Publisher's Synopsis
From the introductory -- THE VIRTUE OF MAXIMS:
THERE is a certain charm about a legal maxim. It seems to put so much wisdom in so few words and with so conclusive effect. Having heard a maxim which applies to a given case, the case appears to be closed. It covers the ground, and silences controversy. The difficulty about settling a question by this means is that we cannot always stop with one maxim. Generally several maxims are applicable, and the second demands usually a very different answer to the question from that given by he first. "When legal maxims are invoked to determine a mooted point, the mind is in the condition of the oft-cited justice who, after hearing one side, objected to hearing the other, because it unsettled his opinion.
Maxims have therefore always been peculiarly appropriate authorities under the systems derived from the Roman law, where a tribunal determines a case free from the embarrassments involved in settling or unsettling precedents, and needs chiefly to invoke a sound principle as a justification for an isolated decision. When the attempt is made, under our System of jurisprudence, to solve a question by maxims, it usually results in resolving the question into another double question quite as debatable as the first, viz.: Which of two maxims is properly applicable? For instance, "Equality is equity," but on the other hand, "He who is prior in time is stronger in light," and "The law aids the vigilant, not the negligent." Upon almost every subject the maxims of jurisprudence balance themselves against each other in this way; and the function of justice is to hold the scales so that the preponderating principle shall determine the cause.
The best use of maxims under our system is not as authorities, like a statute or precedent, but as aids to counsel in the investigation of the controversy, and in determining in preparation for trial what is the central principle involved, and where the weight of justice lies. He who will take up the merits of a case with a view to ascertain what settled maxima of the law are susceptible of application to it, and how they may be applied, and why one should be represented in the result and not another, will find clearness and simplicity in his view of the case, and a vigor and strength in his argument, which he would not be likely to attain from a mere review of precedents. He may not after all rely on a maxim, or even quote it as influencing the result, but he will be likely to find that the test to which he has brought his case has promoted much his mastery of the vital principles on which it will turn.
