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L E G A L MA XIMS,
CLASSIFIED AND ILLUSTRATED.
HERBERT BROOM, ESQ.,
OF THE INNER TEMPLE, BARRISTER-AT-LAW.
Maxims are the condensed Good Sense of Nations.—Sir J. Mackintosh.
tribuere.--I. 1. 1. 3.
T. & J. W. JOHNSON,
TO THE SECOND EDITION.
The reasonableness of the hope which I formerly ventured to express, as to the utility of a work upon Elementary Legal Principles, has, I think, been established, as well by the rapid sale of the first edition of this Treatise, as by the very flattering communications respecting it which have been made to me by some of the most distinguished members of that Profession for which it was designed. Thus kindly encouraged, I have endeavoured to avail myself of the opportunity for improvement which the preparation of a new Edition affords, by making a careful revision of the entire Work, by the insertion of many important Maxims which had been previously unnoticed, and by the addition of much new matter illustrative of those originally commented upon or cited. During the interval which has elapsed since the first appearance of this Work, I have, moreover, devoted myself to a perusal of various treatises upon our own Law, which I had not formerly, from lack of time or opportunity, consulted; to the examination of an extensive series of American Reports, and also to a review of such portions of and commentaries upon the Roman Law, as seemed most likely to disclose the true sources from which very many of our ordinary rules and maxims have been ultimately derived. I trust that a very slight comparison of the present with the former Edition of this Work, will suffice to show that the time thus employed with a view to its improvement has not been unprofitably spent; but that much new matter has been collected and inserted, which may reasonably be expected to prove alike serviceable to the Practitioner and the Student.
Besides the additions just alluded to, I may observe, that the order of arrangement formerly adopted has been on the present occasion in some respects departed from. For instance, that portion of the Work which related to Property and its attributes, has now been subdivided into three sections, which treat respectively of its Acquisition, Enjoyment, and Transfer: a mode of considering this subject which has been adopted for the sake of simplicity, and with a view to showing in what manner the most familiar and elementary Maxims of our Law may be applied to the exposition and illustration of its most difficult and comprehensive branches. Further, it may be well to mention, that in the Alphabetical List of Maxims which precedes the text, I have now inserted not only such as are actually cited in the body of the Work, but such also from amongst those with which I have become acquainted, as seem to be susceptible of useful practical application, or to possess any real value. The List, therefore, which has thus been compiled, with no inconsiderable labour, from various sources, and to which some few notes have been appended, will, I trust, be found to render this Volume more complete, as a Treatise upon Legal Maxims, than it formerly was; and will, moreover, appear, on examination, to possess some peculiar claims to the attention of the reader.
It only remains for me further to observe, that, in preparing this Volume for the press, I have anxiously kept before "me the twofold object with a view to which it was originally planned. On the one hand, I have endeavoured to increase its usefulness to the Practitioner, by adding references to very many important, and, for the most part, recent decisions illustrative of those principles of Law to the application of which his attention must necessarily be most frequently directed; whilst, on the other hand, I have been mindful of preserving to this work its strictly elementary character, so that it may prove no less useful than formerly to the Student as a Compendium of Legal Principles, or as introductory to a systematic course of reading upon any of the various branches of our Common law.
In conclusion, I can truly say, that, whatever amount of time and labour may have been bestowed upon the preparation of this Work, I shall esteem myself amply compensated if it be found instrumental in extending knowledge with regard to a Science which yields to none either in direct practical importance or in loftiness of aim-if it be found to have facilitated the study of a System of Jurisprudence, which, though doubtless susceptible of improvement, presents, probably, the most perfect development of that science which the ingenuity and wisdom of man have hitherto devised.
4 BRICK COURT, TEMPLE,
March 16th, 1848.
TO THE FIRST EDITION.
In the legal science, perhaps more frequently than in any other, reference must be made to first principles. Indeed, a very limited acquaintance with the earlier Reports will show the importance which was attached to the acknowledged Maxims of the Law, in periods when civilization and refinement had made comparatively little progress.
In the ruder ages, without doubt, the great majority of questions respecting the rights, remedies, and liabilities of private individuals, were determined by an immediate reference to such Maxims, many of which obtained in the Roman Law, and are so manifestly founded in reason, public convenience, and necessity, as to find a place in the code of every civilized nation. In more modern times, the increase of commerce, and of national and social intercourse, has occasioned a corresponding increase in the sources of litigation, and has introduced many subtleties and nice distinctions, both in legal reasoning and in the application of legal principles, which were formerly unknown. This change, however, so far from diminishing the value of simple fundamental rules, has rendered an accurate acquaintance with them the more necessary, in order that they may be either directly applied, or qualified, or limited, according to the exigencies of the particular case, and the novelty of the circumstances which present themselves. If, then, it be true, that a knowledge of first principles is at least as essential in Law as in other sciences, certainly in none is a knowledge of these principles, unaccompanied by a sufficient investigation of their bearing and practical application, more likely to lead into grievous error.
In the present Work I have endeavoured, not only to point out the most important Legal Maxims, but also to explain and illustrate their meaning: to show the various exceptions to the rules which they