Ancient Law | Page 2

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 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