herbert broom and legal maxims and edward coke and matthew hale

Legal maxims are a thing of the past. What began with an unprepossessing collection of 25 by Bacon about 1600 grew in number to more than 300 in the magisterial collection by Herbert Broom in the late 19th century (Broom's Legal Maxims, 8th ed. 1882). They are a thing of the past not so much because they don't have anything to say to us today but because of the way they were used in law at the time. They were used as sorting devices. Under each maxim were gathered illustrative cases or authoritative commentary derived from the Romans or from Coke or later writers. Thus, the maxim itself was only useful to the extent that it was connected to specific cases and doctrines in those cases. A maxim was not meant to be a free-floating or stand-alone wise saying like perhaps an adage or saying from the Book of Proverbs.

Nevertheless, I am drawn to them today, possibly because their euphony or turn of phrase allows some of them to be stand-alone statements that I want to fill with meaning of my own. For example, Broom's first maxim is Salus populi suprema lex. This maxim, Bacon's # 12, may be translated, "The highest law is the welfare of the people." Even though Broom's exposition of this maxim takes us through the equivalent of condemnation law (i.e., when does the interest of the public override that of an individual?), I would like to "loose" the maxim from the discussion and emblazon it on the door of my political representatives and ask to what extent the salus populi is something that they pursue.

One other reason I am drawn to Latin legal maxims is that they provide a window into other Latin phrases which often more accurately capture the essence of something than the English equivalents. The remainder of this essay will examine Broom's use of Latin phrases in discussing his second maxim (Bacon's 5th): Necessitas inducit privilegium quoad iura privata-- "With regard to private rights, necessity provides a privilege" (or "With respect to private rights, necessity privileges a person acting under its influence").

Broom's Second Maxim

The first thing you note in Broom's treatment of this maxim is that it is almost fully derived from Bacon's discussion of it in 1600 supplemented by Blackstone's treatment of the doctrine of necessity in 1769. Law is generally dull and repetitive. It repeats because it supposedly respects the past. Usually, however, it makes no attempt to reconstruct or understand the past it is quoting. Broom considers necessity under three heads: (1) Necessity of self-preservation; (2) Necessity of Obedience; and (3) Necessity resulting from the act of God or of a stranger. I only want now to point out a few Latin phrases and a few interesting twists and turns in the interpretation of this maxim.

Under the second head, Broom speaks of how necessity is a sufficient extenuation to an executioner or a sheriff who may have to harm someone in order to do his job. Necessity excuses the sheriff because of temptations to collude with defendants and because of the importance of having the authority of the realm enforced. So, we have the brief phrase from Matthew Hale, necessitas quod cogit defendit, which means "necessity defends what it compels." He then has an interesting discussion of how wives are excused from punishment for the commission of most crimes because the law presumes that a "feme covert" (i.e., woman under coverture) acted under the immediate coercion of her husband. This is a rebuttable presumption, we are told, but it is the general principle. Later in the maxim, however, he will say that a wife will be held liable, however for crimes that are mala in se because these crimes (such as murder and treason) concern the public, and privilegium contra rempublicam non valet--"privilege has no force against the commonwealth." Privilege, we recall only relates to iura privata. Or, as Broom says, necessitas publica major est quam privata--"public necessity trumps private necessity."

On Madness

Broom's longest discussion in the maxim concerns the third head, under which is his discussion of how necessity may excuse crimes committed under the influence of mental instability or inebriation. I love the old distinctions. See if they make any sense to you. In criminal cases idiots and lunatics cannot be chargeable for their own offenses if committed in that state because furiosus solo furore punitur, which means that a "madman is punished only by his madness" (from Coke's commentary on Littleton). Another similar mini-maxim on lunacy is found in Black's Law Dictionary: Furiosi nulla voluntas est, which means "a madman has no will." So far so good. No crime because no will. Or, looking at it differently, madness itself is the punishment. Both are picturesque Latin ways to express a reality.

Broom's nice categorizations, however, begin to slip away as he has had to include a paragraph on "insane delusion" to bring his book "up to date." When a person is so afflicted the general rule is "often attended with considerable difficulty" (indeed, he doesn't go into a discussion of the distinction between lunacy and an insane delusion. One would think that the latter is temporary, though again, this isn't clear). An illustration of the difficulty follows, wherein he gives two rules, almost incomprehensible in themselves, which are illustrated by stories that do not fit the two rules. He doesn't even have a Latin phrase to save him.

But then he retreats to another typical common law category--drunkenness and the Latin, as well as the wine, flows freely again. Drunkenness is not an excuse like lunacy because, as Coke says, the one who is drunk is a voluntarius daemon, which needs no translation. And, the familiar adage applies to such a person: qui peccat ebrius luat sobrius--"he who sins drunk will be punished sober." Rather than mitigating his conduct, drunkenness aggravates it, as the Latin maxim provides: omne crimen ebrietas et incendit et detegit--"drunkenness both aggravates and reveals every crime." Whereas drunkenness is not an excuse for a crime, it may be relevant to show the "intention" with which the particular act charged was committed. This, I suppose, would lessen the crime. But I think Broom is on the horns of a dilemma here, from which no amount of Latin will rescue him. It was a dilemma I never understood in law school. Does drunkenness mitigate the crime? Aggravate it? Have no effect on it? On the one hand, it appears that it would aggravate it, according to the maxim. But, then again, if the person did not know what he was doing, he might not have the requisite mental state to be guilty of a more serious crime.*

[*For example, should a drunk driver who kills someone be as guilty as a person who negligently kills someone with a car? One who deliberately runs someone down? How is this determined?]

Conclusion

Broom's book of maxims is admittedly intended for the beginning student, as well as the practitioner. No fine distinctions, therefore, are to be expected from it. But all you have to do, it seems, is to press very gently against it and the categories fall to pieces pretty rapidly. But, you have the Latin maxims left behind, as sort of shining silver or lustrous gold, in the heap of the collapsed building. And, then, occasionally, you even have a deftly stated rule in English. When speaking of the distinction between self-defense and manslaughter, he says: "that here (self-defense) the slayer could not otherwise escape though he would, in manslaughter he would not escape if he could. But the real question is how much wood could he chuck while doing it.

1636