The Online Library of Liberty

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• 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 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.