chapter V

. ("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 Cite 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