judges interpreted it to apply to all persons related by way of half blood, whether through the father or the mother.

Families being thus the units of which the state was composed, and of which alone the law took notice, the head of the family was in the eye of the most ancient lawyers-to use Mr. Maine's apt illustration-considered as a corporation sole, clothed with a variety of powers and characters, which on his death were transferred as a whole to a representative, who preserved the continuity of the family, notwithstanding his predecessor's death. Wills originally had for their object not the disposal of property but the nomination of a successor, and were thus closely analogous to the practice of adoption. The earliest wills known to Roman law were irrevocable conveyances inter vivos of the reversion (as we should say) of the rights which the paterfamilias held as such. They were published during the testator's lifetime; in the case of patricians in the Comitia Calata; in the case of plebeians by means of the mancipium, which was the earliest form of sale, and was performed in the presence of many witnesses, according to a tedious and elaborate ceremonial. Mr. Maine traces out the steps by which wills of this sort were gradually moulded, by the ingenuity of successive generations of jurisconsults, into the wills with which we are familiar, and illustrates this course of events by parallel incidents in the changes of the Hindoo law, which partly resembled them up to a certain point, at which they have remained stationary for many ages.

Such inquiries as these, which are analogous to those which Mr. Maine institutes respecting classifications of property, contract, and crime, carry us into topics altogether unlike those on which the writers of treatises on the principles of government and politics have usually laid the foundation of their theories. They cast a light both on the origin of society and on the stages of its growth, which is highly important in many different points of view, and will undoubtedly exercise great influence over various departments of thought, especially those which refer to morals and politics. The most interesting point which they suggest is the question as to the mode in which such inquiries should be conducted. No one can have watched the course of modern speculation without perceiving how deeply it is affected by a sort of weariness caused by the apparently unfruitful discussions which have so long prevailed upon political and moral subjects. It must be owned that there is some truth in the assertion that these discussions have usually been conducted in such a manner as to do little else than make the meaning of the opposite parties more or less clear to each other. So much,

indeed, has this been the case, that theoretical views upon them have fallen into general discredit, and there has been a disposition to look with indifference upon all attempts to refer practical questions to anything like general principles. Historical inquiry has been the common resource of those who have shared in this feeling, and have nevertheless recognised the necessity of some wider and more durable results than those which the mere transaction of the current affairs of life can afford. History has been consulted upon almost all the great standing subjects of human thought. Politics, morals, and theology have all been studied from this point of view, and Mr. Maine is now applying the same process to law. He is the first person who in this country has brought to such an attempt the special professional knowledge which is indispensable to success in it. Some account has been given above of the nature of his inquiries, and of the special results at which he has arrived. We may conclude by offering a few observations on the character of the manner in which they have been obtained.

Mr. Maine several times uses in reference to his own investigations the phrase Historical Method,' and his book has been represented by several of his critics as an exemplification of a process which they describe by that name. Indeed with persons who delight to dress their thoughts in semi-technical language, such phrases as the Historical,' the Inductive,' and the Analytical' methods, have of late obtained considerable popularity. These phrases, no doubt, have their use, but they greatly obscure the general purport of speculation, which is first to discover truth, and secondly to render it serviceable to mankind. It is not uncommon to write of the historical and analytical methods as if they were two independent roads to the same result, one of which was proved by experience to be right, and the other wrong. This is a mistake as dangerous as it is common, and it contributes more largely than any other to the practical fatalism which under its alias of positivism is one of the great dangers of contemporary thought. History and analysis, so far from being inimical, are complementary to each other, and neither can be safely dispensed with. History without analysis is at best a mere curiosity; and analysis without history is blind, though it may not be barren. No better instance could be given of the importance of each of these two branches of inquiry to the other than is afforded by a comparison of Mr. Austin's book with Mr. Maine's. In justice to each of these writers it should be said that though analysis is the main purpose of the one and history of the other, each (and especially Mr. Austin) recognises the necessity to his own inquiries of the

line of thought which he does not pursue. From a curious passage in the introduction, now first published, it appears that Mr. Austin had anticipated Mr. Maine's inquiry into the history of the growth of the Law of Nature, and had independently arrived at the same conclusions about it as those which are contained in Mr. Maine's chapters on the subject. On the other hand, though Mr. Maine does not recognise the necessity of analysis as expressly as Mr. Austin recognises the necessity of history, it is obvious that the precise definitions furnished by the inquiries of Mr. Austin and Bentham supplied a starting point for all his inquiries, and in fact rendered them possible.

One of the very few unfavourable criticisms which Mr. Maine's book suggests is that he appears to think, though he certainly never says, that when he has succeeded in giving the history of a system or a theory, he has done with it. For example, he says that the Law of Nature has never maintained its footing 'for an instant before the historical method;' and though he scrupulously confines himself to facts, and is far too cautious and moderate to commit himself to any express conclusion which does not fall strictly within the limits of his inquiry, he appears to feel that he has refuted the theory, or rather all the successive theories, of the Law of Nature by tracing their genealogy. This is surely a complete though a natural fallacy. Mr. Maine says in substance this: There is no such thing as Natural Law, because you would not have thought of it if it had not been for the theories of Rousseau; who adapted to his own purposes the language current amongst the lawyers of his day; who inherited their views from earlier lawyers; who, to serve a temporary purpose, twisted certain theories of Roman Law; which theories had at an earlier period been compounded out of the notions of certain Greek philosophers and certain doctrines about an older jus gentium, which meant something altogether different from what you understand by Natural Law.

All this may be perfectly true without proving the conclusion. A rational conviction of an important truth may be founded on very bad reasons. The common case of reasonable suspicion proves this. A man may suspect another of a crime and believe him to be guilty of it merely on account of the expression of his face or the tone of his voice, and this suspicion may turn out to be well founded. Mr. Maine would hardly defend a client on the ground that he could show, by the application of the historical method, how the case against him had grown up. How the cook noticed that the housemaid bought too many dresses, which induced the mistress to apply to the draper, who showed coins which he thought he had received from her, and which the

mistress strongly suspected to have been stolen from the desk of her husband, who thereupon sent for a policeman to search her boxes, and so discovered the spoons now produced. Most people would consider that this was the case for the prosecution and not for the defence, but Mr. Maine seems a little disposed to put it thus: The discovery of the spoons was occasioned by the policeman's search, which would never have taken place if the lady had not supposed that some coins shown her by the draper were her husband's; and she would never have gone to the draper's at all if the cook had not gossiped about the dresses bought by the prisoner; so that the whole case, gentlemen of the jury, depends upon the idle tittle-tattle of one silly woman about the dress of another. An advocate of the Law of Nature might say to Mr. Maine: It may be perfectly true that I should never have thought as I do unless Rousseau, Grotius, the lawyers of the 14th century, the jurisconsults of Justinian, and the philosophers of Greece had thought certain other things before me, but I can nevertheless give very good reasons for what I do think. I assert that Nature imposes upon men certain laws capable of distinct enunciation, and attended by distinct penalties. For example, the Law of Nature forbids murder; and if there were no municipal laws at all, murder would still incur natural penalties in the shape of disapprobation and vengeance. The manner in which I came by this opinion has nothing whatever to do with its truth.

The true answer to such assertions is to be drawn, not from Mr. Maine, but from Mr. Austin. It is that the word 'law' in such phrases is a delusive metaphor, because it suggests to the mind a closer analogy than really exists between commands issued by and to reasonable beings, and maxims put as it were into the mouth of abstractions; and also a dangerous metaphor, because it encourages that slavish temper of mind which delights to find consequences asserted to be inevitable, in order that it may acquiesce in them, and of which fatalism is the theoretical exponent. This is a complete answer to such theories; and when it has once been given, and is recognised as true and sufficient, historical investigations are in their proper place. A man who has a firm hold of the truth may advantageously employ himself in constructing a map of error, and thinking what was the connexion of ideas by which people were led into the fallacies which he has recognised as such; but, unless he has some acknowledged standard of truth, his speculations are like a map in which all the roads are marked and all the towns left out; they show nothing but a constant succession of opinions, each of which was inevitable when it prevailed, and was suc

ceeded by a series of equally inevitable successors. The positivist may be considered as a man who has made himself a eunuch for the sake of the kingdom of philosophy. He is debarred by what he calls his method' from attempting to alter what exists. The only relation in which he can consistently view opinions is that of their succession to one another; and if he does not derive tests of truth and utility from some other system, he will get none from his own; though, by two selfimposed fallacies which it requires some effort to apprehend, he seems to think he can.

Two tacit assumptions will be found to pervade all positivist writers on all subjects. The first is that opinions are given up because they are shown by experience to be false. The second is that their own opinions will be perpetual, and are thus the test and measure of truth. Having made these tacit assumptions, they proceed to fortify their own opinions by showing how they were gradually formed out of those which preceded them, forgetting that they will probably be in their turn superseded by others; unless, indeed, they should succeed in persuading mankind in general to confine themselves to retrospection, and to be satisfied with surrendering all hope of future golden eggs, for the sake of dissecting the goose which laid those which are already in their possession.

Mr. Maine personally has written nothing or little which would in any degree justify these criticisms, though some of his critics have attempted to find in his book an illustration of the truth of positivist theories. Though he sometimes adopts turns of expression which belong to such theories, he confines himself most cautiously and studiously to the investigation of facts; he puts forward no philosophical theories at all, but leaves to others the question how far the truth of the theories which come before him is affected by the account which he gives of their origin. The light by which his book should be read is supplied by Bentham and Mr. Austin, who have analysed with a precision, which leaves hardly anything to be desired, the fundamental notions which lie at the bottom of jurisprudence. When the rest of Mr. Austin's lectures are before the world-even in the incomplete state in which he left them, a broad and clear meaning will have been affixed to almost all the leading words which are used in connexion with law under all its forms, and to many of those which occur in discussions on morality. This will supply a starting point for any amount of historical investigation, by the help of which it will be possible to compare the degree in which various systems of law have embodied the great leading principles which