The document discusses Maine's main argument in "Ancient Law"

and its subsequent development in his other works. - Maine's

exploration of the origin of private property in land and the types
of village communities is highlighted. - The gradual emancipation
of individuals from the despotic authority of the father and the
shift from status to contract is a key theme. - Maine's analysis of
wills, property, and contract as key elements in the development
of early law is emphasized. - The influence of Roman law on
various sciences and its impact on political science, moral
philosophy, and theology is briefly mentioned.

 Maine's "Ancient Law" revolutionized the study of early institutions

by emphasizing historical development over dogmatism.
 He focused on the patriarchal power of the family as the basis of
early society, demonstrated through Roman law.
 Maine's subsequent works expanded on the origins of private
property, family structures, and legal evolution.
 He critiqued the prevailing theories of his time, emphasizing the
slow growth of human intellect in social relations.
 Maine's conservative views on contemporary political issues, like
democracy, highlighted its vulnerabilities to manipulation.

Maine's work remains foundational in understanding the historical

development of law and society.

No one who is interested in the growth of human ideas or the origins of

human society can afford to neglect Maine's Ancient Law. Published some
fifty-six years ago it immediately took rank as a classic, and its epoch-
making influence may not unfitly be compared to that exercised by
Darwin's Origin of Species. The revolution effected by the latter in the
study of biology was hardly more remarkable than that effected by
Maine's brilliant treatise in the study of early institutions. Well does one of
Maine's latest and most learned commentators say of his work that "he did
nothing less than create the natural history of law." This is only another
way of saying that he demonstrated that our legal conceptions—using that
term in its largest sense to include social and political institutions—are as
much the product of historical development as biological organisms are
the outcome of evolution. This was a new departure, inasmuch as the
school of jurists, represented by Bentham and Austin, and of political
philosophers, headed by Hobbes, Locke, and their nineteenth-century
disciples, had approached the study of law and political society almost
entirely from an unhistoric point of view and had substituted dogmatism
for historical investigation. They had read history, so far as they troubled
to read it at all, "backwards," and had invested early man and early
society with conceptions which, as a matter of fact, are themselves
historical products. The jurists, for example, had in their analysis of legal
sovereignty postulated the commands of a supreme lawgiver by simply
ignoring the fact that, in point of time, custom precedes legislation and
that early law is, to use Maine's own phrase, "a habit" and not a conscious
exercise of the volition of a lawgiver or a legislature. The political
philosophers, similarly, had sought the origin of political society in a "state
of nature"—humane, according to Locke and Rousseau, barbarous,
according to Hobbes—in which men freely subscribed to

an "original contract" whereby each submitted to the will of all. It was not
difficult to show, as Maine has done, that contract—i.e. the recognition of
a mutual agreement as binding upon the parties who make it—is a
conception which comes very late to the human mind. But Maine's work
covers much wider ground than this. It may be summed up by saying that
he shows that early society, so far as we have any recognisable legal
traces of it, begins with the group, not with the individual.

This group was, according to Maine's theory, the Family—that is to say the
Family as resting upon the patriarchal power of the father to whom all its
members, wife, sons, daughters, and slaves, were absolutely subject. This,
the central feature of Maine's speculation, is worked out with infinite
suggestiveness and great felicity of style . ("Primitive Society and Ancient
Law") of the present work, and his chief illustrations are sought in the
history of Roman law. The topics of the other chapters are selected largely
with a view to supplying confirmation of the theory in question and, as we
shall see in a moment, Maine's later works do but serve to carry the train
of reasoning a step further by the use of the Comparative Method in
invoking evidence from other sources, notably from Irish and Hindu Law.
Let us, however, confine ourselves for the moment to "Ancient Law."
Maine works out the implications of his theory by showing that it, and it
alone, can serve to explain such features of early Roman law as
Agnation, i.e. the tracing of descent exclusively through males, and
Adoption, i.e. the preservation of the family against the extinction of male
heirs. The perpetual tutelage of women is the consequence of this
position. Moreover, all the members of the family, except its head, are in a
condition best described as status: they have no power to acquire
property, or to bequeath it, or to enter into contracts in relation to it. The
traces of this state of society are clearly visible in the pages of that
classical text-book of Roman Law, the Institutes of Justinian,1 compiled in
the sixth century A.D., though equally visible is the disintegration wrought
in it by the reforming activity of the praetor's edicts. That reformation
followed the course of a gradual emancipation of the members of the
family, except those under age, from the despotic authority of the father.
This gradual substitution of the Individual for the Family was effected in a
variety of ways, but in none more conspicuously than by the development
of the idea of contract, i.e. of the capacity of the individual to enter into
independent agreements with strangers to his family-group by which he
was legally bound—an historical process which Maine sums up in his
famous aphorism that the movement of progressive societies has hitherto
been a movement from Status to Contract.

In the chapters on the early history of Wills, Property, and Contract, Maine
supports his theory by showing that it is the key which unlocks many, if
not all, of the problems which those topics present. The chapter on Wills—
particularly the passage in which he explains what is meant by Universal
Succession—is a brilliant example of Maine's analytic power. He shows
that a Will—in the sense of a secret and revocable disposition of property
only taking effect after the death of the testator—is a conception unknown
to early law, and that it makes its first appearance as a means of
transmitting the exercise of domestic sovereignty, the transfer of the
property being only a subsidiary feature; wills only being permitted, in
early times, in cases where there was likely to be a failure of proper heirs.
The subsequent popularity of wills, and the indulgence with which the law
came to regard them, were due to a desire to correct the rigidity of the
Patria Potestas, as reflected in the law of intestate succession, by giving
free scope to natural affection. In other words, the conception of
relationship as reckoned only through males, and as resting on the
continuance of the children within their father's power, gave way, through
the instrumentality of the will, to the more modern and more natural
conception of relationship.

In the chapter on Property Maine again shows that the theory of its origin
in occupancy is too individualistic and that not separate ownership but
joint ownership is the really archaic institution. The father was in some
sense (we must avoid importing modern terms) the trustee of the joint
property of the family. Here Maine makes an excursion into the fields of
the Early Village Community, and has, too, to look elsewhere than to
Rome, where the village community had already been transformed by
coalescence into the city-state. He therefore seeks his examples from
India and points to the Indian village as an example of the expansion of
the family into a larger group of co-proprietors, larger but still bearing
traces of its origin to the patriarchal power. And, to quote his own words,
"the most important passage in the history of Private Property is its
gradual separation from the co-ownership of kinsmen." The chapter on
Contract, although it contains some of Maine's most suggestive writing,
and the chapter on Delict and Crime, have a less direct bearing on his
main thesis except in so far as they go to show that the reason why there
is so little in early law of what we call civil, as distinct from criminal, law,
and in particular of the Law of Contract, is to be found in the fact that, in
the infancy of society, the Law of Persons, and with it the law of civil
rights, is merged in the common subjection to Paternal Power.

Such, putting it in the simplest possible language, is the main argument

of Ancient Law. The exigencies of space and of simplicity compel me to
pass by, to a large extent, most of the other topics with which Maine deals
—the place of custom, code, and fiction in the development of early law,
the affiliation of international Law to the Jus Gentium and the Law of
Nature, the origins of feudalism and of primogeniture, the early history of
delict and crime, and that most remarkable and profound passage in
which Maine shows the heavy debt of the various sciences to Roman law
and the influence which it has exerted on the vocabulary of political
science, the concepts of moral philosophy, and the doctrines of theology. I
must confine myself to two questions: how far did Maine develop or
modify in his subsequent writings the main thesis of Ancient Law? to what
extent has this thesis stood the test of the criticism and research of
others? As regards the first point, it is to be remembered that Ancient
Law is but the first, though doubtless the most important, of a whole
series of works by its author on the subject of early law. It was followed at
intervals by three volumes: Village Communities in the East and
West, Early Institutions, and Early Law and Custom. In the first of these he
dealt with a subject which has excited an enormous degree of attention
and not a little controversy among English, French, German, and Russian
scholars,2 amounting as it does to nothing less than an investigation into
the origin of private property in land. The question has been put in various
forms: did it commence with joint (or, as some would put it, less justifiably,
communal or corporate) ownership or with individual ownership, and again
was the village community free or servile? It is now pretty generally
recognised that there was more than one type, though common
cultivation was doubtless a feature of them all, and even in India there
were at least two types, of which the one presenting several, as opposed
to communal, ownership is not the less ancient. But it may well be that, as
Maitland so often pointed out, much of the controversy has been literally
an anachronism; that is to say, that nineteenth-century men have been
asking the Early Ages questions which they could not answer and reading
back into early history distinctions which are themselves historical
products. Ownership is itself a late abstraction developed out of use. We
may say with some certainty that family "ownership" preceded individual
ownership, but in what sense there was communal ownership by a whole
village it is not so easy to say.

Maine was on surer ground when, as in his studies of Irish and Hindu law,
he confined himself to the more immediate circle of the family group. In
his Early Institutions he subjects the Brehon Laws of early Ireland to a
suggestive examination as presenting an example of Celtic law largely
unaffected by Roman influences. He there shows, as he has shown
in Ancient Law, that in early times the only social brotherhood recognised
was that of kinship, and that almost every form of social organisation,
tribe, guild, and religious fraternity, was conceived of under a similitude of
it. Feudalism converted the village community, based on a real or
assumed consanguinity of its members, into the fief in which the relations
of tenant and lord were those of contract, while those of the unfree
tenant rested on status. In his Early Law and Custom he pursues much the
same theme by an examination of Hindu Law as presenting a peculiarly
close implication of early law with religion. Here he devotes his attention
chiefly to Ancestor-worship, a subject which about this time had engaged
the attention, as regards its Greek and Roman forms, of that brilliant
Frenchman, Fustel de Coulanges, whose monograph La Cité Antique is
now a classic. As is well known, the right of inheriting a dead man's
property and the duty of performing his obsequies are co-relative to this
day in Hindu law, and his investigation of this subject brings Maine back to
the subject of the Patriarchal Power. He points out that both worshipper
and the object of worship were exclusively males, and concludes that it
was the power of the father which generated the practice of worshipping
him, while this practice in turn, by the gradual admission of women to
participate in the ceremonies, gradually acted as a solvent upon the power
itself. The necessity of finding some one to perform these rites, on failure
of direct male heirs, marked the beginning of the recognition of a right in
women to inherit. The conception of the family becomes less intense and
more extensive. These discussions brought Maine, in chapter VII. of Early
Law and Custom, to reconsider the main theory of Ancient Law in the light
of the criticism to which it had been exposed, and every reader of Ancient
Law who desires to understand Maine's exact position in regard to the
scope of his generalisations should read for himself the chapter in the
later work entitled "Theories of Primitive Society." His theory of the
patriarchal power had been criticised by two able and industrious
anthropologists, M'Lennan and Morgan, who, by their investigation of
"survivals" among barbarous tribes in our own day, had arrived at the
conclusion that, broadly speaking, the normal process through which
society had passed was not patriarchal but
"matriarchal," i.e. understanding by that term a system in which descent
is traced through females. It would take up far too much space to enter
into this controversy in detail. It is sufficient to say that the counter-theory
rested on the assumption that society originated not in families, based on
the authority of the father and relationship through him, but in
promiscuous hordes among whom the only certain fact, and,
consequently, the only recognised basis of relationship, was maternity.
Maine's answer to this was that his generalisations as to the prevalence of
the patriarchal power were confined to Indo-European races, and that he
did not pretend to dogmatise about other races, also that he was dealing
not with all societies but all that had any permanence. He argues that the
promiscuous horde, where and when it is found, is to be explained as an
abnormal case of retrogression due to a fortuitous scarcity of females
resulting in polyandry, and he opposes to the theory of its predominance
the potency of sexual jealousy which might serve as only another name
for the patriarchal power. On the whole the better opinion is certainly with
Maine. His theory, at any rate, alone accords with a view of society so
soon as it is seen to possess any degree of Civilization and social cohesion.

It will be seen that Maine's work, like that of most great thinkers, presents
a singular coherence and intellectual elegance. It is distinguished also by
an extraordinary wide range of vision. He lays under contribution with
equal felicity and suggestiveness the Old Testament, the Homeric poems,
the Latin dramatists, the laws of the Barbarians, the sacerdotal laws of the
Hindus, the oracles of the Brehon caste, and the writings of the Roman
jurists. In other words, he was a master of the Comparative Method. Few
writers have thrown so much light on the development of the human mind
in its social relations. We know now—a hundred disciples have followed in
Maine's footsteps and applied his teaching—how slow is the growth of the
human intellect in these matters, with what painful steps man learns to
generalise, how convulsively he clings in the infancy of civilisation to the
formal, the material, the realistic aspects of things, how late he develops
such abstractions as "the State." In all this Maine first showed the way. As
Sir Frederick Pollock has admirably put it—

Nowadays it may be said that "all have got the seed," but this is no
justification for forgetting who first cleared and sowed the ground. We
may till fields that the master left untouched, and one man will bring a
better ox to yoke to the plough, and another a worse; but it is the master's
plough still.

We may conclude with some remarks on Maine's views of the

contemporary problems of political society. Maine was what, for want of a
better term, may be called a Conservative, and, indeed, it may be doubted
whether, with the single exception of Burke, any English writer has done
more to provide English Conservatives with reasons for the faith that is in
them. He has set forth his views in a collection of polemical essays under
the title of Popular Government, which were given to the world in book
form in 1885. He viewed the advent of Democracy with more distrust than
alarm—he appears to have thought it a form of government which could
not last—and he has an unerring eye for its weaknesses. 3 Indeed, his
remarks on the facility with which Democracy yields itself to manipulation
by wire-pullers, newspapers, and demagogues, have found not a little
confirmation in such studies of the actual working of democratic
government as M. Ostrogorski's Democracy and the Organisation of
Political Parties. Maine emphasised the tyranny of majorities, the
enslavement of untutored minds by political catchwords, their
susceptibility to "suggestion," their readiness to adopt vicarious opinion in
preference to an intellectual exercise of their own volition. It is not
surprising that the writer who had subjected the theories of the Social
Contract to such merciless criticism sighed for a scientific analysis of
political terms as the first step to clear thinking about politics. Here he was
on strong ground, but for such an analysis we have yet to wait. He seems
to have placed his hopes in the adoption of some kind of written
constitution which, like the American prototype, would safeguard us from
fundamental changes by the caprice of a single assembly. But this is not
the place to pursue such highly debateable matters. Enough if we say that
the man who wishes to serve an apprenticeship to an intelligent
understanding of the political society of the present cannot do better than
begin by a careful study of Maine's researches into the political society of
the past.