Both changes were obviously limited in their application, and they were so contrived in technical form as to interfere as little as possible with the principle of Patria Potestas. The expedient to which they resorted was that of selecting the rules of law common to Rome and to the different Italian communities in which the immigrants were born. From there he went up to , in 1840. The life of ancient man in its earliest phases knew no custom, Maine believed, but was controlled by a regimen of caprice—the commanding judgments of the patriarchal family head or the king. Thus the status of the Slave has disappeared -- it has been superseded by the contractual relation of the servant to his master.
The reason is differently expressed in the conventional language of different systems, but in substance it is stated to the same effect by all. To live according to nature came to be considered as the end for which man was created, and which the best men were bound to compass. I know no reason why the law of the Romans should be superior to the laws of the Hindoos, unless the theory of Natural Law had given it a type of excellence different from the usual one. As, then, in the physical world, so in the moral. The Early History of Contract.
The fate of the Hindoo law is, in fact, the measure of the value of the Roman Code. If any civil obligation binds together the Parent and the child of full age, it is one to which only contract gives its legal validity. We cannot be sure that we have included a sufficient number of phenomena in our observations, or that we accurately understand those which we have observed. The grandest function of the Law of Nature was discharged in giving birth to modern International Law and to the modern Law of War, but this part of its effects must here be dismissed with consideration very unequal to its importance. But as we approach the fall of the republic there are signs that the Responses are assuming a form which must have been fatal to their farther expansion. Shortly afterwards, he accepted a tutorship at.
The phenomena which early societies present us with are not easy at first to understand, but the difficulty of grappling with them bears no proportion to the perplexities which beset us in considering the baffling entanglement of modern social organisation. Yet the moment the judgment has been rendered and reported, we slide unconsciously or unavowedly into a new language and a new train of thought. If, on the other hand, the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him. It is, however, a different matter that even customs immemorial should not be opposed to morality. It may not be used in any way for profit. Henceforward the changes effected in it, if effected at all, are effected deliberately and from without.
It covertly but most efficaciously undermined the customs which it pretended merely to interpret. And yet we find that along with this belief, or, if we may use the word, this theory, each community preserved records or traditions which distinctly showed that the fundamental assumption was false. This broke the monopoly of priestly class in matters of administration of law. Older probably than the State, the Tribe, and the House, it left traces of itself on private law long after the House and the Tribe had been forgotten, and long after consanguinity had ceased to be associated with the composition of States. There is a single example which very strikingly illustrates the effects of the theory of natural law on modern society, and indicates how very far are those effects from being exhausted.
All the forms of Status taken notice of in the Law of Persons were derived from, and to some extent are still coloured by, the powers and privileges anciently residing in the Family. The fact is in both cases that the law has been wholly changed; the fiction is that it remains what it always was. Whether it be true or not that anybody is at any time before his age, it is certainly true that Charlemagne, in aiming at an unlimited dominion, was emphatically taking the only course which the characteristic idea of his age permitted him to follow. As anthropology extends its interests beyond the illiterate tribe to the peasant community in the setting of civilization, interest in Maine is being renewed. In 1877, the mastership of , where Maine had formerly been tutor, became vacant. The motives of the author of the Forged Decretals and his extraordinary success are rendered more intelligible by it.
On the whole, historical knowledge of English law before the twelfth century was not to be found, and after the twelfth century was pretty much what Blackstone had left it. The form of the monarchy in France had visible effects in has tening changes which were elsewhere proceeding in the same direction. The study which in the last century would best have corrected the misapprehensions into which an exclusive attention to legal antiquities is apt to betray was the study of religion. The cry of the people is not for change in the laws, which are usually valued above their real worth, but solely for their pure, complete and easy administration; and recourse to the legislative body is generally directed to the removal of some great abuse, or the decision of some incurable quarrel between classes or dynasties. It was not indeed in France, but in Italy, that the juridical science of modern Europe took its rise, but of the schools founded by emissaries of the Italian universities in all parts of the continent, and attempted though vainly to be set up in our island, that established in France produced the greatest effect on the for tunes of the country. If any civil obligation binds together the Parent and the child of full age, it is one to which only contract gives its legal validity The apparent exceptions are exceptions of that stamp which illustrate the rule. A new edition, with notes by , was published in octavo in 1906.
The judges of the thirteenth century may have really had at their command a mine of law unrevealed to the bar and to the lay-public, for there is some reason for suspecting that in secret they borrowed freely, though not always wisely, from current compendia of the Roman and Canon laws. We have the latest and most celebrated experiment of this kind in the Corpus Juris of Justinian. Spain, Naples, and the principalities founded on the ruins of municipal freedom in Italy, were all under rulers whose sovereignty was territorial. With the discovery of the art of writing, a class of learned men and Jurists came forward to denounce the authority of priests as law- givers. An unfortunate attempt to discriminate them was made by the jurisconsult Ulpian, with the propensity to distinguish characteristic of a lawyer, but the language of Gaius, a much higher authority, and the passage quoted before from the Institutes, leave no room for doubt that the expressions were practically convertible The difference between them was entirely historical, and no distinction in essence could ever be established between them. The most superficial student of Roman history must be struck by the extraordinary degree in which the fortunes of the republic were affected by the presence of foreigners, under different names, on her soil.
As the law is administered among ourselves, the judge cannot travel out of the sets of facts exhibited before him or before his predecessors. Not that his situation may not have been the fruit of the coarsest motives which can actuate man. Three centuries afterwards the same immunity was extended to the earnings of persons who were in the civil employment of the state. Its obligatory force is independent of its principles. It did not, for example, popularise the Roman law,—it did not, as in some of the Greek republics, lessen the effort of intellect required for the mastery of the science, although its diffusion and authoritative exposition were opposed by no artificial barriers. We have never seen in our own generation—indeed the world has not seen more than once or twice in all the course of history—a literature which has exercised such prodigious influence over the minds of men, over every cast and shade of intellect, as that which emanated from Rousseau between 1749 and 1762.