The Greek intellect, with all its nobility and elasticity, was quite unable to confine itself within the strait waistcoat of a legal formula; and, if we may judge them by the popular courts of Athens, of whose working we possess accurate knowledge, the Greek tribunals exhibited the strongest tendency to confound law and fact. The Patria Potestas of the Romans, which is necessarily our type of the primeval paternal authority, is equally difficult to understand as an institution of civilized life, whether we consider its incidence on the person or its effects on property. Such innovations on the earliest usages as disclose themselves appear to have been dictated by feelings and modes of thought which, under our present mental conditions, we are unable to comprehend. 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. Some of these tendencies they have stimulated, others they have actually created, to a great number they have given expression and form.
Maine had published in 1885 his one work of speculative politics, a volume of essays on Popular Government, designed to show that democracy is not in itself more stable than any other form of government, and that there is no necessary connexion between democracy and progress. The happiness of mankind is, no doubt, sometimes assigned both in the popular and in the legal literature of the Romans, as the proper object of remedial legislation, but it is very remarkable how few and faint are the testimonies to this principle compared with the tributes which are constantly offered to the overshadowing claims of the Law of Nature. The following year Maine was persuaded to accept, and it turned out that India suited him much better than Cambridge or London. The agents of legal change, Fictions, Equity, and Legislation, are brought in turn to bear on the primeval institutions, and at every point of the progress, a greater number of personal rights and a larger amount of property are removed from the domestic forum to the cognizance of the public tribunals. But the importance of this theory to mankind has been very much greater than its philosophical deficiencies would lead us to expect. The Family consisted primarily of those who belonged to it by consanguinity, and next of those who had been engrafted on it by adoption; but there was still a third class of persons who were only joined to it by common subjection to its head, and these were the Slaves.
The important point for the jurist is that these aristocracies were universally the depositaries and administrators of law. 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. 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. It is impossible to overrate the importance to a nation or profession of having a distinct object to aim at in the pursuit of improvement. Maine became a member of the secretary of state's council in 1871 and remained so for the rest of his life.
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. They ranged from such problems as the land settlement of the , or the introduction of civil marriage to provide for the needs of unorthodox , to the question of how far the study of should be required or encouraged among European civil servants. These took the form of themistes —judgments on the individual case under the di- rective of divine inspiration. Neither the one nor the other of them was based on the slightest consideration of public or private convenience. English legal history was very imperfectly known, and what was known was concealed under huge masses of comparatively modern formalism. The effect of the evidence derived from comparative jurisprudence is to establish that view of the primeval condition of the human race which is known as the Patriarchal Theory. There are few indigenous bodies of law belonging to communities of the Indo-European stock, which do not exhibit peculiarities in the most ancient part of their structure which are clearly referable to Agnation.
The grandest function of the Law of Nature was discharged in giving birth to modern International Law. As anthropology extends its interests beyond the illiterate tribe to the peasant community in the setting of civilization, interest in Maine is being renewed. Sir Henry Maine is considered to be the fore-runner of this approach of law. 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. These defects were sought to be removed by three Jurisdiction by equity law namely, 1 Exclusive Jurisdiction, 2 Concurrent Jurisdiction, and 3 Auxiliary Jurisdiction of equity.
He felt a key objective was better understanding of how law develops over time. Note In this famous extract from Chapter V of Ancient Law, Henry Sumner Maine characterizes the evolution towards progressive societies as a passage from status an ascribed position to contract a voluntary stipulation. Whereas Savings and his followers invoke history in the name of tradition, custom and nation against the belief n conscious and rational law making, the second movement, which one might call philosophical histories, develops a definite legal philosophy from the evolution of history. The Readers Digest of Books. Three of these addresses were published, wholly or in part, in the later editions of Village Communities; the substance of others is in the of 1875, in the same volume. Cambridge, England and New York: At the University Press. 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.
It is, as it were, the legal clothing of some given individual. The composition of the state uniformly assumed to be natural, was nevertheless known to be in great measure artificial. By virtue of the patria potestas, the flocks and herds of his sons belonged to him, and his domination extended to life and death, being as unqualified over his children and their dependents as over his slaves. The Patriarchal Theory has during recent times received the unequivocal support of Duguit, another jurist, but a French national. The circumstances of the origin of the Jus Gentium are probably a sufficient safeguard against the mistake of supposing that the Roman lawyers had any special respect for it. All symbolized statuses which the law recognized in the interest of the community.
The same point of legal history was attained in England under the chancellorship of Lord Eldon the first of our equity judges who, instead of enlarging the jurisprudence of his court by indirect legislation, devoted himself through life to explaining and harmonising it. Maine contributed to the Cambridge Essays an essay on Roman law and legal education, republished in the later editions of Village Communities. It is so framed as to be adjusted to a system of small independent corporations. All ancient communities ran the risk of being overthrown by a very slight disturbance of equilibrium, and the mere instinct of self-preservation would force the Romans to devise some method of adjusting the rights and duties of foreigners, who might otherwise—and this was a danger of real importance in the ancient world—have decided their controversies by armed strife. They thus made their way into the modern Law of Nations, and the result is that those parts of the international system which refer to dominion, its nature, its limitations, the modes of acquiring and securing it, are pure Roman Property Law—so much, that is to say, of the Roman Law of Property as the Antonine jurisconsults imagined to exhibit a certain congruity with the natural state. Without explaining the technical mechanism of the institution now generally popular, I may describe it as amounting in law to little more than a temporary deposit of the woman by her family. 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.
A member of the Council of the Governor General of India 1863-1869 , as a successor of Lord Macaulay, Maine was largely responsible for the codification of Indian law. The rigidity of primitive law, arising chiefly from its early association and identification with religion, has chained down the mass of the human race to those views of life and conduct which they entertained at the time when their usages were first consolidated into a systematic form. The great difference between the views is that one bitterly and broadly condemns the present for its unlikeness to the ideal past; while the other, assuming the present to be as necessary as the past, does not affect to disregard or censure it. In his remarkable work on Ancient Law: Its Connection with the Early History of Society, and Its Relation to Modern Ideas, Sir Henry Maine attempted to indicate some of the earliest ideas of mankind, as reflected in ancient law, and to point out the relation of those ideas to modern thought. It is certain, however, that both feudal and ecclesiastical influences were rapidly decaying during the fifteenth, and even the fourteenth century; and if we closely examine the current pretexts of wars, and the avowed motives of alliances, it will be seen that, step by step with the displacement of the old principles, the views afterwards harmonized and consolidated by Ayala and Grotius were making considerable progress, though it was silent and but slow. Elsewhere it is styled more simply Jus Naturale, or the Law of Nature; and its ordinances are said to be dictated by Natural Equity naturalis œquitas as well as by natural reason. The English law of testamentary succession to personalty has become a modified form of the dispensation under which the inheritances of Roman citizens were administered.