Maxims of Law

Historically, legal maxims or, “Maxims of Law”, have controlled the courts because of the nature of a maxim being a self evident truth. Magistrates and judges will from time to time consider a maxim sua sponte in coming to their decisions and sometimes reflect it in their rulings.

More often in latter day trial courts maxims are rarely cited and widely ignore by the bench, but as you progress from the trial court through the appellate process maxims tend to begin speaking with a little bit louder voice.

Some maxims have a long history, and wide range of origin. Some maxims date back to the Roman Empire and the days of Cicero and beyond, as where others are in more recent history as established in American jurisprudence. The range of sources encompasses law reviews written by law professors, judges, King’s/Queen’s knights (i.e. “Sir” Whoever), philosophers, Courts’ rulings/Case law, and writings of other legal pundits.

In a book by author I highly recommend, Charles A. Weisman’s and titled, Maxims of Law, (Weisman Publications 1990) Mr. Weisman cites Black’s Law Dictionary 2nd Edition (1910) Id. 767 for a legal definition of MAXIM, in where it states, “An established principle or preposition. A principle of law universally admitted as being a correct statement of the law or as agreeable to natural reason. Coke defines a maxim to be “conclusion of reason,” and says that it is so called “quia maxima ejus dignitas et certissima auctoritas, et qoud maxime omnibus probetur.” Co. Litt. 11a. He says in another place: “A maxim is a proposition to be of all men confessed and granted without proofe, argument, or discourse.” Id. 67a”.

Here you will find several poignant maxims relative to a few select topics. I have quoted many of these maxims from Mr. Weisman’s compilations along with others from various other sources.

If you know of a Maxim of Law that might be helpful that is not listed below feel free to post your maxim in the comment section below. Whenever possible, cite your maxim’s origin (i.e. Phelps v. Decker, 10 Mass. 276. Broom, Max. 349).

Nemo dat quod non habet, – “no one gives what he doesn’t have” Common Law Maxim

Evidence and Testimony

Nothing can be taken as evidence that is not introduced as such. Harvey v Whitt, 44 N.E. 2d 629. 633. 312 Mass. 333.

The law rises out of the fact. 2 Inst. 4779; 2 Bl. Comm. 329.

He who affirms must prove. Porter v Stevens, 9 Cush. (Mass.) 535.

What is proved by record ought not be denied. Black’s, 2nd (1910) 986.

Witnesses cannot testify to a negative; they must testify to an affirmative. 4 Inst. 279.

It is in vain to prove that which if proved would not aid the matter in question. Broom, Max 3d. Lond. Ed. 255; Halk. Max 50.

Judicial notice is a form of evidence. Mann v Mann, 172 P.2d 369, 375, 76 Cal. App.2d 32.

Evidence does not consist of vague, uncertain, irrelevant matter not carrying the quality of proof to induce conviction. McDonald v Robertson, 104 F. 2d 945, 948.

Fraud

Out of fraud no action arises; A right of action cannot arise out of fraud. Phelps v. Decker, 10 Mass. 276. Broom, Max. 349

Once a fraud, always a fraud. 13 Vin. Abr. 539

What otherwise is good and just, if it be sought by force and fraud, becomes bad and unjust. 3 Coke, 78.

He is not deceived who knows himself to be deceived. 5 Coke, 60.

It is a fraud to conceal a fraud. 1 Story, Eq. Jur. S. 389, 390., Fraus est celare fraudem. It is a fraud to conceal a fraud. 1 Vern. 270.

Quod initio vitiosum est, non potest tractu temporis convalescere. “Time cannot render valid, an act void in its origin.” Dig. 50, 17, 29.

Jus et fradem numquam cohabitant. “Right and fraud never go together.

Fraus et dolus nemini patrocianari debent. Fraud and deceit should excuse no man. 3 Co. 78.

Fraus et jus numquam cohabitant. Fraud and justice never agree together. Wing. 680.

Fraus latet in generalibus. Fraud lies hid in general expressions

Frustr legis auxilium quaerit qui in legem committit. Vainly does he who offends against the law, seek the help of the law.

Qui semel malus, semper prasumitur esse malus in eodem genere. He who is once bad, is presumed to be always so, in the same degree. Cro. Car. 317.

Qui per fraudem agit, frustra agit. He who acts fraudulently acts in
vain. 2 Roll. R. 17.

Good Faith

By good faith a possessor makes the fruits consumed his own. Tray. Max. 57.

Good faith demands that what was agreed upon shall be done. Dig. 19, 20, 21; Id. 19, 1, 10, 8, 2, 13.

Good faith must be observed. Coolidge v, Dunn, 1 Metc. (Mass) 547, 551.

A possessor in good faith is only liable for that which he himself has obtained. 2 Inst.285

Land and the Ownership Thereof

An estate in free allodium, and an estate in fee simple absolute, refer to essentially the same thing. 4 Kent, Comm.2.

What the original estate determines, the derivative estate determines also. 8 Coke, 34; Broom, Ma, 495.

Every entry on lands without the owner’s leave, or authority of law is a trespass. C.L.M.

A right descends, not the land. Co. Litt. 345.

Land lying unoccupied is given to the first occupant. C.L.M.

He who owns the soil has it even to the sky. C.L.M. Co. Litt.4a.

An alien holds no land. Tray. Lat. Max. 203

The shore is where the highest wave from the sea has reached. Dig. 59, 16, 96.

In no tenement which is held for a term of years is there an avail of homage; but there is the oath of fealty. Co. Litt. 67b.

Every person has exclusive dominion over the soil which he absolutely owns; hence such an owner has the exclusive right of hunting and fishing on his land, and the waters covering it. L. Realty Co v. Johnson, 92 Minn. 363, 365.

Water follows the land. A sale of land will pass the water which covers it. 2 Bl. Comm. 18; Co. Litt. 4.

Water runs and ought to run as it has used to run. Bouv. 118; Kauffman v. Griesemer, 26 Penn. St. 407, 413; 3 Kent, Comm. 439.

The situation and productiveness of the soil constitutes the value of the land. West River Bridge v. Dix, 6 Howard (47 U.S.) 507, 537.

The owner of land owns everything above and below it to an indefinite extent. Co. Litt. 4; 9 Coke, 54; Shep. Touch. 90; 2 Bl. Comm. 18; Broom, Max. 395; 2 Bouv. Inst. nn 15, 70.

Buildings pass by a grant of the land. Fleta. lib. 3, c. 2, s.12.

Allodial land is that possessed by a man in his own right, free and absolute, without owing any rent or service to any superior. Baker v. Dayton, 28 Wis. 367, 377; 2 Bl. Comm. 104; 3 Kent, Comm. 495.

The law of God and the law of the land are all one and both preserve and favor the private rights to the land. Keilw. 191.

Whatever is affixed to of built on the soil belongs to the soil, whether attached by nature or by the hand of man. Broom, Max. 401-431; Inst. 2, 1, 29; Washburn v. Sproat, 16 Mass. 449; 2 1571’ Dig. 41, 1, 7, 10; . n. Nessler v. Neher, 26 N.W. 471; Co. Litt. 4a; Fleta. lib. 3, c. 2, s. 12.

Whichever or two parties has the division of an estate, the choice of the shares is the other’s. Co Litt. 166b.

Hanging fruits do not make a part of the land. Dig. 6, 1, 44; 2 Bouv. Inst. no. 1578.

Gathering Fruits do not make a part of the farm or the realty. Dig. 19, 1, 17, 1; Bouv. Inst. no. 1578.

Grain which is sewn is understood to form a part of the soil. Inst. 2, 1, 32. What ever is planted in the soil belongs to the soil. 2. Bouv. Inst. n. 1572.

Land comprehends any ground, soil, or earth whatsoever; as meadows, pastures, woods, moors, waters, and marshes. Co. Litt. 4a.

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