The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

INTRODUCTION.

Sir Henry Maine’s “Ancient Law” is now a classical text. The object of this edition is to reproduce it, accompanied by such help to right understanding and profitable use as a younger generation may reasonably require. More than forty years have passed since the book was first published in 1861. During those years, and to a great extent under the influence of Maine’s own work, research into the early history of laws and institutions has been more active, systematic, and fruitful than it ever was before. Many new facts have been disclosed; our knowledge of others has been freed from error and misconception; as many, perhaps more, which were formerly accessible, but neglected as being insignificant or of merely local interest, have found their due place and importance in a wider field of knowledge. The materials thus acquired enable us to confirm and supplement Maine’s work in many points. If they also show us that it calls for amendment in some places, no one who is at all acquainted with the progressive character of legal and historical learning will find in this any cause for disappointment. The wonder is not that Maine’s results, after more than a generation, should stand in need of some correction, but that, in fact, they need so little as they do. Later speculation and research have, on the whole, confirmed Maine’s leading ideas in the most striking manner, partly by actual verification of consequences indicated by him as probable, partly by new examples and applications in regions which he had not himself explored.

There is no better witness to the intrinsic weight of Maine’s work than the nature of some criticism it has met with, from competent persons on the Continent rather than at home. So far as those learned persons complain of anything, they miss that symmetrical construction of a finished system to which their training has accustomed them. Now it is to be observed that no words of Maine’s own ever gave his readers the promise of a systematic doctrine. Not one of his books professed on the face of it to account for the ultimate origin of human laws, or to settle the relations of jurisprudence to ethics, or to connect the science of law with any theory of politics or of social development. Yet it does not seem to have occurred to the critics in question to charge Maine with remissness in not having attempted these things. The disappointment expressed was that he did not fully accomplish them, or that, if he had a solution, he never sufficiently declared it. Regret that Maine’s work was not more openly ambitious is legitimate, though I do not share it; expression of it might have signified much or little. It might have been thoroughly sincere, and due to imperfect understanding of the relations to time, circumstances, and materials, which determined Maine’s manner of working, and, as I believe, determined it for the best. It might also have been, in the critic’s intention, the easy compliment of the professional and disciplined scholar to a brilliant amateur. Very different from this was the actual criticism. It assumed that the author had proved himself a master, and that, accordingly, the highest and most exacting standard was to be applied both to his method and to his results. When we turn from Dareste or Vanni to the original preface to “Ancient Law,” we are astonished by the studiously modest terms in which Maine defined his own undertaking: “The chief object of the following pages is to indicate some of the earliest ideas of mankind as they are reflected in ancient law, and to point out the relation of those ideas to modern thought.” In like manner, on the first publication of the lectures on Village Communities, he apologised for their fragmentary character, and in the height of his mature fame he described “Early, Law and Custom” only as an endeavour “to connect a portion of existing institutions with a part of the primitive or very ancient usages of mankind, and of the ideas associated with those usages.” It is worth while to observe Maine’s caution in disclaiming authority to lay down what ancient usages, if any, are really primitive—a caution sometimes neglected by his followers, and often by the champions of other theories.

Maine’s dignified and almost ironical reserve about his own work has certainly made it rather difficult for a student approaching it for the first time to form any general notion of what it has really done for legal and historical science. Although Maine himself was the last person of whom the answer to such a question could be expected, we who are in no way bound to reticence must say that he did nothing less than create the natural history of law. He showed, on the one hand, that legal ideas and institutions have a real course of development as much as the genera and species of living creatures, and in every stage of that development have their normal characters; on the other hand, he made it clear that these processes deserve and require distinct study, and cannot be treated as mere incidents in the general history of the societies where they occur. There have been complaints, often too well justified, of the historical ignorance prevailing among lawyers. “Woe unto you also, ye lawyers!” Freeman said—whether in print in those terms, I know not; but I have heard him say it—when he was grieved at the fictions about mediæval institutions that still passed current for history twenty-five or thirty years ago. But Maine has taught us that the way to impart a historical habit of mind to lawyers is to show them that law has an important history of its own, not at all confined to its political and constitutional aspects, and offers a vast field for the regular application of historical and comparative method. When once a lawyer has grasped this, he is entitled to point out in turn that a historian who is not content to be a mere chronicler can hardly do without some understanding of legal ideas and systems. And the importance of the legal element, so far from diminishing as we retrace the growth of our modern institutions into a semi-historic past, rather increases. Others have shown this besides Maine, but none before him. It is easy to underrate his originality now that his points have been taken up by many teachers and become current in the schools. Any student who harbours doubt as to the extent of Maine’s contributions to the historical philosophy of law may do well to ask himself in what books, legal or historical, of earlier date than “Ancient Law,” he could have found adequate perception, or any distinct perception, of such matters as these: The sentiment of reverence evoked by the mere existence of law in early communities; the essential formalism of archaic law; the predominance of rules of procedure over rules of substance in early legal systems; the fundamental difference between ancient and modern ideas as to legal proof; the relatively modern character of the individual citizen’s disposing power, especially by will, and freedom of contract; and the still more modern appearance of true criminal law. 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.

It will now be proper to consider in a general way what resources were available for Maine’s purposes when he wrote “Ancient Law,” or rather when he prepared and delivered the lectures of which it was a revised publication (“Early Law and Custom,” p. 194). We shall be pretty safe in taking legal and historical scholarship as they stood, for an English student who had not frequented Continental seats of learning, about the middle of the nineteenth century.

First, in Roman law Savigny, then still living, was the person of greatest authority; the historical school which he took a principal part in founding was dominant in Germany and beginning to prevail elsewhere. Savigny’s work, as well as that of his contemporaries and immediate followers, dealt only with the Roman materials. Comparative investigation of archaic legal systems had scarcely been undertaken at all, certainly not on any considerable scale, and this may perhaps account for more than one conjecture of Savigny’s which has not proved tenable. The work of Rudolf von Ihering, the character of whose genius, individual as it was, perhaps most nearly resembled Maine’s in the same generation, was only beginning. His views on the evolution of modern from archaic law coincide remarkably with those of Maine in several points; for example, in the position that all jurisdiction, if we could trace it far back enough, would be found to be in its origin not compulsory, but voluntary. But there can be no question of borrowing either way. Maine had formed his own ideas before any part of Ihering’s great work, “Der Geist des römischen Rechtes,” was published; and Ihering was never in a position to make much use of Maine’s work, even if he had the time; for, as I came to know from himself, he could not read English with any facility.

The literature of Roman law to be found in our own language was, with few exceptions, antiquated or contemptible, and such incidental references to Roman law as occurred in English text-books were almost always crude, often inappropriate or quite erroneous. Blackstone has some very bad mistakes in this kind. For many years after the publication of “Ancient Law” this state of things remained unamended. At the present time it is very different. In our own language Muirhead, Poste, Dr. Moyle, Dr. Roby, and Dr. Greenidge have made excellent provision of various kinds both for beginners and for advanced students, and Sohm’s Institutes are accessible in Mr. Ledlie’s scholarly translation. Professor Girard’s “Manuel élémentaire de droit romain” (3rd ed., 1901) is, notwithstanding its modest title, one of the most learned and comprehensive, as well as the most recent, works on the subject. The reader of “Ancient Law” will understand that, as Maine was careful to explain in his first preface, the portions dealing with Roman law were never intended to take the place of a treatise on the subject. In fact, they assume the elementary knowledge which may be obtained from a good edition of Justinian’s Institutes. It would therefore be idle to attempt a detailed commentary on them from a technical point of view which would not be appropriate; and any reader who thinks he can use Maine’s work as a substitute for first-hand acquaintance with the texts and the best commentators, instead of a companion and aid, must do so wholly at his own peril. Still less can Maine be censured for having adopted, at the time, current views of the highest authorities in Roman legal history which have since been abandoned.

Germanic legal antiquities had been investigated to a considerable extent; but the Continental scholars who had done this were still hardly aware of the wealth or importance of the material awaiting scientific treatment in England. On the other hand, those who made their results known to English readers, John Mitchell Kemble the foremost, were not learned in the modern law of England, and had not the means of connecting its later or even its mediæval history with the earliest monuments of English institutions. Thus no one had made any serious attempt to sift the mass of information collected by English professional writers and antiquaries of the sixteenth and seventeenth centuries, whose industrious labour assuredly deserves all praise, and whose judgment has in some cases been restored to credit which it had not deserved to lose. We need hardly say that Maine, not being a technical antiquary, did not attempt any such thing himself. Indeed, the work he actually did was needful to disclose the right lines of antiquarian research, and rescue it from the state of mere dilettante curiosity.

English legal history was very imperfectly known, and what was known was concealed under huge masses of comparatively modern formalism. There was much to be learnt (as there still is) from Blackstone, whose work was admirable in its day, notwithstanding conspicuous faults of method and arrangement mostly not his own; but Blackstone had ceased to be generally read with attention even by lawyers, and was not a safe guide for any period before the thirteenth century. Whatever was before the Great Charter (and I am taking the earliest possible date) lay under a cloud of thick darkness, pierced only in part by the brilliant lights of Kemble and Palgrave. These fell, moreover, chiefly on the political and constitutional aspects of the common law, leaving in shadow those technical archaisms which we now know for landmarks. Palgrave, again, was often exuberant and fanciful, Kemble not seldom rash; and their work (though its general merit can hardly be exaggerated) is by no means free from positive mistakes, which, considering its novelty at the time, is in no way surprising. In every branch of the law scientific or even well written and tolerably arranged textbooks were rare; in some they were wholly wanting. Constitutional law (and that from a political more than a legal point of view) was the only department which could be said to have found an adequate historian. On the whole, historical knowledge of English law before the twelfth century was not to be found, and after the twelfth century was pretty much what Blackstone had left it. In consequence of the general indifference to historical study, besides the real difficulties then attending it, lawyers and judges, even really learned ones, were commonly prone to accept superficial explanations which a little more research, not of a recondite kind, would have proved to be erroneous. In particular there was a strong tendency to exaggerate Roman influence in the formation of English institutions, by no means without plausible excuse. Perhaps it was knowledge of Kemble’s work that saved Maine from this rife and dangerous error. Clearly the English materials were not in a fit state, when Maine was writing “Ancient Law,” to be used with effect for any purpose of historical generalisation or comparison; and he had no choice but to leave them alone for the most part, and build on other and at that time safer ground.

Asiatic systems of law were more or less known to Orientalists, but only in so far as their texts were documents of Arabic or Sanskrit literature. On the other hand, it was the duty of a considerable number of British magistrates and officials in India to have some acquaintance with so much of Hindu and Mahometan law as was recognised and applied by the civil courts; but this was only for the necessities of judicial business. Few men, if any, followed the splendid example of Sir William Jones in combining literary with practical knowledge, as indeed very few can at any one time reasonably be supposed capable of it. As to the Mosaic law, it was still the received opinion that there was an impassable or at least a highly perilous gulf between sacred and profane history. Knowledge of the text of the Old Testament, far more complete and more generally diffused in English-speaking countries than anywhere else, had therefore produced little result for secular learning. Neither the philological nor the official handling of Asiatic law-books caused any appreciable number of scholars to perceive the importance of Asiatic custom for the general study of legal ideas and history. Maine’s pointed references to Hindu institutions, at a time before he had or expected to have anything to do with India, could have been made only by a man of quite extraordinary insight. It would be interesting to know from what quarter his attention was first directed that way.

It has been thought proper to reprint the text of “Ancient Law” as last revised by Maine not only without alteration, but without the interruption of editorial footnotes. Such comments as I have been able to add will be found collected in the Appendix at the end of the book. As “Ancient Law” touches on a greater variety of matters than almost any modern book of serious learning which is not of an encyclopædic nature, I have perforce omitted some topics, not because they might not have been considered with profit by a person competent in them, but because I was not competent. For the same reason I can by no means vouch for the accuracy in detail, according to the present state of knowledge, of everything I have passed over without remark. But my experience of the points I am qualified to test has led me to presume that such errors as may be discovered by specialists will seldom be found to affect the general course of the argument. I have purposely not dwelt on matters of elementary information which any student capable of profiting by Maine’s work is equally capable of verifying for himself with little trouble. Maine did not write, for example, for readers who had never heard of Hobbes or Montesquieu. Such a name as Du Molin’s, on the other hand, may well be strange, not only to an educated Englishman (as that of Bracton or Plowden might be to an educated Frenchman), but to an English lawyer who has not made a special study of the Reformation controversies or the revival of classical Roman law; and in this case it would be vexatious to put off such readers with a bare reference to the French biographical dictionaries.

I have to thank the owners and the editor of the Edinburgh Review for permission to make free use of an article entitled “Sir Henry Maine as a Jurist,” contributed by me in 1893.

F.P.

For general information about Maine’s life and works the following publications may be consulted: “Sir Henry Maine: a brief memoir of his life,” by Sir M. E. Grant Duff, 1892; “Sir Henry Maine and his Work,” in “Oxford Lectures and other discourses,” 1890, by the present writer; and the articles in the Dictionary of National Biography (1893), and the Supplement to the ninth edition of the Encyclopædia Britannica (1902), by Leslie (afterwards Sir L.) Stephen and the present writer respectively.