age, is the main
argument of _Ancient Law_. The exigencies of space and of simplicity
compel me to pass by, to a large extent, most of the other topics with
which Maine deals--the place of custom, code, and fiction in the
development of early law, the affiliation of international Law to the
_Jus Gentium_ and the Law of Nature, the origins of feudalism and of
primogeniture, the early history of delict and crime, and that most
remarkable and profound passage in which Maine shows the heavy debt of
the various sciences to Roman law and the influence which it has
exerted on the vocabulary of political science, the concepts of moral
philosophy, and the doctrines of theology. I must confine myself to
two questions: how far did Maine develop or modify in his subsequent
writings the main thesis of _Ancient Law_? to what extent has this
thesis stood the test of the criticism and research of others? As
regards the first point, it is to be remembered that _Ancient Law_ is
but the first, though doubtless the most important, of a whole series
of works by its author on the subject of early law. It was followed at
intervals by three volumes: _Village Communities in the East and
West_, _Early Institutions_, and _Early Law and_ _Custom_. In the
first of these he dealt with a subject which has excited an enormous
degree of attention and not a little controversy among English,
French, German, and Russian scholars,[2] amounting as it does to
nothing less than an investigation into the origin of private property
in land. The question has been put in various forms: did it commence
with joint (or, as some would put it, less justifiably, communal or
corporate) ownership or with individual ownership, and again was the
village community free or servile? It is now pretty generally
recognised that there was more than one type, though common
cultivation was doubtless a feature of them all, and even in India
there were at least two types, of which the one presenting several, as
opposed to communal, ownership is not the less ancient. But it may
well be that, as Maitland so often pointed out, much of the
controversy has been literally an anachronism; that is to say, that
nineteenth-century men have been asking the Early Ages questions which
they could not answer and reading back into early history distinctions
which are themselves historical products. Ownership is itself a late
abstraction developed out of use. We may say with some certainty that
famil