Ancient Law | Page 6

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.