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 V. Page 109.

NOTE I.

MONTESQUIEU, BENTHAM, AND HISTORICAL METHOD.

Maine’s judgment of Montesquieu is, in effect, that, notwithstanding inevitable defects of method and some individual faults, he came nearer than any other man to founding the historical and comparative study of institutions. It is true, as Sir Courtenay Ilbert has said in a fuller criticism (“The Romanes Lecture: ‘Montesquieu,”’ Oxford, 1904), that “his appreciation of the historical method was imperfect, and his application of it defective”: at the same time his work “prepared for and gave an enormous stimulus to those methods of study which are now recognised as indispensable to any scientific treatment either of Law or of Politics” (op. cit. pp. 35-6).

In 1903, on quitting the chair which I had the honour of holding in succession to Maine at Oxford, I thus endeavoured to sum up Montesquieu’s relation to these studies:—

The “historical theory” ascribed to Bentham (p. 113) seems to be not quite so unfruitful as Maine’s criticism supposes. If it is said that societies modify their laws according to modifications of their views of general expediency, this must mean views formed by actual observation and experience, as opposed to the application of dogmatic or traditional rules; and it must be implied that such views have a greater part in the changes of legal institutions than is avowed, or perhaps realised, by the actors and promoters. Doubtless Bentham underrated the power of tradition and custom. Probably he underrated it very much in the case of archaic societies. But his proposition, understood as above explained, is a substantial one and capable of discussion. It is not reducible to the truism that people make changes because they think change expedient, or in other words because they desire change; it signifies that the reasons professed or admitted for making particular changes are often not the real or the most operative reasons. Apparently the passages to which Maine alludes are scattered about various works of Bentham’s and not expressed in clear or positive terms; it therefore does not seem practicable, in the absence of any specific reference, to identify them. But it was obviously natural for Bentham, with his thoroughgoing conviction that all ethical problems can be solved by the utilitarian calculus, to maintain that in fact the greater part of mankind are utilitarians without knowing it.

Maine’s claim of scientific validity for the historical treatment of jurisprudence (p. 114) is now disputed by no one; indeed, if we now find any difficulty, it is in remembering that in 1861 it was still novel, and that its champion at that time had need of much insight and some boldness. His precepts as to the need of observing the caution approved by experience in other kinds of scientific enquiry, beginning with the best evidence and working gradually from what is known to what is obscure or unknown, are still in full force, and might easily be illustrated by the failure of ambitious reconstructions of later date whose authors have neglected them.

NOTE K.

THE PATRIARCHAL THEORY.

In the preface to the tenth edition, reprinted in all subsequent issues, Maine himself referred to the chapter on Theories of Primitive Society in “Early Law and Custom.” The note on the Gens in the same volume (p. 286 sqq.) should also be consulted. In 1886 Maine replied in the Quarterly Review to the criticisms of the McLennan brothers (Q.R., vol. 162, p. 181); no secret was made of the authorship, though the practice of the Review, as it then stood, did not allow signature or public acknowledgment. It should be noted that the supposed ancient Slavonic poem cited at p. 196 of this article is a modern forgery: see Kovalevsky, “Modern Customs and Ancient Laws of Russia,” p. 5. The last-named learned author made fuller contributions to the subject in his lectures delivered and published in French at Stockholm (“Tableau des origines et de l’évolution de la famille et de la propriété,” 1890: some account of this book, which may not be easily accessible in England, was given in the Saturday Review of October 18 and 25, 1890). Still later Dr. Kohler of Berlin has dealt systematically with the whole topic of archaic marriage and kinship, following and applying Morgan’s doctrine with less reserve than Lord Avebury and Dr. Tylor, who do not accept Morgan’s inferences (“Zur Urgeschichte der Ehe: Totemismus, Gruppenehe, Mutterrecht,” reprinted from “Ztschr. für vergleichende Rechtswissenschaft,” Stuttgart, 1897: and see a more summary statement by the same learned author in the “Encyklopädie der Rechtswissenschaft,” re-edited by him in 1904, vol. i. pp. 27 sqq.). Most English readers, however, will find in the latest edition (1902) of Lord Avebury’s “Origin of Civilisation,” and in Dr. E. B. Tylor’s article on the Matriarchal Family System, Nineteenth Century, xl. 81 (1896), the easiest and certainly not the least profitable guides, among writings published since Maine’s death, to what is now known or conjectured in this extremely difficult enquiry.

On the whole the safest opinion appears at present to be that the Indo-European race may have gone through a stage of “matriarchy” at some remote time, but at any rate before the great migration which dispersed the several branches. This was Ihering’s conclusion in his brilliant posthumous work, “Vorgeschichte der Indo-Europäer” (p. 40 of Eng. tr., 62 of original). It would seem, again, that the transformation, if such a transformation there was, must not only have taken place very early, but must have been singularly rapid and complete. Thus we are brought face to face with Maine’s original problem: How and why did the Indo-Europeans become progressive? In this connexion I cannot forbear from citing some profitable words of my learned friend Professor F. W. Maitland, though their immediate subject-matter is the history not of the family but of property.

The accident of borrowing one alphabet rather than another, or in one stage rather than another, may determine the affinities of a literature and a civilisation for many generations. All the tendency of modern research is to show that deliberate imitation was earlier, easier, and commoner than scholars formerly supposed; and that people will imitate pretty odd things is amply shown by modern experience.

Maine was not the first to discover that the ancient Indo-European tribe or city, as the case may be, is an expanded family with the tie of actual kindred supplemented, so far as needful to keep the community together, by adoption or even by bolder fictions; indeed, the conception is in its essential points as old as Aristotle. But he was, I think, the first to call attention in an adequate manner to the general existence and importance of this feature in archaic society. His view has been strikingly confirmed by the researches in the history of Slavonic institutions which are mentioned in “Early Law and Custom” under the head of East European House Communities. The family element in the Indo-European community has now and then been unduly suffered to drop out of sight. Thus the exclusiveness of the archaic village or township is simply and adequately explained as the exclusiveness of a community which had been or pretended to be a clan, and no deeper mystery need be sought in the much discussed Salic rule De Migrantibus.

Maine’s original thesis was further developed by himself in the lecture on Kinship as the Basis of Society in “The Early History of Institutions,” pp. 64 sqq.

With regard to the extreme form of paternal power which, as Maine says (p. 130), we may conveniently call by its later Roman name of Patria Potestas, it is not clear that it is a mere incident of family headship. Some competent persons, such as Mr. Kovalevsky, hold it to be derived from the notion that the wife is the husband’s property, and therefore her offspring must be in his power too. If this be so, the right, being proprietary and not merely social, would belong exclusively to Private Law, and the “maxim of Roman jurisprudence that the Patria Potestas did not extend to the Jus Publicum” would be strictly logical as well as politic. But some, again, think that the paternal family itself was developed through marriage by capture or purchase, causing the wife so acquired to be regarded as the husband’s chattel (Kohler, “Encykl. der Rechtswissenschaft,” i. 30, 33; “Das Vaterrecht entwickelt sich . . . zunächst als Herrschaftsrecht: der Ehemann ist Herr der Frau und damit Herr ihrer Frucht”). Not that lordship in a rudimentary society can safely be identified with our modern legal ownership. Dominus is an ambiguous word except in strict Roman law. At all events we cannot disregard the testimony of Gaius that the Patria Potestas of the Roman family law was, in the time of Hadrian, singular among the Mediterranean nations; and, so far as we know anything of the provincial customs of the empire, they seem to have been not less but more archaic than the law of Rome. The responsibilities of the Roman paterfamilias, on the other hand, are not distinguishable in character or extent from those of the patriarch in other Indo-European family systems.

Another reason against regarding the Roman Patria Potestas as of the highest antiquity is that at an earlier time the paterfamilias was regarded not as owner, but as an administrator of the family property which in some sense already belonged to the heirs as well as himself. Indeed, this idea survived as late as the classical ages of Roman law in the untranslatable term of art sui heredes, of which “necessary heirs” is perhaps the most tolerable rendering, and the comments of the jurists upon it (Paulus in D. 28, 2, de liberis et postumis, 11, cited by Holmes, “The Common Law,” p. 342). We are fully confirmed in this by the history of the Hindu Joint Family. In Bengal the change from the position of an administrator with large powers to that of an owner is known to have taken place in relatively modern times.

Finally, I venture to record, for what it may be worth, my impression that recent inquirers, with the notable exception of Mr. J. G. Frazer, have somewhat neglected the part of superstitions and magical or pseudo-scientific beliefs in the formation of social customs. There is no presumption whatever that the true explanation of any savage practice is that which to us appears most reasonable or natural. The fundamental difference between religion and magic has been explained by Lord Avebury and Sir Alfred Lyall. Religious offerings and ceremonies, apart from the higher ethical and philosophical developments of advanced theology, seek to propitiate supernatural powers, magical ritual to control both natural and supernatural agencies. The priest is, in the current phrase, a minister, that is to say a servant of whatever gods he worships; he begs their peace and alliance with tribute in his hand. The magician or wizard acts as a master; he aims at using the secrets of nature, or commanding for his own use or that of his clients, and at his own will, the “armies of angels that soar, legions of demons that lurk.” Solomon’s seal is magical, his dedication of the temple is religious. But this has little, if anything, to do with the present subject.

Since the foregoing note was in type Mr. Andrew Lang’s book, “The Secret of the Totem” (London, 1905), has been published. Mr. Lang, agreeing in the main with Darwin on this point, wholly rejects the hypothesis of a promiscuous horde having been the earliest state of human life, and holds that “men, whatever their brutal ancestors may have done, when they became men indeed, lived originally in small anonymous local groups, and had, for a reason to be given”—the jealous despotism of the eldest male, as is explained in a later chapter—“the habit of selecting female mates from groups not their own.” McLennan’s explanation of exogamy is dismissed as wholly inadequate, and the facts supposed by Morgan and his school to establish a general epoch of “group-marriage” are treated as exceptional and belonging to a relatively advanced stage. I do not presume to appreciate Mr. Lang’s theory, or make any critical comparison of it with those of other anthropologists who differ widely from Mr. Lang and from one another. But it is legitimate to observe that Mr. Lang, as well as Dr. Tylor, appears to justify Maine’s opinion as to the primitive character of the Cyclopean family, and that it is less plausible now than it was twenty years ago to regard Maine as an old-fashioned literary scholar standing out against the lights of modern research. No doubt Maine, when he wrote “Ancient Law,” conceived the transition from the savagery of the Cyclops to the archaic civilisation of a Roman paterfamilias under the Kings or the early Republic as having been a far more direct and simple process than we can at this day think probable. This is so common an incident of historical speculation, in the absence of full and trustworthy material, that there is nothing in it to derogate from Maine’s credit.

NOTE L.

STATUS AND CONTRACT.

Maine’s now celebrated dictum as to the movement from Status to Contract in progressive societies is perhaps to be understood as limited to the law of Property, taking that term in its widest sense as inclusive of whatever has a value measurable in exchange. With that limitation the statement is certainly just, and has not ceased to be significant. The movement is not yet complete, for example, in England, where the emancipation of married women’s property has been proceeding in a piecemeal fashion for more than a generation, and is at present in a transitional state capable not only of raising hard questions but of producing, within a few years, decisions not easy to reconcile. As regards the actual definition of different personal conditions, and the more personal relations incidental to them, it does not seem that a movement from Status to Contract can be asserted with any generality. For example, the tendency of modern legislation has been to make the dissolution of marriage less difficult, and in some jurisdictions this has gone very far. But it has nowhere been enacted, and I do not think any legislator has yet seriously proposed, that the parties shall be free to settle for themselves, by the terms of the marriage contract, whether the marriage shall be dissoluble or not, and if so, on what grounds. Assimilation of marriage, as a personal relation, to partnership is not within the scope of practical jurisprudence. Again, a minor who has attained years of discretion cannot advance or postpone the date of his full age by contract with his parent or guardian, and we do not hear of any one proposing to confer such a power. The test which Maine suggests as alone justifying the preservation of disabilities—that the persons concerned do not possess the faculty of forming a judgment on their own interests—will hardly be received as adequate for either of the cases just put. In fact, the interests which these rules of law regard are not those of the parties alone. Paramount considerations of the stability of society, or the general convenience of third persons, override the freedom usually left to parties in their own affairs. The law of persons may be and has been cut short; but, so long as we recognise any differences at all among persons, we cannot allow their existence and nature to be treated merely as matter of bargain. Status may yield ground to Contract, but cannot itself be reduced to Contract. On the other hand Contract has made attacks on Property which have been repulsed. There was a time in the thirteenth century in which it seemed as if there was no rule of tenure that could not be modified by the agreement of parties. Our settled rules that only certain defined forms of interest in property can be created by private acts, our rule against perpetuities, are the answer of the Common Law to attempts to bring everything under private bargain and control. The importance of Contract in the feudal scheme of society is pointed out by Maine himself in this book, ch. ix ad fin. (cp. Pollock and Maitland, “H.E.L.” ii. 230).

One department of the law of Persons is increasing, not diminishing, in importance, namely the law of corporations or “moral persons.” We are beginning to find that the law cannot afford to ignore collective personality—that of a trade union, for example—where fact and usage have conferred a substantially corporate character on a more or less permanent social group. Modern company law is largely, no doubt, a law of contract; but of contract whose action is regulated and modified at every turn by the fact that one of the chief parts is borne by a corporate and not an individual person.

Maine guarded his position, however, to a considerable extent in the final words of this chapter, for he seems not to include Marriage—at all events marriage among Western nations, which is preceded by and results from agreement of the parties—under the head of Status. And, if the term is thus restricted, the gravest apparent exception to Maine’s dictum is removed. This, of course, involves a sensible narrowing of the term Status, a much discussed term which, according to the best modern expositions, includes the sum total of a man’s personal rights and duties (Salmond, “Jurisprudence,” 1902, pp. 253-7), or, to be verbally accurate, of his capacity for rights and duties (Holland, “Jurisprudence,” 9th ed. p. 88). It is curious that the word “estate,” which is nothing but the French form of “status,” should have come to stand over against it in an almost opposite category. A man’s estate is his measurable property; what we call his status is his position as a lawful man, a voter, and so forth. The liability of every citizen to pay rates and taxes is a matter of status; what a given citizen has to pay depends on his estate, or portions of it assigned as the measures of particular imposts. We have, too, an “estate,” in land, which so far preserves the original associations of “status,” that, as we have just noted, contract may not alter its incidents or nature. Again, as Professor Maitland has pointed out (Introduction to Gierke’s “Political Theories of the Middle Age,” Camb. 1900, p. xxv), the Roman Status has also become the State of modern public law, and in that form has refused to be reduced to a species of contract by the ingenious efforts of individualist philosophers, notwithstanding the widespread acceptance of the Social Contract for a century or more.

It is not clear how far Maine regarded the movement of which he spoke as a phase of the larger political individualism which prevailed in the eighteenth century and great part of the nineteenth, or what he would have thought of the reaction against this doctrine which we are now witnessing. At all events the questions at issue between publicists of various schools as to the proper limit of State interference with trade, or of State and municipal enterprise, do not seem to have much to do with simplifying the tenure and transfer of property, nor with removing obsolete personal disabilities.

Professor Dicey says indeed (“Law and Public Opinion in England,” p. 283) that “the rights of workmen in regard to compensation for accidents have become a matter not of contract, but of status.” But many other kinds of contracts have long had incidents attached to them by law, and those incidents are not always subject to be varied at the will of the parties. A mortgagor cannot enter into an agreement with the mortgagee which has the effect of making the mortgage irredeemable, or even tends that way by “clogging the equity of redemption.” It would be a strong thing to say that this peculiar doctrine of English courts of equity has created a status of mortgagors.