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Chapter X. Page 355. - Sir Henry Sumner Maine, Ancient Law, its connection with the early history of society and its relation to modern ideas 
Ancient Law, its connection with the early history of society and its relation to modern ideas, with an introduction and notes by Sir Frederick Pollock. 4th American from the 10th London edition (New York: Henry Holt and Co., 1906).
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As for the celebrated passage of Ulpian which defines the law of nature as common to man and other animals, “quod natura omnia animalia docuit,” and distinguishes it on this ground from ius gentium, the rule confined to men, “solis hominibus inter se commune,” we are not bound to believe that it was current among Roman lawyers in Ulpian’s own time, or anything but a conceit borrowed from some forgotten Greek rhetorician. It stands alone in the classical texts, but its conspicuous adoption at the beginning of both the Digest and the Institutes of Justinian was the cause of endless trouble to the medieval commentators, for whom every word in the Corpus Iuris was of equal authority. Maine assumes the invention to have been Ulpian’s own, and ascribes it to “the propensity to distinguish characteristic of a lawyer”; I can only say that it does not look to me like a working lawyer’s point.1
Further, it is at least misleading to say that “the systematic study of the Roman law was formerly proscribed” in England. The only prohibition of which there is any evidence was confined to London; it is doubtful whether its purpose was to hold clerks in orders to their proper study of the canon as distinguished from the civil law, or to prevent London teachers from competing with the civilians of Oxford (Pollock and Maitland, “H.E.L.,” i. 102). Roman law was not only taught at Oxford and Cambridge without interruption, but sometimes, though not often, cited, at least in a general way, in the King’s Courts (Selden ad Fletam, pp. 528-530).1 There is no reason whatever to suppose that any one thought it needful or expedient to protect the Common Law against a Roman invasion. Blackstone (“Comm.,” i. 20-22) contrived, by accumulating mistakes, to draw an imaginary picture of English aversion and contempt for the civil law. In the case cited by him, Y. B. 22 Ed. III. 14 (not 24), what really happened was this. Counsel said, by way of preliminary objection, that the Court had no judicial knowledge of what the civilian—or rather, in the case in hand, canonist—process of inhibitio novi operis was: to which Justice Shardelowe replied in effect: “That is only what they call restitution in their law, so we think nothing of your point; you must answer to the merits”; and the argument proceeded accordingly. Nothing here shows very gross ignorance, although the language might not satisfy a learned civilian; the Court, so far from treating Roman words of art as nonsense, professed to understand them quite enough for the purpose in hand; and the only contempt in question was that of an abbot who was charged with having cited a prior to the Pope’s Court at Avignon and persisted in disregard of the king’s prohibition. But in the nineteenth century an over-zealous Romanising lawyer called Shardelowe an old savage on the strength of Blackstone’s misunderstanding. What is really curious in the matter is that Blackstone appears to have been misled by Selden (ad Fletam, p. 533), who cites this to prove that Roman law had become unknown in the King’s Courts in the reign of Edward III., though he does not use anything like Blackstone’s rhetorical language about contempt and aversion. With all respect for Selden, I see no room for doubt that he did misunderstand the case; perhaps he was nodding a little, for he calls Shardelowe J. “Shardus.” His general thesis that knowledge of Roman law in England, except among professed canonists, declined rapidly after the reign of Edward II., is doubtless correct. But there was no question of hostility. Not the fourteenth or thirteenth, but the sixteenth century was the time of recrimination between common lawyers and civilians, and perhaps of some real danger to the Common Law (Maitland, “English Law and the Renaissance”; Pollock, “The Expansion of the Common Law,” p. 88).
At p. 82 there is a statement about Dumoulin’s opinions which I have not been able to verify. Charles Dumoulin (properly Du Molin, latinised as Molinaeus, 1500-1566) was a profound jurist and a famous champion of Gallican liberties against the Papal claims. He was for some time a Calvinist, and afterwards a Lutheran, but his biographer Julien Brodeau, whose book1 seems to be the ultimate authority, was anxious to make it clear that he died a Catholic; which from the Gallican point of view was only natural. His life was wandering and troubled, and is a striking example of the general disturbance into which the world of letters as well as of action was thrown by the Reformation controversies; twice he fled from Paris, and twice his house was sacked under colour of zeal for Roman orthodoxy. The standard edition of his works was printed at Paris in 1681 in five volumes, folio, and is copiously indexed. I have not found in them anything about the law of nature except one depreciatory remark in a note on the Decretum of Gratian (Annotationes ad ius canonicum, in vol. 4): “politia externa regitur iure naturali et politico, sed utrumque subest divino quod altius est naturali.” This directly contradicts the received theory, which put the law of nature (principles of right revealed in human reason) before the Law of God (interpretation of specific precepts communicated by external revelation). I suspect that Du Molin, writing at that time as a Protestant, took the Law of God to be the text of Scripture, and meant that the text was to be preferred to the reasonings of the schools: compare the so-called Protestant declaration formerly in use on the admission of Fellows at Trinity College, Cambridge, “verbum Dei iudiciis hominum praepositurum.” Whatever the exact significance may be, Du Molin’s observation is the reverse of a panegyric on the law of nature. One can only suppose that the rhetorical passages of which Maine appears to have had a pretty distinct recollection occur in some other French jurist of the time, and that the introduction of Du Molin’s name was due to a slip of memory or to some accidental dislocation or misreading of manuscript notes.
It has already been pointed out that Maine greatly exaggerated the place of the “state of nature” in the doctrines of natural law. This comes out again in a startling manner in his remarks on Rousseau (p. 84).1 Whatever Rousseau may have said elsewhere, we shall not find anything about the original perfection of mankind in the “Contrat Social,” to which Maine apparently meant to refer. Rousseau believed, certainly, in natural law, and to some extent in the virtues of the “natural man” as an individual; but his “state of nature” is not much better than Hobbes’s; it is unstable and becomes intolerable, and the social contract is dictated by the need of self-preservation (liv. i. ch. vi.); justice, which did not exist in the state of nature, is due to the establishment of political society (ch. viii.). This is not the place to speak at large of Rousseau’s influence on the founders of American independence and the leaders of the French Revolution; but the careful research of American scholars has lately shown that the Principles of 1789 owed more to the American Declaration of Independence and the earlier Bills of Rights of several States than we used to suppose, and less to Rousseau, and that the language of the American constitutional instruments proceeded from the school not of Rousseau but of Locke (Scherger, “The Evolution of Modern Liberty,” New York, 1904).
Much trouble and confusion might have been saved if Maine had in the first place expressly confined his thesis, as for all practical purposes it was confined, to the Indo-European family of nations. Herbert Spencer, whose courteous treatment of “Ancient Law” set a good example not always followed, gave a hint of this long ago. When Maine wrote “Ancient Law” there were no trustworthy materials for dealing with the social history of other races on a large scale. It is certain that from the earliest times at which we have any distinct knowledge of Indo-European society we find families—or communities which may be considered as expanded families—tracing descent through males, and living under the authority, more or less tempered by custom, of the eldest male ascendant. The worship of ancestors in the male line is of extreme antiquity in every branch of the stock; it is in full force at this day among the Hindus, and there are quite recent traces of it elsewhere. This is enough for the historian of Indo-European institutions; for the remaining evidences of a different earlier system are mere survivals at best, and of no importance for any subsequent development, however interesting they may be for prehistoric anthropology. My own judgment, so far as I have been able to form one, is that many of them are no better than ambiguous. Further, it is to be observed that local survivals of “matriarchal” institutions, where their existence is made out, may quite possibly not be Indo-European at all, but belong to the customs of the non-Aryan tribes who were subdued by Aryan invaders in India, or in Eastern Europe, or in the Mediterranean countries. We have been asked to regard the Erinyes prosecuting Orestes for matricide as the champions of a more ancient “mother-right” against the paternal system: as if the natural tendency of that system were to treat matricide as venial. Surely the question whether the son is bound to take up the father’s blood-feud even against his own mother is hard enough to make a dramatic problem under any system which admits private vengeance at all. But in any case the Erinyes were autochthonous deities, looking on the gods of Olympus as intruders (τοιαυ̑τα δρω̑σιν οἱ νεώτεροι θεοί). If their failure in the suit against Orestes is a symbol of anything, it may well symbolise the triumph of Hellenic over aboriginal customs. The existence of non-Aryan elements in the Mycenaean and even the later historical civilisation of Greece is accepted for independent reasons by some of our best archaeologists (P. Gardner in Eng. Hist. Rev. xvi. 744). Again (to take a Semitic example) we are told that Gideon avenged the sons of his mother upon the kings of Midian (Judges viii. 19). But there was no one else to do it, and the men of Israel who, as we read only a few verses below, said unto Gideon: “Rule thou over us, both thou and thy son, and thy son’s son also,” were certainly familiar with succession through males. The German, Scandinavian, and Celtic tribal customs as disclosed in the earliest known history of those branches appear to be thoroughly paternal, though not without traces of preference for relatives on the mother’s side.1 Summing up the results, Dr. Tylor says (Nineteenth Century, xl. 94): “There is no proof that at any period the maternal system held exclusive possession of the human race, but the strength with which it kept its ground may be measured by its having encompassed the globe in space, and lasted on from remote antiquity in time.” For different views as to the significance of some archaic Indo-European customs, see J. D. Mayne in L.Q.R. i. 485, 494, and Kovalevsky, “Droit coutumier Ossétien,” Paris, 1893, p. 181. It is no doubt possible, as suggested by Mr. Kovalevsky, that survivals from an earlier system may be maintained under a later one for reasons different from the original ones. But if patriarchal reasons are enough to account for the custom as we find it, we can hardly assume that in a given case it was formerly matriarchal, merely because for all we know it might have been. This would be to assume the very thing to be proved, namely that the society in question was in fact maternal at some earlier time.
It is impossible here, and I hardly think it would be relevant if possible, to enter at large on discussion of the “matriarchal” or, as Dr. Tylor prefers to call it, maternal family system. But it may be pointed out that, whatever else it is or has been, primitive it is not. It goes along with an elaborate and complex nomenclature of kindred and affinity, of which the interpretation is much disputed,1 and often though not always with other usages of the most artificial kind, of which the explanation is no less conjectural, and as obscure to the modern historian as the facts to be explained are repugnant to modern civilised manners. Dr. Tylor has observed that its real characteristic point is the continuance of the wife in her own family, who do not lose her property or the value of her work, and gain the husband’s alliance. If these or such-like politic motives were the true determining causes of “matriarchy”—and Dr. Tylor makes out a case which is none the less strong for being simple and using the general known materials of human nature instead of hypothetical superstitions—we are a long way off from primitive man, and the problem of what came before all this remains open. Here Maine’s appeal to the Homeric description of the savage (not merely barbarous) Cyclopes is probably nearer to the truth than the state of promiscuity—surely the least likely state of nature ever heard of—which some anthropologists have postulated. At any rate it has, in substance, Dr. Tylor’s support. “The claim of the patriarchal system to have belonged to primitive human life has not merely long acceptance in its favour, but I venture to think that those who uphold it have the weight of evidence on their side, provided that they do not insist on its fully developed form having at first appeared, but are content to argue that already in the earliest ages the man took his wife to himself, and that the family was under his power and protection, the law of male descent and all that belongs to it gradually growing up afterwards on this basis. . . . Among the great ancient and modern nations within the range of history, the paternal system becomes so dominant as to be taken for granted, and the existence of any other rule seems extraordinary” (Nineteenth Century, xl. 84, 85). So far as the evidence has gone, the maternal system appears to be unstable when people who live under it come into contact with paternal families: in such cases the husband’s predominance pretty soon begins to assert or re-assert itself. It is also remarkable that a received custom so lax as not to seem to civilised administrators fit to rank as any kind of marriage law has been found compatible with fairly strict monogamy in practice (on both these points see H. H. Shephard, “Marriage Law in Malabar,” L.Q.R. viii. 314). It seems fairly certain that both the frequency and the importance of polyandry have been exaggerated, and that, where it occurs, it can be explained, by those who regard “group-marriage” as proved, as a limiting case of group-marriage determined by special conditions. Thus we are rather led to regard the maternal system as a product of social necessities, not yet very well understood, which, although they have prevailed at some time in many or most inhabited parts of the world, may be fairly called abnormal with respect to the most original and persistent instincts of mankind as a species. When the maternal is supplanted by the paternal society, those instincts come to their own again in surroundings that no longer demand the highly artificial discipline of matriarchy. Much more evidence is needed both as to the origins of the maternal family, and as to the causes and manner of its transformation into the paternal type, before anything like a comprehensive statement can be made. We should remember that, as Professor Maitland says, continuing the passage already quoted, “we are learning that the attempt to construct a normal programme for all portions of mankind is idle and unscientific.” Probably no one would now maintain that either marriage by capture or matriarchy is primitive. Any such position is formally disclaimed, for example, by a recent learned and ingenious author, Dr. Richard Hildebrand, “Recht und Sitte auf den verschiedenen Kulturstufen,” 1ter Teil, Jena, 1896. It is perhaps needless at this day to refute the formerly current opinion that the customs of savages are the result of degradation from a more ancient state of innocence or civilisation. Partial backsliding into barbarism over a considerable range of both time and space is of course possible, as shown in the decline of the Roman and the Mogul empires. But trying to account for the systems of kinship (if it is kinship) investigated by Morgan as fallings off from monogamy or patriarchal polygamy is, if I may repeat an illustration I have already used in an earlier note, like expecting to find chalk under granite.
What is said in this chapter about Hindu law would no doubt have been fuller if a convenient and trustworthy textbook like Mr. Mayne’s had existed at the time when it was written. I am not aware, however, that any modification is needed except on one point, namely that the strict determination of the order of succession among an ancestor’s next of kin according to the spiritual efficacy of their sacrifices is found only in the school of Bengal, and is thought to be a deliberate Brahmanical innovation. As Maine himself said in 1883, “we now can discern something of the real relation which the sacerdotal Hindu law bears to the true ancient law of the race” (“Early Law and Custom,” p. 194; see also the chapter on Ancestor Worship and Inheritance). The general importance of keeping up the family ritual both in Hindu and in other archaic law remains undoubted. Some addition has to be made as regards the Hindu will. Quite unknown to early Hindu law, will-making came into use in modern times, though not in imitation of European practice according to the best authorities, and was not recognised in any of the Presidency Courts before 1832, when it was allowed in Bengal. When “Ancient Law” was published the law was not yet quite settled in Madras and Bombay; but the courts of those Presidencies followed the same course within a few years. Apparently the first form of the Bengal will was a gift mortis causa to religious uses. The reader will perceive the resemblance to the development of the testament of chattels, under ecclesiastical influence, in medieval English law. The English history, however, is for the most part too complex and peculiar to throw much light on the normal type of evolution. As for the Anglo-Saxon will, even if it can be assimilated to modern wills, which is doubtful, it was a special and anomalous kind of document, and disappeared after the Norman Conquest. Probably language is still to be found in popular books asserting or implying that before the Conquest there was general freedom of alienation; but this is due to pure misunderstanding, the privileged class of transactions which are recorded in the Anglo-Saxon charters having been taken as typical and indigenous. Early English “post obit gifts” (Pollock and Maitland, “H.E.L.” ii. 317, sqq., and see Note Q below) do present some analogy to the Roman will by mancipation; and this appears in a strengthened form in the conveyance to feoffees to uses to be declared by the feoffee’s will which was common in the later Middle Ages. In the thirteenth century divers learned clerks made an ingenious and, it seems, almost a successful attempt to create posthumous disposing power by grants inter vivos, containing in what we now call the “habendum” such words as “cuicunque dare vel etiam legare voluerit.” A clause so framed is quite common in deeds of the third and even fourth quarters of that century, and inconsistent utterances in Bracton show that learned opinion fluctuated (18b, 412b, pro, 49a, fuller and seemingly more deliberate, contra, cp. Pollock and Maitland, ii. 27). We may believe1 that for some time and to some extent the power such clauses purported to confer was exercised without objection. But this was a transitory experiment, and has nothing to do with any real testamentary distribution or succession. Local customs to devise land or, at any rate, purchased land existed, but their origin and early history are still obscure.
After Maine had acquired official knowledge of Indian affairs, he gave a hint in his lecture on “Village Communities” that the local customs of India are neither so simple nor so uniform in type as an ordinary European reader of “Ancient Law” might infer. “I shall have hereafter to explain,” he said,1 “that, though there are strong general resemblances between the Indian village communities wherever they are found in anything like completeness, they prove on close inspection to be not simple but composite bodies, including a number of classes with very various rights and claims.” The publication in more than one form (most conveniently in “The Indian Village Community,” Lond. 1896) of B. H. Baden-Powell’s authoritative researches on the Land Systems of British India has since made it common or at least easily accessible2 knowledge that Indian villages are divisible into two principal and widely different types, of which the “assemblage of co-proprietors,” formerly assumed to be the only normal one, is not the more ancient. Sir Alfred Lyall (L.Q.R. ix. 27) has approved Baden-Powell’s “conclusion that the oldest form of village was not, as is usually supposed, a group of cultivators having joint or communistic interests, but a disconnected set of families who severally owned their separate holdings.” There is a headman and there are village officers; we may say there is administrative unity for many purposes; but there is not communal ownership or tenure. There is no evidence that in villages of this kind, usually called raiyatwārī, and prevalent in Central and Southern India, the holdings were ever otherwise than separate and independent; “the so-called joint village followed, and did not precede, the village of separate holdings.” In the joint or “landlord” villages of Oudh, the United (formerly North-West) Provinces, and the Panjāb, we find a dominant family or clan, oligarchs and in fact landlords as regards the inferior majority of inhabitants, and more or less democratic (for the shares are not always equal) among themselves. This type of village, which is in some ways curiously like a smaller reproduction of a Greek city-state, may be due to several causes. Conquest may produce it, or a deliberate new settlement, or joint inheritance among descendants of a single founder. In the case of conquest it may be superimposed on a former raiyatwārī village. Baden-Powell points out that all writers on the subject down to a time later than the publication not only of “Ancient Law” but of “Village Communities” had to generalise on incomplete materials.
Chapter X. Page 355.
The account given by Maine of the symbolism involved in the Legis Actio Sacramenti may be taken as generally correct. The Sacramentum itself, however, seems, according to the generally received modern opinion, to have had the definite and practical purpose of bringing the matter in dispute within the highest jurisdiction. Each party swears to the justice of his cause under a conventional forfeit, and thus the king, who is also chief priest, is brought in to decide which of them is perjured: “il faut au roi, chef de la religion et de la justice criminelle, chercher qui a raison.” The separation of civil and spiritual jurisdiction under the Republic led to the abolition of the oath (Girard, “Manuel,” pp. 13, 977). If this opinion is right, the Praetor does not represent a discreet passer-by, nor yet (as might also be conjectured) the village elders, but intervenes as the minister of the king’s justice, conceived in the first instance (as it was in England in the early Middle Ages) as an extraordinary justice applicable only for special reasons. English readers hardly need to be reminded of the fictions by which the King’s Bench and Exchequer extended their jurisdiction to ordinary pleas between subjects.
Maine’s reference to the trial scene described in the Iliad, Σ. 497-508, as adorning the shield of Achilles, is very brief; but the whole scene is of such interest for early legal history that we may be allowed to dwell on it a little. The point specially made by Maine is that the two talents of gold are a fee for the member of the court who shall be thought to speak the law best. On this he is confirmed by Dr. W. Leaf’s very careful interpretation of the passage in his notes ad loc., and his earlier paper in Journ. Hell. Stud. viii. 122. There is no difficulty about the magnitude of the sum, for the Homeric talent represents only the value of one ox (Ridgeway in Journ. Hell. Stud. viii. 133). We shall now give Dr. Leaf’s version.
“The people were gathered in the place of assembly, and there had sprung up a strife; two men were striving about the price of a man slain. The one averred that he had paid in full [namely by tender of the blood-fine then and there before the assembly; but Dr. Leaf’s alternative in his later notes to the Iliad, Appendix I., ‘claimed to pay,’ is as good or better for the grammar of εὔχετο πάντ’ ἀποδου̑ναι, and makes better sense], and made declaration thereof to the people, but the other refused to accept aught [this is the proper idiomatic meaning of ἀναίνετο μηδὲν ἑλέσθαι: ‘denied that he had received anything’ is, even apart from the context, barely admissible]; and both were desirous to take an issue at the hand of a daysman [this person, ἴστωρ, summons the council and presides, but the judgment has to be theirs; he is more like the sheriff in the old county court than a modern judge or referee]; and the people were shouting for both, taking part for either side [not unlike such glimpses as Bracton’s Note Book and other sources afford us of the behaviour of medieval county courts]. And the heralds were restraining the people, and the elders sate on polished stones in the holy circle [such stones may be seen on Dartmoor to this day], and in their hands they held the clear-voiced herald’s staves. With these they rose up and gave sentence in turn; and in their midst lay two talents of gold to give to him among them that spake the justest doom.”
In addition to Dr. Leaf’s reasons for rejecting the view formerly current that the dispute is on the mere question of fact whether a blood-fine admitted to be due has been paid or not, we may observe that such a payment would surely be made in a notorious manner and with ample witness, to say nothing of the physical difficulty of handing over some score of cattle (for such would be the most likely form of payment) as privately as modern debtors hand over cash or post a cheque.
The result is that we are confronted with an ancient Greek blood-feud in an interesting stage of transition, that in which the slain man’s kindred are no longer free to accept or refuse compensation at their will, but are expected to abandon the feud, in a proper case, on receiving a sum fixed either by custom or by the judgment of the assembly. Homicide aggravated by treachery or the like would probably not fall within such a rule; and the amount of the fine, if we may judge by the practice of Iceland as described in the Sagas, might give matter enough for discussion among the wise men even if no preliminary question arose. Indications of a similar stage, though not clear enough to amount to proof if they stood alone, may be found in the Anglo-Saxon laws.
There is no question in the Homeric text of a formally compulsory jurisdiction; the parties have agreed to put themselves on the judgment of the assembly whether in all the circumstances, whatever they were, tender of the customary fine ought to be accepted. But when such voluntary references have become common practice we are near the point at which they cease to be voluntary, and the party who stands out for what formerly would have been his right incurs, at all events, public reprobation which will be an efficient sanction for most purposes.
Maine’s opinion that in the infancy of criminal jurisdiction the sum paid to the king, or the State, was not penal, but a fee for hearing and determining the cause at the request of the parties, “the fair price of its time and trouble,” is borne out by later researches in the antiquities of Germanic law. Such was probably at one time the wite of the Anglo-Saxon laws, though it is treated as penal in the earliest documents we have. If one feature in early procedure may be fixed on more than another as marking the recognition of criminal and civil responsibility as distinct in character, though one and the same act may be and quite commonly is both a wrong and an offence, perhaps it is the appearance of a special fine for breaking the peace. The development of the king’s peace in England from a privilege attached to certain persons, places, and occasions, to the common right of every lawful man belongs to another and later stage.
[1 ] The suggestion that it is the nature of lawyers to distinguish where there is no difference may possibly have been inspired by Hobbes’s censure of Coke in his Dialogue of the Common Laws of England:—“Sir Edw. Coke does seldom well distinguish when there are two divers Names for one and the same thing; though one contain the other, he makes them always different, as if it could not be that one and the same Man should be both an Enemy, and a Traytor.”
[1 ] Selden speaks of two cases in a certain Inner Temple MS. of Year Books of Ed. II., where Roman texts are even cited with precise reference in the accustomed form of civilians. But this MS. is not now to be found, and, such references being otherwise unknown in other extant Year Books, it is safer, as my learned friend Professor Maitland suggests, to think that they were added by a specially learned scribe.
[1 ] La vie de Maistre Charles Du Molin, advocat au Parlement de Paris . . . et sa mort chrestienne et catholique. Par Me Julien Brodeau, advocat au mesme Parlement. Paris 1654, 4o.
[1 ] “Nothing that Rousseau had to say about the state of nature was seriously meant for scientific exposition, any more than the Sermon on the Mount was meant for political economy” (John Morley, “Rousseau,” i. 183).
[1 ] It is now admitted that marriage by capture was part of the earliest Germanic law, but it is very doubtful whether it survived the introduction of Christianity in England. The Anglo-Saxon bride-price appears to have been paid not for the wife’s person but for the rights of wardship (Hazeltine, “Zur Geschichte der Eheschliessung nach angelsächsischem Recht,” Berlin, 1905).
[1 ] J. F. McLennan’s opinion, which he intended to develop farther and prove in detail, was that this classification had nothing to do with consanguinity, but was a system of modes of salutation; and this is also maintained by Dr. Westermarck. Morgan, on the other hand, would allow no merit to McLennan’s work and thought the term “exogamy,” now generally adopted, useless. Professor Kohler, and less decidedly Mr. Kovalevsky, are, I believe, the only recent authors prepared to accept as a whole the consequences drawn by Morgan himself from the “classificatory” system. Subject to what McLennan might have added if he had lived, his particular line of objection just mentioned does not seem sufficient. Mr. Andrew Lang’s conclusions are about equally remote from both schools; see the additional paragraph at the end of this note.
[1 ] Extant wills of the period which purport to devise parcels of land (Madox, Form. Anglic. DCCLXVIII., DCCLXIX., DCCLXXI.) are not conclusive as to the practice in the absence of a known previous grant with which they can be connected, as other explanations are possible.
[1 ] I cannot find any fulfilment of this intention in Maine’s published work. See the Preface to the first edition of “Village Communities” for the probable explanation.
[2 ] Baden-Powell’s work appears to have been wholly unknown to a learned gentleman resident at Madras, who published some notes on “Ancient Law” a few years ago.