"The maxim,

is no help to decision, as it cannot be applied till the decision is made."

"Sic utere tuo ut alienum non ladas: how can this duty be understood without first knowing the meaning of tuum and injury?""

"The attempts to solve these difficulties, which one meets with in ordinary law books, are merely identical propositions, and amount to nothing: e.g., Qui jure suo utitur nomine:n læart If by ladit be meant damage. or evil, it is false (and inconsisten. with what immediately precedes); since the exercise of a right is ofter accompanied with the infliction of positive evil in another. If by laat he meant injury, the proposition amounts to this; that the exercise of a right cannot amount to a wrong: which is purely identical and tells is nothing; cince the thing we want to know is what is right? (or what is that which I may do without wrong?); and what is wrong? (what is that which would not be an exercise of my own right, inasmuch as it would amount to a violation of a right in another?)." "

"The same observations are applicable to Sic utere tuo ut alienum non ladas."

"8

"The maxim, Sic utere tuo ut alienum non lædas, is iterated and reiterated in our books, and yet there is scarcely an aphorism known to the law the true application of which is more vague and undefined. Interpreted literally it would enjoin a man against any use of his own property which in its consequences might injuriously affect the interests of others; but no such legal principle ever existed."

"While, therefore, Sic utere tuo, &c., may be a very good moral precept, it is utterly useless as a legal maxim. It determines no right; it defines no obligation."4

"The maxim Sic utere tuo ut alienum non lædas, as commonly translated ('So use your own as not to injure another's'), is doubtless an orthodox moral precept; and in the law, too, it finds frequent application to the use of surface and running water, and indeed generally to easements and servitudes. But strictly, even then, it can mean only, 'So use your own that you do no legal damage to another's.' Legal damage, actionable injury, results only from an unlawful act. This maxim also assumes that the injury results from an unlawful act, and paraphrased means no more than : 'Thou shalt not interfere with the legal rights of another by the commission of an unlawful act,' or 'Injury from an unlawful act is actionable.' This affords no aid in this case in determining whether the act complained of is actionable, that is, unlawful. It amounts to no

1 Sir Wm. Erle, in Brand v. H. & C. R. Co., L. R. 2 Q. B. 223, p. 247.

2 2 Austin on Jurisprudence, 3d ed. 795.

8 2 Austin on Jurisprudence, 3d ed. 829.

Seldon, J., in Auburn, &c. Co. v. Douglass, 9 New York, 444, p. 445, 446.

more than the truism: An unlawful act is unlawful. This is a mere begging of the question; it assumes the very point in controversy, and cannot be taken as a ratio decidendi."1

Various defences of this maxim have been attempted.

It is said that the objection urged by Sir William Erle "may be made against all legal maxims and rules; none are absolute." 2

Undoubtedly, every legal principle is frequently liable to be modified in its operation by the concurrent application of some other legal principle or principles. The effect of the particular principle is curtailed or extended (as the case may be) by bringing another principle into combination with it, "so that the two together will produce a result not within the terms of either one alone; as two diverse propelling forces, applied to an inert body, will send it to a point which neither one of itself would do." 3 "What is thought to be an exception to a principle, is always some other and distinct principle cutting into the former; some other force which impinges against the first force, and deflects it from its direction." 4 But a legal principle which deserves its place will always be of appreciable value in the solution of problems falling within its scope, whenever it is not controlled by some other principle which, under the circumstances of the case, is entitled to superior weight. And it is precisely here that the defence of this maxim labors. It is frequently used as affording a solution of a legal problem, which in fact it never solves.

It is also asserted that this maxim, though it may often have been made to do "extra legal duty," is, really, "indispensable in the place where it belongs, and that is in case of concurrent rights, whether equal or different in degree, in respect to the same property." "Here," it is said, "the maxim is the boundary, and does determine the right and define the obligation of the parties, as between each other, in the use of their respective estates." 5

This argument is not well founded. The maxim does not, even in that class of cases, "determine the right or define the obligation of the parties, as between each other." At the utmost it merely asserts that certain rights of property are not absolute but relative, that the right of one man is limited by the correlative

1 Ingersoll, Sp. J., in Payne v. W. & A. R. Co., 13 Lea, Tennessee, 507, p. 527, 528. 21 Am. Law Rev. 5.

Bishop on Written Laws, s. 118a.

4 Mill on Logic, Harper's ed. of 1850, p. 259.

5

Alb. Law Journal, 32.

right of another. But it does not tell us how far, or to what extent, the limitation goes. If it be said (as seems to be practically asserted in one quarter) that it is impossible to give any serviceable, working definition of these correlative rights, why not frankly confess the impotency of the law in this regard, instead of deluding people into the belief that the law furnishes, in this maxim, a rule capable of easy and definite application? If this maxim means only, "Do not take more than your share of a common right," why parade it as solving the question what that share is? Say, if you please, as one court has virtually said, that the question is one of reasonableness of use, and that this is a question of fact for a jury.1 But does it follow that the recitation of the sic utere maxim by the judge will constitute an all-sufficient guide to the jury?

Of what value, then, is this maxim; what reason is there for retaining it in the law books?

Professor Terry answers: It belongs to the class of " extra-legal principles — which we may call legislative, because they serve as guides to show how the law ought to be made. . . . Much the greater part of the work of the courts has been done by taking what were really extra-legal principles, of justice or policy proper for the consideration of the Legislature, treating them as rules of law, and then, under the pretence -- not always consciously false — of interpreting them and applying them to particular cases, making new rules of law based upon them. . . . If we . . . take up any collection of legal maxims, we shall find that many, perhaps most, express principles of legislation rather than law. . . . The familiar maxim, Sic utere tuo ut alienum non lædas, is another one of the same character. There cannot be said, I think, to be any general rule of law forbidding a person to cause damage to another by the manner in which he exercises his own rights. But the principle expressed in the maxim has been the guiding principle in the evolution of many more special rules forbidding various kinds of conduct which are likely to produce harm to others."2

Again, there are maxims, which, if true at all, are true only in a partial sense, and which must be essentially limited in their application. Yet these maxims are frequently cited as if literally true and universally applicable. Take, for instance, the phrase, Equitas 1 Swett v. Cutts, 50 N. H. 439; Bassett v. S. M. Co., 43 N. H 569; Rindge v. Sar gent. 64 N. H. 294.

2 Terry's Leading Principles of Anglo-American Law, ss. 10, 11.

sequitur legem, which is sometimes quoted as if it possessed a supreme and controlling efficacy."

This rule "if followed literally, would leave nothing for the courts of equity to perform." 1 But in fact "the main business of equity is avowedly to correct and supplement the law."2 "The qualification of this maxim is nothing less than the entire system of juridical equity itself, both jurisprudence and procedure, based, as has been seen, upon the theory that equity does not follow the law where the law does not follow justice or the public convenience." 3 Equity follows the law in its rules of decision only "when it does not choose to follow differing rules of its own."4

"Throughout the great mass of its jurisprudence, equity, instead of following the law, either ignores or openly disregards and opposes the law. . . . One large division of the equity jurisprudence lies completely outside of the law; it is additional to the law; and while it leaves the law concerning the same subject-matter in full force and efficacy, its doctrines and rules are constructed without any reference to the corresponding doctrines and rules of the law. Another division of equity jurisprudence is directly opposed to the law which applies to the same subject-matter; its doctrines and rules are so contrary to those of the law that when they are put into operation the analogous legal doctrines and rules are displaced and nullified. As these conclusions cannot be questioned, it is plain that the maxim, 'Equity follows the law,' is very partial and limited in its application, and cannot be regarded as a general principle.” 5

There are historical reasons which account for the frequent use of this maxim in early times. And there are, undoubtedly, cases, neither few in number nor unimportant, where courts of equity follow common law analogies. But "the maxim is, in truth, operative only within a very narrow range; to raise it to the position of a general principle would be a palpable error." 8

It is hardly too much to say that, at the present day, there is as much ground for asserting the reverse of this maxim as for assert

1 2 Austin on Jurisprudence, 3d ed. 668.

2 Phelps' Juridical Equity, s. 237.

4 I Bishop, Law of Married Women, s. 16.

Phelps' Juridical Equity, s. 239.

5 1 Pomeroy's Equity Jurisprudence, 1st ed. s. 427.

6 See Phelps' Juridical Equity, s. 237; also I Pomeroy's Equity Jurisprudence, 1st,

ed. s. 425.

7 1 Pomeroy's Equity Jurisprudence, 1st ed. ss. 425, 426.

8

1 Pomeroy's Equity Jurisprudence, 1st ed. s. 427.

ing the maxim itself. Lex sequitur equitatem would apply about as often as Equitas sequitur legem. Many doctrines of the modern common law "seem grounded on the fact that similar decisions had previously been made in courts of equity." It is impossible to deny" the constant progress of law in the direction of equity under the superior attractive force of the latter; "1 a tendency the existence and justice of which found recognition in the provision of the English Judicature Act of 1873: That when equity and common law conflict, equity shall prevail. Indeed, the adoption by the common law of many doctrines which were originally purely equitable, has been so complete that it has often been seriously, though unsuccessfully, contended that the jurisdiction originally exercised by courts of equity in like cases should now be regarded as abrogated.3

If there is one maxim cited more frequently than another as being both fundamental in its nature and universal in its applicability, it is the phrase, Actus non facit reum, nisi mens sit rea; or, as it is sometimes expressed, Non est reus, nisi mens sit rea. No less a personage than the late Chief-Justice Cockburn affirmed that this maxim "is the foundation of all criminal justice."4 Yet even this phrase has been severely criticised by a judge who had made a specialty of criminal law. And his comments from the bench cannot be regarded as mere sparks struck off in the heat of discussion; for the substance of his views had already been given in an elaborate work, published six years before his judicial utterance. In Regina v. Tolson, decided in 1889,5 Mr. Justice Stephen said: "Though this phrase is in common use, I think it most. unfortunate, and not only likely to mislead, but actually misleading, on the following grounds: It naturally suggests that, apart from all particular definitions of crimes, such a thing exists as a 'mens rea,' or 'guilty mind,' which is always expressly or by implication involved in every definition. This is obviously not the case, for the mental elements of different crimes differ widely. 'Mens rea' means, in the case of murder, malice aforethought; in the case of theft, an intention to steal; in the case of rape, an intention

1 Jickling on the Analogy between Legal and Equitable Estates and Modes of Alienation, Preface, x. xi.; Phelps' Juridical Equity, ss. 239, 167, 168.

2 36 and 37 Victoria, chap. Ixvi. s. 25.

8

1 Pomeroy's Equity Jurisprudence, 1st ed. ss. 276-278, 182.

4 Reg. v. Sleep, 8 Cox Cr. Cas. 472, p. 477.

5 L. R. 23 Q. B. D. 168, p. 185, 186.