Ancient Law | Page 4

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