« PreviousContinue »
SIR HENRY SUMNER MAINE, K.C.S.I., LL.D., F.R.S.
FOREIGN ASSOCIATE OF THE INSTITUTE OF FRANCE
AUTHOR OF ANCIENT LAW'
JOHN MURRAY, ALBEMARLE STREET
All rights reserved
THE four Essays which follow are connected with studies to which, during much of my life, I have devoted such leisure as I have been able to command.
Many years ago I made the attempt, in a work on "Ancient Law," to apply the so-called Historical Method of inquiry to the private laws and institutions of Mankind. But, at the outset of this undertaking, I found the path obstructed by a number of à priori theories which, in all minds but a few, satisfied curiosity as to the Past and paralysed speculation as to the Future. They had for their basis the hypothesis of a Law and State of Nature antecedent to all positive institutions, and a hypothetical system of Rights and Duties appropriate to the natural condition. The gradual recovery of the natural condition was assumed to be the same thing as the progressive improvement of human institutions. Upon the examination, which was indispensable, of the true
origin and real history of these theories, I found them to rest upon a very slender philosophical foundation, but at the same time they might be shown to have been extremely powerful both for good and for evil. One of the characteristics most definitely associated with Nature and her Law was simplicity, and thus the theories of which I am speaking brought about (though less in England than in other countries) many valuable reforms of private law, by simplifying it and clearing it from barbarous technicalities. They had, further, a large share in the parentage of International Law, and they thus helped to mitigate in some small degree the sanguinary quarrelsomeness which has accompanied the human race through the whole course of its history. But, on the other hand, they in my judgment unnerved the human intellect, and thus made it capable of the extravagances into which it fell at the close of the eighteenth century. And they certainly gave a false bias to all historical inquiry into the growth of society and the development of law.
It had always been my desire and hope to apply the Historical Method to the political institutions of men. But, here again, the inquiry into the history of these institutions, and the attempt to estimate their true value by the results of such an inquiry, are seriously