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.

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.