JB/028/133/003

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7)

Common Law. Division of it into Customs and Maxims.

Having thus seen what is a custom, let us now see what
is a maxim. A custom is an assemblage of acts... What
then is a maxim? Is this too an assemblage of acts? nothing
like it. What then [is it? a species of discourse,
a proposition: A proposition containing the opinion of him
whose discourse it is who is the author of it concerning what is in some respect
or other the disposition state of the Law. This is that, looking
at which, and looking at a custom, our Author pronounces
them both to be "one and the same thing".

The examples our Author has given us of a maxim may
very well serve to explain it's nature. A The King can
do no wrong, is one maxim: No man shall be bound
[say rather "is"] bound to accuse himself, is another. Let us
examine them in their turns.

Of the first, namely "The King can do no wrong", the turn
of expression is so ambiguous and paradoxical, that we
must reduce it to some a greater degree of precision
that it possesses of itself, before any thing can be pronounced
concerning it.

It is susceptible of two senses at least, if not of three;
senses besides the literal one widely different from each other.

As to the literal one, in this sense it is manifestly not true,
nor meant to be taken [for true] in which and in this respect
the example is an unhappy one. If the word "can" refers
to physical power, it the sense is that the King is physically unable to do any act of the sort of any of those acts that
are wrong: that is, that are mischievous: for instance,
that he cannot [under any circumstances] set fire to a house, of kill a man [without
necessity.] If the word "can" refers to legal power, then the

Identifier: | JB/028/133/003 "JB/" can not be assigned to a declared number type with value 28.
Date_1		Marginal Summary Numbering	not numbered
Box	028	Main Headings	comment on the commentaries
Folio number	133	Info in main headings field	common law - division of it into customs and maxims
Image	003	Titles
Category	text sheet	Number of Pages	4
Recto/Verso	recto	Page Numbering	b5 / e6 / b7 / e8
Penner	jeremy bentham	Watermarks	[[watermarks::[monogram] [britannia emblem]]]
Marginals	jeremy bentham	Paper Producer
Corrections	jeremy bentham	Paper Produced in Year
Notes public		ID Number	9398
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