PREFACE 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 those 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 endeavored, 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 enunciate, and the qualifications which must be borne in mind when they are applied. I have devoted considerable time, and much labor, to consulting the Reports, both ancient and modern, as also the standard Treatises on leading branches of the Law, in order to ascertain what Maxims are of most practical importance, and most frequently cited, commented on and applied. I have likewise repeatedly referred to the various Collections of Maxims which have heretofore been published, and have freely availed myself of such portions of them as seemed to possess any value or interest at the present day. I venture, therefore, to hope, that very few Maxims have been omitted which ought to have found place in a work like that now submitted to the Profession. In illustrating each Rule, those Cases have in general been preferred as examples in which the particular Maxim has either been cited, or directly stated to apply. It has, however, been necessary to refer to many other instances in which no such specific reference has been made, but which seem clearly to fall within the principle of the Rule; and whenever this has been done, sufficient authorities. have, it is hoped, been appended, to enable the reader, without very laborious research, to decide for himself whether the application suggested has been correctly made, or not. In arranging the Maxims which have been selected as above mentioned, the system of Classification has, after due reflection, been adopted first, because this arrangement appeared better calculated to render the Work, to some extent, interesting as a treatise, exhibiting briefly the most important Rules of Law, and not merely useful as a book of casual reference; and, secondly, because by this method alone can the intimate connection which exists between Maxims appertaining to the same class be directly brought under notice and appreciated. It was thought better, therefore, to incur the risk of occasional false or defective classification, than to pursue the easier course of alphabetical arrangement. An Alphabetical List has, however, been appended, so that immediate reference may be made to any required Maxim. The plan actually adopted may be thus stated:-I have, in the first Two Chapters, very briefly treated of Maxims which relate to Constitutional Principles, and the mode in which the Laws are administered. These, on account of their comprehensive character, have been placed first in order, and have been briefly considered, because they are so very generally known, and so easily comprehended. After these are placed certain Maxims which are rather deductions of reason than Rules of Law, and consequently admit of illustration only. Chapter IV. comprises a few principles which may be considered as fundamental, and not referable exclusively to any of the subjects subsequently noticed, and which follow thus: Maxims relating to Property, Marriage and Descent; the Interpretation of Written Instruments in general; Contracts; and Evidence. Of these latter subjects, the Construction of Written Instruments, and the Admissibility of evidence to explain them, as also those Maxims which embody the Law of Contracts, have been thought the most practically important, and have therefore been noticed at the greatest length. The vast extent of these subjects has undoubtedly rendered the work of selection and compression one of considerable labor; and it is feared that many useful applications of the Maxims selected have been omitted, and that some errors have escaped detection. It must be remarked, however, that, even had the bulk of this Volume been. materially increased, many important branches of Law to which the Maxims apply must necessarily have been dismissed with very slight notice; and it is believed that the reader will not expect to find, in a Work on Legal Maxims, subjects considered in detail, of which each presents sufficient materials for a separate Treatise. One question which may naturally suggest itself remains to be answered: For what class of readers is a Work like the present intended? I would reply, that it is intended not only for the use of students purposing to practise at the bar, or as attorneys, but also for the occasional reference of the practising barrister, who may be desirous of applying a Legal Maxim to the case before him, and who will therefore search for similar, or, at all events, analogous cases, in which the same principle has been held applicable and decisive. The frequency with which Maxims are not only referred to by the Bench, but cited and relied upon by Counsel in their arguments; the importance which has, in many decided cases, been attached to them; the caution which is always exercised in applying, and the subtlety and ingenuity which have been displayed in distinguishing between them, seem to afford reasonable grounds for hoping, that the mere Selection of Maxims here given may prove useful to the Profession, and that the examples adduced, and the authorities referred to by way of illustration, qualification or exception, may, in some limited degree, add to their utility. In conclusion, I have to express my acknowledgments to several Professional Friends of Practical experience, ability and learning, for many valuable suggestions which have been made, and much useful information which has been communicated, during the preparation of this Work, and of which I have very gladly availed myself. For such defects and errors as will, doubtless, notwithstanding careful revision, be apparent to the reader, it must be observed that I alone am responsible. It is believed, however, that the Professional Public will be inclined to view with some leniency this attempt to treat, more methodically than has hitherto been done, a subject of acknowledged importance, and one which is surrounded with considerable difficulty. HERBERT BROOM. THE TEMPLE, January 30th, 1845. |