Born 15th August 1822, from Christ’s Hospital passed in 1840 to Pembroke College, Cambridge, where he won the Craven, and graduated in 1844 as senior classic and Chancellor’s medalist. In 1845 he became a tutor of Trinity Hall, in 1847 regius professor of Civil Law, and in 1852 Reader on Jurisprudence to the Inns of Court. He was called to the bar in 1850, and went to India in 1862 as Legal Member of Council. In 1869 he was appointed professor of Comparative Jurisprudence at Oxford, and in 1871 to the Council of the Secretary of State for India, when he was created K.C.S.I. In 1877 he was elected Master of Trinity Hall at Cambridge, and in 1877 Whewell professor of International Law. He died at Cannes, February 3, 1888. It is by his work on the origin and growth of legal and social institutions that Maine will be best remembered. His books were “Ancient Law” (1861), “Village Communities in the East and West” (1871), “The Early History of Institutions” (1875), “Early Law and Custom” (1883), “Popular Government” (1885), and “International Law” (1888). A fundamental idea of Maine’s was to make patriarchal power the germ of society. See Memoir by Sir M. E. Grant Duff (1892).
Personal
His method, his writings, and his speeches at the Indian Council Board have had a strong and lasting effect upon all subsequent ways of examining and dealing with these subjects, whether in science or practical politics. He possessed an extraordinary power of appreciating unfamiliar facts and apparently irrational beliefs, of extracting their essence and the principle of their vitality, of separating what still has life and use from what is harmful or obsolete, and of stating the result of the whole operation in some clear and convincing sentence.
A man whose writings have been an honour to his age, and who did admirable service to the State; who had no enemies, and who has left on the minds of all those who had the privilege of knowing him well, an absolutely unclouded memory.
The delicacy of Maine’s constitution must be remembered in all estimates of his career. It disqualified him from taking a part in the rougher warfare of life. He often appeared to be rather a spectator than an actor in affairs, and a certain reserve was the natural guard of an acute sensibility. To casual observers he might appear as somewhat cold and sarcastic, but closer friends recognised both the sweetness of his temper and the tenderness of his nature. His refinement of understanding made him alive to the weak side of many popular opinions, and he neither shared nor encouraged any unqualified enthusiasm. His inability for drudgery shows itself by one weakness of his books, the almost complete absence of any reference to authorities. He extracted the pith of a large book, it is said, as rapidly as another man could read one hundred pages, and the singular accuracy of his judgments was often admitted by the most thorough students; but he gave his conclusions without producing, or perhaps remembering, the evidence upon which they rested. It is a proof of the astonishing quickness, as well as of the clearness and concentration of his intellect, that, in spite of physical feebleness, he did so much work of such high qualities.
His friends thought, when he was gone, not of the great writer whom the world had lost, but the genial, sweet-spirited, enlightened gentleman who would never again make their gatherings bright with his presence. The general world of society and affairs had never known Sir Henry Maine. He gave the best energies of his life to public duty,—to the administration of India; but he rendered his service at quiet council boards, whose debates were of business, not of questions of politics, and did not find their way into the public prints. He had no taste for publicity; preferred the secluded groups that gathered about him in the little hall of Corpus Christi, to any assembly of the people. He did not have strong sympathies, indeed, and disdained to attempt the general ear. He loved knowledge, and was indifferent to opinion. It perhaps went along with his delicate physique and sensitive temperament that he should shrink from crowds and distrust the populace.
General
In his “Ancient Law” Mr. Maine has shown that the inductive method is the only way to attain clear notions as to the origin of those elementary legal conceptions which are incorporated into our social systems; and the primeval institutions and customs of India which have been handed down, almost unchanged, to the present generation—such as the village community, the undivided family, the practice of adoption taking the place of testation—furnished him with admirable subjects for the application of that method.
Probably no more accurate and profound researches and generalization in the field of jurisprudence have ever been made than those incorporated in this [“Ancient Law”] volume…. For the general student this [“Village Communities”] is one of the most valuable, and quite the most interesting of Sir Henry Maine’s works. It is not only written in the judicious spirit always characteristic of the author, but it is also the fruit of special study and observation. The author has availed himself of the profound and minute researches of Von Maurer, and has turned to good account his own extensive observations and studies in India.
Some, at least, of these essays were, on their anonymous appearance, attributed to Lord Salisbury; but what was then high praise now seems like the bitterest satire…. More ingenious than profound, more epigrammatic than original, more dazzling than persuasive, this work would be worthier of the present Prime Minister than of the author of “Ancient Law.”… The history of government is studied apart from the more general history of society and general civilization, with the result that the whole subject is thrown into uncertainty and confusion.
It is hardly possible that he should discuss any subject within the publicist’s range, without bringing into light some of its less superficial aspects, and adding observations of originality and value to the stock of political thought. To set people thinking at all on the more general and abstract truths of that great subject which is commonly left to be handled lightly, unsystematically, fragmentarily, in obedience to the transitory necessities of the day, by Ministers, members of Parliament, journalists, electors, and the whole host who live intellectually and politically from hand to mouth, is in itself a service of all but the first order. Service of the very first order is not merely to propound objections, but to devise working answers, and this is exactly what Sir Henry Maine abstains from doing.
For the present we may at least say, looking to our own science of law, that the impulse given by Maine to its intelligent study in England and America can hardly be overrated. Within living memory the Common Law was treated merely as a dogmatic and technical system. Historical explanation, beyond the dates and facts which were manifestly necessary, was regarded as at best an idle ornament, and all singularities and anomalies had to be taken as they stood, either without any reason or (perhaps oftener) with a bad one…. A certain amount of awakening was no doubt affected by the analytical school, as Maine taught us to call it…. But the scientific study of legal phenomena such as we really find them had no place among us…. Maine not only showed that this was a possible study, but showed that it was not less interesting and fruitful than any in the whole range of the moral sciences. At one master-stroke he forged a new and lasting bond between law, history, and anthropology. Jurisprudence itself has become a study of the living growth of human society through all its stages, and it is no longer possible for law to be dealt with as a collection of rules imposed on societies as it were by accident, nor for the resemblances and differences of the laws of different societies to be regarded as casual.
The slow irresistible pressure of Law is the strongest British influence now working in India, and Maine, from 1862 to his death, had more to do than any other single man, I will not say with making Indian law, but with determining what Indian law should be. That and the new spirit which he breathed into juridical studies in England, and to some extent in other countries of the West, are his chief titles to the remembrance of posterity. His published works are in the hands of all who care for the studies which he cultivated, and the remainder of this volume will be devoted to giving some idea of the nature and extent of his work during the years when he acted directly upon Indian legislation and government, at Calcutta and Simla.
Maine treated his great subject not only with similar learning and logic, but with the advantages of a lucid style and much fine literary power,—making a very abstruse subject, handled in a new and unusual method, a book as agreeable to read as it was valuable and important in historical science. If it is too much to say that he “created a new method for the study of legal ideas and the institutions founded upon them,” it is yet certain that no one of his time had used that method so powerfully.
Few writers of our time could claim the phrase “mitis sapientia” as Maine could, though it is possible that he was a little too much given to theories.
It [“Ancient Law”] has two great merits. It is written in a most lucid, pleasant style, and it is decidedly original in substance. Maine’s design is far less ambitious than Buckle’s; but for that very reason his performance is more adequate. The most conspicuous distinction between the two is that the later writer shows in far greater measure than his predecessor the modern sense of the importance of origins. It was this that gave his work importance. To a great extent the task of recent historians has been to trace institutions to their source, and explain their later development by means of the germs out of which they have grown. In this respect Maine was a pioneer, and his later work was just a fuller exposition of the principles at the root of “Ancient Law.” His “Village Communities” and his “Early History of Institutions” are both inspired by the same idea. In his “Popular Government” he may be said to break new ground; but it is easy to see the influence on that book of the author’s prolonged study of early forms of society. These later books are not perhaps intrinsically inferior to “Ancient Law,” but they are less suggestive, just because so much of the work had been already done by it.
I heard Maine deliver in the hall of my college at Oxford the lectures which were published in his book entitled “Village Communities in the East and West;” and his pregnant suggestions have constantly guided my work in India, and throughout my life have chiefly inspired my studies, whenever I have been able to find time for any studies at all. For his far-reaching, penetrating, and illuminating genius I have a profound admiration…. I pass from Maine the Law Member of Council to Maine the writer of books. He never constructed a complete science of jurisprudence, still less a complete science of sociology. His works have been described as groups of essays rather than systematic treatises; but they appear to me to possess a certain unity. He never published a revised edition of “Ancient Law,” but that book contains the germinal ideas out of which all else he wrote was unfolded…. I remember being told at Oxford, in the year 1870 or thereabouts, that Maine was anxious to write his “Village Communities” before he forgot what he had to say. It was delightful to hear of something so entirely human in one I regarded as so great. The first chapter of that book is, I think, from an Indian point of view, one of the most important that he ever wrote…. The achievement known to the learned world is Maine’s account of the early history of property, the process of feudalisation, and the decay of feudal property in France and England. This includes his description of the Irish tribe, and his discussions of village communities in the East and West. The subject, in fact, is nothing less than his view of the general history of property in land. In one section of this extensive field of research a whole literature has sprung up chiefly, though not exclusively, from seed of his sowing. Phear, Seebohm, Gomme, and Baden-Powell, amongst others have all written on the village community, and all acknowledge their obligations to Maine. One effect in India of Maine’s teaching here is that we can never again confound Indian and English ideas of landed property.
Sir Henry Maine was a lawyer with a style, and belongs, by method and genius, among men of letters. The literary world looks askance upon a lawyer, and is slow to believe that the grim and formal matter of his studies can by any alchemy of style be transmuted into literature. Calfskin seems to it the most unlikely of all bindings to contain anything engaging to read. Lawyers, in their turn, are apt to associate the word “literature” almost exclusively with works of the imagination, and to think “style” a thing wholly misleading and unscientific…. He moves in a large region, where it is refreshing to be of his company, where wide prospects open with every comment, and you seem, as he talks, to be upon a tour of the world…. Maine disliked what is called “fine” writing, as every man of taste must; and he was no coiner of striking phrases…. The work which has since held the attention of the world…. His now celebrated volume on “Ancient Law,” his first book, and unquestionably his greatest. It was the condensed and perfected substance of his lectures at the Inn of Court. It was in one sense not an original work: it was not founded on original research. Its author had broken no new ground and made no discoveries. He had simply taken the best historians of Roman law,—great German scholars chiefly—had united and vivified, extended and illustrated, their conclusions in his own comprehensive way; had drawn, with that singularly firm hand of his, the long lines that connected antique states of mind with unquestioned but otherwise inexplicable modern principles of law; had made obscure things luminous, and released a great body of cloistered learning into the world, where common students read and plod and seek to understand…. The book [“Popular Government”] abounds in good things. Its examination of the abstract doctrines which underlie democracy is in his best manner,—every sentence of it tells. The style is pointed, too, and animated beyond his wont,—hurried here and there into a quick pace by force of feeling, by ardour against an adversary. He finds, besides, with his unerring instinct for the heart of a question, just where the whole theory and practice of democracy show the elements that will make it last or fail…. Maine’s style in “Popular Government” is, as I have said, much more spirited than his style elsewhere, and smacks sometimes with a very racy flavor.
