LEGAL MAXIMS.

CHAPTER I.

§ I.-RULES FOUNDED ON PUBLIC POLICY.

THE Maxims contained in this section are of such universal application, and result so directly and manifestly from motives of public policy or simple principles on which our social relations depend, that it has been thought better to place them first in this collection, -as being, in some measure, introductory to more precise and technical rules which embody the elementary doctrines of English law, and are continually recurring to the notice of practitioners in our courts of justice.

SALUS POPULI SUPREMA LEX.

(Bacon, Max., reg. 12.)

That regard be had to the public welfare, is the highest law.

There is an implied assent on the part of every member of society, that his own individual welfare shall, in cases of necessity, yield to that of the community; and that his property, liberty, and life shall, under certain circumstances, be placed in jeopardy or even sacrificed for the *public good. "There are," says Buller, J.,2 cases in which individuals sustain an injury for which

"many

[*2]

1 Alibi diximus res subditorum sub eminenti dominio esse civitatis, ita ut civitas, aut qui civitatis vice fungitur, iis rebus uti, easque etiam perdere et alienare possit, non tantum ex summâ necessitate, quæ privatis quoque jus aliquod in aliena concedit, sed ob publicam utilitatem, cui privatas cedere illi ipsi voluisse censendi sunt qui in civilem cœtum coierunt. Grotius de Jure Belli et Pac., Bk. 3, c. 20, s. 7, ¿ 1.—Le Talut du peuple est la suprême loi. Mont. Esp. des Lois, L. XXVII. Ch. 23. In casu extrema necessitatis omnia sunt communia. 1 Hale, P. C. 54.

Per Buller, J., Plate Glass Co. v. Meredith, 4 T. R. 797; Noy, Max., 9th ed., 36; Dyer 60 b.; 12 Rep. 12, 13.

the law gives no action; as, where private houses are pulled down, or bulwarks raised on. private property, for the preservation and defence of the kingdom against the king's enemies." Commentators on the civil law, indeed, have said,' that, in such cases, those who suffer have a right to resort to the public for satisfaction; but no one ever thought that our own common law gave an action against the individual who pulled down the house or raised the bulwark.2 On the same principle, viz. that a man may justify committing a ..private injury for the public good, the pulling down of a house when necessary, in order to arrest the progress of a fire, is permitted by the law.3

Likewise, in less stringent emergencies, the maxim is, that a private mischief shall be endured, rather than a public inconvenience; and, therefore, if a highway be out of repair and impassable, a passenger may lawfully go over the adjoining land, since it is for [*3] the public good *that there should be, at all times, free passage along thoroughfares for subjects of the realm. And in American courts it has been held," that if a traveller in a highway by unexpected and unforeseen occurrences, such as a sudden flood or heavy drifts of snow, is so obstructed that he cannot reach his destination without passing over the adjacent lands, he is privileged so to do. To hold a party guilty of a trespass for passing over another's land, under the pressure of such a necessity, would be pushing individual rights of property to an unreasonable extent, and giving them a protection beyond that which finds a sanction in the rules of law. The temporary and unavoidable use of private property under the circumstances supposed must be regarded as one of those incidental burdens to which all property in a civilized

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1 See Puff. de Jure Nat., Bk. 8, c. 5, s. 7; Grotius de Jure Bell. et Pac., Bk. 3, c. 20, s. 7, 2.

2 Per Buller, J., 4 T. R. 797.

3 Noy, Max., 9th ed., 36; 12 Rep. 12; Dyer 36 b.; Plowd. 322; Finch's Law 39; Russell v. Mayor of New York, 2 Denio (U. S.) R. 461, 474.

Absor v. French, 2 Show. 28; Dawes v. Hawkins, 8 C. B. N. S. 848, 856, 859, (98 E. C. L. R.); per Pollock, C. B., A. G. v. Briant, 15 M. & W. 185. * Per Lord Mansfield, C. J., Taylor v. Whitehead, Dougl. 749; per Lord Ellenborough, C. J., Bullard v. Harrison, 4 M. & S. 393; Dawes v. Hawkins, 8 C. B. N. S. 848 (98 E. C. L. R.); Robertson v. Gantlett, 16 M. & W. 296 (a). Secus of a private right of way. Ib.

6 Campbell v. Race, 7 Cushing (U. S.) R 408.

community is subject." "Highways," says Lord Mansfield, C. J., in Taylor v. Whitehead, "are for the public service, and if the usual track is impassable, it is for the general good that people should be entitled to pass in another line."

In the instances above put, an interference with private property is obviously dictated and justified summâ necessitate, by the immediate urgency of the occasion, and a due regard to the public safety or convenience. The general maxim under consideration, however, likewise applies to cases of more ordinary occurrence, in which the legislature ob publicam utilitatem, disturbs the possession or restricts the enjoyment of the property of individuals; *very stringent provisions being sometimes enacted for purposes of [*4]

general public good, involving great restrictions upon particular classes of men."2

"The great end," it has been observed,3 "for which men entered into society was to secure their property. That right is preserved. sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole. The cases where this right of property is set aside by positive law are various. Distresses, executions, forfeitures, taxes, &c., are all of this description, wherein every man, by common consent, gives up that right for the sake of justice and the general good." It is, however, a rule of law which has been designated as a “legal axiom," requiring no authority to be cited in support of it, that "no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate, or toll, except upon clear and distinct legal authority, established by those who seek to impose the burden."

5

12 Dougl. 745, 749.

2 Per Alderson, B., A. G. v. Lockwood, 9 M. & W. 401.

3 Per Lord Camden, Entick v. Carrington, 19 How. St. Tr. 1066.

i. e., not to be made the common right or property of more than oneJohnson, Dict., by Todd, ad verb.

As to sewerage rates, see Judgm., Taylor v. Loft, 8 Exch. 278.

* Per Wilde, C. J., Gosling v. Veley, 12 Q. B. 407 (64 E. C. L. R.). "The law of England is most careful to protect the subject from the imposition of any tax, except it be founded upon and supported by clear and distinct lawful authority." Per Martin B., Gosling v. Veley, 4 H. L. Cas. 727. Per Lord Truro, Id. 781. "The law requires clear demonstration that a tax is lawfully imposed." Judgm., Burder v. Veley, 12 A. & E. 247 (40 E. C. L. R.). "It