Ancient Law
by Henry Maine
1861



Preface

    The chief object of the following pages is to indicate some
of the earliest ideas of mankind, as they are reflected in
Ancient Law, and to point out the relation of those ideas to
modern thought. Much of the inquiry attempted could not have been
prosecuted with the slightest hope of a useful result if there
had not existed a body of law, like that of the Romans, bearing
in its earliest portions the traces of the most remote antiquity
and supplying from its later rules the staple of the civil
institutions by which modern society is even now controlled. The
necessity of taking the Roman law as a typical system has
compelled the author to draw from it what may appear a
disproportionate number of his illustrations; but it has not been
his intention to write a treatise on Roman jurisprudence, and he
has as much as possible avoided all discussions which might give
that appearance to his work. The space allotted in the third and
fourth chapter to certain philosophical theories of the Roman
Jurisconsults has been appropriated to them for two reasons. In
the first place, those theories appear to the author to have had
a wider and more permanent influence on the thought and action of
the world than is usually supposed. Secondly, they are believed
to be the ultimate source of most of the views which have been
prevalent, till quite recently, on the subjects treated of in
this volume. It was impossible for the author to proceed far with
his undertaking without stating his opinion on the origin,
meaning, and value of those speculations. 

                H.S.M.  London, January, 1861.


Chapter 1

Ancient Codes

    The most celebrated system of jurisprudence known to the
world begins, as it ends, with a Code. From the commencement to
the close of its history, the expositors of Roman Law
consistently employed language which implied that the body of
their system rested on the Twelve Decemviral Tables, and
therefore on a basis of written law. Except in one particular, no
institutions anterior to the Twelve Tables were recognised at
Rome. The theoretical descent of Roman jurisprudence from a code,
the theoretical ascription of English law to immemorial unwritten
tradition, were the chief reasons why the development of their
system differed from the development of ours. Neither theory
corresponded exactly with the facts, but each produced
consequences of the utmost importance. 
    I need hardly say that the publication of the Twelve Tables
is not the earliest point at which we can take up the history of
law. The ancient Roman code belongs to a class of which almost
every civilised nation in the world can show a sample, and which,
so far as the Roman and Hellenic worlds were concerned, were
largely diffused over them at epochs not widely distant from one
another. They appeared under exceedingly similar circumstances,
and were produced, to our knowledge, by very similar causes.
Unquestionably, many jural phenomena lie behind these codes and
preceded them in point of time. Not a few documentary records
exist which profess to give us information concerning the early
phenomena of law; but, until philology has effected a complete
analysis of the Sanskrit literature, our best sources of
knowledge are undoubtedly the Greek Homeric poems, considered of
course not as a history of actual occurrences, but as a
description, not wholly idealised, of a state of society known to
the writer. However the fancy of the poet may have exaggerated
certain features of the heroic age, the prowess of warrior 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 examination, must bear
the blame of the unsatisfactory condition in which we find the
science of jurisprudence. The inquiries of the jurist are in
truth prosecuted much as inquiry in physic and physiology was
prosecuted before observation had taken the place of assumption.
Theories, plausible and comprehensive, but absolutely unverified,
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 conception, 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 observer 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 understood that they are not laws,
but judgments. "Zeus, or the human king on earth," says Mr.
Grote, in his History of Greece, "is not a lawmaker, 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 principle; 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 associations, may be
inclined to lay down a 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." Nomos, 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 Menu, seems
to belong to a range of ideas more recent and more advanced.
"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 occur 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 Government, and Austin, in his Province of Jurisprudence
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, not 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 presupposing 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 impressed itself on the popular mind,
Causing the term "law" to be applied to mere uniformities,
successions, and similitudes. A command prescribes only a single
act, and it is to commands, therefore, that "Themistes" are more
akin than to laws. They are simply adjudications on insulated
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 second 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 aristocracies.
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 univerally 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 prematurely 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 appear 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 disappear, 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 circumscribed 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
oligarchy 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
Customary 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 custody by a
privileged order, is a very remarkable one. The condition of the
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 -- conversion, 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 particular judge, and then
applied to the circumstances of the case for adjudication. But at
no stage of this process has it any characteristic which
distinguishes 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
appearance 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 formidable impediment to the success of those
popular movements which began to be universal in the western
world. But, though democratic sentiment may have added to their
popularity, the codes were certainly in the main a direct result
of the invention of writing. Inscribed tablets were seen to be a
better depositary 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 classifications, or to terseness and clearness of
expression, but in their publicity, and in the knowledge which
they furnished to everybody, as to what he was to do, and what
not to do. 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 progress. 
    But, whatever to a modern eye are the singularities 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 successfully 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 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
oligarchies of Asia, either for their own guidance, or for the
relief of their memory, or for the instruction of their
disciples, seem in all cases to have ultimately embodied their
legal learning in a code; but the opportunity of increasing and
consolidating their influence was probably too tempting to be
resisted. Their complete monopoly of legal knowledge 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 Menu, 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, represent 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 author, that codes like
that of Menu should pretend to the highest antiquity and claim to
have emanated in their complete form from the Deity. Menu,
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 production. 
    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 depravation
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 condition 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. Analog, the most valuable
of instruments in the maturity of jurisprudence, is the most
dangerous of snares in its infancy. Prohibitions 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 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 resemblance
between what appear to have been their original customs. Even
now, Hindoo jurisprudence 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
the usage was still wholesome, and a hundred years afterwards it
might have been too late. The Hindoo law has been to a great
extent embodied 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
destiny.