Jurists

"We must make it clear that the reform of Europe [the EU] can only start with stopping the migrants, putting an end to immigration, and everyone using their national competence to protect their borders. After that, as part of a joint programme the migrants who have already arrived in Europe illegally must be transported back to some place outside the territory of the European Union."

"[On the death penalty] Seems so absurd to me that the laws, that are the expression of the public will, that hate and punish the murder, make one themselves, and, to dissuade citizens from the murder, order a public murder. (Chapter XXVIII)"

"As punishments become more cruel, the minds of men, which like fluids always adjust to the level of their surroundings, become hardened, and the ever lively power of the emotions brings it about that after a hundred years of cruel tortures, the wheel causes no more fear than prison previously did. For a punishment to serve its purpose, it is only necessary that the harm that it inflicts outweighs the benefit that “the criminal can derive from the crime, and into the calculation of this balance, we must add the certainty of punishment and the loss of the good produced by the crime. Anything more than this is superfluous, and therefore tyrannical."

"No man can be judged a criminal until he be found guilty; nor can society take from him the public protection, until it have been proved that he has violated the conditions on which it was granted. What right, then, but that of power, can authorise the punishment of a citizen, so long as there remains any doubt of his guilt? The dilemma is frequent. Either he is guilty, or not guilty. If guilty, he should only suffer the punishment ordained by the laws, and torture becomes useless, as his confession is unnecessary. If he be not guilty, you torture the innocent; for, in the eye of the law, every man is innocent, whose crime has not been proved."

"Quod principi placuit legis habet vigorem."

"Nulla iniuria est, quæ in volentem fiat."

"It is well known that certain colonies have Italian rights, as, for example, the magnificent colony of Tyre, in Syria of Phoenicia, my birthplace. This city, with its commanding position, great antiquity, and prowess in arms, held tenaciously to the treaty which she had made with the Romans. The divine Severus, our emperor, granted Italian rights to this city as a reward for its signal loyalty toward the republic and the empire of Rome."

"Princeps legibus solutus est."

"Iustitia est constans et perpetua voluntas ius suum cuique tribuendi."

"Honeste vivere, alterum non laedere, suum cuique tribuere."

"The movement of the progressive societies has hitherto been a movement from Status to Contract."

"The family was based, not upon actual relationship, but upon power, and the husband acquired over his wife the same despotic power which the father had over his children."

"We cannot give a reason, other than mere chance, why power over a wife should have retained the name of manus, why power over a child should have obtained another name, potestas, why power over slaves and inanimate property should in later times be called dominium. But, although the transformation of meanings be capricious, the process of specialisation is a permanent phenomenon, in the highest degree important and worthy of observation."

"Maine brings into the field of inquiry a new element, the element of science in the English sense of the word, that is of exact knowledge based on observation, and aiming at the formulation, of laws. The fact is that Maine did not only stand under the influence of the preceding generation, which had given such an extraordinary impulse to historical research, but also under the sign of his own time with its craving for a scientific treatment of the problems of social life."

"It will be seen that the writer is no friend to Democracy and no great believer in Progress, as the word is commonly understood in politics... However much we may differ with the writer in detail here and there, the article contains much that no serious political thinker will deem himself entitled to overlook."

"Maine's direct influence on political thought was to be slight. His influence on the study of law was enormous and therefore his indirect influence on politics has been enormous too. Intending to show law as a growth, he in fact greatly increased our control over it as an instrument."

"In combating what seemed to him the insular arrogance of Bentham and the obscurantism of the legal profession, he emphasised our debt to Rome. He saw Roman law as the institution mainly responsible for the distinction between progressive and stationary societies. This emphasis on Roman law was invaluable. It meant that Maine faced the most difficult problems of history—the effect of borrowing by one people of the institutions of another and the securing of the same social results by different peoples using different methods."

"Maine challenges it [democracy] as an aristocrat. He agreed with Machiavelli that the world is made up of the vulgar. Civilisation is a hardly-won habit which force created, habit perpetuates, and legal skill protects and elaborates. In Ancient Law we see the germs of modern anthropological methods. Popular Government suggests the psychological studies of Graham Wallas. But the psychological insight is distorted by a tendency to see civilisation as contract writ large."

"Maine can no more become obsolete through the industry and ingenuity of modern scholars than Montesquieu could be made obsolete by the legislation of Napoleon. Facts will be corrected, the order and proportion of ideas will vary, new difficulties will call for new ways of solution, useful knowledge will serve its turn and be forgotten; but in all true genius, perhaps, there is a touch of art; Maine's genius was not only touched with art, but eminently artistic; and art is immortal."

"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."

"Having at his command wide and rich domains of literature, he took toll of them for his service, but did not levy nominal tributes for ostentation. Very little really extraneous ornament is to be found in his writings. And yet nothing ever came from his hand that was not visibly the work of an accomplished scholar."

"Maine has always spoken to me in strong dislike of the acts of Modern Liberals & I believe he was to have stood as a moderate Conservative at Cambridge. I take him to be of the same politics as many of the Liberals of thirty years ago, who are now Conservative. I believe he writes for the St James Gazette & he has written four articles against Democracy in the Quarterly which have attracted a great deal of attention."

"I have been reading Maine in the Quarterly—the best anti-democratic writing that we have had. He dined with us this evening: seems really concerned that we have no proper constitution in England: thinks it would be a real gain to have a constitutional code settled by Act of Parliament. Of course it could not have binding force for future Parliaments, but—there is valuable efficacy in the written word; if judiciously written it would be difficult to alter. The genuine alarm that M. seems to feel at the existing state of things in England impressed me much, since his intellect has always seemed to me a very cool and disengaged one."

"Not only was he a humanist before he was a jurist, but he never ceased to be a humanist."

"Henry Sumner Maine, whose private pupil I was in 1857, when he was giving his lectures on "Ancient Law," was rather historian than lawyer, and more social philosopher than jurist. I remained in intimacy with him until his too early death, and never ceased to delight in his brilliant scholarship and analytic genius, as well as his literary culture and charm of manner. His very precarious health quite prevented him from acquiring the profound and exact learning of a modern professor; but he may rank with Herbert Spencer, and indeed with Charles Darwin, as an instance of how intellectual insight and grasp of luminous principles can dispense with any exhaustive study of books, nay, so often can open visions of truths which are denied to the voracious amasser of book learning."

"Intellectually he was a giant; I have hardly ever known anyone who gave me such an impression of the power and grasp of his mind. Like Mr. Gladstone, he would sometimes, when he was talking to me in my room, get interested in his subject, and, with great emphasis, and in an unnecessarily loud voice, deliver a speech which, if it had been taken down, would have been an appreciable addition to the sum of human thought. In Council he rarely spoke, but when he did so, always with the same thunderous voice and commanding air, he invariably convinced everybody and carried his point. His knowledge, his sagacity, his insight were wonderful, and they were by no means confined to questions of law."

"When I listened to the lectures of Henry S. Maine, which afterwards became his Ancient Law, I was as strongly attracted to Roman Law and historical Jurisprudence as I had been repelled by the barbarous verbiage of "common forms." I insisted upon becoming Maine's pupil for six months, as a condition of keeping my reason during my study of law."

"As the founder of modern comparative social studies, as a prodigious historical scholar, as perhaps the most penetrating observer of Indian society, Maine knew that human progress, or even the wish for it, is a fragile creation; but he did not despair of it. On the contrary, progress—by which Maine means, chiefly, the promotion of a high state of intellectual attainment, and of liberty under law—has been active in the West for some centuries. The index of its success is the trend from Status to Contract among peoples, and its principal instruments are private property and freedom of contract. The life of the mind, and the liberty of persons, flourish in a society diversified, economically individualistic, and characterized by several property (as distinguished from the various forms of communal ownership.) A society which men freely contract for economic ends tends to be progressive; modern collectivism, then, is stifling."

"In reality Maine, with his gift for massive and impressive generalisation, was the tragic voice, sonorous behind the mask of Cassandra, which uttered the feelings that had gathered since the extension of the suffrage in 1867."

"It is no mere accident that Maine, who in his Ancient Law undermined the authority of analytical jurisprudence, aimed in his Popular Government a blow at the foundations of Benthamite faith in democracy."

"The five brilliant volumes of his social studies constitute a foundation for this scientific history; modern legal thought and sociology and political speculation, as well as historical method, are deeply indebted to Maine. In this or that he has been corrected or amended; Maine himself expected nothing else; but the bulk of his writing looms still majestic in accuracy and outlook."

"I was deeply impressed with his brilliant intelligence and rare literary instincts. I attended his lectures in Middle Temple Hall (afterwards his book Ancient Law),—the substance of the problems we discussed together."

"He says that Primogeniture has been of very great political service. I admitted this, but objected that there is another side to the question, that Primogeniture embodies the confusion between authority and property which constitutes modern Legitimacy, that Legitimacy has, in this century, acted as an obstacle to free institutions, and that a one-sided judgment thrown off as that sentence is, gives a Tory tinge to the entire paper. He answered, "You seem to use Tory as a term of reproach." I was much struck by this answer—much struck to find a philosopher, entirely outside party politics, who does not think Toryism a reproach, and still more, to find a friend of mine ignorant of my sentiments about it."

"We want to help to better the conditions for our own people. We want to see our people raised, not into a society of State ownership, but into a society in which, increasingly, the individual may become an owner. There is a very famous sentence of Sir Henry Maine's, in which he said that the progress of our civilisation had been of recent centuries a progress on the part of mankind from status to contract. Socialism would bring him back from contract to status."

"What pure reason and boundless knowledge can do, without sympathy or throb, Maine can do better than any man in England."

"History does not furnish Maine, as it furnished Acton, with any guiding thread of growing freedom; and the process towards contract does not appear in the issue to be a process towards liberty. What History proves is the rarity and fragility of democracy. History has with Maine, what it tends to have with many of us, a way of numbing generous emotions. All things have happened already; nothing much came of them before; and nothing much can be expected of them now."

"Whether - and this is the last objection - the age of aristocracies be over, I cannot take upon myself to say. I have sometimes thought it one of the chief drawbacks on modern democracy that, while it gives birth to despotism with the greatest facility, it does not seem to be capable of producing aristocracy, though from that form of political and social ascendency all improvement has hitherto sprung."

"The general argument of Popular Government proceeds from a sort of intellectual anti-intellectualism. Assuming, like some French writers, such as Renan and afterwards Tarde, that aristocracy is the mother of all real progress, and holding that the multitude has been the enemy of all fruitful novelty, Maine argues that democracy, whatever its love of change during its militant phase, will in its triumphant phase pass into a Chinese stationary State."

"Sir Henry Maine's remarkable power of insight into the real meaning and connexions of archaic customs so alien to modern ideas as to be ordinarily incomprehensible, and his luminous generalizations upon the materials found scattered over these obscure fields of research, have greatly influenced local inquiries in India. He surveys and marks out the whole line of penetration into difficult and entangled subjects, and workers in the field are constantly verifying the extraordinary precision of their chief engineer's rapid alignments."

"Maine's nature is to exercise power, and to find good reasons for adopted policy. Augustus or Napoleon would have made him Prime Minister. He has no strong sympathies, and is not at heart a Liberal, for he believes that Manchesterism will lose India. He considers also that the party, especially Lowe, has treated him less well than Salisbury. He is intensely nervous and sensitive. After that, I may say that I esteem him, with Mr. Gladstone, Newman, and Paget, the finest intellect in England."

"[T]he extreme forms of government, Monarchy and Democracy, have a peculiarity which is absent from the more tempered political systems founded on compromise, Constitutional Kingship and Aristocracy. When they are first established in absolute completeness, they are highly destructive. There is a general, sometimes chaotic, upheaval, while the nouvelles couches are settling into their place in the transformed commonwealth."

"There is no belief less warranted by actual experience, than that a democratic republic is, after the first and in the long-run, given to reforming legislation. As is well known to scholars, the ancient republics hardly legislated at all; their democratic energy was expended upon war, diplomacy, and justice; but they put nearly insuperable obstacles in the way of a change of law. The Americans of the Umted States have hedged themselves round in exactly the same way."

"[I]n the very first place, Democracy, like Monarchy, like Aristocracy, like any other government, must preserve the national existence. The first necessity of a State is that it should be durable. Among mankind regarded as assemblages of individuals, the gods are said to love those who die young; but nobody has ventured to make such an assertion of States. The prayers of nations to Heaven have been, from the earliest ages, for long national life, life from generation to generation, life prolonged far beyond that of children's children, life like that of the everlasting hills. ...Next perhaps to the paramount duty of maintaining national existence, comes the obligation incumbent on Democracies, as on all governments, of securing the national greatness and dignity. Loss of territory, loss of authority, loss of general respect, loss of self-respect, may be unavoidable evils, but they are terrible evils."

"The prejudices of the people are far stronger than those of the privileged classes; they are far more vulgar; and they are far more dangerous, because they are apt to run counter to scientific conclusions."

"Here then we have one great inherent infirmity of popular governments, an infirmity deducible from the principle of Hobbes, that liberty is power cut into fragments. Popular governments can only be worked by a process which incidentally entails the further subdivision of the morsels of political power; and thus the tendency of these governments, as they widen their electoral basis, is towards a dead level of commonplace opinion, which they are forced to adopt as the standard of legislation and policy. The evils likely to be thus produced are rather those vulgarly associated with Ultra-Conservatism than those of Ultra-Radicalism."

"So far indeed as the human race has experience, it is not by political societies in any way resembling those now called democracies that human improvement has been carried on. History, said Strauss - and, considering his actual part in life, this is perhaps the last opinion which might have been expected from him - History is a sound aristocrat. There may be oligarchies close enough and jealous enough to stifle thought as completely as an Oriental despot who is at the same time the pontiff of a religion; but the progress of mankind has hitherto been effected by the rise and fall of aristocracies, by the formation of one aristocracy within another, or by the succession of one aristocracy to another. There have been so-called democracies, which have rendered services beyond price to civilisation, but they were only peculiar forms of aristocracy. The short-lived Athenian democracy, under whose shelter art, science, and philosophy shot so wonderfully upwards, was only an aristocracy which rose on the ruins of one much narrower. The splendour which attracted the original genius of the then civilised world to Athens was provided by the severe taxation of a thousand subject cities; and the skilled labourers who worked under Phidias, and who built the Parthenon, were slaves."

"The delusion that Democracy, when it has once had all things put under its feet, is a progressive form of government, lies deep in the convictions of a particular political school, but there can be no delusion grosser."

"[T]he Constitutions and the legal systems of the several North American States, and of the United States, would be wholly unintelligible to anybody who did not know that the ancestors of the Anglo-Americans had once lived under a King, himself the representative of older Kings infinitely more autocratic, and who had not observed that throughout these bodies of law and plans of government the People had simply been put into the King's seat, occasionally filling it with some awkwardness. The advanced Radical politician of our day would seem to have an impression that Democracy differs from Monarchy in essence. There can be no grosser mistake than this, and none more fertile of further delusions."

"So great is the ascendancy of the Law of Actions in the infancy of Courts of Justice, that substantive law has at first the look of being gradually secreted in the interstices of procedure; and the early lawyer can only see the law through the envelope of its technical forms."

"Nobody is at liberty to attack several property and to say at the same time that he values civilisation. The history of the two cannot be disentangled. Civilisation is nothing more than a name for the old order of the Aryan world, dissolved but perpetually re-constituting itself under a vast variety of solvent influences, of which infinitely the most powerful have been those which have, slowly, and in some parts of the world much less perfectly than others, substituted several property for collective ownership."