore quodhabereposset croppum suitm sine calumpnia. Hil.96or attempts to frame such maxims. Mich. Horwood. 8 (written before I471). Hil. I9 SELD. g.97 may be seen also. Anon. 4 EDW. C. which the Commentator103 calls the efficient causes. there is no wrong in hold- ing him to it. the term used in the Sext. Bereford. Fortescue102 beginshis juristic theory with Aristotle's causes. Draper. Soc. Thus he says it is a maxim that "inheritances may lineally descend but not ascend.. II. 101 E. I58-I6o.II. II. DE LAUDIBUS LEGUM ANGLIAE. II (I3IOII). 200. 22 SELD. 25 (melior est condicio possidentis). P1.. 105 Written between I475 and I48I. Rychemund. IIO (res inter alios acta). Soc. Trin. Malitia supplet I9 SELD. Collon. I2 EDW. 103 104 106 I99. 3 & go. cap. Io6b (I308-9). I5 (I309). Hotot v. I (I293). LIT. aetatem. Cessante causa cessare debet effectus." Note. 627. Apparently Duns Scotus. 24. Com. Horwood.Soc. Rabeyn. Beryhale. Mich. Sect. Le Marchaud v. Hil. II. cap. Anon. 100 Heyling v. 88." 104 Littleton 105uses "principle" and "maxim" indifferently in this very sense. 98 26 SELD. 3 EDW. There is perhaps one borrowingfrom logic. ? 90. He proceeds to say: "As for principles (principia). 295 (res inter alios acta). ? 3. Soc. I33."108 It is a "principle" 96 Quia quod nondum erat in persona concedentis nullum erit in persona concessi. I9 SELD.. 2 EDW.he willed to execute the instrument.106often using both in' a way quite different from that with which we are now familiar.100 Gross misuse of maxims taken from the Sext is not uncommon. 26 SELD. II.. J." 107 LITTLETON. Cornish Iter. "That which our author here calleth a principle. in rhetoric they are called paradoxa.. 8.99Regula. 20 SELD.. once in connectionwith a proposition of the commonlaw phrasedin the vernacular. these are no other than certain uniuersalia. in connection with a bond to do the impossible. he calleth a LITTLETON. Elys v. 68. Ryggesby. 102 DE LAUDIBUS LEGUm ANGLIAE. 36. In Lilleburne v. is more usual. I76.III (I338). 3 EDW. 20C. 343a.. gb (13IO). 4 EDW.101 Scholastic adoption of Aristotelianism and the consequent emphasis upon formal logic made itself felt in English law in the fifteenth century. I 7 (rule as to wager of law). Co. 108 maxime. which the learned in the law as well as the mathematicians call maxims (maximas).

so that it is not lawful for any that is learned in the law to deny them. "A descent taketh away an entry. 8 WISSENSCHAFT The following examples will show the nature of the twenty-four "maxims" set forth in chapter 8: I. chap. for every one of those maxims is sufficient for himself." The term is used to mean an established rule of the strict law. 111 Ibid. cities and lordshipsin this realm. "Escuage certain makes socage. the which have always been taken for law in this realm. 9. (I523).111But these "principles" or "maxims" are by no means general premises for judicial reasoning. This is brought out even more clearly in Doctor and Student. but if there lay no capias in the first action." IO. 9. that be called in the law maxims." 115 Dial." 2." (5) "divers particular customs used in divers counties. . or to him that hath the reversion or remainder of the same land.. "He that recovereth debt or damages in the king's courts." No. Cf. 5. but must take a fieri facias. the earlier Roman regulae. 4." 109 In this sense the rule in Shelley's Case would be a "principle" or a "maxim. or within the year if he will. "No prescription in lands maketh a right. I.110We are told that there are six "groundsof the law of England": (i) The law of reason. or a fieri facias after the year. (3) "divers general customs of oldtime used through all the realm." 20." (6) divers statutes made in parliament.113Sometimes there is a comparison and distinction of apparently conflicting rules.114 In another chapter115 ten cases are discussed in which it is doubtful 109 LITTLETON. or an elegit within the year. towns. "Escuage uncertain maketh knight's service. it may be pleaded without deed. chap. 110 112 ? 648. GESCHICHTEDER ROMISCHENRECHTSZUR ZEIT DER REPUBLIK.. g. (2) the law of God. by such an action wherein a capias lay in the process may within a year after the recovery have a capias ad satisficiendum. then the plaintiff shall have no capias ad satisficiendum." 112 Occasionally there is some attempt at terse statement. g. DialogueI. No.830 HARVARD LAW REVIEW that "of every land there is a fee simple in somebody" and that " every land of fee simple may be chargedwith a rent charge in fee by one way or other." 113 E." (4) "divers principles. but to avoid a gift of chattel. No. to take the body of the defendant and to commit him to prison till he have paid the debt and damages. JORS. "A condition to avoid a freehold cannot be pleaded without deed. They are definite detailed legal rules of narrow content and are said to be "of the same strength and effect in the law as statutes be. 293. "A right or title of action that only dependeth in action cannot be given or granted to none other but only to the tenant of the ground." 114 E.

2I. they may only be interpreted and applied.THE MAXIMS OF EQUITY 83 I "whether there be only maxims of the law or that they be grounded upon the law of reason.. has led to the formulationof rules. "There are. chap. 117 119 Id. ." Dial. that is to say. II. They have the same 116 See a like sort of "maxim" in Dial." Ibid. nevertheless they ought never to be impeachedor impugned. runneth to the king. "two principal things from which arguments may be drawn. same idea. 4. Reflection upon judicial decisions. These rules are not to be questioned. 5. But maxims are the foundations of the law. and the conclusions of reason. he shall be remitted to his better title. They are: (i) "There is a maxim that when a remainder is appointed to one. See also SWINBURNE." At first sight this seems to refer to general formulations of broad principles which are to be the basis of argument and of judicial reasoning." he argues. as else it shall be void. chap. II. and therefore they ought not to be impugned but always to be admitted: yet these maxims may by the help of reason be comparedtogether and set one against another (although they do not vary) whereby may be distinguished by reason that a thing is nearer to one maxim than to another. if he will. 118 I PLOWD. 59: "For it is a maxime in the common lawes of this realme that he that is outlawed doeth forfeite all his goods and cattelles to the Prince. But note the "maxims" which he proceeds to cite and to compare. our maxims. or placed between two maxims. 46. 27 (I55I)." 116 Rarely do we find what we should understand to be maxims today. chap. Dial. II.. "No time . 27a. chap." and (2) "that the remainder ought to pass out of the lessor at the time of the livery." Dial. II. "There is an old maxim in the law that a mischief shall be rather suffered than an inconvenience."'7 The argument of Serjeant Morgan in Colthirst Bejushin." . "For that law seemeth not reasonable that bindeth a man to an impossibility. and reason which is the mother of all laws. .but always be observed and held as firm principles and authorities of themselves. regardedas authoritative statements of law. he to whom it is appointed ought at that time to be a person able to have capacity to take the remainder. reportedby Plowden.118shows the v." These are rules such as "the accessory shall not be put to answerbefore the principal" or "if land descend to him that hath right to the same land before." "I Clearly we have here a phenomenonof the strict law with which the course of the present study has made us familiar. BRIEFE TREATISE OF TESTAMENTS AND LAST WILLS (I590). 36.

Bacon's Maxims 126 definitely abandons the method and ideas of the strict law and uses "maxim" to mean a tersely formulated general principle. 97b. But they may be compared. BACON. is taken directly from the Digest. LIT. some are legal proverbs.'23 and some are logical propositions or formulations of general principles. 343a. 124 Co. LIT. Co. Iura sanguinis nullo iure ciuili dirimi possunt. LIT. A new chapter in the history of maxims in the common law begins with Bacon. 355b.'27 For the rest. In the writings of Coke the influence of writers upon logic is very marked. they are by no means mere borrowings from the Digest or the Sext. 123 Co. As has been seen. When reason was held to be the life of the law and it was held that the "common lawe itselfe is nothing else but reason. Co. published I630.as the preface shows. iob-iia. e. see CHURCH. L. One. was written after i625 and was published in i628. his statement in the preface proves to be accurate: "Some of these rules have a concurrence 121 Co." 125 the reason was sure presently to supersede the rule as the decisive factor in judicial decision. 8). ii. 343a. LIT. 356a. 63. Although they are put in Latin. bettered]. and that step was soon to come. apparent conflicts may be reconciled. COKE ON LITTLETON. 17. As to Bacon's preference for apho120 122 risms over continuous 127 argumentative discourse. 70b. 49b. 126 Written 1596." . he quotes Aristotle. And Coke's theory is beginning to be that of the period of natural law. iob. The niext step is to generalize still further to legal principles.'24 Standing at the end of a period of strict law which culminates and is put in its authoritative form in his writings.'22as in Doctor and Student. and in defining a "principle" as a synonym of a maxim. and they may be justified by reason. Moreover the greater number of his twentyfive maxims represent independent attempts to state principles derived by study of rules in the most diverse parts of the law. indeed. 2 Inst. he uses maxims as did the jurists of the last days of republican Rome when the transition to the stage of natural law was well under way. his definition of a maxim 120 goes back to Albertus Magnus. This maxim is not in the Sext. 283-284. Bacon says of it: "They be the very words of the civil law which can not be amended [i.832 HARVARD LAW REVIEW effect as statutes. (DIG. Written before Coke's Commentary on Littleton. No. LIT."2' Some of his maxims are detailed legal rules. 125 Co. LIT. if his law and his method are of the period of the strict law.

To the extent that his maxims have passed into common use. MAXIMS. 7. and by which the rules themselves must presently be tried.. to be compared with one another." 129 He uses "rule" and regula as synonymous with "maxim. Ibid. 131 E. Maitland's proposition 132 that when English lawyers even in the nineteenth century use Latin maxims they are quoting from the Sext." But this does not mean that he uses "maxim" in the sense of a rule of the strict law. "I chose as the briefest to contrive the rules compendiously. to be interpreted and to be applied directly or by analogy. g. This is not in the Sext. is not well taken. "which language." After the manner of the time. 24: Ex multitudine signorum colligitur identitas. As a first tentative toward systematic generalization Bacon's Maxims deserves an honorable place in the history of the common law. under No. 5. and many others an opposition. g." 128 In the very spirit of the rising philosophy of law which was to make the seventeenth century a period of growth he avoids a hard and fast system so as to "leave the wit of man more free to turn and toss and to make use of that which is delivered to more several purposes and applications. 5. preface. 238-239. 20. 3: Diuinatio non interpretatio est quae omnino recedit a litera. although he had worked them out and framed them himself.THE MAXIMS OF EQUITY 833 with the Roman civil law. I2. 2 BLACKSTONE. the aptest for memory. In the discussions under each maxim he quotes maxims of logic 130 and maxims of the civilians. 130 E. I96. under No. COMMENTARIES.'33 BACON. 133 See for example the way in which Blackstone tried a particular rule of de- scent by a logical principle reached through study of the rules of descent as a whole. 129 128 132 I POLLOCK AND MAITLAND. See also the discussions under Nos. reached by analysis and comparison of the rules. and of the greatest authority and majesty to be vouched in argument. Rather he thinks of principles as the materials of the legal system and as having the authority which the immediate past had ascribed to rules. We need but compare one of Bacon's maxims with one of the maxims in Doctor and Student to see that a long step forward has been taken in legal science.. To a body of absolute and unquestioned detailed rules." he adds.'31 He nowhere uses the Sext. 3. he put them in Latin. and some others a diversity. we have added broad general premises for legal reasoning. . DIG. HISTORY OF ENGLISH LAW. II. where he draws upon the commentators.

" . IO." "The law respects the order of nature. LAW. one is in the words of the Sext 139 and three others are obviously variants of the Sext. No. INSTITUTE OF THE LAWS OF ENGLAND. L. MAXIMS OF REASON L. No. 144 No. 14. The classification is borrowed from Finch. 35 in the Sext. 79 in the Sext (DIG.is little in the way of independent search for principles. 72 of the Sext. I. 45 in the Sext. and to subsume the actual rules of law under those principles. I722. and No. g. 146 partly maxims handed down from the Digest and the Sext. i6 sh-ouldbe compared with No. all in the vernacular. which are partly legal proverbs. 92 is No. 145 146 WOOD. No. Wood. In his introduction he sets forth a series of "rules" concerning law. 136 No.14' and many are but Finch's principles put into Latin.. bk. Wingate 142 belongs definitely to the type of compiler. Of the thirty-five maxims. I7. 24 and 27. WINGATE. and No. 137 No. I22 is a variant of No. 35 in the Sext. is both systematizer and compiler. OR THE REASON OF THE COMMON LAW OF ENGLAND. I8 in the Sext and goes back to Nos.143 Some are taken from Noy. 9 is No. 36 with No. For the rest there is an evident attempt to frame original statements rather than to collect current professional proverbs. I24 iS No. 143 No. chap. to state its principles universally and arrange them systematically. E.140 two are from the Digest. 25 with No. 42 in the Sext. DIGEST.834 HARVARD LAW REVIEW Finch's Law 134 is a book of much the same type. Only one is actually taken from the Sext.135 In Book I there are about one hundred maxims. He gives two hundred and fourteen maxims. 139 140 141 142 I641. 27 in the Sext. "Common law is common right. It is an attempt to put law upon a philosophical basis. No. Noy 138 is a book of much less value. i658. Nos. 7 is Noy's No.137 Probably these were traditionally in use in the courts. No. 35.145 the forerunner of Blackstone. Thus the rule requiring a formal release of a sealed instrument is put as a principle of logic that "things are dissolved as they be contracted. 49 is No. 29. and partly 134 135 LAW OR A DISCOURSE THEREOF.136but four others are much like maxims in the Sext. customs. IO in the Sext. TREATISE OF THE PRINCIPALL GROUNDS AND MAXIMS OF THE LAWES OF THIS KINGDOME. 17. 22 with No. I." FINCH. 54 in the Sext. Thus arbitrary rules of the strict law are sought to be put in terms of logic. 138 Noy. 54). 24 is a variant of No. arranged according to Finch. and 47.144 There. and statutes respectively. Four are taken from or variants of the Sext. I627.

149 I BLACKSTONE. CLASSIFIED AND ILLUSTRATED. presenting a motley collection of Romanist materials from the Digest.'50 These should be comparedwith his ten rules for the interpretation of statutes. 8 ed. Beginningwith attempts to formulatethe customarylaw in general principles framed after the Roman manner.. Branche148 is simply a compiler. 68. of seventeenth-century attempts to formulate legal principles in their infancy during the transition from the strict law. '753. full of old commonlaw learning. rather than creation. of legal proverbs and professional sayings of common-law origin. AccordinglyBroom'sbook is an attempt to make maxims the basis of a legal philosophy drawn from within the law whereby to organize and assimilate the infusions from without through the rise of equity and the absorption of the law merchant and the liberalizing tendencies of the seventeenth and eighteenth centu147 FRANCIS. or rules. 87 ff. and the civilian commentators. BRANCHE. On the other hand the nineteenth century had for a season to assimilate and organize the rich materials which had come into the common law in a period of growth. definitions and memorable sayings in Law and Equity. Blackstone. Contains one hundred and three maxims. 1728. 151 I COMMENTARIES. principles. System was needed. I845. Nowadays we know maxims chiefly through Broom.materials of the most diverse by date and historical origin are uncriticallyheaped together. Francis 147 must be spoken of fully in another connection. LEGIS ET AEQUITATIS.'52 Bacon's maxims represent an attempt to use philosophy creatively. which are called "rules. often reverts to the usage of Littleton and of Coke and speaks of "established rules and maxims of the common law.THE MAXIMS OF EQUITY 835 seventeenth-centuryattempts to state legal principles. 378.giving seven rules of interpretation fortified by quotation of Latin maxims. as in the treatment of regulaein the Digest and of brocardica the commentators. being an alphabetical collection of maxims.'49 Elsewhere he speaks of "general rules and maxims" for the constructionof instruments. COMMENTARIES. all in Latin. I9II. 148 MAXIMS OF EQUITY. 150 2 COMMENTARIES. . we end in mere compilations in which. the Sext. PRINCIPIA I52 BROOM. and of borrowingsfrom scholastic logic." meaning detailed legal rules." 151 The parallel with what went on contemporaneouslyupon the Continent is significant. A SELECTION OF LEGAL MAXIMS.

But the attempt to revive a jurisprudence of maxims came to nothing. Hence the historical materials of the maxims. ." in VINOGRADOFF. 223. Moreover just at that time the formal defects of the common law and its lack of systematic arrangement were felt acutely. see Goudy. "The Proximate Consequences of an Act. Beale. [To be continued] 153 Its most conspicuous achievement was the attempt to make Bacon's logical proposition with respect to proximate and remote causes a touchstone of legal liability." 33 HARV. See Smith. 103. Roscoe Pound. The historical idea was abroad also." 25 HARV. when we were less sure of the exclusive title of the Romans to legal reason and juristic science. Exaggerated respect for Roman legal science was in the air. We are now prepared to take up the maxims of equity. and Latin maxims seemed to bear a hallmark of science. "Legal Cause in Actions of Tort.836 HARVARD LAW REVIEW ries. As to the history of two typical maxims.153 Analysis and a surer and more critical historical method did later in the century. 215-232. supposed to have been handed down from a remote past. what men thought to do earlier in the century by a jurisprudence of maxims transferred from the first century to the nineteenth. HARVARD LAW SCHOOL. ESSAYS IN LEGAL HISTORY. The legislative reform movement was in full tide. L. 633. 303. "Two Ancient Brocards. were to be the basis of the organizing and systematizing philosophy. The result was to confuse the subject for at least a generation. L. REV. A jurisprudence of conceptions soon evolved and was the main engine of nineteenthcentury justice. REV.

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