hension, the strength of his memory, or the soundness of his judgment." There occurs in an excellent work on legal studies such a vivid picture of the advocate destitute of a "clear and settled judgment," as is calculated to form an instructive finale to this chapter. "How would that advocate appear, who should stand up in a court of judicature, without having acquired a clear comprehension of the nature of his case, and of its various parts and circumstances: wandering from this to that part of his subject, unable to discern what part to produce and what part to retain; fixing, by chance, upon some weak or disjointed member, and then, with an unmeaning solemnity, dragging it forth as the main support of his cause; discovering his mistake only by the impatience of his auditors, and covered with confusion at a sense of his inability to rectify it! Unwilling, however, to terminate his efforts abruptly, he has recourse to his imagination—and this serves only to make his weakness the more conspicuous: his uncertainty increases; he continues to heap words upon words, without meaning or end;—now, in all the violence of anger, he declaims upon the injustice—but of what, he cannot tell;—now, he will argue; but, like a man talking in his sleep, he has no single certain position on which to found his argument;now, he will denounce-now, remonstrate-now, entreat : till at length his speech became a chaos, and nothing but his silence can restore him, and those whom he addresses, to regularity and the light!"* * Raithby's Letters, pp. 224-5 (2d ed.). CHAPTER XVIII. PRACTICAL SUGGESTIONS DESIGNED TO FACILITATE BOTH THE STUDY AND PRACTICE OF THE LAW. -Si quid novisti rectius istis, Candidus imperti: Si non, his utere mecum.-HOR, SECTION I. MAXIMS AND PRINCIPLES. No one has the least pretension to the character of a scientific lawyer, whose mind is not imbued with its general principles. It is these alone which facilitate at once the acquisition, and the use, of legal knowledge. On this subject we have, however, in the preceding pages, spoken fully and frequently. Our present object is, to point attention to those MAXIMS, in which are embodied, in terse and apposite language, the leading truths and general principles of the law, which have been established and sanctioned by the sagacity and experience of ages, and are perpetually appealed to, in the administration of justice. These maxims are of great value, not merely to the speculative jurist, but the practitioner. In the investigation of legal questions, involving great nicety, and obscure and perplexing details, it continually happens, that a single legal maxim solves the whole difficulty, and enables the lawyer to systematise and arrange conflicting principles, and apparently inextricable involutions of fact. The more of them, therefore, that the student can make his own, the better. Let him, however, bear in mind the caution which we have elsewhere given him as to the premature acquisition, and the incautious use, of or rather reliance upon-general principles.* Merely to learn them off by rote, and imagine himself able then to apply them in practice, is a most mischievous, but by no means rare, delusion and absurdity. His principles ought to be the results of laborious examination of particular cases-all with a view to extract from them their regulating principle. Let him look for principle in everything; and he will soon obtain a rapid mastery over details which will utterly confound and bewilder others, and successfully encounter the most subtle and unexpected difficulties in argument. The obligation of our English law to that of Rome, is, as we have elsewhere shown, abundantly obvious. There are few of our leading maxims which have not been derived from it.† Some of our judges are pre-eminently happy in applying maxims to the cases brought before them, often thereby in a moment annihilating a long train of sophistical reasoning. Mr. Justice Chambre said, in the case of Brisbane v. Dacres, 5 Taunt. 159, that he had "a very large collection of maxims;" and the student should similarly provide himself. Mr. Preston, in his letter to the author, points out some of the depositories of these • Ante, pp. 689, 690. + 2 Kent, Comm. 552. Ante, p. 577. One of the works there referred to, is " Branch's Maxims," a most useful little collection, the last edition of which was accompanied by a translation, by John Richardson, Esq., of Gray's Inn. The following, taken at random, are samples of this scholarly performance: 'Errores scribentis, nocere non debent' [i. e. clerical errors ought not to vitiate']. « The mistakes of a man writing ought not to harm!" p. 47 (4th ed.). Again, "Omnis nova constitutio futuris temporibus formam imponere debet, non maxims. The reader is also referred to Lord Bacon's 'Principal Rules and Maxims of the Common Law'; and to a brief collection of maxims appended to Sir Edward Coke's Second Institute. The author of these pages had long ago meditated an elaborate work upon the maxims of the English law, illustrative of the manner in which they were practically dealt with, in administering Equity, Criminal, and Common Law. He had however abandoned the intention; and he the less regrets it, as there has very recently [1845] appeared a useful work on the same subject, though not exactly upon the plan which the present writer had proposed to himself. The publication alluded to is entitled "A Selection of Legal Maxims, Classified and Illustrated, by Herbert Broom, Esq., of the Inner Temple," in a moderate sized 8vo volume. It is well arranged, and the author has displayed much judgment in treating his subject, and great industry in collecting cases illustrative of the maxims which he has selected. The basis of the work which had been contemplated by the author of the present work, was a collection of maxims taken from the Civil Law; and it may be very convenient to the student to present him with a series compounded out of that collection, and the maxims (upwards of 200) illustrated by Mr. Broom; whose work the student is recommended to procure and peruse in the second year of his pupillage. Most of the following maxims should, indeed, be committed to memory by the student. If he were to copy them into a little book, and carry it about with him, in order that he might perpetually exercise himself in them-not cr Every præteritis' [i. e. as Mr. Broom properly translates it, 'A legislative enactment ought to be prospective in its operation, not retrospective']. new institution should give a form to future times, not to past!” with a view to simply remembering them—but to realizing them by reflection - he would soon find the advantage which he had derived from them. Note.-There are a few of the ensuing maxims of the Civil Law, which have not been adopted in the Law of England. TABLE OF LEGAL MAXIMS. A verbis legis non est recedendum. Accessorium non ducit sed sequitur suum principale. Acta exteriora indicant interiora secreta. Actio personalis moritur cum personâ. Actio poenalis in hæredem non datur nisi ex damno locupletior hæres factussit. Actor sequitur forum rei. Actus curiæ neminem gravabit. Dei nemini facit injuriam. legis nemini est damnosus. facit injuriam. non facit reum nisi mens sit rea. Ad ea quæ frequentius accidunt jura adaptantur. Ad proximum antecedens fiat relatio nisi impediatur sententia. Ad quæstionem facti non respondent judices, ad quæstionem legis non respondent juratores. Edificatum solo, solo cedit. Equitas sequitur legem. Estimatio præteriti delicti ex post facto nunquam crescit. Affirmanti, non neganti, incumbit probatio. Aliud est celare aliud tacere. Ambiguitas verborum latens verificatione suppletur, nam quod ex facto oritur ambiguum verificatione facti tollitur. Ambiguum placitum interpretari debet contra proferentem. Apices juris non sunt jura. Argumentum ab inconvenienti plurimum valet in lege. Assignatus utitur jure auctoris. Benignæ faciendæ sunt interpretationes propter simplicitatem laicorum, ut res magis valeat quam pereat; et verba intentioni, non e contra, debent inservire. Bona fides non patitur ut idem bis exigatur. Bona fide possessor facit fructus consumptos suos. Boni judicis est ampliare jurisdictionem. |