The History of the Maxims

In the English tradition, the King was the fountain of justice. All lawful authority flowed from the Crown, and the King's courts, the King's Bench, the Court of Common Pleas, and the Exchequer, carried that authority into every shire. The King did not invent the law by private will. He was bound to declare and uphold the law that already existed, the ancient customs and maxims of the realm. The maxim Rex est lex loquens, the King is the speaking law, captures this: the King gives voice to the law, he does not create it by command.

The King's power to hear disputes was exercised through his judges, who rode the country on circuit and sat in Westminster. They were bound to apply the maxims, the settled principles that expressed the common law, because the maxims were understood to be the law's own foundation. To rule against a maxim was to rule against the King's justice itself.

The maxims did not begin as statutes. They began as principles so old and so settled that no one could say when they first took hold. They came forward from the customs of the people, from the Roman law that shaped the learned tradition, and from the steady practice of the courts. A maxim was recognized as law when it had been so long received, and so consistently applied, that it could not be denied without undoing the law itself.

The common law was built case by case, and each case was decided by reference to the maxims. Over generations, the maxims became the fixed points around which all other rules turned. They were not subordinate to statute. They were the standard by which statute itself was read, because a statute that contradicted a maxim contradicted the foundation on which all law stood.

The deepest maxim of all held that the King himself was under the law. Rex debet esse sub lege, quia lex facit regem, the King must be under the law, because the law makes the King. This principle was tested and affirmed across the centuries, from the barons at Runnymede who compelled King John to seal Magna Carta in 1215, to the judges and lawyers who insisted, even against the Crown, that the King could not rule by mere will.

Sir Edward Coke, Chief Justice of the Common Pleas and of the King's Bench, declared that the King was under no man, but under God and the law. The maxims were the law's answer to any claim of absolute power. They bound the Crown because they were the source of the Crown's own authority.

The maxims were gathered and written by the great jurists so they would not be lost. Coke's Institutes set them among the principles of the common law. Later works, including the collections of Bacon and the entries in Blackstone's Commentaries and Bouvier's and Black's Law Dictionaries, recorded the maxims as the received learning of the law. By being written, they were preserved. By being cited in the courts, they remained alive.

A maxim became binding law in this way: it was received from the ancient custom, it was applied by the King's judges in real cases, it was affirmed by the courts across generations, and it was recorded by the jurists as a principle of the law. Each step confirmed it. Once so established, a maxim needed no statute to give it force. It carried force of its own, because it was the foundation on which statute itself rested.

Why the Maxims Remain Law Today

The maxims did not expire. They remain the foundation of the common law because every later rule, statute, and decision presupposes them. A court that applies a statute still reads it through the maxims. A contract is still enforced because pacta sunt servanda still holds. A judgment obtained by fraud is still void because fraus omnia vitiat still holds. A right is still enforced because ubi jus ibi remedium still holds.

The maxims became law from the King because the King's justice was bound to them, and they remain law today because no lawful system can stand without them. They are the foundation of every law in existence.