MAINE, HENRY (1822–88)

MAINE, HENRY (1822–88)

A leading scholar of historical jurisprudence and theorist of late Victorian British conservatism, Henry Maine was born near Leighton on 15 August 1822, and was educated at Christ’s Hospital and Pembroke College, Cambridge. A leading classical scholar, he became fellow of Trinity Hall, and Regius Professor of Civil Law in 1847. Called to the bar in 1850, Maine also wrote for various newspapers and periodicals on contemporary affairs, particularly foreign policy, and French and US politics, and contributing chiefly to the Saturday Review. His politics at this point were essentially Peelite. In 1852 he became reader on Roman Law and Jurisprudence at the Inns of Court. His first major work, Ancient Law (1861), assessed a variety of ancient codes, and concentrated on the history of the law of nature, of the evolution of testamentary succession, and of the early history of property, contract, delict and crime. It made A leading scholar of historical jurisprudence and theorist of late Victorian British conservatism, Henry Maine was born near Leighton on 15 August 1822, and was educated at Christ’s Hospital and Pembroke College, Cambridge. A leading classical scholar, he became fellow of Trinity Hall, and Regius Professor of Civil Law in 1847. Called to the bar in 1850, Maine also wrote for various newspapers and periodicals on contemporary affairs, particularly foreign policy, and French and US politics, and contributing chiefly to the Saturday Review. His politics at this point were essentially Peelite. In 1852 he became reader on Roman Law and Jurisprudence at the Inns of Court. His first major work, Ancient Law (1861), assessed a variety of ancient codes, and concentrated on the history of the law of nature, of the evolution of testamentary succession, and of the early history of property, contract, delict and crime. It made

In 1862 Maine left for India to become a legal member of the ruling Council, taking the post once filled by MACAULAY, and in codifying Indian law following the latter’s dictum of ‘Uniformity when you can have it, diversity when you must have it, but in all cases certainty.’ He remained seven years, under the administrations of Lords Elgin, Lawrence and Mayo. On returning he became Corpus Professor of Jurisprudence at Oxford, his first course of lectures being published as Village Communities (1891). This attracted attention not only as a work of scholarship, but also in relation to Gladstone’s proposed Irish land reforms, and as a more theoretical treatment of the relationship between British social and legal norms and Indian customary practice (notably in relation, for instance, to equality and to systems of land tenure). Another set of lectures, published as Lectures on the Early History of Institutions (1875) continued this line of thought, but now focusing as much on recent translations of Brehon or ancient Irish law, and treating themes as diverse as kinship, tribal chiefs, the ancient family, the diffusion of primitive ideas, the emergence of primitive legal remedies, married women’s property and early notions of sovereignty. Becoming Master of Trinity Hall in 1877, Maine was increasingly honoured with membership in academies and societies both domestic and foreign. This sequence of writings was completed with the publication of Dissertations on Early Law and Custom (1883), which was similarly wide-ranging, containing, amongst the essays, two important essays on religion and law in India, two on ancestor worship, two on kingship and two more on property, and a survey of theories of primitive society generally.

It was at this time that Maine emerged as the leader of conservative reaction to Gladstonian liberalism after the 1884 Reform Act, offering a restatement of its principles in Popular Government (1885), which proclaimed his intention to apply the comparative method to contemporary societies. Here his principal concern was to warn of the electoral corruption and intellectual inferiority of popular democratic regimes, and the concomitant necessity for a ruling elite defined by ability and intelligence. Breaking with the tradition of BURKE and COLERIDGE in denying any central role to religion in his conservatism, Maine instead used biological arguments derived from DARWIN to argue a more heredity-based defence of elitism, an emphasis also developed by a younger contemporary, W.H.MALLOCK. The four essays of which Popular Government is composed are ‘The Prospects of Popular Government’, ‘The Nature of Democracy’, ‘The Age of Progress’ and ‘The Constitution of the United States’. Denying either the political superiority or (against TOCQUEVILLE in particular) historical inevitability of the progress of democracy, Maine takes Rousseau’s conception of the state of nature as the fount of natural rights to be the source of most modern democratic theory. Using a variety of modern instances, he attempts to demonstrate the fundamental instability of modern popular regimes, and their proneness to devolve into military dictatorships or mob rule. Civilization, he contends, is inevitably the outcome of aristocratic government alone; barbarism is more likely to flow from popular rule. Fuelled by vulgar prejudices, democracy was roo ted in a Benthamite formulation of the inevitability of the pursuit of happiness as self-interest, and thus the corollary that popular government alone could serve the interests of the whole. But for Maine, Bentham had woefully underestimated

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Encyclopedia of nineteenth-century thought 426

the virtues of the intellectual elite, and the necessity of public opinion to be informed by the educated few, whose claim to be a natural ruling elite was thus wholly justifiable. Nowhere was this more evident to Europeans than in the history of the French Revolution, whose contribution to the ‘Age of Progress’ Maine contemptuously dismisses, and, in a wider perspective, in the development of the US polity, whose strengths Maine thought were indebted mostly to imitating British experience, but whose weaknesses would eventually result in a regime of vulgar partisanship, unless restrained by a powerful executive.

Maine’s later, brief works include a Quarterly Review essay on ‘Patriarchal Theory’ (1886), and a lengthy chapter in Thomas Humphry Ward’s The Reign of Queen Victoria (1887), surveying British administration in India, and emphasizing the progressive role played first by the East India Company, then under direct rule, in curtailing customs like suttee, and of the expansion of the infrastructure of roads and railways, of legal codification, and the provision of education. His last book, International Law (1888), published posthumously, was a set of lectures examining the emergence and sources of the subject, with most of the work concentrating on the development of the law of war. In the last lecture Maine treats of the problem of international arbitration, and the considerable advantages that would ensue from appointing a permanent court of arbitration whose settlements were enforced by the leading powers. Maine died on 3 February 1888.