MAXIM. An established principle or prop osition. A principle of law universally ad mitted as being just and consonant with reason.
Maxims are said to have been of compar atively late origin in the Roman law. There are none in the Twelve Tables, and they appear but rarely in Gaius and the ante Justinian fragments, or in the older English text-books and reports. The word maximum or maxima does not occur in the Corpus Juris in any meaning resembling that now borne by It; the nearest word in classical Roman law is regula; Fortescue identifies the two terms, and Du Cange defines maxima as recepta sententia, regula, vu/go nostris et Anglis maxime. Doctor and Student defines maxims as "the foundations of the Law and the conclusions of reason, and therefore they ought not to be impugned, but always to be admitted." Coke says they are "a sure foun dation or ground of art and a conclusion of reason, so sure and uncontrolled that they ought not to be questioned," and that a maxim is so called "guia maxima ejus dig nitas et certissima authoritas, atque quod maxime omnibus probetur." Co. Litt. 11 a. He says in another place: "A maxime is a proposition to be of all men confessed and granted without proofe, argument, or dis course." See 20 L. Quart. & Rev. 283.
Regula appears not to be quite the same thing as maxim. The Digest makes the line between regula, definitio, and sententia a narrow one. Sententia is used in several texts as equivalent to regula. Definitio, in Labeo, is really a rule of law. In Papinius it is more like responsa pradentis. In some editions of the Corpus Juris maxims are given under the name of Regulce et Senten tice Juris. See 20 L. Mag. & Rev. 283.
Maxims in law are said to be somewhat like axioms In geometry. 1 Bla. Com. 68. They are principles and authorities, and part of the general customs or common law of the land, and are of the same strength as acts of parliament, when the judges*have determined what is a maxim. This deter mination belongs to the court and not the jury ; Termes de la Ley; IYoct. & Stud. Dial. 1, c. 8; they prove themselves ; id. Maxims of the law are holden for law, and all other cases that may be applied to them shall be taken for granted ; Co. Litt. 11, 67. See
Plowd. 27 b.
The alteration of any of the maxims of the common law is dangerous; 2 Inst. 210.
See the introduction by W. F. Cooper to Barton's Maxims.
Later writers place less value on maxims; thus: "It seems to me that legal maxims in general are little more than pert head ings of chapters. They are rather minims than maxims, for they give not a particu larly great, but a particularly small, amount of information. As often as not the excep tions and qualifications to them are more important than the so-called rules." 2 Steph. Hist. of Cr. L. 94.
"We believe that not a single law maxim can be pointed out which is not obnoxious to objection." Towns. Sl. & Lib. § 88.
"Many of the sayings that are dignified by the name of maxims are nothing but the obiter dicta of ancient judges who were fond of sententious phrases, and sometimes sacrificed accuracy of definition to terseness of expression; and some . . . have no definite meaning at all." E. Q. Keasbey, in 3 N. J. L. J. 160.
"Maxims are not all of equal value; some ought to be amended and others discarded altogether ; they are neither definitions nor treatises ; they require the test of careful analysis ; they are in many instances merely guide-posts pointing to the right road, but not the road itself." Prof. Jeremiah Smith, in 9 L. Rev. 26.
Salmond (Jurisprudence, p. 638) gives a list of 39 of the "more important and famil iar maxims" with brief comments and refer ences. He considers that "maxims are not without their uses, though they are much too absolute to be taken as trustworthy guides to the law. They are a sort of legal shorthand, useful to the lawyer, but danger ous to any one else." "I need hardly repeat that I detest the attempt to fetter the law by maxims. They are almost invariably misleading ; they are for the most part so large and general in their language that they always include something which really is not intended to be included in them." Lord Esher, M. R., in 19 Q. B. D. 653.