Ancient Law

Ancient Law, by Sir Henry
James Sumner Maine

The Project Gutenberg EBook of Ancient Law, by Sir Henry James
Sumner Maine This eBook is for the use of anyone anywhere at no cost
and with almost no restrictions whatsoever. You may copy it, give it
away or re-use it under the terms of the Project Gutenberg License
included with this eBook or online at www.gutenberg.net
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
*** START OF THIS PROJECT GUTENBERG EBOOK ANCIENT
LAW ***

Produced by Thierry Alberto, Turgut Dincer and the Online Distributed
Proofreading Team at http://www.pgdp.net

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.

J. M. DENT & SONS LIMITED 10-13 BEDFORD STREET
LONDON W.C.2
E. P. DUTTON & CO. INC. 286-302 FOURTH AVENUE NEW
YORK

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