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.

Chapter I. Page 1.

NOTE A.

ANTIQUITY OF ROMAN LAW.

The description of Roman law, in the preface to the first edition, as “bearing in its earlier portions the traces of the most remote antiquity,” is literally correct unless, contrary to the usage of good authors, we press the superlative to its extreme construction, as if it had been meant to exclude the possibility that traces of still more remote antiquity may be found elsewhere. Maine obviously did not mean to deny that Germanic and Hindu law, for example, have at some points preserved more archaic features than those of the earliest Roman law known to us; much less to disparage the extremely modern character of classical Roman law, which gives it most of its value for modern jurisprudence: compare the passage cited from “Early Law and Custom” in Note F. below. It may be still a natural temptation for a student unacquainted with other legal antiquities to suppose that the law of the Twelve Tables, or the law of the later Roman Republic as a whole, belongs to a more archaic type than it really does. Fifty years ago the temptation was almost inevitable; and we have to remember that Maine had been endeavouring, with indifferent success at the time, to revive the study of Roman law in a country where the educated public was in a state of absolute ignorance on the subject (as it probably still is), and the tradition of the civilians, confined, under the old division of jurisdictions and practice, to a small minority of the legal profession, was at least a century out of date. If Maine did use language tending to exaggerate the intrinsic merits and the practical importance of Roman jurisprudence, it was under those conditions a fault on the right side. But modern students must be warned not to assume that Roman law was in fact at any one time a perfect and symmetrical whole, or that its history can be deduced from any one formula. The Twelve Tables were no doubt regarded as an ultimate source of law for the field they covered, but they did not purport to include the whole of the recognised customary law. For the classical period of the Empire the most important and fruitful written embodiment of law was the Prætor’s Edict, as almost every title of the Digest bears witness. Moreover, the Twelve Tables themselves were no mere consolidation, but a reforming code. It is certain that they incorporated Greek materials, and it is of very little importance whether the story of a special commission being sent to Greece is literally acceptable or not. In any case the means of information were at hand in the Greek cities of southern Italy, a region where the Greek language is not yet extinct. Borrowing of this kind from neighbours who have reached a more advanced stage is by no means abnormal in archaic legislation. Indeed, it is rather common for the lawgiver of the heroic age to be represented as a stranger, or as having learnt the wisdom of older and greater kingdoms; and even if the personal element of such a tradition is dubious, it is not likely to be a gratuitous invention. Ingenious paradoxical doubts have quite lately been cast on the antiquity of the Twelve Tables; but the hypothesis that they are really a compilation or fabrication of the second century bc has not met with a favourable reception: see Dr. A. H. J. Greenidge, “The Authenticity of the Twelve Tables,” English Historical Review, January, 1905, and Professor Goudy in the Juridical Review, June. 1905. It is perhaps unnecessary to warn English students against implicit acceptance of the conjectural restorations of the Decemvirs’ work essayed by various learned persons. The most elaborate of these, that of Voigt, is described by the no less learned M. Girard as containing “une restitution tout à fait inacceptable et un commentaire fort aventureux” (Manuel élémentaire du droit romain, 3^e éd., 1901, p. 23). Dr. Roby (“Roman Private Law in the Times of Cicero and of the Antonines,” 1902, vol. i., p. x) calls it in even plainer terms a house of cards.

NOTE B.

CUSTOMARY LAW IN HOMER.

Maine’s reference to the Homeric poems as some of our best evidence for the archaic forms of legal ideas in Indo-European communities is a brilliant example of his insight. As he points out, the poet or poets had no conscious theory of the matter at all, and this is our best warranty for the witness of the poems being true. They describe a society in which custom is understood if not always observed, positive duties are definable if not easily enforceable, and judgments are rendered with solemnity and regarded as binding, although we hear nothing of any standing authority such as could be called either legislative or executive in the modern sense. And Maine is clearly right in holding (p. 2) that the description is not wholly idealised—we might even say not much—and is of a state of society known to the writer. To all appearance the usages described are real, and those of the singer’s own time. The deliberate archaism of modern fiction has no place in Homer; only the wealth and prowess of the heroic age are exaggerated. The Chanson de Roland endows Charlemagne and his peers with the arms and manners of the twelfth century, as the Arthurian cycle attributes those of the fourteenth to the knights of the Round Table; and we cannot believe that Homer did otherwise.

Maine gives a hint (p. 6) that the analysis of positive law laid down by Bentham and Austin (following Hobbes, though Bentham seems not to have been aware of it) cannot be made to fit archaic society. For in communities like those of the Homeric age, or of Iceland as described in the Sagas, there is no sovereign (in Hobbes’s sense) to be found, nor any legislative command, nor any definite sanction; and yet in Iceland there were regularly constituted courts with a regular and even technical procedure, as the Njáls Saga tells us at large. Maine afterwards worked out this position in the lectures on Sovereignty in “The Early History of Institutions,” which are the foundation of sound modern criticism on the Hobbist doctrine. In those classical pages he dealt rather tenderly with Bentham and Austin, whom to some extent he regarded as his masters, in spite of the wholly unhistorical character of their work; and, apart from any particular feeling in this case, it was not his habit to exhibit the full consequences of his ideas. Those who come after him are free to push the conclusion home, as Mr. Bryce has done (“Studies in History and Jurisprudence,” Essay X). As to the absence of executive sanction in archaic procedure, cp. “Early Law and Custom,” p. 170.

With regard to the “Themistes” of the Homeric chiefs, the word appears to be not an anomalous plural of θέμις, but distinct, and to mean principles of law or justice; “Themis,” the singular noun, being “right” in the abstract sense (E. C. Clark, “Practical Jurisprudence,” pp. 42-9). Once it means “tribute,” which does not offer much difficulty when compared with the constant use of consuetudo in medieval Latin. Some of the language used here by Maine seems to imply that the decisions called by this name were or might be arbitrary; but Maine himself added the desirable qualification in his chapter on “The King and Early Civil Justice.” “The Homeric King is chiefly busy with fighting. But he is also a judge, and it is to be observed that he has no assessors. His sentences come directly into his mind by divine dictation from on high.” That is, if the king is just; we read in the Iliad, though it occurs only in the course of a simile, of unjust kings who give crooked judgments, disregarding the voice of the gods:

• ‘Ως δ’ ὑπὸ λαίλαπι πα̑σα κελαίνῃ βέβριθε χθὼν
• ἤματ’ ὀπωρινῳ̑, ὅτε λαβρότατον χέει ὕδωρ
• Ζεύς, ὅτε δή ῥ’ ἄνδρεσσι κοτεσσάμενος χαλεπἠνῃ,
• ο βίῃ εἰν ἀγορῃ̑ σκολιὰς κρίνωσι θέμιστας,
• ἐκ δὲ δίκην ἐλάσωσι, θεω̑ν ὄπιν οὐκ ἀλέγοντες . . .

• II. 384 sqq.

Custom, indeed, is so strong in Homer that the gods themselves are bound by it. Zeus is the greatest of chiefs, but he owes justice to his people, and justice implies the observance of rule. Power is not wanting, but a sense of duty moderates it. Thus in the Iliad Zeus is tempted to rescue Sarpedon from his fate, but dares not break his custom in the face of Hera’s rebuke (“Do it if thou wilt: but the rest of the gods in no wise approve”: II. 443): and in the Odyssey the Sun-God threatens to go down and shine among the dead men if he is not to be avenged for the sacrilege of Odysseus’ men who have killed and eaten his oxen:—

• Ζευ̑ πατέρ ἠδ’ ἄλλοι μάκαρες θεοὶ αἰὲν ἐόντες,
• τι̑σαι δὴ ἑτάρους Λαερτιάδεω ’Οδυση̑ος,
• οἵ μευ βου̑ς ἔκτειναν ὑπέρβιον, ᾑ̑σιν ἐγώ γε
• χαίρεσκον μὲν ἰὼν εἰς οὐρανὸν ἀστερόεντα,
• ἠδ’ ὁπότ’ ἂψ ἐπὶ γαι̑αν ἀπ’ οὐρανόθεν προτραποίμην.
• εἰ δέ μοι οὐ τίσουσι βοω̑ν ἐπιεικέ’ ἀμοιβήν,
• δύσομαι εἰς ’Αίδαο καὶ ἐν νεκύεσσι ϕαείνω.

• μ. 377 sqq.

NOTE C.

EARLY FORMS OF LAW: “WRITTEN” AND “UNWRITTEN” LAW: EARLY CODES.

It should be noted that the growth of institutions is much too complicated, even if we confine our attention to one society, to be represented as a simple series in order of time. We constantly speak of one rule or custom as belonging to a more advanced stage of ideas than another; but this does not mean that in every society where it is found it must have been preceded in fact by a less advanced institution belonging to the next lower grade of culture. Imitation of neighbours or conquerors, or peculiar local conditions, may materially shorten a given stage in the normal development, or even cut it out altogether. What we do mean is that the order is not found reversed. Chalk is not everywhere in England, nor red sandstone; but where red sandstone is, we know that chalk is not below it. Iron was known in Africa so early that Africa may be said not to have had a bronze age; but this does not make it more credible that any tribe should ever have abandoned iron for bronze. In like manner there may have been tribes that had lawgivers almost or quite as soon as they had judges. But no one has heard of a nation which, having acquired a body of legislation, reverted from it to pure customary law (cp. Kohler, “Zur Urgeschichte der Ehe,” pp. 7-10).

A king’s or chieftain’s judicial dooms are very different from express laws promulgated for general observance; but it is noticeable that early traditions ascribe a divine origin to both. In the former case the judge enjoys, in some undefined way, the confidence of the gods; in the latter the human lawgiver is merely the scribe or reporter of a “Deity dictating an entire code or body of law,” which, as Maine points out (above, p. 5), is a more artificial conception and belongs to a later stage. It appears, however, as early as anything that can be called legislation; and the tendency to refer the commandments of the law to a divine or semi-divine origin is quite regular. There is no reason, it may be added, why a lawgiver or recorder of divine law should not also be a speaker of dooms. A ruling ascribed to Moses, whom Sir Edward Coke claimed as the first law reporter, is at this day a practical decision, for it governs the civil law of succession in some Jewish communities (such as the Jews of Aden: Sir Courtenay Ilbert, “The Government of India,” p. 397). Even if the Mosaic law has to admit the superior antiquity of King Hammurabi’s code, we may safely say that the case of Zelophehad’s daughters is the earliest recorded case which is still of authority.

When the king or chief ceases to bear all offices in his own person, and the political division of labour begins, those functions which had a sacred character naturally become attached to a priesthood or sacred tribe or family, and among them the custody and interpretation of the law. The distinction between religious and secular law is, one need hardly say, much later. Thus we find in both Germanic and Roman antiquity more than traces of priests, or nobles who claimed the priest’s office as a birthright, being the first judges (Grimm, “D.R.A.” 272, i. 378 in 4th ed.). In Iceland the rather vague but not ineffectual authority which was ascribed to the Speaker of the Law seems to have had a religious character. At any rate we read in the Njáls Saga that to him, and him alone, was left the momentous decision of the question, which had all but led to civil war, whether Christianity should be adopted (Dasent, “Burut Njal,” ch. ci.). There seems to be no reason against accepting this incident as mainly historical. It is worth observing that Thorgeir would not make his award until both the Christian and the heathen party had given pledges to abide by it: a striking illustration of the voluntary and arbitral character of early jurisdiction. Edward I. of England, more than two centuries later, used similar precaution when he adjudicated on the claims to the crown of Scotland.

Whether a monopoly of legal knowledge is established in the hands of a privileged caste or order, or a tradition of learning is handed down in something like a school, or, without any profession of secrecy, certain persons enjoy for the time being the reputation of superior knowledge, appears to depend on the particular circumstances of each community. Besides the Speaker of the Law, we find in the Iceland of the Sagas a few specially wise men, Njál himself, and after his death one or two others, whose advice is eagerly sought by their neighbours, and whose deliberate opinion is almost conclusive; yet there is no possible distinction of race or rank in that singularly homogeneous republic. A like position is ascribed to Nestor. This kind of reputation is obviously not less but more important in a society where jurisdiction and judicial power have not yet become compulsory; for the chances that any judgment or award will be observed will, in such a society, depend largely on the respect in which the acting judge or daysman is held.

Maine adds that law preserved as a kind of trade secret by a privileged class is the only real unwritten law. This may be literally true. But our current professional use of the term is really a matter of literary convention. We find it useful to confine the term “written law” to an enactment or declaration which is authoritative not only in matter but in form, so that its very words not only contain but constitute the law. An exposition whose very words are not binding is “unwritten law,” however great its authority may be in substance. Consider the case of a judge in England, or any other jurisdiction under the system of the Common Law, making a careful statement of some point of law in a book written and published by him. This is only a private learned opinion, and has, properly speaking, no authority at all. But the same or another judge may adopt the statement in a reported judgment. It then acquires authority as a judicial exposition of the law, but still its actual terms are not binding, and it counts as “unwritten law.” Finally, the proposition may be embodied in a statute. It then becomes “written law,” and the Courts will have for the future to treat not only the substance but every word of it as authentic. The distinction is quite real, and no better way of expressing it has been found. French usage, moreover, presents a close analogy. Under the old monarchy the provinces of written law (pays de droit écrit) were those where the texts of Roman law were received as having binding authority, while in the pays de droit coutumier they were cited only for example and illustration, on the merits of the reason embodied in them, as they may be and sometimes are in England. Thus the same text might be “written” law in one province and “unwritten” (though there is no corresponding French term) in another. A learned modern writer says of the antithesis between ius scriptum and iusnon scriptum, after careful examination of the various meanings with which they occur in the writings of the classical Roman lawyers: “Its general practical use with them is as a distinction between customary law, on the one hand, and law drawn up and issued in any regular manner by any legislative authority, on the other. . . . The above is also the practical use of the distinction . . . by our English jurists, so far as they use it at all. . . . With modern Continental writers written and unwritten in general designate respectively enacted and customary law” (E. C. Clark, “Practical Jurisprudence,” p. 272).

Maine’s brief remarks on early codes (pp. 12-18) include a few sentences on Hindu law; these were written at a time when the existence of the books called by the names of Manu and Narada was hardly known outside Anglo-Indian official circles except to a few students of Sanskrit. In later years, after having been a member of the Government of India, he returned to the subject. The chapters in “Early Law and Custom” on “The Sacred Laws of the Hindus,” “Religion in Law,” and “Classifications of Legal Rules,” should be read accordingly as a supplement; and the second and third lectures in “Village Communities” should also be consulted as to the general nature of archaic customary law, and the effect produced on it by contact with a modern system.

Timely codification of customs, as Maine observes (pp. 14, 15), may prevent degradation; I must confess that the ascription of such an effect to the Twelve Tables, though ingenious and pleasing as a conjecture, appears to me to go beyond what is warranted by our knowledge of the state and tendencies of Roman society under the earlier Republic. It is certain that conversely the fixing of law in a codified form at a later stage may arrest a normal and scientific development. Such was the result of the Ordinance which stereotyped the French law of negotiable instruments in 1673 (Chalmers, “Bills of Exchange,” Introduction, p. lvi). It would seem, indeed, that the Twelve Tables themselves went near to stereotype an archaic and formalist procedure, and that the Romans of later generations escaped from great inconvenience only by the devices of legal fictions and equity which Maine considers in the following chapter.