Ancient Law

ꓒ
Ancient Law, by Sir Henry James Sumner Maine

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Title: Ancient Law Its Connection to the History of Early Society
Author: Sir Henry James Sumner Maine
Release Date: October 7, 2007 [EBook #22910]
Language: English
Character set encoding: ISO-8859-1
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Everyman, I will go with thee, and be thy guide, In thy most need to go by thy side.
This is No. 734 of Everyman's Library. A list of authors and their works in this series will be found at the end of this volume. The publishers will be pleased to send freely to all applicants a separate, annotated list of the Library.

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EVERYMAN'S LIBRARY EDITED BY ERNEST RHYS
HISTORY
ANCIENT LAW
BY SIR HENRY JAMES SUMNER MAINE
INTRODUCTION BY PROF. J. H. MORGAN

SIR HENRY JAMES SUMNER MAINE, the son of a doctor, born 1822 in India. Educated at Christ's Hospital and Pembroke College, Cambridge. In 1847 professor of civil law at Cambridge; 1850, called to the Bar. Member of Indian Council for seven years.
Died at Cannes, 1888.

ANCIENT LAW
[Illustration]
SIR HENRY MAINE
LONDON: J. M. DENT & SONS LTD. NEW YORK: E. P. DUTTON & CO. INC.

All rights reserved Made in Great Britain at The Temple Press Letchworth and decorated by Eric Ravilious for J. M. Dent & Sons Ltd. Aldine House Bedford St. London First Published in this Edition 1917 Reprinted 1927, 1931, 1936

INTRODUCTION
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 in 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