ter in the study of biology was hardly more
remarkable than that effected by Maine's brilliant treatise in the
study of early institutions. Well does one of Maine's latest and most
learned commentators say of his work that "he did nothing less than
create the natural history of law." This is only another way of saying
that he demonstrated that our legal conceptions--using that term in
its largest sense to include social and political institutions--are as
much the product of historical development as biological organisms are
the outcome of evolution. This was a new departure, inasmuch as the
school of jurists, represented by Bentham and Austin, and of political
philosophers, headed by Hobbes, Locke, and their nineteenth-century
disciples, had approached the study of law and political society
almost entirely from an unhistoric point of view and had substituted
dogmatism for historical investigation. They had read history, so far
as they troubled to read it at all, "backwards," and had invested
early man and early society with conceptions which, as a matter of
fact, are themselves historical products. The jurists, for example,
had in their analysis of legal sovereignty postulated the commands of
a supreme lawgiver by simply ignoring the fact that, in point of time,
custom precedes legislation and that early law is, to use Maine's own
phrase, "a habit" and not a conscious exercise of the volition of a
lawgiver or a legislature. The political philosophers, similarly, had
sought the origin of political society in a "state of nature"--humane,
according to Locke and Rousseau, barbarous, according to Hobbes--in
which men freely subscribed to an "original contract" whereby each
submitted to the will of all. It was not difficult to show, as Maine
has done, that contract--_i.e._ the recognition of a mutual agreement
as binding upon the parties who make it--is a conception which comes
very late to the human mind. But Maine's work covers much wider ground
than this. It may be summed up by saying that he shows that early
society, so far as we have any recognisable legal traces of it, begins
with the group, not with the individual.

This group was, according to Maine's theory, the Family--that is to
say the Family as resting upon the patriarchal power of the father to
whom all its members, wife, sons, daughters, and slaves, were
absolutely subject. This, the central feature of Maine's speculation,
is worked out with infinite suggestive