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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
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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 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 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 civilisation
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.[4] 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.
J.H. MORGAN.
_Note._--The reader who desires to study Maine in the
light of modern criticism is recommended to read Sir F.
Pollock's "Notes on Maine's _Ancient Law_" (published
by John Murray at 2_s._ 6_d._, or, with the text, at
5_s._). The best short study of Maine with which I am
acquainted is the article by Professor Vinogradoff in
the _Law Quarterly Review_ for April 1904. The field of
research covered by Maine in his various writings is so
vast that it is impossible to refer the reader, except
at great length, to anything like an adequate list of
later books on the subjects of his investigation. In
addition to the works on the Village Community
mentioned in a previous footnote, I may, however, refer
the beginner to Mr. Edward Jenks' little book on _The
History of Politics_ in Dent's Primers, to Professor
Ashley's translation of a fragment of Fustel de
Coulanges under the title of _The Origin of Property in
Land_, and to Sir Frederick Pollock's brilliant little
book, _The Expansion of the Common Law_. The reader is
also recommended to study Mr. H.A.L. Fisher's succinct
survey of the contributions of Maitland to legal
history under the title of _F.W. Maitland; an
Appreciation_ (Cambridge University Press). One of the
most brilliant and ingenious studies of the origins of
European civilisation is to be found in the work of the
great German jurist, Ihering, _Die Vorgeschichte der
Indo-Europder_, translated into English under the title
of _The Early History of the Indo-European Races_
(Sonnenschein, 1897).
[1] The reader who desires to pursue the subject by
reference to one of Maine's chief authorities is
recommended to read the translation of the _Institutes_
by Sandars.
[2] English literature on the subject is best studied in
Maitland's _Domesday Book and Beyond_, Vinogradoff's
_The Growth of the Manor_ and _Villeinage in England_
(with an excellent historical introduction), and
Seebohm's _English Village Community_.
[3] Witness the characteristic sentence: "On the whole
they [_i.e._ the studies of earlier society] suggest
that the differences which, after ages of change,
separate the civilised man from savage or barbarian, are
not so great as the vulgar opinion would have them....
Like the savage, he is a man of party with a newspaper
for a totem ... and like a savage he is apt to make of
his totem his God."
[4] Something of the kind was done many years ago by Sir
George Cornewall Lewis in his little book on the _Use
and Abuse of Political Terms_. I have attempted to carry
the task a step farther in an article which appeared in
the form of a review of Lord Morley's "History and
Politics" in the _Nineteenth Century_ for March 1913.
BIBLIOGRAPHY
Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; The
Birth of the Prince of Wales (Prize Poem), 1842; Caesar ad Rubiconem
constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851; Roman Law
and Legal Education (Essay), 1856; Ancient Law: its Connection with
the Early History of Society and its Relation to Modern Ideas, 1861;
Short Essays and Reviews on the Educational Policy of the Government
of India, 1866; Village Communities in the East and West (Lectures),
1871; The Early History of the Property of Married Women as collected
from Roman and Hindoo Law (Lecture), 1873; The Effects of Observation
of India on Modern European Thought (Lecture), 1875; Lectures on the
Early History of Institutions, 1875; Village Communities, etc.; third
ed. with other Lectures and Addresses, 1876; Dissertations on Early
Law and Custom (selected from Lectures), 1883; Popular Government
(four Essays), 1885; India [1837-1887] (in "The Reign of Queen
Victoria," ed. by Thos. Humphry Ward, vol. i.), 1887; The Whewell
Lectures: International Law, 1887, 1888; Ancient Law (ed. with
introduction and notes by Sir Frederick Pollock), 1906; Ancient Law
(Allahabad ed., with introduction by K.C. Banerji), 1912.
Contributions to: "Morning Chronicle," 1851; "Cornhill Magazine,"
1871; "Quarterly Review," 1886; "Saturday Review," and "St. James's
Gazette."
A brief memoir of the life of Sir Henry Maine, by Sir M.E. Grant Duff;
with some of his Indian speeches and minutes, selected by Whitley
Stokes, 1892.
PREFACE
The chief object of the following pages is to indicate some of the
earliest ideas of mankind, as they are reflected in Ancient Law, and
to point out the relation of those ideas to modern thought. Much of
the inquiry attempted could not have been prosecuted with the
slightest hope of a useful result if there had not existed a body of
law, like that of the Romans, bearing in its earliest portions the
traces of the most remote antiquity and supplying from its later rules
the staple of the civil institutions by which modern society is even
now controlled. The necessity of taking the Roman law as a typical
system has compelled the author to draw from it what may appear a
disproportionate number of his illustrations; but it has not been his
intention to write a treatise on Roman jurisprudence, and he has as
much as possible avoided all discussions which might give that
appearance to his work. The space allotted in the third and fourth
chapters to certain philosophical theories of the Roman Jurisconsults
has been appropriated to them for two reasons. In the first place,
those theories appear to the author to have had a wider and more
permanent influence on the thought and action of the world than is
usually supposed. Secondly, they are believed to be the ultimate
source of most of the views which have been prevalent, till quite
recently, on the subjects treated of in this volume. It was impossible
for the author to proceed far with his undertaking without stating his
opinion on the origin, meaning, and value of those speculations.
H.S.M.
LONDON, _January 1861_.
CONTENTS
CHAP. PAGE
I. ANCIENT CODES 1
II. LEGAL FICTIONS 13
III. LAW OF NATURE AND EQUITY 26
IV. THE MODERN HISTORY OF THE LAW OF NATURE 43
V. PRIMITIVE SOCIETY AND ANCIENT LAW 67
VI. THE EARLY HISTORY OF TESTAMENTARY SUCCESSION 101
VII. ANCIENT AND MODERN IDEAS RESPECTING WILLS
AND SUCCESSIONS 127
VIII. THE EARLY HISTORY OF PROPERTY 144
IX. THE EARLY HISTORY OF CONTRACT 179
X. THE EARLY HISTORY OF DELICT AND CRIME 216
INDEX 235
CHAPTER I
ANCIENT CODES
The most celebrated system of jurisprudence known to the world begins,
as it ends, with a Code. From the commencement to the close of its
history, the expositors of Roman Law consistently employed language
which implied that the body of their system rested on the Twelve
Decemviral Tables, and therefore on a basis of written law. Except in
one particular, no institutions anterior to the Twelve Tables were
recognised at Rome. The theoretical descent of Roman jurisprudence
from a code, the theoretical ascription of English law to immemorial
unwritten tradition, were the chief reasons why the development of
their system differed from the development of ours. Neither theory
corresponded exactly with the facts, but each produced consequences of
the utmost importance.
I need hardly say that the publication of the Twelve Tables is not the
earliest point at which we can take up the history of law. The ancient
Roman code belongs to a class of which almost every civilised nation
in the world can show a sample, and which, so far as the Roman and
Hellenic worlds were concerned, were largely diffused over them at
epochs not widely distant from one another. They appeared under
exceedingly similar circumstances, and were produced, to our
knowledge, by very similar causes. Unquestionably, many jural
phenomena lie behind these codes and preceded them in point of time.
Not a few documentary records exist which profess to give us
information concerning the early phenomena of law; but, until
philology has effected a complete analysis of the Sanskrit literature,
our best sources of knowledge are undoubtedly the Greek Homeric poems,
considered of course not as a history of actual occurrences, but as a
description, not wholly idealised, of a state of society known to the
writer. However the fancy of the poet may have exaggerated certain
features of the heroic age, the prowess of warriors and the potency of
gods, there is no reason to believe that it has tampered with moral or
metaphysical conceptions which were not yet the subjects of conscious
observation; and in this respect the Homeric literature is far more
trustworthy than those relatively later documents which pretend to
give an account of times similarly early, but which were compiled
under philosophical or theological influences. If by any means we can
determine the early forms of jural conceptions, they will be
invaluable to us. These rudimentary ideas are to the jurist what the
primary crusts of the earth are to the geologist. They contain,
potentially, all the forms in which law has subsequently exhibited
itself. The haste or the prejudice which has generally refused them
all but the most superficial examination, must bear the blame of the
unsatisfactory condition in which we find the science of
jurisprudence. The inquiries of the jurist are in truth prosecuted
much as inquiry in physics and physiology was prosecuted before
observation had taken the place of assumption. Theories, plausible and
comprehensive, but absolutely unverified, such as the Law of Nature or
the Social Compact, enjoy a universal preference over sober research
into the primitive history of society and law; and they obscure the
truth not only by diverting attention from the only quarter in which
it can be found, but by that most real and most important influence
which, when once entertained and believed in, they are enabled to
exercise on the later stages of jurisprudence.
The earliest notions connected with the conception, now so fully
developed, of a law or rule of life, are those contained in the
Homeric words "Themis" and "Themistes." "Themis," it is well known,
appears in the later Greek pantheon as the Goddess of Justice, but
this is a modern and much developed idea, and it is in a very
different sense that Themis is described in the Iliad as the assessor
of Zeus. It is now clearly seen by all trustworthy observers of the
primitive condition of mankind that, in the infancy of the race, men
could only account for sustained or periodically recurring action by
supposing a personal agent. Thus, the wind blowing was a person and of
course a divine person; the sun rising, culminating, and setting was
a person and a divine person; the earth yielding her increase was a
person and divine. As, then, in the physical world, so in the moral.
When a king decided a dispute by a sentence, the judgment was assumed
to be the result of direct inspiration. The divine agent, suggesting
judicial awards to kings or to gods, the greatest of kings, was
_Themis_. The peculiarity of the conception is brought out by the use
of the plural. _Themistes_, Themises, the plural of _Themis_, are the
awards themselves, divinely dictated to the judge. Kings are spoken of
as if they had a store of "Themistes" ready to hand for use; but it
must be distinctly understood that they are not laws, but judgments.
"Zeus, or the human king on earth," says Mr. Grote, in his History of
Greece, "is not a lawmaker, but a judge." He is provided with
Themistes, but, consistently with the belief in their emanation from
above, they cannot be supposed to be connected by any thread of
principle; they are separate, isolated judgments.
Even in the Homeric poems, we can see that these ideas are transient.
Parities of circumstance were probably commoner in the simple
mechanism of ancient society than they are now, and in the succession
of similar cases awards are likely to follow and resemble each other.
Here we have the germ or rudiment of a Custom, a conception posterior
to that of Themistes or judgments. However strongly we, with our
modern associations, may be inclined to lay down _a priori_ that the
notion of a Custom must precede that of a judicial sentence, and that
a judgment must affirm a Custom or punish its breach, it seems quite
certain that the historical order of the ideas is that in which I have
placed them. The Homeric word for a custom in the embryo is sometimes
"Themis" in the singular--more often "Dike," the meaning of which
visibly fluctuates between a "judgment" and a "custom" or "usage."
[Greek: Nomos], a Law, so great and famous a term in the political
vocabulary of the later Greek society, does not occur in Homer.
This notion of a divine agency, suggesting the Themistes, and itself
impersonated in Themis, must be kept apart from other primitive
beliefs with which a superficial inquirer might confound it. The
conception of the Deity dictating an entire code or body of law, as in
the case of the Hindoo laws of Menu, seems to belong to a range of
ideas more recent and more advanced. "Themis" and "Themistes" are
much less remotely linked with that persuasion which clung so long and
so tenaciously to the human mind, of a divine influence underlying and
supporting every relation of life, every social institution. In early
law, and amid the rudiments of political thought, symptoms of this
belief meet us on all sides. A supernatural presidency is supposed to
consecrate and keep together all the cardinal institutions of those
times, the State, the Race, and the Family. Men, grouped together in
the different relations which those institutions imply, are bound to
celebrate periodically common rites and to offer common sacrifices;
and every now and then the same duty is even more significantly
recognised in the purifications and expiations which they perform, and
which appear intended to deprecate punishment for involuntary or
neglectful disrespect. Everybody acquainted with ordinary classical
literature will remember the _sacra gentilicia_, which exercised so
important an influence on the early Roman law of adoption and of
wills. And to this hour the Hindoo Customary Law, in which some of the
most curious features of primitive society are stereotyped, makes
almost all the rights of persons and all the rules of succession hinge
on the due solemnisation of fixed ceremonies at the dead man's
funeral, that is, at every point where a breach occurs in the
continuity of the family.
Before we quit this stage of jurisprudence, a caution may be usefully
given to the English student. Bentham, in his _Fragment on
Government_, and Austin, in his _Province of Jurisprudence
Determined_, resolve every law into a _command_ of the lawgiver, _an
obligation_ imposed thereby on the citizen, and a _sanction_
threatened in the event of disobedience; and it is further predicated
of the _command_, which is the first element in a law, that it must
prescribe, not a single act, but a series or number of acts of the
same class or kind. The results of this separation of ingredients
tally exactly with the facts of mature jurisprudence; and, by a little
straining of language, they may be made to correspond in form with all
law, of all kinds, at all epochs. It is not, however, asserted that
the notion of law entertained by the generality is even now quite in
conformity with this dissection; and it is curious that, the farther
we penetrate into the primitive history of thought, the farther we
find ourselves from a conception of law which at all resembles a
compound of the elements which Bentham determined. It is certain
that, in the infancy of mankind, no sort of legislature, not even a
distinct author of law, is contemplated or conceived of. Law has
scarcely reached the footing of custom; it is rather a habit. It is,
to use a French phrase, "in the air." The only authoritative statement
of right and wrong is a judicial sentence after the facts, not one
presupposing a law which has been violated, but one which is breathed
for the first time by a higher power into the judge's mind at the
moment of adjudication. It is of course extremely difficult for us to
realise a view so far removed from us in point both of time and of
association, but it will become more credible when we dwell more at
length on the constitution of ancient society, in which every man,
living during the greater part of his life under the patriarchal
despotism, was practically controlled in all his actions by a regimen
not of law but of caprice. I may add that an Englishman should be
better able than a foreigner to appreciate the historical fact that
the "Themistes" preceded any conception of law, because, amid the many
inconsistent theories which prevail concerning the character of
English jurisprudence, the most popular, or at all events the one
which most affects practice, is certainly a theory which assumes that
adjudged cases and precedents exist antecedently to rules, principles,
and distinctions. The "Themistes" have too, it should be remarked, the
characteristic which, in the view of Bentham and Austin, distinguishes
single or mere commands from laws. A true law enjoins on all the
citizens indifferently a number of acts similar in class or kind; and
this is exactly the feature of a law which has most deeply impressed
itself on the popular mind, causing the term "law" to be applied to
mere uniformities, successions, and similitudes. A _command_
prescribes only a single act, and it is to commands, therefore, that
"Themistes" are more akin than to laws. They are simply adjudications
on insulated states of fact, and do not necessarily follow each other
in any orderly sequence.
The literature of the heroic age discloses to us law in the germ under
the "Themistes" and a little more developed in the conception of
"Dike." The next stage which we reach in the history of jurisprudence
is strongly marked and surrounded by the utmost interest. Mr. Grote,
in the second part and second chapter of his History, has fully
described the mode in which society gradually clothed itself with a
different character from that delineated by Homer. Heroic kingship
depended partly on divinely given prerogative, and partly on the
possession of supereminent strength, courage, and wisdom. Gradually,
as the impression of the monarch's sacredness became weakened, and
feeble members occurred in the series of hereditary kings, the royal
power decayed, and at last gave way to the dominion of aristocracies.
If language so precise can be used of the revolution, we might say
that the office of the king was usurped by that council of chiefs
which Homer repeatedly alludes to and depicts. At all events from an
epoch of kingly rule we come everywhere in Europe to an era of
oligarchies; and even where the name of the monarchical functions does
not absolutely disappear, the authority of the king is reduced to a
mere shadow. He becomes a mere hereditary general, as in Lacedaemon, a
mere functionary, as the King Archon at Athens, or a mere formal
hierophant, like the _Rex Sacrificulus_ at Rome. In Greece, Italy, and
Asia Minor, the dominant orders seem to have universally consisted of
a number of families united by an assumed relationship in blood, and,
though they all appear at first to have laid claim to a quasi-sacred
character, their strength does not seem to have resided in their
pretended sanctity. Unless they were prematurely overthrown by the
popular party, they all ultimately approached very closely to what we
should now understand by a political aristocracy. The changes which
society underwent in the communities of the further Asia occurred of
course at periods long anterior in point of time to these revolutions
of the Italian and Hellenic worlds; but their relative place in
civilisation appears to have been the same, and they seem to have been
exceedingly similar in general character. There is some evidence that
the races which were subsequently united under the Persian monarchy,
and those which peopled the peninsula of India, had all their heroic
age and their era of aristocracies; but a military and a religious
oligarchy appear to have grown up separately, nor was the authority of
the king generally superseded. Contrary, too, to the course of events
in the West, the religious element in the East tended to get the
better of the military and political. Military and civil aristocracies
disappear, annihilated or crushed into insignificance between the
kings and the sacerdotal order; and the ultimate result at which we
arrive is, a monarch enjoying great power, but circumscribed by the
privileges of a caste of priests. With these differences, however,
that in the East aristocracies became religious, in the West civil or
political, the proposition that a historical era of aristocracies
succeeded a historical era of heroic kings may be considered as true,
if not of all mankind, at all events of all branches of the
Indo-European family of nations.
The important point for the jurist is that these aristocracies were
universally the depositaries and administrators of law. They seem to
have succeeded to the prerogatives of the king, with the important
difference, however, that they do not appear to have pretended to
direct inspiration for each sentence. The connection of ideas which
caused the judgments of the patriarchal chieftain to be attributed to
superhuman dictation still shows itself here and there in the claim of
a divine origin for the entire body of rules, or for certain parts of
it, but the progress of thought no longer permits the solution of
particular disputes to be explained by supposing an extra-human
interposition. What the juristical oligarchy now claims is to
monopolise the _knowledge_ of the laws, to have the exclusive
possession of the principles by which quarrels are decided. We have in
fact arrived at the epoch of Customary Law. Customs or Observances now
exist as a substantive aggregate, and are assumed to be precisely
known to the aristocratic order or caste. Our authorities leave us no
doubt that the trust lodged with the oligarchy was sometimes abused,
but it certainly ought not to be regarded as a mere usurpation or
engine of tyranny. Before the invention of writing, and during the
infancy of the art, an aristocracy invested with judicial privileges
formed the only expedient by which accurate preservation of the
customs of the race or tribe could be at all approximated to. Their
genuineness was, so far as possible, insured by confiding them to the
recollection of a limited portion of the community.
The epoch of Customary Law, and of its custody by a privileged order,
is a very remarkable one. The condition of the jurisprudence which it
implies has left traces which may still be detected in legal and
popular phraseology. The law, thus known exclusively to a privileged
minority, whether a caste, an aristocracy, a priestly tribe, or a
sacerdotal college is true unwritten law. Except this, there is no
such thing as unwritten law in the world. English case-law is
sometimes spoken of as unwritten, and there are some English theorists
who assure us that if a code of English jurisprudence were prepared we
should be turning unwritten law into written--a conversion, as they
insist, if not of doubtful policy, at all events of the greatest
seriousness. Now, it is quite true that there was once a period at
which the English common law might reasonably have been termed
unwritten. The elder English judges did really pretend to knowledge of
rules, principles, and distinctions which were not entirely revealed
to the bar and to the lay-public. Whether all the law which they
claimed to monopolise was really unwritten, is exceedingly
questionable; but at all events, on the assumption that there was once
a large mass of civil and criminal rules known exclusively to the
judges, it presently ceased to be unwritten law. As soon as the Courts
at Westminster Hall began to base their judgments on cases recorded,
whether in the year books or elsewhere, the law which they
administered became written law. At the present moment a rule of
English law has first to be disentangled from the recorded facts of
adjudged printed precedents, then thrown into a form of words varying
with the taste, precision, and knowledge of the particular judge, and
then applied to the circumstances of the case for adjudication. But at
no stage of this process has it any characteristic which distinguishes
it from written law. It is written case-law, and only different from
code-law because it is written in a different way.
From the period of Customary Law we come to another sharply defined
epoch in the history of jurisprudence. We arrive at the era of Codes,
those ancient codes of which the Twelve Tables of Rome were the most
famous specimen. In Greece, in Italy, on the Hellenised sea-board of
Western Asia, these codes all made their appearance at periods much
the same everywhere, not, I mean, at periods identical in point of
time, but similar in point of the relative progress of each community.
Everywhere, in the countries I have named, laws engraven on tablets
and published to the people take the place of usages deposited with
the recollection of a privileged oligarchy. It must not for a moment
be supposed that the refined considerations now urged in favour of
what is called codification had any part or place in the change I have
described. The ancient codes were doubtless originally suggested by
the discovery and diffusion of the art of writing. It is true that the
aristocracies seem to have abused their monopoly of legal knowledge;
and at all events their exclusive possession of the law was a
formidable impediment to the success of those popular movements which
began to be universal in the western world. But, though democratic
sentiment may have added to their popularity, the codes were certainly
in the main a direct result of the invention of writing. Inscribed
tablets were seen to be a better depositary of law, and a better
security for its accurate preservation, than the memory of a number of
persons however strengthened by habitual exercise.
The Roman code belongs to the class of codes I have been describing.
Their value did not consist in any approach to symmetrical
classifications, or to terseness and clearness of expression, but in
their publicity, and in the knowledge which they furnished to
everybody, as to what he was to do, and what not to do. It is, indeed,
true that the Twelve Tables of Rome do exhibit some traces of
systematic arrangement, but this is probably explained by the
tradition that the framers of that body of law called in the
assistance of Greeks who enjoyed the later Greek experience in the art
of law-making. The fragments of the Attic Code of Solon show, however,
that it had but little order, and probably the laws of Draco had even
less. Quite enough too remains of these collections, both in the East
and in the West, to show that they mingled up religious, civil, and
merely moral ordinances, without any regard to differences in their
essential character; and this is consistent with all we know of early
thought from other sources, the severance of law from morality, and of
religion from law, belonging very distinctly to the _later_ stages of
mental progress.
But, whatever to a modern eye are the singularities of these Codes,
their importance to ancient societies was unspeakable. The
question--and it was one which affected the whole future of each
community--was not so much whether there should be a code at all, for
the majority of ancient societies seem to have obtained them sooner or
later, and, but for the great interruption in the history of
jurisprudence created by feudalism, it is likely that all modern law
would be distinctly traceable to one or more of these fountain-heads.
But the point on which turned the history of the race was, at what
period, at what stage of their social progress, they should have their
laws put into writing. In the western world the plebeian or popular
element in each state successfully assailed the oligarchical monopoly,
and a code was nearly universally obtained _early_ in the history of
the Commonwealth. But in the East, as I have before mentioned, the
ruling aristocracies tended to become religious rather than military
or political, and gained, therefore, rather than lost in power; while
in some instances the physical conformation of Asiatic countries had
the effect of making individual communities larger and more numerous
than in the West; and it is a known social law that the larger the
space over which a particular set of institutions is diffused, the
greater is its tenacity and vitality. From whatever cause, the codes
obtained by Eastern societies were obtained, relatively, much later
than by Western, and wore a very different character. The religious
oligarchies of Asia, either for their own guidance, or for the relief
of their memory, or for the instruction of their disciples, seem in
all cases to have ultimately embodied their legal learning in a code;
but the opportunity of increasing and consolidating their influence
was probably too tempting to be resisted. Their complete monopoly of
legal knowledge appears to have enabled them to put off on the world
collections, not so much of the rules actually observed as of the
rules which the priestly order considered proper to be observed. The
Hindoo code, called the Laws of Menu, which is certainly a Brahmin
compilation, undoubtedly enshrines many genuine observances of the
Hindoo race, but the opinion of the best contemporary orientalists is,
that it does not, as a whole, represent a set of rules ever actually
administered in Hindostan. It is, in great part, an ideal picture of
that which, in the view of the Brahmins, _ought_ to be the law. It is
consistent with human nature and with the special motives of their
authors, that codes like that of Menu should pretend to the highest
antiquity and claim to have emanated in their complete form from the
Deity. Menu, according to Hindoo mythology, is an emanation from the
supreme God; but the compilation which bears his name, though its
exact date is not easily discovered, is, in point of the relative
progress of Hindoo jurisprudence, a recent production.
Among the chief advantages which the Twelve Tables and similar codes
conferred on the societies which obtained them, was the protection
which they afforded against the frauds of the privileged oligarchy and
also against the spontaneous depravation and debasement of the
national institutions. The Roman Code was merely an enunciation in
words of the existing customs of the Roman people. Relatively to the
progress of the Romans in civilisation, it was a remarkably early
code, and it was published at a time when Roman society had barely
emerged from that intellectual condition in which civil obligation and
religious duty are inevitably confounded. Now a barbarous society
practising a body of customs, is exposed to some especial dangers
which may be absolutely fatal to its progress in civilisation. The
usages which a particular community is found to have adopted in its
infancy and in its primitive seats are generally those which are on
the whole best suited to promote its physical and moral well-being;
and, if they are retained in their integrity until new social wants
have taught new practices, the upward march of society is almost
certain. But unhappily there is a law of development which ever
threatens to operate upon unwritten usage. The customs are of course
obeyed by multitudes who are incapable of understanding the true
ground of their expediency, and who are therefore left inevitably to
invent superstitious reasons for their permanence. A process then
commences which may be shortly described by saying that usage which is
reasonable generates usage which is unreasonable. Analogy, the most
valuable of instruments in the maturity of jurisprudence, is the most
dangerous of snares in its infancy. Prohibitions and ordinances,
originally confined, for good reasons, to a single description of
acts, are made to apply to all acts of the same class, because a man
menaced with the anger of the gods for doing one thing, feels a
natural terror in doing any other thing which is remotely like it.
After one kind of food has been interdicted for sanitary reasons, the
prohibition is extended to all food resembling it, though the
resemblance occasionally depends on analogies the most fanciful. So,
again, a wise provision for insuring general cleanliness dictates in
time long routines of ceremonial ablution; and that division into
classes which at a particular crisis of social history is necessary
for the maintenance of the national existence degenerates into the
most disastrous and blighting of all human institutions--Caste. The
fate of the Hindoo law is, in fact, the measure of the value of the
Roman code. Ethnology shows us that the Romans and the Hindoos sprang
from the same original stock, and there is indeed a striking
resemblance between what appear to have been their original customs.
Even now, Hindoo jurisprudence has a substratum of forethought and
sound judgment, but irrational imitation has engrafted in it an
immense apparatus of cruel absurdities. From these corruptions the
Romans were protected by their code. It was compiled while the usage
was still wholesome, and a hundred years afterwards it might have been
too late. The Hindoo law has been to a great extent embodied in
writing, but, ancient as in one sense are the compendia which still
exist in Sanskrit, they contain ample evidence that they were drawn up
after the mischief had been done. We are not of course entitled to say
that if the Twelve Tables had not been published the Romans would have
been condemned to a civilisation as feeble and perverted as that of
the Hindoos, but thus much at least is certain, that _with_ their code
they were exempt from the very chance of so unhappy a destiny.