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to have forcible connection with a woman without her consent; and in the case of receiving stolen goods, knowledge that the goods were stolen. In some cases it denotes mere inattention. For instance, in the case of manslaughter by negligence it may mean forgetting to notice a signal. It appears confusing to call so many dissimilar states of mind by one name. It seems contradictory, indeed, to describe a mere absence of mind as a 'mens rea,' or guilty mind. The expression, again, is likely to, and often does, mislead. To an unlegal mind it suggests that, by the law of England, no act is a crime which is done from laudable motives; in other words, that immorality is essential to crime. .
"Like most legal Latin maxims, the maxim on mens rea appears to me to be too short and antithetical to be of much practical value. It is, indeed, more like the title of a treatise than a practical rule." 1
In Sir J. F. Stephen's "History of the Criminal Law of England," published in 1883, it is said: 2.
"The truth is that the maxim about 'mens rea' means no more than that the definition of all, or nearly all, crimes contains not only an outward and visible element, but a mental element, varying according to the different nature of different crimes. . . . Hence the only means of arriving at a full comprehension of the expression mens rea' is by a detailed examination of the definitions of particular crimes, and therefore the expression itself is unmeaning."3
Bacon's celebrated maxim relative to ambiguitas latens has already been sufficiently discussed in this journal. The maxim "figured as the chief commonplace of the subject for many years. It still performs a great and confusing function in our legal discussions." But Professor Thayer (who does not stand alone in this view) pronounces it "an unprofitable subtlety; " "inadequate and uninstructive." 4
A maxim which is really true, and useful in its place, may be overestimated; and the result is to stifle inquiry upon important points. Thus the phrase, In jure, causa proxima, non remota,
1 In the same case, p. 181, Cave, J., speaks of this maxim as "somewhat uncouth," and Manisty, J., p. 201, expresses his concurrence with portions of the criticisms of Stephen, J.
2 Vol. ii. p. 95.
3 But compare Mr. Endlich's article on "The Doctrine of Mens Rea," 13 Criminal Law Magazine, 831; and 1 Bishop's New Criminal Law, ss. 287, 288, 303 a, note 6, paragraph 2.
4 6 HARVARD LAW REVIEW, 417-440; especially 424, 436, 437, 438.
spectatur, is by no means to be banished from the law. But it does not follow that the citation of this maxim, even with the addition of the first paragraph in Bacon's well-known gloss, will afford an all-sufficient statement of the reasons for every decision upon a question of juridical cause. The maxim may properly be used as a starting-point, but it should-not be mistaken for the goal. It “does not help us to tell when a cause is proximate, and when remote." Taken literally, it would seem to put material antecedents on an equal footing with voluntary and responsible human actors. So also it might be understood as implying that the antecedent which is "nearest in time or space" is invariably to be regarded as the legal cause.2
Maxims relating to the interpretation of written instruments occupy (with the comments upon them) more than one-seventh of Mr. Broom's book. Yet these maxims, standing alone and taken as absolute statements, are liable to gross misuse. Most of them are, at the utmost, only prima facie rules; "good servants, but bad masters." A rule of construction should always be understood as containing the saving clause, " unless a contrary intention appear by the instrument.” 3
So, too, there are maxims intended to be applied only as last resorts in emergencies; but which purport on their face to carry controlling weight under all circumstances. An illustration of this class is afforded in the following extract from the opinion of Finch, J., in the recent case of Rapps v. Gottlieb.1
"A further argument is made founded upon the doctrine that, where one of two innocent parties must suffer from a wrong, he must bear the loss whose action enabled the wrong to be done; but that doctrine applies only in an emergency. It solves problems which have no other solution; it supplies a ground of decision where all others are absent; it operates as a reason when nothing else can master the situation; it is a rule of last resort, applicable only where all others fail; it is a doctrine subordinate and not dominant, which reverses no other, but submits to the authority of all, and is adequate to an ultimate decision only when it has the field to itself. Any wider view of it would make it a disturbing force, tending to unsettle and destroy the most firmly fixed doctrines of the law. It is good and useful, in its place, but will always make
1 4 Am. & Eng. Encyclopædia of Law, 25, note.
2 See Thomas, J., in Marble v. Worcester, 4 Gray, p. 409. Compare Cooley on Torts, 2d ed. 88.
See Preface to Hawkins on Wills.
4 142 N. Y. 164, 168.
trouble if not kept where it belongs. If it is always remembered that the doctrine as to innocence on both sides operates only when other solutions are not available, or possibly in aid of proper solutions, very much of needless confusion will be avoided."
There are phrases to be found in some collections of so-called legal maxims which were not intended by their original framers as statements of "law." They are " merely moral rules, which do not obtain as positive law."1 Doubtless "the law rests its foundations on morality, but it does not cover all morality; . . ." and while there is no conflict" between the rule of law and the rule of morals, "the latter is broader than the former."2 A writer on jurisprudence may have enunciated as rules "whatever maxims of justice or utility approved themselves to him as an individual moralist." 3 It is sometimes difficult to discover whether such authors "are discussing law or morality; " "whether they lay down that which is, or that which, in their opinion, ought to be." What they believe ought to be law is liable to be treated by them as if it were law already; although it has never been made the basis of judicial action, and is not soon likely to be. But a proposition can properly be called "law" only when, and so far as, it is enforceable by the courts.
In this connection it should be noticed that "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." 5 "5 Moreover, a statement intended as a maxim may have gained currency as such out of deference to the reputation of its author, rather than by reason of its intrinsic correctness as a faithful representation of existing law. Thus it has been said of Bacon's misleading maxim relative to ambiguitas latens: "The great name of the author of the maxim gave it credit. . When this was found clothed in Latin, and fathered upon Lord Bacon, it might well seem to such as did not think carefully that here was something to be depended upon."
It is not unreasonable to suppose that the old sages, in some instances, intentionally overstated a truth for the purpose of attract
1 See J. S. Mill's Review of Austin on Jurisprudence, 118 Edinburgh Review, 161.
2 Bishop's First Book of the Law, ss. 16 and 17. (It is to be regretted that this useful work should have been so long out of print.)
3 118 Edinburgh Review, 461.
3 New Jersey Law Journal, 160.
9 HARVARD LAW REVIEW, 437.
ing attention. "A certain pleasant exaggeration, the use of the figure hyperbole, a figure of natural rhetoric which Scripture itself does not disdain to employ, is a not unfrequent engine with the proverb for the arousing of attention and the making of a way for itself into the minds of men." But, in making practical application of so-called legal maxims, sufficient care has not always been taken to distinguish between the exaggeration and the reality.
Legal maxims do not change; they are the fundamental principles of law, and therefore no alterations in them can be noted. . . .' Such is the claim made in the preface to a recent collection of maxims.2 This statement apparently assumes, first, that all prominent legal maxims are correct representations of fundamental principles of law; second, that these so-called " fundamental principles of law" never change. The first assumption is not well founded, as appears from the extracts we have already given from high authorities. Nor is the second assumption correct, unless the term "fundamental principles of law" is so defined as to restrict the class to a very small number. On some subjects the law crystallized too early. Courts attempted to lay down hard and fast rules, which it has been impossible to adhere to. Notwithstanding the efforts made by some tribunals to conceal the fact that the law was being altered by their decisions, it is undeniable that the law has been changed in respect to points formerly considered essential. In very recent times some judges have had the frankness to admit this. A "system of unwritten law," said Chief-Justice Cockburn, "has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied." It cannot be questioned that some maxims which were once "law" are so no longer. They grew out of a state of society now happily obsolete. They are paraphrases of doctrines first adopted in barbarous ages, but which no longer obtain. Or they are deductions from those cast-off principles; "and the conclusions at which they arrive
1 "Proverbs, and their Lessons," by Archbishop Trench, 7th Eng. ed. 25. 2 Wharton's Maxims, 2d ed., Preface, vi.
3 Wason v. Walter, L. R. 4 Q. B. 73, p. 93. Lord Hobhouse in Smart v. Smart, L. R. (1892), out an illustration of the above statement.
Compare the admirable opinion of Appeal Cases, 425; which is through.
being logical consequences of their imperfect principles, necessarily partake of the same defects." 1 At the present day, such maxims are not safe guides.
If the foregoing criticisms are well founded, how shall we account for the fact that various objectionable maxims keep their place in the books, and are daily quoted by eminent jurists. One answer to this inquiry is suggested by the remark of Sir Henry Maine, that "legal phraseology is the part of the law which is the last to alter."2 The most ardent law reformers, in spite of the Scriptural warning against putting new wine into old bottles, sometimes prefer to give a new interpretation to an old phrase rather than attempt the almost "impossible task of blotting it out of our jurisprudence."3 Even Austin, who did not hesitate to apply to some existing terms such an epithet as "jargon," is not inclined to unnecessarily "engage in a toilsome struggle with the current of ordinary speech." 4 "Mr. Austin," says John Stuart Mill," always recognizes, as entitled to great consideration, the custom of language, the associations which mankind already have with terms; insomuch that when a name already stands for a particular notion (provided that, when brought out into distinct consciousness, the notion is not found to be self-contradictory), the definition should rather aim at fixing that notion, and rendering it determinate, than attempt to substitute another notion for it." 5
What," it may be asked, " does all this criticism amount to but a mere restatement of the trite saying, Omnis definitio in jure periculosa est? What objections are there to maxims, what dangers connected with their use, which do not apply with equal force to all legal definitions, and indeed to all attempts to state the law in any form?" We reply that if the difference is only one of degree, it does not follow that such difference is unimportant, or that it does not call for serious warning. Undoubtedly all jurists who undertake to formulate statements of law, no matter in what shape, must labor under great difficulties, arising (inter alia) from the combined effect of " the poverty of language" and "the subtlety of human nature." But there are especial reasons why the dangers in the use of maxims are practically much greater than the dangers when the law is stated in other modes. And of these reasons, two,
at least, deserve particular mention.
1 Austin on Jurisprudence, 3d ed. 1116.
2 Maine's Ancient Law, 1st Am. ed. 327.
3 See 13 Criminal Law Magazine, 832.
1 Austin on Jurisprudence, 3d ed. 93.
5 118 Edinburgh Review, 453.