Ancient Law and the Origins of Human Society

Henry [James] Sumner Maine (1822–88) was an English legal scholar who achieved wide recognition for his extensive research on the origins of law and social institutions. Born in Bedfordshire, he spent his early life on the isle of Jersey and in Henley-on-Thames. Educated at the Christ's Hospital school, he went on to Pembroke College, Cambridge, where he distinguished himself in the study of classics and mathematics. After he secured his degree in 1844, he stayed on to serve as a junior tutor at Trinity College, Cambridge, until 1847, when he was appointed Regius Professor of Civil Law. In 1850 he was called to the bar at Lincoln's Inn court, and two years later was named the first reader in Roman law and jurisprudence at the Inns of Court in London. After taking up residence in London, he resigned his teaching position at Cambridge and began devoting his energies to writing and publication. In the fall of 1855, he became one of the founding editors of the Saturday Review, to which he contributed numerous articles on literary and political subjects. He published an essay on "Roman law and education" in Cambridge Essays (1856), and his most famous and influential book, Ancient Law, appeared in 1861. This was followed by Village Communities in the East and West (1871), Lectures on the Early History of Institutions (1875), Dissertations on Early Law and Custom (1883), and Popular Government (1885). The titles of these works suggest the nature of Maine's persistent interest in the patterns revealed in the evolution of political values and forms of social organization over time. In 1862, he became a member of the governor-general's council in India, and served as vice-chancellor of the University of Calcutta from 1863 to 1869, when he returned to England to accept appointment as Corpus Professor of Jurisprudence at Oxford; he served in that capacity until 1877, when he was elected master of Trinity Hall, Cambridge. He spent the rest of his career at Cambridge, and it was there that he was made a member of the Royal Society and an honorary fellow of Pembroke College. Maine was knighted as Sir Henry in 1871, and died in 1888 in France, in Cannes, where he was buried. The pages that follow are taken from "Primitive Society and Ancient Law," Chapter V of Ancient Law: its connection with the early history of society and its relation to modern ideas, the work first published in 1861 by John Murray in London.

Society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact, and in the view of the men who composed it, it was an aggregation of families. The contrast may be most forcibly expressed by saying that the unit of the ancient society was the Family, of a modern society the Individual. We must be prepared to find in ancient law all the consequences of this difference. It is so framed as to be adjusted to a system of small independent corporations. It is therefore scanty, because it is supplemented by the despotic commands of the heads of households. It is ceremonious, because the transactions to which it pays regard resemble international concerns much more than the quick play of intercourse between individuals. Above all it has a peculiarity of which the full importance cannot be shown at present. It takes a view of life wholly unlike any which appears in developed jurisprudence. Corporations never die, and accordingly primitive law considers the entities with which it deals, i.e., the patriarchal or family groups, as perpetual and inextinguishable. This view is closely allied to the peculiar aspect under which, in very ancient times, moral attributes present themselves. The moral elevation and moral debasement of the individual appear to be confounded with, or postponed to, the merits and offences of the group to which the individual belongs. If the community sins, its guilt is much more than the sum of the offences committed by its members; the crime is a corporate act, and extends in its...