Maxims have been divided, as to their origin, into three classes : Roman, Roman modified, and indigenous ; 20 L. Mag. & Rev. 283. They are mostly derived from the civil law, either literally or by adaptation, and most of those which are not to be found in the Roman sources are the invention of medieval jurists. Salmond, Jurispr. 638.
The application of the maxim to the case before the court is generally the only diffi culty. The true method of making the ap plication is to ascertain bow the maxim arose, and to consider whether the case to which it is sought to be applied is of the same character, or whether it is an excep tion to an apparently general rule. This requires extended discussion, which it has received (so far as the more important maxims are concerned) in the able treatise on Legal Maxims by Broom.
Non ex regula jus sumatur, sed ex jure quod est regula fiat. The law should not be taken from maxims, but maxims from the law ; 9 Jurid. Rev. 307.
The earliest work on maxims appears to have been that of Bacon (1630), followed by Noy (1641), Wingate (1658), Heath (Pleading, 1694), Francis (1728), Grounds and Rudiments of Law and Equity (an onymous, 1751, of which Francis was the author), Branch (1753), Lofft (1776, in his Reports). In the last century, Broom (1845), Trayner (1872, 1883), Cotterell (1881, 1894), and Wharton's Dictionary (1848, 1892), Lawson (1883), Bell's Dictionary (Scotch, 1890), Peloubet (New York, 1880), Barton, Stimson, Morgan, Tayler, Hening, Halkerston, Jackson (Law Latin), and Hughes, See the various Law Dictionaries; also 15 West. Jur. 337; 13 Cr. L. Mag. 832 ; 5 L. Quart. Rev. 411; 35 Amer. L. Rev. 529.
The following list comprises, it is be lieved, all the legal maxims, commonly so called, together with some that are in real ity nothing more than legal phrases, accom panied by a translation, and, in most cases, a reference to one or more authorities which are intended to show the origin or applica tion of the rule. It is obvious that many of them are of slight value and that more of them are open to objections, so far as they can be considered to be statements of prin ciples of law.
A communi observantia non est recedendum. There should be no departure from common ob servance (or usage). Co. Litt. 186; Wing. Max.
203; 2 Co. 74.
A dignlori fieri debet denoniinatio et resoluto. The denomination and explanation ought to be de rived from the more worthy. Wing. Max. 265; Fleta, lib. 4, c. 10, § 12.
A justitia (quasi a quodam fonte) omnia jury moment. From justice, as a fountain, all rights flow. Brac. 2 b.
A l'impossible nul n'est tenu. No one is bound to do what is impossible.
A non posse ad non esse sequitur argumentum necessarie negative, licet non affirmative. From impossibility to non-existence the inference follows necessarily in the negative, though not in the af firmative. Hob. 336.
A piratis aut latronibus capti liberi permanent. Those captured by pirates or robbers remain free. Dig. 49, 15, 192 ; Grot. lib. 3, c. 3, s. 1.
A piratis et latronibus capta dominium non mu tant. Things captured by pirates or robbers do not change their ownership. 1 Kent 108, 184 ; 2 Woodd. Lect. 258, 259.
A rescriptis valet argumentum. An argument from rescripts [i. e. original writs in the register] is valid. Co. Litt. 11 a.
A summa remedio ad inferiorem actionem non habetur regressus neque auxilium. From the high est remedy to an inferior action there is no return or assistance. Fleta, lib. 6, c. 1; Brac. 104 a, 112 b; 3 Sharsw. Bla. Cora. 193, 194.
A verbis legis non est rCcedendum. From the words of the law there should be no departure. Broom, Max. 622 ; Wing. Max. 25 ; 6 Co. 119.
Ab abusu ad usum non valet consequentia. A conclusion as to the use of a thing from its abuse is invalid. Broom, Max. xvii.
Ab assuetis non fit injuria. No injury is done by things long acquiesced in. Jenk. Cent. Introd. vi.
Abbreviationum tile numerua at sensus accipien dus est, ut concessio non sit inanis. Such number and sense is to be given to abbreviations that the grant may not fail. 9 Co. 48.
Absentees accipere debemus eum qui non est eo loco in quo petitur. We must consider him absent wbo is not in that place in which he is sought. Dig. 60.. 60. 199.
Absentia ejus qui reipub/icce cause abest, neque ei neque aliis damnosa ease debet. The absence of him who is employed in the service of the state ought not to be prejudicial to him nor to others. Dig. 60. 17. 140.