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Home -> Henry Sumner Maine, Sir -> Ancient Law -> CHAPTER I

Ancient Law - CHAPTER I






6. CHAPTER V continue


8. CHAPTER VI continue



11. CHAPTER VIII continue


13. CHAPTER IX continue




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 in-
stitutions anterior to the Twelve Tables were
recognised at Rome. The theoretical descent
of Roman jurisprudence from a code, the theo-
retical 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 corre-
sponded 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 ex-
ceedingly similar circumstances, and were pro-
duced, 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 pro-
fess to give us information concerning the early
phenomena of law; but, until philology has
effected a complete analysis of the Sanskrit litera-
ture, our best sources ot knowledge are undoubt-
edly 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.
The haste or the prejudice which has generally
refused them all but the most superficial examina-
tion, must bear the blame of the unsatisfactory
condition in which we find the science of juris-
prudence. 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. Theories,
plausible and comprehensive, but absolutely un-
verified, such as the Law of Nature or the Social
Compact, enjoy a universal preference over sober
research into the primitive history of society
and law ; and they obscure the truth not only
by diverting attention from the only quarter
in which it can be found, but by that most real
and most important influence which, when once
entertained and believed in, they are enabled
to exercise on the later stages of jurisprudence.

The earliest notions connected with the con-
ception, now so fully developed, of a law or rule
of life, are those contained in the Homeric words
" Themis " and " Themistes." " Themis," it is
well known, appears in the later Greek pantheon
as the Goddess of Justice, but this is a modern
and much developed idea, and it is in a very
different sense that Themis is described in the
Iliad as the assessor of Zeus. It is now clearly
seen by all trustworthy observers of the primitive
condition of mankind that, in the infancy of
the race, men could only account for sustained
or periodically recurring action by supposing a
personal agent. Thus, the wind blowing was a
person and of course a divine person; the sun


rising, culminating, and setting was a person and
a divine person ; the earth yielding her increase
was a person and divine. As, then, in the physical
world, so in the moral. When a king decided
a dispute by a sentence, the judgment was assumed
to be the result of direct inspiration. The divine
agent, suggesting judicial awards to kings or to
gods, the greatest of kings, was Themis. The
peculiarity of the conception is brought out by
the use of the plural. Themistes, Themises, the
plural of Themis, are the awards themselves,
divinely dictated to the judge. Kings are spoken
of as if they had a store of " Themistes " ready
to hand for use ; but it must be distinctly under-
stood that they are not laws, but judgments,
or, to take the exact Teutonic equivalent,
" dooms." " Zeus, or the human king on earth/ 1
says Mr. Grote, in his History of Greece, " is
not a law-maker, but a judge." He is provided
with Themistes, but, consistently with the belief
in their emanation from above, they cannot be
supposed to be connected by any thread of prin-
ciple ; they are separate, isolated judgments.

Even in the Homeric poems we can see that
these ideas are transient. Parities of circumstance
were probably commoner in the simple mechanism
of ancient society than they are now, and in the
succession of similar cases awards are likely to
follow and resemble each other. Here we have
the germ or rudiment of a custom, a conception
posterior to that of Themistes or judgments.
However strongly we, with our modern associa-
tions, may be inclined to lay down d priori that
the notion of a Custom must precede that of a


judicial sentence, and that a judgment must
affirm a custom or punish its breach, it seems
quite certain that the historical order of the
ideas is that in which I have placed them. The
Homeric word for a custom in the embryo is
sometimes " Themis " in the singular more often
'" Dike/' the meaning of which visibly fluctuates
between a " judgment " and a " custom " or
" usage/' No5, a Law, so great and famous
a term in the political vocabulary of the later
Greek society, does not occur in Homer.

This notion of a divine agency, suggesting
the Themistes, and itself impersonated in Themis,
must be kept apart from other primitive beliefs
with which a superficial inquirer might confound
it. The conception of the Deity dictating an
entire code or body of law, as in the case of
the Hindoo laws of Manu, seems to belong to a
range of ideas more recent and more advanced.
11 Themis" and " Themistes " are much less
remotely linked with that persuasion which clung
so long and so tenaciously to the human mind,
of a divine influence underlying and supporting
every relation of life, every social institution.
In early law, and amid the rudiments of political
thought, symptoms of this belief meet us on all
sides. A supernatural presidency is supposed
to consecrate and keep together all the cardinal
institutions of those times, the State, the Race,
and the Family. Men, grouped together in the
different relations which those institutions imply,
are bound to celebrate periodically common rites
and to offer common sacrifices ; and every now
and then the same duty is even more significantly


recognised in the purifications and expiations
which they perform, and which appear intended
to deprecate punishment for involuntary or
neglectful disrespect. Everybody acquainted
with ordinary classical literature will remember
the sacra gentilicia, which exercised so important
an influence on the early Roman law of adoption
and of wills. And to this hour the Hindoo
Customary Law, in which some of the most curious
features of primitive society are stereotyped,
makes almost all the rights of persons and all the
rules of succession hinge on the due solemnisation
of fixed ceremonies at the dead man's funeral,
that is, at every point where a breach occurs in
the continuity of the family.

Before we quit this stage of jurisprudence, a
caution may be usefully given to the English
student. Bentham, in his " Fragment on Govern-
ment/' and Austin, in his " Province of Juris-
prudence Determined/' resolve every law into
a command of the lawgiver, an obligation imposed
thereby on the citizen, and a sanction threatened
in the event of disobedience ; and it is further
predicated of the command, which is the first
element in a law, that it must prescribe, not a
single act, but a series or number of acts of the
same class or kind. The results of this separation
of ingredients tally exactly with the facts of
mature jurisprudence ; and, by a little straining
of language, they may be made to correspond
in form with all law, of all kinds, at all epochs.
It is not, however, asserted that the notion of
law entertained by the generality is even now
quite in conformity with this dissection ; and


it is curious that, the farther we penetrate into
the primitive history of thought, the farther we
find ourselves from a conception of law which at
all resembles a compound of the elements which
Bentham determined. It is certain that, in the
infancy of mankind, no sort of legislature, nor
even a distinct author of law, is contemplated
or conceived of. Law has scarcely reached the
footing of custom ; it is rather a habit. It is,
to use a French phrase, " in the air." The only
authoritative statement of right and wrong is a
judicial sentence after the facts, not one pre-
supposing a law which has been violated, but
one which is breathed for the first time by a
higher power into the judge's mind at the moment
of adjudication. It is of course extremely difficult
for us to realise a view so far removed from us
in point both of time and of association, but it
will become more credible when we dwell more
at length on the constitution of ancient society,
in which every man, living during the greater
part of his life under the patriarchal despotism,
was practically controlled in all his actions by
a regimen not of law but of caprice. I may add
that an Englishman should be better able than
a foreigner to appreciate the historical fact that
the " Themistes " preceded any conception of
law, because, amid the many inconsistent theories
which prevail concerning the character of English
jurisprudence, the most popular, or at all events
the one which most affects practice, is certainly
a theory which assumes that adjudged cases and
precedents exist antecedently to rules, principles,
and distinctions. The " Themistes " have too,


it should be remarked, the characteristic which,
in the view of Bentham and Austin, distinguishes
single or mere commands from laws. A true law
enjoins on all the citizens indifferently a number
of acts similar in class or kind ; and this is exactly
the feature of a law which has most deeply im-
pressed itself on the popular mind, causing the
term "law" to be applied to mere uniformities,
successions, and similitudes. A command pre-
scribes only a single act, and it is to commands,
therefore, that " Themis tes " are more akin than
to laws. They are simply adjudications on insu-
lated states of fact, and do not necessarily follow
each other in any orderly sequence.

The literature of the heroic age discloses to
us law in the germ under the " Themistes " and
a little more developed in the conception of
" Dike." The next stage which we reach in the
history of jurisprudence is strongly marked and
surrounded by the utmost interest. Mr. Grote, in
the second part and ninth chapter of his History,
has fully described the mode in which society
gradually clothed itself with a different character
from that delineated by Homer. Heroic kingship
depended partly on divinely given prerogative,
and partly on the possession of supereminent
strength, courage, and wisdom. Gradually, as
the impression of the monarch's sacredness became
weakened, and feeble members occurred in the
series of hereditary kings, the royal power decayed,
and at last gave way to the dominion of aris-
tocracies. If language so precise can be used of
the revolution, we might say that the office of
the king was usurped by that council of chiefs


which Homer repeatedly alludes to and depicts.
At all events from an epoch of kingly rule we
come everywhere in Europe to an era of oligarchies;
and even where the name of the monarchical
functions does not absolutely disappear, the
authority of the king is reduced to a mere shadow.
He becomes a mere hereditary general, as in
Lacedaemon, a mere functionary, as the King
Archon at Athens, or a mere formal hierophant,
like the Rex Sacrificulus at Rome. In Greece,
Italy, and Asia Minor, the dominant orders seem
to have universally consisted of a number of
families united by an assumed relationship in
blood, and, though they all appear at first to
have laid claim to a quasi-sacred character,
their strength does not seem to have resided in
their pretended sanctity. Unless they were pre-
maturely overthrown by the popular party, they
all ultimately approached very closely to what we
should now understand by a political aristocracy.
The changes which society underwent in the
communities of the further Asia occurred of
course at periods long anterior in point of time
to these revolutions of the Italian and Hellenic
worlds ; but their relative place in civilisation
appears to have been the same, and they seem
to have been exceedingly similar in general
character. There is some evidence that the races
which were subsequently united under the Persian
monarchy, and those which peopled the peninsula
of India, had all their heroic age and their era
of aristocracies ; but a military and a religious
oligarchy appear to have grown up separately,
nor was the authority of the king generally


superseded. Contrary, too, to the course of events
in the West, the religious element in the East
tended to get the better of the military and
political. Military and civil aristocracies dis-
appear, annihilated or crushed into insignificance
between the kings and the sacerdotal order ;
and the ultimate result at which we arrive is,
a monarch enjoying great power, but circum-
scribed by the privileges of a caste of priests.
With these differences, however, that in the East
aristocracies became religious, in the West civil
or political, the proposition that a historical
era of aristocracies succeeded a historical era of
heroic kings may be considered as true, if not of
all mankind, at all events of all branches of the
Indo-European family of nations.

The important point for the jurist is that
these aristocracies were universally the depositaries
and administrators of law. They seem to have
succeeded to the prerogatives of the king, with
the important difference, however, that they do
not appear to have pretended to direct inspiration
for each sentence. The connection of ideas which
caused the judgments of the patriarchal chieftain
to be attributed to superhuman dictation still
shows itself here and there in the claim of a
divine origin for the entire body of rules, or for
certain parts of it, but the progress of thought
no longer permits the solution of particular
disputes to be explained by supposing an extra-
human interposition. What the juristical oli-
garchy now claims is to monopolise the knowledge
of the laws, to have the exclusive possession of
the principles by which quarrels are decided.


We have in fact arrived at the epoch of Custom-
ary Law. Customs or Observances now exist as
a substantive aggregate, and are assumed to be
precisely known to the aristocratic order or caste.
Our authorities leave us no doubt that the trust
lodged with the oligarchy was sometimes abused,
but it certainly ought not to be regarded as a
mere usurpation or engine of tyranny. Before
the invention of writing, and during the infancy
of the art, an aristocracy invested with judicial
privileges formed the only expedient by which
accurate preservation of the customs of the race
or tribe could be at all approximated to. Their
genuineness was, so far as possible, insured by
confiding them to the recollection of a limited
portion of the community.

The epoch of Customary Law, and of its cus-
tody by a privileged order, is a very remarkable
one. The condition of jurisprudence which it
implies has left traces which may still be detected
in legal and popular phraseology. The law, thus
known exclusively to a privileged minority,
whether a caste, an aristocracy, a priestly tribe,
or a sacerdotal college, is true unwritten law.
Except this, there is no such thing as unwritten
law in the world. English case-law is sometimes
spoken of as unwritten, and there are some
English theorists who assure us that if a code of
English jurisprudence were prepared we should
be turning unwritten law into written a con-
version, as they insist, if not of doubtful policy,
at all events of the greatest seriousness. Now, it
is quite true that there was once a period at which
the English common law might reasonably have


been termed unwritten. The elder English judges
did really pretend to knowledge of rules, principles,
and distinctions which were not entirely revealed
to the bar and to the lay-public. Whether all the
law which they claimed to monopolise was really
unwritten, is exceedingly questionable ; but at all
events, on the assumption that there was once a
large mass of civil and criminal rules known
exclusively to the judges, it presently ceased
to be unwritten law. As soon as the Courts at
Westminster Hall began to base their judgments
on cases recorded, whether in the year-books or
elsewhere, the law which they administered became
written law. At the present moment a rule of
English law has first to be disentangled from the
recorded facts of adjudged printed precedents,
then thrown into a form of words varying with
the taste, precision, and knowledge of the particu-
lar judge, and then applied to the circumstances
of the case for adjudication. But at no stage of
this process has it any characteristic which dis-
tinguishes it from written law. It is written
case-law, and only different from code-law because
it is written in a different way.

From the period of Customary Law we come
to another sharply defined epoch in the history
of jurisprudence. We arrive at the era of Codes,
those ancient codes of which the Twelve Tables
of Rome were the most famous specimen. In
Greece, in Italy, on the Hellenised sea-board of
Western Asia, these codes all made their appear-
ance at periods much the same everywhere, not,
I mean, at periods identical in point of time, but
similar in point of the relative progress of each


community. Everywhere, in the countries I have
named, laws engraven on tablets and published
to the people take the place of usages deposited
with the recollection of a privileged oligarchy.
It must not for a moment be supposed that the
refined considerations now urged in favour of what
is called codification had any part or place in the
change I have described. The ancient codes were
doubtless originally suggested by the discovery
and diffusion of the art of writing. It is true that
the aristocracies seem to have abused their
monopoly of legal knowledge ; and at all events
their exclusive possession of the law was a formid-
able impediment to the success of those popular
movements which began to be universal in the
western world. But, though democratic senti-
ment may have added to their popularity, the
codes were certainly in the main a direct result
of the invention of writing. Inscribed tablets
were seen to be a better depository of law, and
a better security for its accurate preservation,
than the memory of a number of persons however
strengthened by habitual exercise.

The Roman code belongs to the class of codes
I have been describing. Their value did not
consist in any approach to symmetrical classifi-
cation, 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. It is, indeed, true
that the Twelve Tables of Rome do exhibit some
traces of systematic arrangement, but this is
probably explained by the tradition that the
framers of that body of law called in the assistance


of Greeks who enjoyed the later Greek experience
in the art of law-making. The fragments of the
Attic Code of Solon show, however, that it had
but little order, and probably the laws of Draco
had even less. Quite enough too remains of these
collections, both in the East and in the West, to
show that they mingled up religious, civil, and
merely moral ordinances, without any regard to
differences in their essential character ; and this
is consistent with all we know of early thought
from other sources, the severance of law from
morality, and of religion from law, belonging
very distinctly to the later stages of mental

But, whatever to a modern eye are the singu-
larities of these codes, their importance to ancient
societies was unspeakable. The question and it
was one which affected the whole future of each
community was not so much whether there
should be a code at all, for the majority of ancient
societies seem to have obtained them sooner or
later, and, but for the great interruption in the
history of jurisprudence created by feudalism, it
is likely that all modern law would be distinctly
traceable to one or more of these fountain-heads.
But the point on which turned the history of
the race was, at what period, at what stage of
their social progress, they should have their
laws put into writing. In the Western world the
plebeian or popular element in each State suc-
cessfully assailed the oligarchical monopoly, and
a code was nearly universally obtained early in
the history of the Commonwealth. But, in the
East, as I have before mentioned, the ruling

, i] LAWS OF MANU 15

aristocracies tended to become religious rather
than military or political, and gained, therefore,
rather than lost in power ; while in some
instances the physical conformation of Asiatic
countries had the effect of making individual
communities larger and more numerous than in
the West ; and it is a known social law that
the larger the space over which a particular
set of institutions is diffused, the greater is its
tenacity and vitality. From whatever cause, the
codes obtained by Eastern societies were obtained,
relatively, much later than by Western, and wore
a very different character. The religious oligar-
chies 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 ulti-
mately embodied their legal learning in a code ;
but the opportunity of increasing and consolidating
their influence was probably too tempting to be
resisted. Their complete monopoly of legal know-
ledge appears to have enabled them to put off
on the world collections, not so much of the rules
actually observed as of the rules which the priestly
order considered proper to be observed. The
Hindoo Code, called the Laws of Manu, which
is certainly a Brahmin compilation, undoubtedly
enshrines many genuine observances of the Hindoo
race, but the opinion of the best contemporary
orientalists is, that it does not, as a whole, repre-
sent a set of rules ever actually administered in
Hindostan. It is, in great part, an ideal picture
of that which, in the view of the Brahmins, ought
to be the law. It is consistent with human nature
and with the special motives of their authors,


that codes like that of Manu should pretend to
the highest antiquity and claim to have emanated
in their complete form from the Deity. Manu,
according to Hindoo mythology, is an emanation
from the supreme God ; but the compilation
which bears his name, though its exact date is
not easily discovered, is, in point of the relative
progress of Hindoo jurisprudence, a recent pro-

Among the chief advantages which the Twelve
Tables and similar codes conferred on the societies
which obtained them, was the protection which
they afforded against the frauds of the privileged
oligarchy and also against the spontaneous deprava-
tion and debasement of the national institutions.
The Roman Code was merely an enunciation in
words of the existing customs of the Roman
people. Relatively to the progress of the Romans
in civilisation, it was a remarkably early code, and
it was published at a time when Roman society
had barely emerged from that intellectual con-
dition in which civil obligation and religious duty
are inevitably confounded. 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. The usages
which a particular community is found to have
adopted in its infancy and in its primitive seats
are generally those which are on the whole best
suited to promote its physical and moral well-
being ; and, if they are retained in their integrity
until new social wants have taught new practices,
the upward march of society is almost certain.
But unhappily there is a law of development which


ever threatens to operate upon unwritten usage.
The customs are of course obeyed by multitudes
who are incapable of understanding the true
ground of their expediency, and who are therefore
left inevitably to invent superstitious reasons for
their permanence. A process then commences
which may be shortly described by saying that
usage which is reasonable generates usage which
is unreasonable. Analogy, the most valuable of
instruments in the maturity of jurisprudence, is
the most dangerous of snares in its infancy. Pro-
hibitions and ordinances, originally confined, for
good reasons, to a single description of acts, are
made to apply to all acts of the same class, because
a man menaced with the anger of the gods for
doing one thing, feels a natural terror in doing
any other thing which is remotely like it. After
one kind of food has been interdicted for sanitary
reasons, the prohibition is extended to all food
resembling it, though the resemblance occasionally
depends on analogies the most fanciful. So again,
a wise provision for insuring general cleanliness
dictates in time long routines of ceremonial
ablution ; and that division into classes which at
a particular crisis of social history is necessary
for the maintenance of the national existence
degenerates into the most disastrous and blighting
of all human institutions Caste. The fate of the
Hindoo law is, in fact, the measure of the value of
the Roman Code. Ethnology shows us that the
Romans and the Hindoos sprang from the same
original stock, and there is indeed a striking re-
semblance between what appear to have been
their original customs. Even now, Hindoo juris-



prudence has a substratum of forethought and
sound judgment, but irrational imitation has
engrafted in it an immense apparatus of cruel
absurdities. From these corruptions the Romans
were protected by their code. It was compiled
while usage was still wholesome, and a hundred
years afterwards it might have been too late.
The Hindoo law has been to a great extent em-
bodied in writing, but, ancient as in one sense are
the compendia which still exist in Sanskrit, they
contain ample evidence that they were drawn up
after the mischief had been done. We are not of
course entitled to say that if the Twelve Tables
had not been published the Romans would have
been condemned to a civilisation as feeble and
perverted as that of the Hindoos, but thus much
at least is certain, that with their code they were
exempt from the very chance of so unhappy a

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