Part 1 (1/2)

Ancient Law.

by Sir Henry James Sumner Maine.

INTRODUCTION

No one who is interested in the growth of human ideas or the origins of human society can afford to neglect Maine's _Ancient Law_.

Published some fifty-six years ago it immediately took rank as a cla.s.sic, and its epoch-making influence may not unfitly be compared to that exercised by Darwin's _Origin of Species_. The revolution effected by the latter in the study of biology was hardly more remarkable than that effected by Maine's brilliant treatise in the study of early inst.i.tutions. Well does one of Maine's latest and most learned commentators say of his work that ”he did nothing less than create the natural history of law.” This is only another way of saying that he demonstrated that our legal conceptions--using that term in its largest sense to include social and political inst.i.tutions--are as much the product of historical development as biological organisms are the outcome of evolution. This was a new departure, inasmuch as the school of jurists, represented by Bentham and Austin, and of political philosophers, headed by Hobbes, Locke, and their nineteenth-century disciples, had approached the study of law and political society almost entirely from an unhistoric point of view and had subst.i.tuted dogmatism for historical investigation. They had read history, so far as they troubled to read it at all, ”backwards,” and had invested early man and early society with conceptions which, as a matter of fact, are themselves historical products. The jurists, for example, had in their a.n.a.lysis of legal sovereignty postulated the commands of a supreme lawgiver by simply ignoring the fact that, in point of time, custom precedes legislation and that early law is, to use Maine's own phrase, ”a habit” and not a conscious exercise of the volition of a lawgiver or a legislature. The political philosophers, similarly, had sought the origin of political society in a ”state of nature”--humane, according to Locke and Rousseau, barbarous, according to Hobbes--in which men freely subscribed to an ”original contract” whereby each submitted to the will of all. It was not difficult to show, as Maine has done, that contract--_i.e._ the recognition of a mutual agreement as binding upon the parties who make it--is a conception which comes very late to the human mind. But Maine's work covers much wider ground than this. It may be summed up by saying that he shows that early society, so far as we have any recognisable legal traces of it, begins with the group, not with the individual.

This group was, according to Maine's theory, the Family--that is to say the Family as resting upon the patriarchal power of the father to whom all its members, wife, sons, daughters, and slaves, were absolutely subject. This, the central feature of Maine's speculation, is worked out with infinite suggestiveness and great felicity of style in chapter V. (”Primitive Society and Ancient Law”) of the present work, and his chief ill.u.s.trations are sought in the history of Roman law. The topics of the other chapters are selected largely with a view to supplying confirmation of the theory in question and, as we shall see in a moment, Maine's later works do but serve to carry the train of reasoning a step further by the use of the Comparative Method in invoking evidence from other sources, notably from Irish and Hindu Law. Let us, however, confine ourselves for the moment to ”Ancient Law.” Maine works out the implications of his theory by showing that it, and it alone, can serve to explain such features of early Roman law as Agnation, _i.e._ the tracing of descent exclusively through males, and Adoption, _i.e._ the preservation of the family against the extinction of male heirs. The perpetual tutelage of women is the consequence of this position. Moreover, all the members of the family, except its head, are in a condition best described as _status_: they have no power to acquire property, or to bequeath it, or to enter into contracts in relation to it. The traces of this state of society are clearly visible in the pages of that cla.s.sical text-book of Roman Law, the _Inst.i.tutes_ of Justinian,[1] compiled in the sixth century A.D., though equally visible is the disintegration wrought in it by the reforming activity of the praetor's edicts. That reformation followed the course of a gradual emanc.i.p.ation of the members of the family, except those under age, from the despotic authority of the father.

This gradual subst.i.tution of the Individual for the Family was effected in a variety of ways, but in none more conspicuously than by the development of the idea of contract, _i.e._ of the capacity of the individual to enter into independent agreements with strangers to his family-group by which he was legally bound--an historical process which Maine sums up in his famous aphorism that the movement of progressive societies has. .h.i.therto been a movement from Status to Contract.

In the chapters on the early history of Wills, Property, and Contract, Maine supports his theory by showing that it is the key which unlocks many, if not all, of the problems which those topics present. The chapter on Wills--particularly the pa.s.sage in which he explains what is meant by Universal Succession--is a brilliant example of Maine's a.n.a.lytic power. He shows that a Will--in the sense of a secret and revocable disposition of property only taking effect after the death of the testator--is a conception unknown to early law, and that it makes its first appearance as a means of transmitting the exercise of domestic sovereignty, the transfer of the property being only a subsidiary feature; wills only being permitted, in early times, in cases where there was likely to be a failure of proper heirs. The subsequent popularity of wills, and the indulgence with which the law came to regard them, were due to a desire to correct the rigidity of the Patria Potestas, as reflected in the law of intestate succession, by giving free scope to natural affection. In other words, the conception of relations.h.i.+p as reckoned only through males, and as resting on the continuance of the children within their father's power, gave way, through the instrumentality of the will, to the more modern and more natural conception of relations.h.i.+p.

In the chapter on Property Maine again shows that the theory of its origin in occupancy is too individualistic and that not separate owners.h.i.+p but joint owners.h.i.+p is the really archaic inst.i.tution. The father was in some sense (we must avoid importing modern terms) the trustee of the joint property of the family. Here Maine makes an excursion into the fields of the Early Village Community, and has, too, to look elsewhere than to Rome, where the village community had already been transformed by coalescence into the city-state. He therefore seeks his examples from India and points to the Indian village as an example of the expansion of the family into a larger group of co-proprietors, larger but still bearing traces of its origin to the patriarchal power. And, to quote his own words, ”the most important pa.s.sage in the history of Private Property is its gradual separation from the co-owners.h.i.+p of kinsmen.” The chapter on Contract, although it contains some of Maine's most suggestive writing, and the chapter on Delict and Crime, have a less direct bearing on his main thesis except in so far as they go to show that the reason why there is so little in early law of what we call civil, as distinct from criminal, law, and in particular of the Law of Contract, is to be found in the fact that, in the infancy of society, the Law of Persons, and with it the law of civil rights, is merged in the common subjection to Paternal Power.

Such, putting it in the simplest possible language, is the main argument of _Ancient Law_. The exigencies of s.p.a.ce and of simplicity compel me to pa.s.s by, to a large extent, most of the other topics with which Maine deals--the place of custom, code, and fiction in the development of early law, the affiliation of international Law to the _Jus Gentium_ and the Law of Nature, the origins of feudalism and of primogeniture, the early history of delict and crime, and that most remarkable and profound pa.s.sage in which Maine shows the heavy debt of the various sciences to Roman law and the influence which it has exerted on the vocabulary of political science, the concepts of moral philosophy, and the doctrines of theology. I must confine myself to two questions: how far did Maine develop or modify in his subsequent writings the main thesis of _Ancient Law_? to what extent has this thesis stood the test of the criticism and research of others? As regards the first point, it is to be remembered that _Ancient Law_ is but the first, though doubtless the most important, of a whole series of works by its author on the subject of early law. It was followed at intervals by three volumes: _Village Communities in the East and West_, _Early Inst.i.tutions_, and _Early Law and_ _Custom_. In the first of these he dealt with a subject which has excited an enormous degree of attention and not a little controversy among English, French, German, and Russian scholars,[2] amounting as it does to nothing less than an investigation into the origin of private property in land. The question has been put in various forms: did it commence with joint (or, as some would put it, less justifiably, communal or corporate) owners.h.i.+p or with individual owners.h.i.+p, and again was the village community free or servile? It is now pretty generally recognised that there was more than one type, though common cultivation was doubtless a feature of them all, and even in India there were at least two types, of which the one presenting several, as opposed to communal, owners.h.i.+p is not the less ancient. But it may well be that, as Maitland so often pointed out, much of the controversy has been literally an anachronism; that is to say, that nineteenth-century men have been asking the Early Ages questions which they could not answer and reading back into early history distinctions which are themselves historical products. Owners.h.i.+p is itself a late abstraction developed out of use. We may say with some certainty that family ”owners.h.i.+p” preceded individual owners.h.i.+p, but in what sense there was communal owners.h.i.+p by a whole village it is not so easy to say.

Maine was on surer ground when, as in his studies of Irish and Hindu law, he confined himself to the more immediate circle of the family group. In his _Early Inst.i.tutions_ he subjects the Brehon Laws of early Ireland to a suggestive examination as presenting an example of Celtic law largely unaffected by Roman influences. He there shows, as he has shown in _Ancient Law_, that in early times the only social brotherhood recognised was that of kins.h.i.+p, and that almost every form of social organisation, tribe, guild, and religious fraternity, was conceived of under a similitude of it. Feudalism converted the village community, based on a real or a.s.sumed consanguinity of its members, into the fief in which the relations of tenant and lord were those of contract, while those of the unfree tenant rested on status. In his _Early Law and Custom_ he pursues much the same theme by an examination of Hindu Law as presenting a peculiarly close implication of early law with religion. Here he devotes his attention chiefly to Ancestor-wors.h.i.+p, a subject which about this time had engaged the attention, as regards its Greek and Roman forms, of that brilliant Frenchman, Fustel de Coulanges, whose monograph _La Cite Antique_ is now a cla.s.sic. As is well known, the right of inheriting a dead man's property and the duty of performing his obsequies are co-relative to this day in Hindu law, and his investigation of this subject brings Maine back to the subject of the Patriarchal Power. He points out that both wors.h.i.+pper and the object of wors.h.i.+p were exclusively males, and concludes that it was the power of the father which generated the practice of wors.h.i.+pping him, while this practice in turn, by the gradual admission of women to partic.i.p.ate in the ceremonies, gradually acted as a solvent upon the power itself. The necessity of finding some one to perform these rites, on failure of direct male heirs, marked the beginning of the recognition of a right in women to inherit. The conception of the family becomes less intense and more extensive. These discussions brought Maine, in chapter VII. of _Early Law and Custom_, to reconsider the main theory of _Ancient Law_ in the light of the criticism to which it had been exposed, and every reader of _Ancient Law_ who desires to understand Maine's exact position in regard to the scope of his generalisations should read for himself the chapter in the later work ent.i.tled ”Theories of Primitive Society.”

His theory of the patriarchal power had been criticised by two able and industrious anthropologists, M'Lennan and Morgan, who, by their investigation of ”survivals” among barbarous tribes in our own day, had arrived at the conclusion that, broadly speaking, the normal process through which society had pa.s.sed was not patriarchal but ”matriarchal,” _i.e._ understanding by that term a system in which descent is traced through females. It would take up far too much s.p.a.ce to enter into this controversy in detail. It is sufficient to say that the counter-theory rested on the a.s.sumption that society originated not in families, based on the authority of the father and relations.h.i.+p through him, but in promiscuous hordes among whom the only certain fact, and, consequently, the only recognised basis of relations.h.i.+p, was maternity. Maine's answer to this was that his generalisations as to the prevalence of the patriarchal power were confined to Indo-European races, and that he did not pretend to dogmatise about other races, also that he was dealing not with all societies but all that had any permanence. He argues that the promiscuous horde, where and when it is found, is to be explained as an abnormal case of retrogression due to a fortuitous scarcity of females resulting in polyandry, and he opposes to the theory of its predominance the potency of s.e.xual jealousy which might serve as only another name for the patriarchal power. On the whole the better opinion is certainly with Maine. His theory, at any rate, alone accords with a view of society so soon as it is seen to possess any degree of civilisation and social cohesion.

It will be seen that Maine's work, like that of most great thinkers, presents a singular coherence and intellectual elegance. It is distinguished also by an extraordinary wide range of vision. He lays under contribution with equal felicity and suggestiveness the Old Testament, the Homeric poems, the Latin dramatists, the laws of the Barbarians, the sacerdotal laws of the Hindus, the oracles of the Brehon caste, and the writings of the Roman jurists. In other words, he was a master of the Comparative Method. Few writers have thrown so much light on the development of the human mind in its social relations. We know now--a hundred disciples have followed in Maine's footsteps and applied his teaching--how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as ”the State.” In all this Maine first showed the way. As Sir Frederick Pollock has admirably put it--

Nowadays it may be said that ”all have got the seed,”

but this is no justification for forgetting who first cleared and sowed the ground. We may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still.

We may conclude with some remarks on Maine's views of the contemporary problems of political society. Maine was what, for want of a better term, may be called a Conservative, and, indeed, it may be doubted whether, with the single exception of Burke, any English writer has done more to provide English Conservatives with reasons for the faith that is in them. He has set forth his views in a collection of polemical essays under the t.i.tle of _Popular Government_, which were given to the world in book form in 1885. He viewed the advent of Democracy with more distrust than alarm--he appears to have thought it a form of government which could not last--and he has an unerring eye for its weaknesses.[3] Indeed, his remarks on the facility with which Democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as M. Ostrogorski's _Democracy and the Organisation of Political Parties_. Maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to ”suggestion,”

their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. It is not surprising that the writer who had subjected the theories of the Social Contract to such merciless criticism sighed for a scientific a.n.a.lysis of political terms as the first step to clear thinking about politics. Here he was on strong ground, but for such an a.n.a.lysis we have yet to wait.[4] He seems to have placed his hopes in the adoption of some kind of written const.i.tution which, like the American prototype, would safeguard us from fundamental changes by the caprice of a single a.s.sembly. But this is not the place to pursue such highly debateable matters. Enough if we say that the man who wishes to serve an apprentices.h.i.+p to an intelligent understanding of the political society of the present cannot do better than begin by a careful study of Maine's researches into the political society of the past.

J.H. MORGAN.

_Note._--The reader who desires to study Maine in the light of modern criticism is recommended to read Sir F.

Pollock's ”Notes on Maine's _Ancient Law_” (published by John Murray at 2_s._ 6_d._, or, with the text, at 5_s._). The best short study of Maine with which I am acquainted is the article by Professor Vinogradoff in the _Law Quarterly Review_ for April 1904. The field of research covered by Maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. In addition to the works on the Village Community mentioned in a previous footnote, I may, however, refer the beginner to Mr. Edward Jenks' little book on _The History of Politics_ in Dent's Primers, to Professor Ashley's translation of a fragment of Fustel de Coulanges under the t.i.tle of _The Origin of Property in Land_, and to Sir Frederick Pollock's brilliant little book, _The Expansion of the Common Law_. The reader is also recommended to study Mr. H.A.L. Fisher's succinct survey of the contributions of Maitland to legal history under the t.i.tle of _F.W. Maitland; an Appreciation_ (Cambridge University Press). One of the most brilliant and ingenious studies of the origins of European civilisation is to be found in the work of the great German jurist, Ihering, _Die Vorgeschichte der Indo-Europder_, translated into English under the t.i.tle of _The Early History of the Indo-European Races_ (Sonnenschein, 1897).

[1] The reader who desires to pursue the subject by reference to one of Maine's chief authorities is recommended to read the translation of the _Inst.i.tutes_ by Sandars.

[2] English literature on the subject is best studied in Maitland's _Domesday Book and Beyond_, Vinogradoff's _The Growth of the Manor_ and _Villeinage in England_ (with an excellent historical introduction), and Seebohm's _English Village Community_.

[3] Witness the characteristic sentence: ”On the whole they [_i.e._ the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them....

Like the savage, he is a man of party with a newspaper for a totem ... and like a savage he is apt to make of his totem his G.o.d.”

[4] Something of the kind was done many years ago by Sir George Cornewall Lewis in his little book on the _Use and Abuse of Political Terms_. I have attempted to carry the task a step farther in an article which appeared in the form of a review of Lord Morley's ”History and Politics” in the _Nineteenth Century_ for March 1913.