Indeed, in the earlier part of the last century,
there may be traced among the educated men of the Continent
something of a feeling in favor of English law; a feeling pro-
ceeding, it is to be feared, rather from the general enthusiasm.
there may be traced among the educated men of the Continent
something of a feeling in favor of English law; a feeling pro-
ceeding, it is to be feared, rather from the general enthusiasm.
Warner - World's Best Literature - v16 - Lev to Mai
, xxii.
7),—
namely, in the world that is all good; and thou mayest prolong
thy days' (ibid. ),—i. e. , in the world that is all eternal. " In the
same sense I explain the words "for our good always" to mean
"that we may come into the world that is all good and eternal,
where we may live permanently"; and the words "that he might
preserve us alive this day" I explain as referring to our first and
temporal existence, to that of our body, which cannot be in a
perfect and good condition except by the co-operation of society,
as has been shown by us.
TRUE KNOWLEDGE OF GOD
AFTER a man has acquired the true knowledge of God, it
must be his aim to surrender his whole being to him and to have
his heart constantly filled with longing after him. Our intellect-
ual power, which emanates directly from God, joins us to him.
You have it in your power to strengthen that bond, or to weaken
it until it breaks. It will be strengthened if you love God above
all other things, and weakened if you prefer other things to him.
All religious acts, such as the reading of Scripture, praying, and
performing of ordinances, are only means to fill our mind with
the thought of God and free it from worldliness. If however
we pray with the motion of our lips and our face toward the
wall, but think all the while of our business; read the Law, and
think of the building of our house; perform ceremonies with our
limbs only, whilst our hearts are far from God,-then there is
no difference between these acts and the digging of the ground
or the hewing of wood.
SUPERFLUOUS THINGS
THE Soul, when accustomed to superfluous things, acquires a
strong habit of desiring others which are neither necessary for
the preservation of the individual nor for that of the species.
This desire is without limit; whilst things which are necessary
are few and restricted within certain bounds. Lay this well to
heart, reflect on it again and again: that which is superfluous is
without end, and therefore the desire for it also without limit.
Thus you desire to have your vessels of silver, but gold vessels
are still better; others have even vessels studded with sapphires,
emeralds, or rubies. Those therefore who are ignorant of this
XVI-601
## p. 9602 (#634) ###########################################
9602
MOSES MAİMONIDES
truth, that the desire for superfluous things is without limit, are
constantly in trouble and pain. They expose themselves to great
dangers by sea voyages or in the service of kings. When they
thus meet with the consequences of their course, they complain of
the judgments of God; they go so far as to say that God's power
is insufficient, because he has given to this universe the proper-
ties which they imagine cause these evils.
EVIL THINGS CONTRASTED WITH GOOD THINGS
MEN frequently think that the evils in the world are more
numerous than the good things; many sayings and songs of the
nations dwell on this idea. They say that the good is found only
exceptionally, whilst evil things are numerous and lasting. The
origin of this error is to be found in the circumstance that men
judge of the whole universe by examining one single person,
believing that the world exists for that one person only. If
anything happens to him contrary to his expectation, forthwith
they conclude that the whole universe is evil. All mankind at
present in existence form only an infinitesimal portion of the per-
manent universe. It is of great advantage that man should know
his station. Numerous evils to which persons are exposed are
due to the defects existing in the persons themselves. We seek
relief from our own faults; we suffer from evils which we inflict
on ourselves; and we ascribe them to God, who is far from con-
nected with them. As Solomon explained it, "The foolishness of
man perverteth his way, and his heart fretteth against the Lord"
(Prov. xix. 3).
THOUGHT OF SINS
THERE is a well-known saying of our sages: "The thoughts
about committing a sin are a greater evil than the sin itself. "
I can offer a good explanation of this strange dictum. When a
person is disobedient, this is due to certain accidents connected
with the corporal element in his constitution; for man sins only
by his animal nature, whereas thinking is a faculty connected
with his higher and essential being. A person who thinks sinful
thoughts, sins therefore by means of the nobler portion of his
self; just as he who causes an ignorant slave to work unjustly,
commits a lesser wrong than he who forces a free man or a
prince to do menial labor. That which forms the true nature of
## p. 9603 (#635) ###########################################
MOSES MAIMONIDES
9603
man, with all its properties and powers, should only be employed
in suitable work,- in endeavoring to join higher beings,— and
not to sink to the condition of lower creatures.
LOW SPEECH CONDEMNED
You know we condemn lowness of speech, and justly so; for
the gift of speech is peculiar to man, and a boon which God
granted to him, that he may be distinguished from the rest of
living creatures. This gift, therefore, which God gave us in
order to enable us to perfect ourselves, to learn and to teach,
must not be employed in doing that which is for us most degrad-
ing and disgraceful. We must not imitate the songs and tales of
ignorant and lascivious people. It may be suitable to them, but
it is not fit for those who are told "And ye shall be unto me
a kingdom of priests, and a holy nation" (Ex. xix. 6).
CONTROL BODILY DESIRES
MAN must have control over all bodily desires. He must
reduce them as much as possible, and only retain of them as
much as is indispensable. His aim must be the aim of man, as
man; viz. , the formation and perfection of ideas, and nothing else.
The best and the sublimest among them is the idea which man
forms of God, angels, and the rest of the creation, according to
his capacity. Such men are always with God, and of them it is
said: "Ye are princes, and all of you are children of the Most
High. " When man possesses a good sound body, that does not
overpower nor disturb the equilibrium within him, he possesses
a Divine gift. A good constitution facilitates the rule of the
soul over the body; but it is not impossible to conquer a bad
constitution by training, and make it subservient to man's ulti-
mate destiny.
THE MORAL EQUIPOISE
IT is true that many pious men in ages gone by have broken
the universal rule, to select the just mean in all the actions of
life; at times they went to extremes. Thus they fasted often,
watched through the nights, abstained from flesh and wine, wore
sackcloth, lived among the rocks, and wandered in the deserts.
They did this, however, only when they considered it necessary
to restore their disturbed moral equipoise; or to avoid, in the
## p. 9604 (#636) ###########################################
9604
MOSES MAIMONIDES
midst of men, temptations which at times were too strong for
them. These abnegations were for them means to an end, and
they forsook them as soon as that end was attained. Thought-
less men, however, regarded castigations as holy in themselves,
and imitated them without thinking of the intentions of their
examples. They thought thereby to reach perfection and to
approach to God. The fools! as if God hated the body and took
pleasure in its destruction. They did not consider how many
sicknesses of soul their actions caused. They are to be compared
to such as take dangerous medicines because they have seen
that experienced physicians have saved many a one from death
with them; so they ruin themselves. This is the meaning of the
cry of the Prophet Jeremiah: "Oh that I had in the wilderness
a lodging-place of wayfaring men, that I might leave my people
and go from them. "
## p. 9605 (#637) ###########################################
9605
SIR HENRY MAINE
(1822-1888)
BY D. MACG. MEANS
B
ENRY JAMES SUMNER MAINE was born near Leighton on August
15th, 1822, and passed his first years in Jersey; afterward
removing to England, where he was brought up exclusively
by his mother, a woman of superior talents. In 1829 he was entered
by his godfather-Dr. Sumner, afterward Archbishop of Canterbury
at Christ's Hospital, and in 1840 went as one of its exhibitioners to
Pembroke College, Cambridge. From the
very beginning his career was brilliant; and
after carrying off nearly all the academic
honors, he was made Regius Professor of
Civil Law at the early age of twenty-five.
In spite of a feeble constitution, which
made his life a prolonged struggle with ill-
ness, his voice was always notably strong,
and is described by one of his early hearers
as like a silver bell. His appearance was
striking, indicating the sensitive nervous
energy of which he was full. Such were
his spirits and disposition that he was a
charming companion, but it was hard to
draw him away from his reading. This
became eventually prodigious in extent, his power of seizing on the
essence of books and passing over what was immaterial being very
remarkable.
SIR HENRY MAINE
In 1847 he married his cousin, Jane Maine; and as it became
necessary to provide for new responsibilities, he took up the law as
a profession, and was called to the bar in 1850. Like so many other
great Englishmen of modern times, he devoted much time to writing
for the press, his first efforts appearing in the Morning Chronicle.
He wrote for the first number of the Saturday Review, and is said
to have suggested its name. His contributions were very numer-
ous; and were especially valued by the editor, John Douglas Cook,
although the present Lord Salisbury, Sir William Harcourt, Goldwin
Smith, Sir James Stephen, Walter Bagehot, and other able writers
## p. 9606 (#638) ###########################################
9606
SIR HENRY MAINE
were coadjutors. He practiced a little at the common-law bar; but
his health did not permit him to go regularly on circuit, and he
soon went over to the equity branch of the profession. In 1852 the
Inns of Court appointed him reader in Roman law; and in 1861 the
results of this lectureship were given to the world in the publication
of 'Ancient Law. '
This splendid work made an epoch in the history of the study of
law. It is the finest example of the comparative method which the
present generation has seen. Some of its conclusions have been
proved erroneous by later scholars, but the value of the book remains
unimpaired. Apart from its graces of style, its peculiar success was
due to the author's power of re-creating the past; of introducing
the reader, as it were, to his own ancestors many centuries removed,
engaged in the actual transaction of legal business. It was altogether
fitting that one who had shown such distinguished capacity for under-
standing the thoughts and customs of primitive peoples should be
chosen as an administrator of the Indian Empire; and in 1862 Maine
accepted the law membership in the council of the Governor-General
-the office previously filled by Macaulay. Perhaps nowhere in the
world is so good work done with so little publicity as in such posi-
tions as this. It is inconceivable that any one except a historian or a
specialist should read Maine's Indian papers, and yet no one can take
them up without being struck with their high quality. So far as intel-
ligent government is concerned, there is no comparison between a
benevolent despot like Maine and a representative chosen by popular
suffrage.
On his return from India in 1869, Maine became professor of
jurisprudence at Oxford; and showed the results of his Indian expe-
riences in the lectures published in 1871, under the title Village
Communities. ' In 1875 he brought out the Early History of Institu-
tions. ' He became a member of the Indian Council, and resigning his
Oxford professorship, was chosen master of Trinity Hall, Cambridge;
numberless other honors being showered on him. In 1883 the last of
the series of works begun with 'Ancient Law' appeared,— 'Disser-
tations on Early Law and Custom. ' This was followed in 1885 by
'Popular Government,' a work especially interesting to Americans as
criticizing their form of government from the aristocratical point of
view. In 1887 Maine succeeded Sir William Harcourt as professor
of international law at Cambridge; but delivered only one course of
lectures, which were published after his death without his final revis-
ion. He died February 3d, 1888, of apoplexy, leaving a widow and
two sons, one of whom died soon after his father. A memoir of
his life was prepared by Sir M. E. Grant Duff, with a selection of his
Indian speeches and minutes, and published in this country in 1892
## p. 9607 (#639) ###########################################
SIR HENRY MAINE
9607
by Henry Holt & Co. It contains a fine photograph from Dickinson's
portrait,— enough evidence of itself to explain the mastery which
the English race has come to exercise over so large a part of the
earth.
Maine's style was distinguished by lucidity and elegance. He has
been justly compared with Montesquieu; but the progress of knowl-
edge gave him the advantage of more accurate scholarship. He
applied the theory of evolution to the development of human institu-
tions; yet no sentence ever written by him has been so often quoted
as that which recognized the immobility of the masses of mankind:
"Except the blind forces of nature, nothing moves in this world
which is not Greek in its origin. " In spite of his wonderful powers
of almost intuitive generalization, and of brilliant expression, he had
not the temperament of a poetical enthusiast. He was noted for his
caution in his career as a statesman, and the same quality marked
all his work. As Sir F. Pollock said, he forged a new and lasting
bond between jurisprudence and anthropology, and made jurispru-
dence a study of the living growth of human society through all its
stages. But those who are capable of appreciating his work in India
will perhaps consider it his greatest achievement; for no
man has
done so much to determine what Indian law should be, and thus to
shape the institutions of untold millions of human beings.
Danely Mean
THE BEGINNINGS OF THE MODERN LAWS OF REAL PROPERTY
From Essay on The Effects of Observation of India on Modern European
Thought, in Village Communities in the East and West'
W"
HENEVER a corner is lifted up of the veil which hides from
us the primitive condition of mankind, even of such parts
of it as we know to have been destined to civilization,
there are two positions, now very familiar to us, which seem to
be signally falsified by all we are permitted to see: All men are
brothers, and All men are equal. The scene before us is rather
that which the animal world presents to the mental eye of those
who have the courage to bring home to themselves the facts
answering to the memorable theory of Natural Selection. Each
## p. 9608 (#640) ###########################################
9608
SIR HENRY MAINE
fierce little community is perpetually at war with its neighbor,
tribe with tribe, village with village. The never-ceasing attacks
of the strong on the weak end in the manner expressed by the
monotonous formula which so often recurs in the pages of Thu-
cydides, "They put the men to the sword; the women and
children they sold into slavery. " Yet even amid all this cruelty
and carnage, we find the germs of ideas which have spread over
the world. There is still a place and a sense in which men are
brothers and equals. The universal belligerency is the belliger-
ency of one total group, tribe, or village, with another; but in
the interior of the groups the regimen is one not of conflict and
confusion, but rather of ultra-legality. The men who composed
the primitive communities believed themselves to be kinsmen
in the most literal sense of the word; and surprising as it may
seem, there are a multitude of indications that in one stage of
thought they must have regarded themselves as equals. When
these primitive bodies first make their appearance as land-owners,
as claiming an exclusive enjoyment in a definite area of land,
not only do their shares of the soil appear to have been ori-
ginally equal, but a number of contrivances survive for preserv-
ing the equality, of which the most frequent is the periodical
redistribution of the tribal domain. The facts collected suggest
one conclusion, which may be now considered as almost proved
to demonstration. Property in land, as we understand it,— that
is, several ownership, ownership by individuals or by groups not
larger than families, is a more modern institution than joint
property or co-ownership; that is, ownership in common by large
groups of men originally kinsmen, and still, wherever they are
found (and they are still found over a great part of the world),
believing or assuming themselves to be, in some sense, of kin to
one another. Gradually, and probably under the influence of a
great variety of causes, the institution familiar to us, individual
property in land, has arisen from the dissolution of the ancient
co-ownership.
There are other conclusions from modern inquiry which ought
to be stated less confidently, and several of them only in nega-
tive form. Thus, wherever we can observe the primitive groups
still surviving to our day, we find that competition has very fee-
ble play in their domestic transactions; competition, that is, in
exchange and in the acquisition of property. This phenomenon,
with several others, suggests that competition, that prodigious
-
1
## p. 9609 (#641) ###########################################
SIR HENRY MAINE
9609
social force of which the action is measured by political econ
omy, is of relatively modern origin. Just as the conceptions.
of human brotherhood, and in a less degree of human equality,
appear to have passed beyond the limits of the primitive com-
munities and to have spread themselves in a highly diluted form
over the mass of mankind,- so, on the other hand, competition
in exchange seems to be the universal belligerency of the ancient
world which has penetrated into the interior of the ancient groups
of blood relatives. It is the regulated private war of ancient
society gradually broken up into indistinguishable atoms. So far
as property in land is concerned, unrestricted competition in pur-
chase and exchange has a far more limited field of action, even
at this moment, than an Englishman or an American would sup-
pose. The view of land as merchantable property, exchangeable
like a horse or an ox, seems to be not only modern but even
now distinctively Western. It is most unreservedly accepted in
the United States; with little less reserve in England and France;
but as we proceed through Eastern Europe it fades gradually
away, until in Asia it is wholly lost.
I cannot do more than hint at other conclusions which are
suggested by recent investigation. We may lay down, I think at
least provisionally, that in the beginning of the history of owner-
ship there was no such broad distinction as we now commonly
draw between political and proprietary power, between the
power which gives the right to tax and the power which confers.
the right to exact rent. It would seem as if the greater forms
of landed property now existing represented political sovereignty
in a condition of decay, while the small property of most of the
world has grown not exclusively, as has been vulgarly supposed
hitherto, out of the precarious possessions of servile classes, but-
out of the indissoluble association of the status of freeman with
a share in the land of the community to which he belonged. I
think, again, that it is possible we may have to revise our ideas
of the relative antiquity of the objects of enjoyment which we
call movables and immovables, real property and personal prop-
erty. Doubtless the great bulk of movables came into existence
after land had begun to be appropriated by groups of men; but
there is now much reason for suspecting that some of these com-
modities were severally owned before this appropriation, and that
they exercised great influence in dissolving the primitive collect-
ive ownership.
――――――
## p. 9610 (#642) ###########################################
9610
SIR HENRY MAINE
-
It is unavoidable that positions like these, stated as they can
only be stated here, should appear to some paradoxical, to others
unimportant. There are a few, perhaps, who may conceive a sus-
picion that if property as we now understand it—that is, several
property — be shown to be more modern not only than the human
race (which was long ago assumed), but than ownership in com-
mon (which is only beginning to be suspected), some advantage
may be gained by those assailants of the institution itself whose
doctrines from time to time cause a panic in modern Continental
society. I do not myself think so. It is not the business of the
scientific historical inquirer to assert good or evil of any particu-
lar institution. He deals with its existence and development, not
with its expediency. But one conclusion he may properly draw
from the facts bearing on the subject before us. Nobody is at
liberty to attack several property and to say at the same time
that he values civilization. The history of the two cannot be dis-
entangled. Civilization is nothing more than a name for the old
order of the Aryan world, dissolved but perpetually reconstituting
itself under a vast variety of solvent influences, of which infi-
nitely the most powerful have been those which have slowly,
and in some parts of the world much less perfectly than others,
substituted several property for collective ownership.
IMPORTANCE OF A KNOWLEDGE OF ROMAN LAW: AND THE
EFFECT OF THE CODE NAPOLÉON
From Roman Law and Legal Education,' in Village Communities in the
East and West'
F IT were worth our while to inquire narrowly into the causes
which have led of late years to the revival of interest in the
Roman civil law, we should probably end in attributing its
increasing popularity rather to some incidental glimpses of its
value, which have been gained by the English practitioner in the
course of legal business, than to any widely diffused or far reach-
ing appreciation of its importance as an instrument of knowledge.
It is most certain that the higher the point of jurisprudence
which has to be dealt with, the more signal is always the assist-
ance derived by the English lawyer from Roman law; and the
higher the mind employed upon the question, the more unquali-
fied is its admiration of the system by which its perplexities have
## p. 9611 (#643) ###########################################
SIR HENRY MAINE
9611
been disentangled. But the grounds upon which the study of
Roman jurisprudence is to be defended are by no means such as
to be intelligible only to the subtlest intellects, nor do they await
the occurrence of recondite points of law in order to disclose
themselves. It is believed that the soundness of many of them
will be recognized as soon as they are stated; and to these it is
proposed to call attention in the present essay.
The historical connection between the Roman jurisprudence
and our own appears to be now looked upon as furnishing one
very strong reason for increased attention to the civil law of
Rome. The fact, of course, is not now to be questioned. The
vulgar belief that the English common law was indigenous in all
its parts was always so easily refuted, by the most superficial
comparison of the text of Bracton and Fleta with the 'Corpus
Juris,' that the honesty of the historians who countenanced it
can only be defended by alleging the violence of their preju-
dices; and now that the great accumulation of fragments of ante-
Justinianean compendia, and the discovery of the MS. of Gaius,
have increased our acquaintance with the Roman law in the only
form in which it can have penetrated into Britain, the suspicion
of a partial earlier filiation amounts almost to a certainty. The
fact of such a filiation has necessarily the highest interest for the
legal antiquarian, and it is of value besides for its effect on some
of the coarser prepossessions of English lawyers. But too much
importance should not be attached to it. It has ever been the
case in England that every intellectual importation we have
received has been instantly colored by the peculiarities of our
national habits and spirit. A foreign jurisprudence interpreted
by the old English common-lawyers would soon cease to be for-
eign, and the Roman law would lose its distinctive character with
even greater rapidity than any other set of institutions. It will
be easily understood that a system like the laws of Rome, distin-
guished above all others for its symmetry and its close correspond-
ence with fundamental rules, would be effectually metamorphosed
by a very slight distortion of its parts, or by the omission of one
or two governing principles. Even though, therefore, it be true-
and true it certainly is that texts of Roman law have been
worked at all points into the foundations of our jurisprudence, it
does not follow from that fact that our knowledge of English
law would be materially improved by the study of the 'Corpus
Juris'; and besides, if too much stress be laid on the historical
-
## p. 9612 (#644) ###########################################
9612
SIR HENRY MAINE
connection between the systems, it will be apt to encourage one
of the most serious errors into which the inquirer into the phi-
losophy of law can fall. It is not because our own jurisprudence
and that of Rome were once alike that they ought to be studied
together; it is because they will be alike. It is because all laws,
however dissimilar in their infancy, tend to resemble each other
in their maturity; and because we in England are slowly, and
perhaps unconsciously or unwillingly, but still steadily and cer-
tainly, accustoming ourselves to the same modes of legal thought,
and to the same conceptions of legal principle, to which the
Roman jurisconsults had attained after centuries of accumulated
experience and unwearied cultivation.
The attempt, however, to explain at length why the flux and
change which our law is visibly undergoing furnish the strongest
reasons for studying a body of rules so mature and so highly
refined as that contained in the 'Corpus Juris,' would be nearly
the same thing as endeavoring to settle the relation of the Roman.
law to the science of jurisprudence; and that inquiry, from its
great length and difficulty, it would be obviously absurd to prose-
cute within the limits of an essay like the present. But there is
a set of considerations of a different nature, and equally forcible
in their way, which cannot be too strongly impressed on all who
have the control of legal or general education. The point which
they tend to establish is this: the immensity of the ignorance to
which we are condemned by ignorance of Roman law. It may be
doubted whether even the best educated men in England can
fully realize how vastly important an element is Roman law in
the general mass of human knowledge, and how largely it enters
into and pervades and modifies all products of human thought
which are not exclusively English. Before we endeavor to give
some distant idea of the extent to which this is true, we must
remind the reader that the Roman law is not a system of cases,
like our own. It is a system of which the nature may, for prac-
tical purposes though inadequately, be described by saying that
it consists of principles, and of express written rules.
In Eng-
land, the labor of the lawyer is to extract from the precedents a
formula, which while covering them will also cover the state of
facts to be adjudicated upon; and the task of rival advocates is,
from the same precedents or others to elicit different formulas
of equal apparent applicability. Now, in Roman law no such use
is made of precedents. The 'Corpus Juris,' as may be seen at a
## p. 9613 (#645) ###########################################
SIR HENRY MAINE
9613
glance, contains a great number of what our English lawyers
would term cases; but then they are in no respect sources of
rules they are instances of their application. They are, as it
were, problems solved by authority in order to throw light on the
rule, and to point out how it should be manipulated and applied.
How it was that the Roman law came to assume this form so
much sooner and more completely than our own, is a question
full of interest, and it is one of the first to which the student
should address himself; but though the prejudices of an English-
man will probably figure to him a jurisprudence thus constituted
as, to say the least, anomalous, it is nevertheless quite as readily
conceived, and quite as natural to the constitution of our own
system. In proof of this, it may be remarked that the English
common law was clearly conceived by its earliest expositors as
wearing something of this character. It was regarded as existing
somewhere in the form of a symmetrical body of express rules,
adjusted to definite principles. The knowledge of the system,
however, in its full amplitude and proportions, was supposed to be
confined to the breasts of the judges and the lay public, and the
mass of the legal profession were only permitted to discern its
canons intertwined with the facts of adjudged cases. Many traces
of this ancient theory remain in the language of our judgments
and forensic arguments; and among them we may perhaps place
the singular use of the word “principle" in the sense of a legal
proposition elicited from the precedents by comparison and induc-
tion.
The proper business of a Roman jurisconsult was therefore
confined to the interpretation and application of express written
rules; processes which must of course be to some extent em-
ployed by the professors of every system of laws-of our own
among others, when we attempt to deal with statute law. But
the great space which they filled at Rome has no counterpart
in English practice; and becoming, as they did, the principal
exercise of a class of men characterized as a whole by extraordi-
nary subtlety and patience, and in individual cases by extraor-
dinary genius, they were the means of producing results which
the English practitioner wants centuries of attaining. We who
speak without shame-occasionally with something like pride — of
our il success in construing statutes, have at our hand nothing
distantly resembling the appliances which the Roman jurispru-
dence supplies, partly by definite canons and partly by appropriate
## p. 9614 (#646) ###########################################
9614
SIR HENRY MAINE
examples, for the understanding and management of written law.
It would not be doing more than justice to the methods of inter-
pretation invented by the Roman lawyers, if we were to com-
pare the power which they give over their subject-matter to
the advantage which the geometrician derives from mathematical
analysis in discussing the relations of space. By each of these
helps, difficulties almost insuperable become insignificant, and pro-
cesses nearly interminable are shortened to a tolerable compass.
The parallel might be carried still further, and we might insist on
the special habit of mind which either class of mental exercise
induces. Most certainly nothing can be more peculiar, special, and
distinct than the bias of thought, the modes of reasoning, and
the habits of illustration, which are given by a training in the
Roman law. No tension of mind or length of study which even
distantly resembles the labor of mastering English jurisprudence
is necessary to enable the student to realize these peculiarities
of mental view; but still they cannot be acquired without some
effort, and the question is, whether the effort which they demand
brings with it sufficient reward. We can only answer by endeav-
oring to point out that they pervade whole departments of thought
and inquiry of which some knowledge is essential to every law-
yer, and to every man of decent cultivation. .
It may be confidently asserted, that if the English lawyer only
attached himself to the study of Roman law long enough to mas-
ter the technical phraseology and to realize the leading legal con-
ceptions of the 'Corpus Juris,' he would approach those questions
of foreign law to which our courts have repeatedly to address
themselves, with an advantage which no mere professional acumen
acquired by the exclusive practice of our own jurisprudence could
ever confer on him. The steady multiplication of legal systems
borrowing the entire phraseology, adopting the principles, and
appropriating the greater part of the rules, of Roman jurispru-
dence, is one of the most singular phenomena of our day, and far
more worthy of attention than the most showy manifestations of
social progress. This gradual approach of Continental Europe to
a uniformity of municipal law dates unquestionably from the first
French Revolution. Although Europe, as is well known, formerly
comprised a number of countries and provinces which governed
themselves by the written Roman law, interpolated with feudal
observances, there does not seem to be any evidence that the
institutions of these localities enjoyed any vogue or favor beyond
?
## p. 9615 (#647) ###########################################
SIR HENRY MAINE
9615
their boundaries.
Indeed, in the earlier part of the last century,
there may be traced among the educated men of the Continent
something of a feeling in favor of English law; a feeling pro-
ceeding, it is to be feared, rather from the general enthusiasm.
for English political institutions which was then prevalent, than
founded on any very accurate acquaintance with the rules of our
jurisprudence. Certainly, as respects France in particular, there
were no visible symptoms of any general preference for the insti-
tutions of the pays de droit écrit as opposed to the provinces in
which customary law was observed. But then came the French
Revolution, and brought with it the necessity of preparing a gen-
eral code for France one and indivisible. Little is known of the
special training through which the true authors of this work had
passed; but in the form which it ultimately assumed, when pub-
lished as the Code Napoléon, it may be described without great
inaccuracy as a compendium of the rules of Roman law then
practiced in France, cleared of all feudal admixture; such rules,
however, being in all cases taken with the extensions given to
them and the interpretations put upon them by one or two emi-
nent French jurists, and particularly by Pothier. The French
conquests planted this body of laws over the whole extent of the
French empire, and the kingdoms immediately dependent upon it;
and it is incontestable that it took root with extraordinary quick-
ness and tenacity. The highest tribute to the French codes is
their great and lasting popularity with the people, the lay public,
of the countries into which they have been introduced. How
much weight ought to be attached to this symptom, our own ex-
perience should teach us; which surely shows us how thoroughly
indifferent in general is the mass of the public to the particu-
lar rules of civil life by which it may be governed, and how
extremely superficial are even the most energetic movements in
favor of the amendment of the law. At the fall of the Bona-
partist empire in 1815, most of the restored governments had
the strongest desire to expel the intrusive jurisprudence which
had substituted itself for the ancient customs of the land. It was
found, however, that the people prized it as the most precious of
possessions: the attempt to subvert it was persevered in in very
few instances, and in most of them the French codes were
restored after a brief abeyance. And not only has the observance
of these laws been confirmed in almost all the countries which
ever enjoyed them, but they have made their way into numerous
## p. 9616 (#648) ###########################################
9616
SIR HENRY MAINE
other communities, and occasionally in the teeth of the most for-
midable political obstacles. So steady, indeed, and so resistless
has been the diffusion of this Romanized jurisprudence, either in
its original or in a slightly modified form, that the civil law of
the whole Continent is clearly destined to be absorbed and lost
in it. It is, too, we should add, a very vulgar error to suppose
that the civil part of the codes has only been found suited to a
society so peculiarly constituted as that of France. With alter-
ations and additions, mostly directed to the enlargement of the
testamentary power on one side and to the conservation of en-
tails and primogeniture on the other, they have been admitted
into countries whose social condition is as unlike that of France
as is possible to conceive.
## p. (#649) ################################################
## p. (#650) ################################################
## p. (#651) ################################################
This book should be returned to
the Library on or before the last date
stamped below.
A fine of five cents a day is incurred
by retaining it beyond the specified
time.
Please return promptly.
## p.
namely, in the world that is all good; and thou mayest prolong
thy days' (ibid. ),—i. e. , in the world that is all eternal. " In the
same sense I explain the words "for our good always" to mean
"that we may come into the world that is all good and eternal,
where we may live permanently"; and the words "that he might
preserve us alive this day" I explain as referring to our first and
temporal existence, to that of our body, which cannot be in a
perfect and good condition except by the co-operation of society,
as has been shown by us.
TRUE KNOWLEDGE OF GOD
AFTER a man has acquired the true knowledge of God, it
must be his aim to surrender his whole being to him and to have
his heart constantly filled with longing after him. Our intellect-
ual power, which emanates directly from God, joins us to him.
You have it in your power to strengthen that bond, or to weaken
it until it breaks. It will be strengthened if you love God above
all other things, and weakened if you prefer other things to him.
All religious acts, such as the reading of Scripture, praying, and
performing of ordinances, are only means to fill our mind with
the thought of God and free it from worldliness. If however
we pray with the motion of our lips and our face toward the
wall, but think all the while of our business; read the Law, and
think of the building of our house; perform ceremonies with our
limbs only, whilst our hearts are far from God,-then there is
no difference between these acts and the digging of the ground
or the hewing of wood.
SUPERFLUOUS THINGS
THE Soul, when accustomed to superfluous things, acquires a
strong habit of desiring others which are neither necessary for
the preservation of the individual nor for that of the species.
This desire is without limit; whilst things which are necessary
are few and restricted within certain bounds. Lay this well to
heart, reflect on it again and again: that which is superfluous is
without end, and therefore the desire for it also without limit.
Thus you desire to have your vessels of silver, but gold vessels
are still better; others have even vessels studded with sapphires,
emeralds, or rubies. Those therefore who are ignorant of this
XVI-601
## p. 9602 (#634) ###########################################
9602
MOSES MAİMONIDES
truth, that the desire for superfluous things is without limit, are
constantly in trouble and pain. They expose themselves to great
dangers by sea voyages or in the service of kings. When they
thus meet with the consequences of their course, they complain of
the judgments of God; they go so far as to say that God's power
is insufficient, because he has given to this universe the proper-
ties which they imagine cause these evils.
EVIL THINGS CONTRASTED WITH GOOD THINGS
MEN frequently think that the evils in the world are more
numerous than the good things; many sayings and songs of the
nations dwell on this idea. They say that the good is found only
exceptionally, whilst evil things are numerous and lasting. The
origin of this error is to be found in the circumstance that men
judge of the whole universe by examining one single person,
believing that the world exists for that one person only. If
anything happens to him contrary to his expectation, forthwith
they conclude that the whole universe is evil. All mankind at
present in existence form only an infinitesimal portion of the per-
manent universe. It is of great advantage that man should know
his station. Numerous evils to which persons are exposed are
due to the defects existing in the persons themselves. We seek
relief from our own faults; we suffer from evils which we inflict
on ourselves; and we ascribe them to God, who is far from con-
nected with them. As Solomon explained it, "The foolishness of
man perverteth his way, and his heart fretteth against the Lord"
(Prov. xix. 3).
THOUGHT OF SINS
THERE is a well-known saying of our sages: "The thoughts
about committing a sin are a greater evil than the sin itself. "
I can offer a good explanation of this strange dictum. When a
person is disobedient, this is due to certain accidents connected
with the corporal element in his constitution; for man sins only
by his animal nature, whereas thinking is a faculty connected
with his higher and essential being. A person who thinks sinful
thoughts, sins therefore by means of the nobler portion of his
self; just as he who causes an ignorant slave to work unjustly,
commits a lesser wrong than he who forces a free man or a
prince to do menial labor. That which forms the true nature of
## p. 9603 (#635) ###########################################
MOSES MAIMONIDES
9603
man, with all its properties and powers, should only be employed
in suitable work,- in endeavoring to join higher beings,— and
not to sink to the condition of lower creatures.
LOW SPEECH CONDEMNED
You know we condemn lowness of speech, and justly so; for
the gift of speech is peculiar to man, and a boon which God
granted to him, that he may be distinguished from the rest of
living creatures. This gift, therefore, which God gave us in
order to enable us to perfect ourselves, to learn and to teach,
must not be employed in doing that which is for us most degrad-
ing and disgraceful. We must not imitate the songs and tales of
ignorant and lascivious people. It may be suitable to them, but
it is not fit for those who are told "And ye shall be unto me
a kingdom of priests, and a holy nation" (Ex. xix. 6).
CONTROL BODILY DESIRES
MAN must have control over all bodily desires. He must
reduce them as much as possible, and only retain of them as
much as is indispensable. His aim must be the aim of man, as
man; viz. , the formation and perfection of ideas, and nothing else.
The best and the sublimest among them is the idea which man
forms of God, angels, and the rest of the creation, according to
his capacity. Such men are always with God, and of them it is
said: "Ye are princes, and all of you are children of the Most
High. " When man possesses a good sound body, that does not
overpower nor disturb the equilibrium within him, he possesses
a Divine gift. A good constitution facilitates the rule of the
soul over the body; but it is not impossible to conquer a bad
constitution by training, and make it subservient to man's ulti-
mate destiny.
THE MORAL EQUIPOISE
IT is true that many pious men in ages gone by have broken
the universal rule, to select the just mean in all the actions of
life; at times they went to extremes. Thus they fasted often,
watched through the nights, abstained from flesh and wine, wore
sackcloth, lived among the rocks, and wandered in the deserts.
They did this, however, only when they considered it necessary
to restore their disturbed moral equipoise; or to avoid, in the
## p. 9604 (#636) ###########################################
9604
MOSES MAIMONIDES
midst of men, temptations which at times were too strong for
them. These abnegations were for them means to an end, and
they forsook them as soon as that end was attained. Thought-
less men, however, regarded castigations as holy in themselves,
and imitated them without thinking of the intentions of their
examples. They thought thereby to reach perfection and to
approach to God. The fools! as if God hated the body and took
pleasure in its destruction. They did not consider how many
sicknesses of soul their actions caused. They are to be compared
to such as take dangerous medicines because they have seen
that experienced physicians have saved many a one from death
with them; so they ruin themselves. This is the meaning of the
cry of the Prophet Jeremiah: "Oh that I had in the wilderness
a lodging-place of wayfaring men, that I might leave my people
and go from them. "
## p. 9605 (#637) ###########################################
9605
SIR HENRY MAINE
(1822-1888)
BY D. MACG. MEANS
B
ENRY JAMES SUMNER MAINE was born near Leighton on August
15th, 1822, and passed his first years in Jersey; afterward
removing to England, where he was brought up exclusively
by his mother, a woman of superior talents. In 1829 he was entered
by his godfather-Dr. Sumner, afterward Archbishop of Canterbury
at Christ's Hospital, and in 1840 went as one of its exhibitioners to
Pembroke College, Cambridge. From the
very beginning his career was brilliant; and
after carrying off nearly all the academic
honors, he was made Regius Professor of
Civil Law at the early age of twenty-five.
In spite of a feeble constitution, which
made his life a prolonged struggle with ill-
ness, his voice was always notably strong,
and is described by one of his early hearers
as like a silver bell. His appearance was
striking, indicating the sensitive nervous
energy of which he was full. Such were
his spirits and disposition that he was a
charming companion, but it was hard to
draw him away from his reading. This
became eventually prodigious in extent, his power of seizing on the
essence of books and passing over what was immaterial being very
remarkable.
SIR HENRY MAINE
In 1847 he married his cousin, Jane Maine; and as it became
necessary to provide for new responsibilities, he took up the law as
a profession, and was called to the bar in 1850. Like so many other
great Englishmen of modern times, he devoted much time to writing
for the press, his first efforts appearing in the Morning Chronicle.
He wrote for the first number of the Saturday Review, and is said
to have suggested its name. His contributions were very numer-
ous; and were especially valued by the editor, John Douglas Cook,
although the present Lord Salisbury, Sir William Harcourt, Goldwin
Smith, Sir James Stephen, Walter Bagehot, and other able writers
## p. 9606 (#638) ###########################################
9606
SIR HENRY MAINE
were coadjutors. He practiced a little at the common-law bar; but
his health did not permit him to go regularly on circuit, and he
soon went over to the equity branch of the profession. In 1852 the
Inns of Court appointed him reader in Roman law; and in 1861 the
results of this lectureship were given to the world in the publication
of 'Ancient Law. '
This splendid work made an epoch in the history of the study of
law. It is the finest example of the comparative method which the
present generation has seen. Some of its conclusions have been
proved erroneous by later scholars, but the value of the book remains
unimpaired. Apart from its graces of style, its peculiar success was
due to the author's power of re-creating the past; of introducing
the reader, as it were, to his own ancestors many centuries removed,
engaged in the actual transaction of legal business. It was altogether
fitting that one who had shown such distinguished capacity for under-
standing the thoughts and customs of primitive peoples should be
chosen as an administrator of the Indian Empire; and in 1862 Maine
accepted the law membership in the council of the Governor-General
-the office previously filled by Macaulay. Perhaps nowhere in the
world is so good work done with so little publicity as in such posi-
tions as this. It is inconceivable that any one except a historian or a
specialist should read Maine's Indian papers, and yet no one can take
them up without being struck with their high quality. So far as intel-
ligent government is concerned, there is no comparison between a
benevolent despot like Maine and a representative chosen by popular
suffrage.
On his return from India in 1869, Maine became professor of
jurisprudence at Oxford; and showed the results of his Indian expe-
riences in the lectures published in 1871, under the title Village
Communities. ' In 1875 he brought out the Early History of Institu-
tions. ' He became a member of the Indian Council, and resigning his
Oxford professorship, was chosen master of Trinity Hall, Cambridge;
numberless other honors being showered on him. In 1883 the last of
the series of works begun with 'Ancient Law' appeared,— 'Disser-
tations on Early Law and Custom. ' This was followed in 1885 by
'Popular Government,' a work especially interesting to Americans as
criticizing their form of government from the aristocratical point of
view. In 1887 Maine succeeded Sir William Harcourt as professor
of international law at Cambridge; but delivered only one course of
lectures, which were published after his death without his final revis-
ion. He died February 3d, 1888, of apoplexy, leaving a widow and
two sons, one of whom died soon after his father. A memoir of
his life was prepared by Sir M. E. Grant Duff, with a selection of his
Indian speeches and minutes, and published in this country in 1892
## p. 9607 (#639) ###########################################
SIR HENRY MAINE
9607
by Henry Holt & Co. It contains a fine photograph from Dickinson's
portrait,— enough evidence of itself to explain the mastery which
the English race has come to exercise over so large a part of the
earth.
Maine's style was distinguished by lucidity and elegance. He has
been justly compared with Montesquieu; but the progress of knowl-
edge gave him the advantage of more accurate scholarship. He
applied the theory of evolution to the development of human institu-
tions; yet no sentence ever written by him has been so often quoted
as that which recognized the immobility of the masses of mankind:
"Except the blind forces of nature, nothing moves in this world
which is not Greek in its origin. " In spite of his wonderful powers
of almost intuitive generalization, and of brilliant expression, he had
not the temperament of a poetical enthusiast. He was noted for his
caution in his career as a statesman, and the same quality marked
all his work. As Sir F. Pollock said, he forged a new and lasting
bond between jurisprudence and anthropology, and made jurispru-
dence a study of the living growth of human society through all its
stages. But those who are capable of appreciating his work in India
will perhaps consider it his greatest achievement; for no
man has
done so much to determine what Indian law should be, and thus to
shape the institutions of untold millions of human beings.
Danely Mean
THE BEGINNINGS OF THE MODERN LAWS OF REAL PROPERTY
From Essay on The Effects of Observation of India on Modern European
Thought, in Village Communities in the East and West'
W"
HENEVER a corner is lifted up of the veil which hides from
us the primitive condition of mankind, even of such parts
of it as we know to have been destined to civilization,
there are two positions, now very familiar to us, which seem to
be signally falsified by all we are permitted to see: All men are
brothers, and All men are equal. The scene before us is rather
that which the animal world presents to the mental eye of those
who have the courage to bring home to themselves the facts
answering to the memorable theory of Natural Selection. Each
## p. 9608 (#640) ###########################################
9608
SIR HENRY MAINE
fierce little community is perpetually at war with its neighbor,
tribe with tribe, village with village. The never-ceasing attacks
of the strong on the weak end in the manner expressed by the
monotonous formula which so often recurs in the pages of Thu-
cydides, "They put the men to the sword; the women and
children they sold into slavery. " Yet even amid all this cruelty
and carnage, we find the germs of ideas which have spread over
the world. There is still a place and a sense in which men are
brothers and equals. The universal belligerency is the belliger-
ency of one total group, tribe, or village, with another; but in
the interior of the groups the regimen is one not of conflict and
confusion, but rather of ultra-legality. The men who composed
the primitive communities believed themselves to be kinsmen
in the most literal sense of the word; and surprising as it may
seem, there are a multitude of indications that in one stage of
thought they must have regarded themselves as equals. When
these primitive bodies first make their appearance as land-owners,
as claiming an exclusive enjoyment in a definite area of land,
not only do their shares of the soil appear to have been ori-
ginally equal, but a number of contrivances survive for preserv-
ing the equality, of which the most frequent is the periodical
redistribution of the tribal domain. The facts collected suggest
one conclusion, which may be now considered as almost proved
to demonstration. Property in land, as we understand it,— that
is, several ownership, ownership by individuals or by groups not
larger than families, is a more modern institution than joint
property or co-ownership; that is, ownership in common by large
groups of men originally kinsmen, and still, wherever they are
found (and they are still found over a great part of the world),
believing or assuming themselves to be, in some sense, of kin to
one another. Gradually, and probably under the influence of a
great variety of causes, the institution familiar to us, individual
property in land, has arisen from the dissolution of the ancient
co-ownership.
There are other conclusions from modern inquiry which ought
to be stated less confidently, and several of them only in nega-
tive form. Thus, wherever we can observe the primitive groups
still surviving to our day, we find that competition has very fee-
ble play in their domestic transactions; competition, that is, in
exchange and in the acquisition of property. This phenomenon,
with several others, suggests that competition, that prodigious
-
1
## p. 9609 (#641) ###########################################
SIR HENRY MAINE
9609
social force of which the action is measured by political econ
omy, is of relatively modern origin. Just as the conceptions.
of human brotherhood, and in a less degree of human equality,
appear to have passed beyond the limits of the primitive com-
munities and to have spread themselves in a highly diluted form
over the mass of mankind,- so, on the other hand, competition
in exchange seems to be the universal belligerency of the ancient
world which has penetrated into the interior of the ancient groups
of blood relatives. It is the regulated private war of ancient
society gradually broken up into indistinguishable atoms. So far
as property in land is concerned, unrestricted competition in pur-
chase and exchange has a far more limited field of action, even
at this moment, than an Englishman or an American would sup-
pose. The view of land as merchantable property, exchangeable
like a horse or an ox, seems to be not only modern but even
now distinctively Western. It is most unreservedly accepted in
the United States; with little less reserve in England and France;
but as we proceed through Eastern Europe it fades gradually
away, until in Asia it is wholly lost.
I cannot do more than hint at other conclusions which are
suggested by recent investigation. We may lay down, I think at
least provisionally, that in the beginning of the history of owner-
ship there was no such broad distinction as we now commonly
draw between political and proprietary power, between the
power which gives the right to tax and the power which confers.
the right to exact rent. It would seem as if the greater forms
of landed property now existing represented political sovereignty
in a condition of decay, while the small property of most of the
world has grown not exclusively, as has been vulgarly supposed
hitherto, out of the precarious possessions of servile classes, but-
out of the indissoluble association of the status of freeman with
a share in the land of the community to which he belonged. I
think, again, that it is possible we may have to revise our ideas
of the relative antiquity of the objects of enjoyment which we
call movables and immovables, real property and personal prop-
erty. Doubtless the great bulk of movables came into existence
after land had begun to be appropriated by groups of men; but
there is now much reason for suspecting that some of these com-
modities were severally owned before this appropriation, and that
they exercised great influence in dissolving the primitive collect-
ive ownership.
――――――
## p. 9610 (#642) ###########################################
9610
SIR HENRY MAINE
-
It is unavoidable that positions like these, stated as they can
only be stated here, should appear to some paradoxical, to others
unimportant. There are a few, perhaps, who may conceive a sus-
picion that if property as we now understand it—that is, several
property — be shown to be more modern not only than the human
race (which was long ago assumed), but than ownership in com-
mon (which is only beginning to be suspected), some advantage
may be gained by those assailants of the institution itself whose
doctrines from time to time cause a panic in modern Continental
society. I do not myself think so. It is not the business of the
scientific historical inquirer to assert good or evil of any particu-
lar institution. He deals with its existence and development, not
with its expediency. But one conclusion he may properly draw
from the facts bearing on the subject before us. Nobody is at
liberty to attack several property and to say at the same time
that he values civilization. The history of the two cannot be dis-
entangled. Civilization is nothing more than a name for the old
order of the Aryan world, dissolved but perpetually reconstituting
itself under a vast variety of solvent influences, of which infi-
nitely the most powerful have been those which have slowly,
and in some parts of the world much less perfectly than others,
substituted several property for collective ownership.
IMPORTANCE OF A KNOWLEDGE OF ROMAN LAW: AND THE
EFFECT OF THE CODE NAPOLÉON
From Roman Law and Legal Education,' in Village Communities in the
East and West'
F IT were worth our while to inquire narrowly into the causes
which have led of late years to the revival of interest in the
Roman civil law, we should probably end in attributing its
increasing popularity rather to some incidental glimpses of its
value, which have been gained by the English practitioner in the
course of legal business, than to any widely diffused or far reach-
ing appreciation of its importance as an instrument of knowledge.
It is most certain that the higher the point of jurisprudence
which has to be dealt with, the more signal is always the assist-
ance derived by the English lawyer from Roman law; and the
higher the mind employed upon the question, the more unquali-
fied is its admiration of the system by which its perplexities have
## p. 9611 (#643) ###########################################
SIR HENRY MAINE
9611
been disentangled. But the grounds upon which the study of
Roman jurisprudence is to be defended are by no means such as
to be intelligible only to the subtlest intellects, nor do they await
the occurrence of recondite points of law in order to disclose
themselves. It is believed that the soundness of many of them
will be recognized as soon as they are stated; and to these it is
proposed to call attention in the present essay.
The historical connection between the Roman jurisprudence
and our own appears to be now looked upon as furnishing one
very strong reason for increased attention to the civil law of
Rome. The fact, of course, is not now to be questioned. The
vulgar belief that the English common law was indigenous in all
its parts was always so easily refuted, by the most superficial
comparison of the text of Bracton and Fleta with the 'Corpus
Juris,' that the honesty of the historians who countenanced it
can only be defended by alleging the violence of their preju-
dices; and now that the great accumulation of fragments of ante-
Justinianean compendia, and the discovery of the MS. of Gaius,
have increased our acquaintance with the Roman law in the only
form in which it can have penetrated into Britain, the suspicion
of a partial earlier filiation amounts almost to a certainty. The
fact of such a filiation has necessarily the highest interest for the
legal antiquarian, and it is of value besides for its effect on some
of the coarser prepossessions of English lawyers. But too much
importance should not be attached to it. It has ever been the
case in England that every intellectual importation we have
received has been instantly colored by the peculiarities of our
national habits and spirit. A foreign jurisprudence interpreted
by the old English common-lawyers would soon cease to be for-
eign, and the Roman law would lose its distinctive character with
even greater rapidity than any other set of institutions. It will
be easily understood that a system like the laws of Rome, distin-
guished above all others for its symmetry and its close correspond-
ence with fundamental rules, would be effectually metamorphosed
by a very slight distortion of its parts, or by the omission of one
or two governing principles. Even though, therefore, it be true-
and true it certainly is that texts of Roman law have been
worked at all points into the foundations of our jurisprudence, it
does not follow from that fact that our knowledge of English
law would be materially improved by the study of the 'Corpus
Juris'; and besides, if too much stress be laid on the historical
-
## p. 9612 (#644) ###########################################
9612
SIR HENRY MAINE
connection between the systems, it will be apt to encourage one
of the most serious errors into which the inquirer into the phi-
losophy of law can fall. It is not because our own jurisprudence
and that of Rome were once alike that they ought to be studied
together; it is because they will be alike. It is because all laws,
however dissimilar in their infancy, tend to resemble each other
in their maturity; and because we in England are slowly, and
perhaps unconsciously or unwillingly, but still steadily and cer-
tainly, accustoming ourselves to the same modes of legal thought,
and to the same conceptions of legal principle, to which the
Roman jurisconsults had attained after centuries of accumulated
experience and unwearied cultivation.
The attempt, however, to explain at length why the flux and
change which our law is visibly undergoing furnish the strongest
reasons for studying a body of rules so mature and so highly
refined as that contained in the 'Corpus Juris,' would be nearly
the same thing as endeavoring to settle the relation of the Roman.
law to the science of jurisprudence; and that inquiry, from its
great length and difficulty, it would be obviously absurd to prose-
cute within the limits of an essay like the present. But there is
a set of considerations of a different nature, and equally forcible
in their way, which cannot be too strongly impressed on all who
have the control of legal or general education. The point which
they tend to establish is this: the immensity of the ignorance to
which we are condemned by ignorance of Roman law. It may be
doubted whether even the best educated men in England can
fully realize how vastly important an element is Roman law in
the general mass of human knowledge, and how largely it enters
into and pervades and modifies all products of human thought
which are not exclusively English. Before we endeavor to give
some distant idea of the extent to which this is true, we must
remind the reader that the Roman law is not a system of cases,
like our own. It is a system of which the nature may, for prac-
tical purposes though inadequately, be described by saying that
it consists of principles, and of express written rules.
In Eng-
land, the labor of the lawyer is to extract from the precedents a
formula, which while covering them will also cover the state of
facts to be adjudicated upon; and the task of rival advocates is,
from the same precedents or others to elicit different formulas
of equal apparent applicability. Now, in Roman law no such use
is made of precedents. The 'Corpus Juris,' as may be seen at a
## p. 9613 (#645) ###########################################
SIR HENRY MAINE
9613
glance, contains a great number of what our English lawyers
would term cases; but then they are in no respect sources of
rules they are instances of their application. They are, as it
were, problems solved by authority in order to throw light on the
rule, and to point out how it should be manipulated and applied.
How it was that the Roman law came to assume this form so
much sooner and more completely than our own, is a question
full of interest, and it is one of the first to which the student
should address himself; but though the prejudices of an English-
man will probably figure to him a jurisprudence thus constituted
as, to say the least, anomalous, it is nevertheless quite as readily
conceived, and quite as natural to the constitution of our own
system. In proof of this, it may be remarked that the English
common law was clearly conceived by its earliest expositors as
wearing something of this character. It was regarded as existing
somewhere in the form of a symmetrical body of express rules,
adjusted to definite principles. The knowledge of the system,
however, in its full amplitude and proportions, was supposed to be
confined to the breasts of the judges and the lay public, and the
mass of the legal profession were only permitted to discern its
canons intertwined with the facts of adjudged cases. Many traces
of this ancient theory remain in the language of our judgments
and forensic arguments; and among them we may perhaps place
the singular use of the word “principle" in the sense of a legal
proposition elicited from the precedents by comparison and induc-
tion.
The proper business of a Roman jurisconsult was therefore
confined to the interpretation and application of express written
rules; processes which must of course be to some extent em-
ployed by the professors of every system of laws-of our own
among others, when we attempt to deal with statute law. But
the great space which they filled at Rome has no counterpart
in English practice; and becoming, as they did, the principal
exercise of a class of men characterized as a whole by extraordi-
nary subtlety and patience, and in individual cases by extraor-
dinary genius, they were the means of producing results which
the English practitioner wants centuries of attaining. We who
speak without shame-occasionally with something like pride — of
our il success in construing statutes, have at our hand nothing
distantly resembling the appliances which the Roman jurispru-
dence supplies, partly by definite canons and partly by appropriate
## p. 9614 (#646) ###########################################
9614
SIR HENRY MAINE
examples, for the understanding and management of written law.
It would not be doing more than justice to the methods of inter-
pretation invented by the Roman lawyers, if we were to com-
pare the power which they give over their subject-matter to
the advantage which the geometrician derives from mathematical
analysis in discussing the relations of space. By each of these
helps, difficulties almost insuperable become insignificant, and pro-
cesses nearly interminable are shortened to a tolerable compass.
The parallel might be carried still further, and we might insist on
the special habit of mind which either class of mental exercise
induces. Most certainly nothing can be more peculiar, special, and
distinct than the bias of thought, the modes of reasoning, and
the habits of illustration, which are given by a training in the
Roman law. No tension of mind or length of study which even
distantly resembles the labor of mastering English jurisprudence
is necessary to enable the student to realize these peculiarities
of mental view; but still they cannot be acquired without some
effort, and the question is, whether the effort which they demand
brings with it sufficient reward. We can only answer by endeav-
oring to point out that they pervade whole departments of thought
and inquiry of which some knowledge is essential to every law-
yer, and to every man of decent cultivation. .
It may be confidently asserted, that if the English lawyer only
attached himself to the study of Roman law long enough to mas-
ter the technical phraseology and to realize the leading legal con-
ceptions of the 'Corpus Juris,' he would approach those questions
of foreign law to which our courts have repeatedly to address
themselves, with an advantage which no mere professional acumen
acquired by the exclusive practice of our own jurisprudence could
ever confer on him. The steady multiplication of legal systems
borrowing the entire phraseology, adopting the principles, and
appropriating the greater part of the rules, of Roman jurispru-
dence, is one of the most singular phenomena of our day, and far
more worthy of attention than the most showy manifestations of
social progress. This gradual approach of Continental Europe to
a uniformity of municipal law dates unquestionably from the first
French Revolution. Although Europe, as is well known, formerly
comprised a number of countries and provinces which governed
themselves by the written Roman law, interpolated with feudal
observances, there does not seem to be any evidence that the
institutions of these localities enjoyed any vogue or favor beyond
?
## p. 9615 (#647) ###########################################
SIR HENRY MAINE
9615
their boundaries.
Indeed, in the earlier part of the last century,
there may be traced among the educated men of the Continent
something of a feeling in favor of English law; a feeling pro-
ceeding, it is to be feared, rather from the general enthusiasm.
for English political institutions which was then prevalent, than
founded on any very accurate acquaintance with the rules of our
jurisprudence. Certainly, as respects France in particular, there
were no visible symptoms of any general preference for the insti-
tutions of the pays de droit écrit as opposed to the provinces in
which customary law was observed. But then came the French
Revolution, and brought with it the necessity of preparing a gen-
eral code for France one and indivisible. Little is known of the
special training through which the true authors of this work had
passed; but in the form which it ultimately assumed, when pub-
lished as the Code Napoléon, it may be described without great
inaccuracy as a compendium of the rules of Roman law then
practiced in France, cleared of all feudal admixture; such rules,
however, being in all cases taken with the extensions given to
them and the interpretations put upon them by one or two emi-
nent French jurists, and particularly by Pothier. The French
conquests planted this body of laws over the whole extent of the
French empire, and the kingdoms immediately dependent upon it;
and it is incontestable that it took root with extraordinary quick-
ness and tenacity. The highest tribute to the French codes is
their great and lasting popularity with the people, the lay public,
of the countries into which they have been introduced. How
much weight ought to be attached to this symptom, our own ex-
perience should teach us; which surely shows us how thoroughly
indifferent in general is the mass of the public to the particu-
lar rules of civil life by which it may be governed, and how
extremely superficial are even the most energetic movements in
favor of the amendment of the law. At the fall of the Bona-
partist empire in 1815, most of the restored governments had
the strongest desire to expel the intrusive jurisprudence which
had substituted itself for the ancient customs of the land. It was
found, however, that the people prized it as the most precious of
possessions: the attempt to subvert it was persevered in in very
few instances, and in most of them the French codes were
restored after a brief abeyance. And not only has the observance
of these laws been confirmed in almost all the countries which
ever enjoyed them, but they have made their way into numerous
## p. 9616 (#648) ###########################################
9616
SIR HENRY MAINE
other communities, and occasionally in the teeth of the most for-
midable political obstacles. So steady, indeed, and so resistless
has been the diffusion of this Romanized jurisprudence, either in
its original or in a slightly modified form, that the civil law of
the whole Continent is clearly destined to be absorbed and lost
in it. It is, too, we should add, a very vulgar error to suppose
that the civil part of the codes has only been found suited to a
society so peculiarly constituted as that of France. With alter-
ations and additions, mostly directed to the enlargement of the
testamentary power on one side and to the conservation of en-
tails and primogeniture on the other, they have been admitted
into countries whose social condition is as unlike that of France
as is possible to conceive.
## p. (#649) ################################################
## p. (#650) ################################################
## p. (#651) ################################################
This book should be returned to
the Library on or before the last date
stamped below.
A fine of five cents a day is incurred
by retaining it beyond the specified
time.
Please return promptly.
## p.
