Page:Harvard Law Review Volume 9.djvu/45

THE USE OF MAXIMS IN JURISPRUDENCE, 17 right of another. But it does not tell us how far, or to what extent, the limitation goes. If it be said (as seems to be prac- tically asserted in one quarter) that it is impossible to give any serviceable, working definition of these correlative rights, why not frankly confess the impotency of the law in this regard, instead of deluding people into the beHef that the law furnishes, in this maxim, a rule capable of easy and definite application? If this maxim means only, " Do not take more than your share of a common right," why parade it as solving the question what that share is? Say, if you please, as one court has virtually said, that the question is one of reasonableness of use, and that this is a question of fact for a jury. ^ But does it follow that the recitation of the sic utere maxim by the judge will constitute an all-sufiicient guide to the jury? Of what value, then, is this maxim; what reason is there for retaining it in the law books? Professor Terry answers : It belongs to the class of '* extra-legal principles — which we may call legislative, because they serve as guides to show how the law ought to be made. . . . Much the greater part of the work of the courts has been done by taking what were really extra-legal principles, of justice or policy proper for the consideration of the Legislature, treating them as rules of law, and then, under the pretence — not always consciously false — of interpreting them and applying them to particular cases, mak- ing new rules of law based upon them. . . . Ifwe . . . take up any collection of legal maxims, we shall find that many, perhaps most, express principles of legislation rather than law. . . . The familiar maxim. Sic iitere tiw ut alienwjt non Icedas, is another one of the same character. There cannot be said, I think, to be any general rule of law forbidding a person to cause damage to another by the manner in which he exercises his own rights. But the principle expressed in the maxim has been the guiding principle in the evolution of many more special rules forbidding various kinds of conduct which are likely to produce harm to others." ^ Again, there are maxims, which, if true at all, are true only in a partial sense, and which must be essentially limited in their appli- cation. Yet these maxims are frequently cited as if literally true and universally applicable. Take, for instance, the phrase, Equitas 1 Swett V. Cutts, 50 N. H. 439 ; Bassett v. S. M. Co , 43 N. H 569; Rin-^ga v. Sar- gent, 64 N. H. 294. 2 Terry's Leading Principles of Anglo-American Law, ss. 10, 11. 3