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SIR HENRY MAINE

(1822-1888)

BY D. MACG. MEANS

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

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- 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 illness, 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.

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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 numerous; 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

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 understanding 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 positions 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 intelligent 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 experiences in the lectures published in 1871, under the title Village Communities.' In 1875 he brought out the 'Early History of Institutions.' 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,— 'Dissertations 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 revision. 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

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.

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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. applied the theory of evolution to the development of human institutions; 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 jurisprudence 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.

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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'

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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

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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 Thucydides, 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 belligerency 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 originally equal, but a number of contrivances survive for preserving 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 negative form. Thus, wherever we can observe the primitive groups still surviving to our day, we find that competition has very feeble 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

social force of which the action is measured by political economy, 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 communities 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 purchase and exchange has a far more limited field of action, even at this moment, than an Englishman or an American would suppose. 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 ownership 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, butout 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 property. 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 commodities were severally owned before this appropriation, and that they exercised great influence in dissolving the primitive collective ownership.

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