قراءة كتاب Ancient Law: Its Connection to the History of Early Society
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Ancient Law: Its Connection to the History of Early Society
thinkers, presents a singular coherence and intellectual elegance. It is distinguished also by an extraordinary wide range of vision. He lays under contribution with equal felicity and suggestiveness the Old Testament, the Homeric poems, the Latin dramatists, the laws of the Barbarians, the sacerdotal laws of the Hindus, the oracles of the Brehon caste, and the writings of the Roman jurists. In other words, he was a master of the Comparative Method. Few writers have thrown so much light on the development of the human mind in its social relations. We know now—a hundred disciples have followed in Maine's footsteps and applied his teaching—how slow is the growth of the human intellect in these matters, with what painful steps man learns to generalise, how convulsively he clings in the infancy of civilisation to the formal, the material, the realistic aspects of things, how late he develops such abstractions as "the State." In all this Maine first showed the way. As Sir Frederick Pollock has admirably put it—
Nowadays it may be said that "all have got the seed," but this is no justification for forgetting who first cleared and sowed the ground. We may till fields that the master left untouched, and one man will bring a better ox to yoke to the plough, and another a worse; but it is the master's plough still.
We may conclude with some remarks on Maine's views of the contemporary problems of political society. Maine was what, for want of a better term, may be called a Conservative, and, indeed, it may be doubted whether, with the single exception of Burke, any English writer has done more to provide English Conservatives with reasons for the faith that is in them. He has set forth his views in a collection of polemical essays under the title of Popular Government, which were given to the world in book form in 1885. He viewed the advent of Democracy with more distrust than alarm—he appears to have thought it a form of government which could not last—and he has an unerring eye for its weaknesses.3 Indeed, his remarks on the facility with which Democracy yields itself to manipulation by wire-pullers, newspapers, and demagogues, have found not a little confirmation in such studies of the actual working of democratic government as M. Ostrogorski's Democracy and the Organisation of Political Parties. Maine emphasised the tyranny of majorities, the enslavement of untutored minds by political catchwords, their susceptibility to "suggestion," their readiness to adopt vicarious opinion in preference to an intellectual exercise of their own volition. It is not surprising that the writer who had subjected the theories of the Social Contract to such merciless criticism sighed for a scientific analysis of political terms as the first step to clear thinking about politics. Here he was on strong ground, but for such an analysis we have yet to wait.4 He seems to have placed his hopes in the adoption of some kind of written constitution which, like the American prototype, would safeguard us from fundamental changes by the caprice of a single assembly. But this is not the place to pursue such highly debateable matters. Enough if we say that the man who wishes to serve an apprenticeship to an intelligent understanding of the political society of the present cannot do better than begin by a careful study of Maine's researches into the political society of the past.
J. H. MORGAN.
Note.—The reader who desires to study Maine in the light of modern criticism is recommended to read Sir F. Pollock's "Notes on Maine's Ancient Law" (published by John Murray at 2s. 6d., or, with the text, at 5s.). The best short study of Maine with which I am acquainted is the article by Professor Vinogradoff in the Law Quarterly Review for April 1904. The field of research covered by Maine in his various writings is so vast that it is impossible to refer the reader, except at great length, to anything like an adequate list of later books on the subjects of his investigation. In addition to the works on the Village Community mentioned in a previous footnote, I may, however, refer the beginner to Mr. Edward Jenks' little book on The History of Politics in Dent's Primers, to Professor Ashley's translation of a fragment of Fustel de Coulanges under the title of The Origin of Property in Land, and to Sir Frederick Pollock's brilliant little book, The Expansion of the Common Law. The reader is also recommended to study Mr. H.A.L. Fisher's succinct survey of the contributions of Maitland to legal history under the title of F.W. Maitland; an Appreciation (Cambridge University Press). One of the most brilliant and ingenious studies of the origins of European civilisation is to be found in the work of the great German jurist, Ihering, Die Vorgeschichte der Indo-Europder, translated into English under the title of The Early History of the Indo-European Races (Sonnenschein, 1897).
1 The reader who desires to pursue the subject by reference to one of Maine's chief authorities is recommended to read the translation of the Institutes by Sandars.
2 English literature on the subject is best studied in Maitland's Domesday Book and Beyond, Vinogradoff's The Growth of the Manor and Villeinage in England (with an excellent historical introduction), and Seebohm's English Village Community.
3 Witness the characteristic sentence: "On the whole they [i.e. the studies of earlier society] suggest that the differences which, after ages of change, separate the civilised man from savage or barbarian, are not so great as the vulgar opinion would have them.... Like the savage, he is a man of party with a newspaper for a totem ... and like a savage he is apt to make of his totem his God."
4 Something of the kind was done many years ago by Sir George Cornewall Lewis in his little book on the Use and Abuse of Political Terms. I have attempted to carry the task a step farther in an article which appeared in the form of a review of Lord Morley's "History and Politics" in the Nineteenth Century for March 1913.
BIBLIOGRAPHY
Navis ornate atque armata in aquam deducitur (Prize Poem), 1842; The Birth of the Prince of Wales (Prize Poem), 1842; Cæsar ad Rubiconem constitit (Prize Poem), 1842; Memoir of H.F. Hallam, 1851; Roman Law and Legal Education (Essay), 1856; Ancient Law: its Connection with the Early History