A Lawyer With a Style

Praise for the literary contributions of Sir Henry Maine

Sir Henry Maine was a lawyer with a style, and belongs, by method and genius, among men of letters. The literary world looks askance upon a lawyer, and is slow to believe that the grim and formal matter of his studies can by any alchemy of style be transmuted into literature. Calfskin seems to it the most unlikely of all bindings to contain anything engaging to read. Lawyers, in their turn, are apt to associate the word “literature” almost exclusively with works of the imagination, and to think “style” a thing wholly misleading and unscientific. They demand plain business of their writers, and suspect a book that is pleasing of charlatanry. And yet a really great law writer will often make his way easily and at once into the ranks of men of letters. Blackstone’s Commentaries have been superseded and re- superseded, again and again, by all sorts of changes and restatements of the law of England, but they have lived serenely on through their century and more of assured vitality, and must still be read by every student of the law, in America no less than in England, because of their scope, their virility, their luminous meth- od, their easy combination of system with lucidity, their distinction of style, their quality as of the patriciate of letters. It does not seem to make any difference whether they are correct or not, and we return to them, after reading Bentham and Austin, their arch-critics, — a little shamefacedly, it may be, — to find our zest and relish for them not a whit abated. It is noteworthy that, though the profession has so thumbed and subsisted upon them, they were not written for the profession, but for the young gentlemen of England, whom the learned Vinerian professor wished to instruct in the institutions of their country. They are stripped as much as might be of technical phrase and detail, and are meant to stand in the general company of books, the servants and instructors of all comers. They are meant for the world, and seem instinctively to make themselves acceptable to it.

Sir Henry Maine, whether he was conscious of it or not, won his way to a like standing among men of letters by a like disposition and object. Without exception, I believe, his books were made up out of lectures delivered either to young law students, not yet masters of the technicalities of the law, or to lay audiences, to which professional erudition would have been unintelligible. He never seemed to stand inside the law, while he wrote, but outside; not explaining its interior mysteries, but setting its history round about it, — showing whence it came, whence it took its notions, its forms, its stringent sanctions, what its youth had been, and its growth, and why its maturity showed it come to so hard a fibre of formal doctrine. He viewed it always as something that the general life of man had brought forth, as a natural product of society; and his thought went round about society to compass its explanation. He moves, therefore, in a large region, where it is refreshing to be of his company, where wide prospects open with every comment, and you seem, as he talks, to be upon a tour of the world.

Of course this does not explain the style of the man, but that is in any case a mystery. His method of thinking carries with it that style; thinking in that way, he must write in that way. You shall not find a near-sighted man looking out for landscapes, nor a man without gift of speech sallying forth to explore the thoughts which he cannot express. I am not going to attempt the heart of the mystery; I do not know whether men can think without words or not. I only know that flight is a question of wings, and that you do not find minds without strong pinions poised very high in the spaces of the air.

I do not think that Sir Henry Maine himself understood this matter; it was not necessary that he should. In an address which he delivered to the native students at Calcutta, he warned them, very sensibly, to beware, if they wished to write effective English, of too deliberately striving to write well. “What you should regard,” he says, “is, not the language, but the thought; and if the thought be clearly and vividly conceived, the proper diction, if the writer be an educated man, will be sure to follow. You have only to look to the greatest masters of English style to satisfy yourselves of the truth of what I have said,” — and yet his example is not very convincing. “Look at any one page of Shakespeare. After you have penetrated beneath the poetry and beneath the wit, you will find that the page is perfectly loaded with thought.”

“After you have penetrated beneath the poetry and beneath the wit”! This is a dark saying; who shall receive it? After you have penetrated beneath the exquisite form of the features, have ceased to observe the curve of the cheek and the sweet bloom upon it, and the seductive light in the eye, no doubt you shall find flesh and blood; but there is everywhere flesh and blood to be found without line or color to give it distinction. Weight of thought, no doubt, but books by the thousand have been foundered and sunk by mere weight of matter. Sir Henry Maine himself shall not survive by reason of the abundance and validity of his thought, but by reason of his form and art. “Maine can no more become obsolete through the industry and ingenuity of modern scholars,” Sir Frederick Pollock declared, “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.” Ay, art is immortal, not thought alone and of itself, but thought perfectly conceived, formed, and vivified. Maine disliked what is called fine writing, as every man of taste must; and he was no coiner of striking phrases. The only sentence he ever wrote which his friends claim to have seen going abroad upon its own merits as a saying is this: “Except the blind forces of Nature, nothing moves in this world which is not Greek in its origin,” — which is neither epigrammatic nor true. Epigrams were not in his way. If the cat’s question to the ugly duckling in the fairy tale had been put to him, and he had been asked, “Can you emit sparks?” he would have been obliged to admit, with the duckling, that he could not; but, like the ugly duckling, he turned out to be a swan, sovereign in grace, if not in dexterity. His style does not play in points of light, but acts far and wide and with a fine suffusion, like the sun in the open.

You will best understand the power and the art of the man if you study his life and work, what he did and the manner in which he did it. Not that you will know any better, after the story is told than before, how to analyze his power or explain his art; but you will know very clearly just what he was and stood for, — of just what he was a master, and how his mastery displayed itself. What a master in any art did is always inseparable, in the last analysis, from what he was. The life of a writer has in it little that can be told, and delicate health held Sir Henry Maine always to a very quiet level. He had no adventures as a boy, — except that his mother and aunt came near killing him with an overdose of opium; and his youth was without any irregularity except overstudy, — which for a normal youth would be very irregular. His father was a Dr. James Maine, of whom we are told nothing except that he was born at Kelso, near the Scottish border, and that he lived for a short time after his son Henry’s birth on the island of Jersey. The boy’s full name was Henry James Sumner Maine, his godfather being the excellent Dr. Sumner, Bishop of Chester, and afterward Archbishop of Canterbury. He was born near Leighton, August 15, 1822. His mother was Eliza Fell, who came of a family of good position living in the neighborhood of Reading. She is said to have been a clever and accomplished woman, and it turned out that she was to be her gifted son’s sole guardian. Family difficulties separated her from her husband, and she removed while the lad was in his second year to a residence at Henley-on-Thames. There Henry Maine got his first schooling; thence he went, when he was but seven, to Christ’s Hospital, where Dr. Sumner had been able to place him; and from Christ’s Hospital he went, as Exhibitioner, to Pembroke College, Cambridge, in 1840, at the age of eighteen, a slender, clear-voiced, alert lad, as fragile, almost, as a tender girl, but full of a masculine energy, which showed in his lively eye, at once bright and deep, perceiving and thoughtful, and in his speech, which was very definite and sure of its mark, a lad whom one could have wished to see much in the sun, to put color in his cheeks, but who could not often be drawn away from his books, and showed pale, like the student. He went in for all the prizes, and got most of them; was elected Foundation Scholar of his college; won medals for English verse, Latin hexameters, Latin odes, Greek and Latin epigrams; became Craven University Scholar and Senior Classic; and finally won the Chancellor’s Senior Classical Medal, putting himself through the unpalatable discipline of taking the honors in mathematics necessary to qualify him for winning it. Pembroke had no vacant fellowship to offer him, but he was made tutor at Trinity Hall immediately upon his graduation, in 1844; and three years later, when he was but twenty-five, was appointed Regius Professor of Civil Law.

“I was curious,” said a gentleman who had had the good luck to be coached by Maine at Trinity Hall, “I was curious to see how this tutor of mine, so young as he was, about two years my junior, would get on at first. …The result removed all doubts and surpassed my most sanguine expectations. I could feel that I was being admirably jockeyed. He had the greatest dexterity in impressing his knowledge upon others, made explanations that came to the point at once and could not be misunderstood, corrected mistakes in a way one was not apt to forget, supplied you with endless variety of happy expressions for composition and dodges in translation;” in short, was just the man to make the pace for a pupil who wanted to study. “Dodges in translation”! Are we to understand that this young gentleman of twenty-two had already learned how to march straight across a subject; how to avoid details, and yet imply them within a general proposition? Here is certainly the Henry Maine we have read, with his explanations that come “to the point at once and cannot be misunderstood,” and his skill at inclusive statement. He was “backward to speak before his elders,” the same witness tells us, and “had the rare merit of being a talker or a listener, as circumstances demanded, but when he did speak” put in “keen and rapid remarks that told like knock-down blows.” This will not do for a description of Maine’s written style. That is not keen and rapid, and there is nothing like the accent of a blow about it. It is deliberate, rather, and calm, and makes serene show of strength. But men who write thus, with a sort of restrained and chastened force, often speak in forms more direct and eager. It may well be, besides, that mere illumination has the effect of point, as a perfect illustration acts like a stroke of wit, and Maine’s conversational hits may have seemed keen simply because they shone with light. A crystal will often give out the same sharp line of light that will flash to you from the edge of a swords blade. But we are not concerned with that. There is enough in this picture of the young tutor to make it evident that the boy was, as always, father to the man. “Those who were intimate with him during these years,” says another who knew him then, “will not easily forget his face and figure, marked with the delicacy of weak health, but full to overflowing with sensitive nervous energy, his discursive brilliancy of imagination and intellect, his clear-cut style and precise accuracy of expression, and his absolute power of concentrating himself on the subject immediately before him. His mind was so graceful that strangers might have overlooked its strength, while the buoyancy of his enthusiasm was never beyond the control of the most critical judgment. … It was hard to drag him away from his rooms and his books, even for the ordinary minimum of constitutional exercise, though his spirits and width of interest made him at all times a joyous companion.” Here was no “dig,” who loved a book because he liked to sit still and save himself the trouble of thinking, but a youth to whom books were quick; not stuffing him, but setting his faculties in the way to satisfy themselves. It was reported of him, many years afterward, that he could pluck all the heart out of a thick volume while another man was reading a hundred pages; and no doubt he liked it, not because it was a book and thick, but because it had a heart in it. It is in such a way and at such a time that a mind fit for mastery learns how to use books.

Maine married in 1847, the year he was chosen Regius Professor of Civil Law, — married his cousin, Miss Jane Maine. His marriage led him to look for wider fields of employment, and by 1850 he had qualified for and been called to the bar. He soon found practice of his profession go hard with his health, however, and turned more and more away from it, to write for the more serious public prints and exercise his high gifts as a lecturer. Like Walter Bagehot, he had first tried his hand as a writer for the public upon an exposition of the character and purposes of Louis Napoleon, condemning from the outset the unconstitutional aims which Bagehot was afterward to justify. Bagehot tried to look at the whole matter from a French point of view; Maine looked at it always as an English constitutionalist, and could find no tolerant word for the imperial charlatan, who was just then calling himself “president.” So long, he said, as the French common weal “moves steadily forward, to strike it down or trip it up, at the cost of turning into gall the best and wholesomest blood in the whole of France, would be a great piece of foolishness no less than a great crime.” He showed his political sympathies at home by hating Mr. Disraeli very heartily. “Already you are manifesting considerable aptitude for the policy which has conducted your leader to eminence,” he says to Disraeli’s followers in 1849, with a biting sneer; “already the Jacobinical coloring of your language and argument shows that you are not indisposed to alternate conservative commonplace with revolutionary verse and radical prose. All you have to learn is the art of diverting attention while you shift your views, the unintelligible gabble of the thimblerigger as he changes his peas. When you have mastered this accomplishment, the rest is quite simple.” There is here good partisan vigor. The strokes are direct and palpable, and show the true zest of the political journalist. In 1852, two years after his call to the bar, Mr. Maine was appointed reader in Roman law and jurisprudence to the Inns of Court, and began courses of public lectures, in that beautiful hall of the Middle Temple in which Twelfth Night was first acted, which were to lead him to the chief work of his life. But the serious studies of his lectureship did not draw him away from his writing for the public journals. In 1855 the Saturday Review was established, with an extraordinary staff of writers, — among them the accomplished gentleman who is now the Marquis of Salisbury, Sir William Harcourt, Sir James Stephen, Goldwin Smith, Walter Bagehot, Professor Owen, and Henry Maine. Maine did no less than the rest of this brilliant company to give immediate prestige to the Saturday Review. Mr. Bagehot used to declare his nerves much too delicate to take the direct impact of the Spectator. Its contents were much too pungent and sanguine to be received without due preparation, and “he always got his wife to ‘break’ it to him” at breakfast; and some of the rest of us have felt much the same way about the Saturday Review. Not that it kept the spanking pace given it by these men when they were young; it grew dense in substance, rather, as it grew old, and had finally to be taken in about the proportion of one part to ten parts of water. Maine turned his hand to almost every kind of writing to quicken its pages, and for six years made it his business to enrich it with every matter of thought he could contribute.

At the very outset of his service as lecturer at the Inns of Court he had been stricken with an illness which nearly cost him his life; but he came out of it with undaunted spirits and energies not a whit dulled, — his thoughts burning within him like flame within an alabaster vessel. Those who heard him read his lectures were struck by the musical power of his voice, and by the unimpeded flow of his sentences, running clear as crystal; and those who conversed with him marveled at the ease, the lucidity, the telling force of his talk. “It was singularly bright, alert, and decided,” one of these reports; “you could not walk a couple of hundred yards with him without hearing something that interested you, and he had the enviable power of raising every subject that was started into a higher atmosphere. In later life he became much more silent, and did not seem to put his intelligence as quickly alongside that of the person to whom he was talking.” But it was in this time of high tension and quick play of mind that he did the work which has since held the attention of the world; for in 1861, at the age of thirty-nine he published his now celebrated volume on Ancient Law, — his first book, and unquestionably his greatest. It was the condensed and perfected substance of his lectures at the Inns Court. It was in one sense not an original work: it was not founded on original research. Its author had broken no new ground and made no discoveries. He had simply taken the best historians of Roman law, — great German scholars chiefly, — had united and vivified, extended and illustrated, their conclusions in his own comprehensive way; had drawn, with that singularly firm hand of his, the long lines that connected antique states of mind with unquestioned but otherwise inexplicable modern principles of law; had made obscure things luminous, and released a great body of cloistered learning into the world, where common students read and plod and seek to understand. What Bagehot says of Sydney Smith we may apply to Maine: “he had no fangs for recondite research.” “No man of our time did so much for the revival of the study of Roman law,” said a close friend and intimate of Maine’s, after his death; “but it is greatly to be doubted whether he had any special familiarity with the Pandects or the Code.” He “had a power of seeing the general in the particular,” says the same friend, “which we do not think has been equaled in literary history. His works are full of generalizations which are as remarkable for their clearness and sobriety as for their intrinsic probability, and which are reached, not by any very elaborate study of detailed evidence, but by a kind of intuition.” Men who tear the heart out of a thick volume while a slow and careful man reads a hundred pages are not the men to pause over details with a nice scrutiny: they go eagerly on in search of the defining borders of the large land of detail.

Persons who suppose that Maine’s Ancient Law is merely a textbook for lawyers will be very much and very delightfully surprised if they will but take it down from the shelf and read it, — as much surprised as young law students are who plunge into Blackstone because they must, and find to their astonishment that those deep waters are not a little refreshing, and that the law, after all, is no dismal science. The book has that dignity, that spirit, that clear and freshened air, that untechnical dress and manner of the world which belong to the writing of cultured gentlemen who know the touch that makes literature. It is hard to explain, apart from a reading of the book itself, what it is that gives this quality of distinction and charm to Ancient Law. You cannot easily illustrate it by quotations from the book, unless you quote a whole chapter; for Maine was no coiner of phrases, as I have said, and one passage is much like another, — no one page of the volume contains its method condensed, its art displayed in little.

No doubt, the most typical and admirable parts of the book are those which constitute the warp and woof of the sustained passages of reasoning which are the body of every chapter; but no part of them can easily or fairly be detached. In speaking of Maine’s great work, soon after his death, the London Times says: “The style was so lucid, the reasoning was so clear and cogent, the illustrative matter was so aptly chosen, the analogies were so dexterously handled, the survey was so broad, the grasp of principles was so firm, the whole fabric of the argument was articulated in so masterly a fashion, that the reader was easily tempted to suppose that Ancient Law must have been as easy to write as it was fascinating to read.” But Maine was not a rapid or an easy writer, we are told (and the article was evidently written by some friend who spoke from personal knowledge); it was a matter of infinite pains with him to rear the symmetrical structures he has left us in his published works. But when the work was done, he “took the scaffolding away,” gathered up his tools, cleared the ground, and left no trace of daily labor. There are no footnotes; there is no discussion of the books and materials out of which he took the finely fitted pieces of his structure; no seams or joints show, no traces of the tool: the work stands single, self-consistent, and complete, as if it were a fine, unassisted piece of creation. Everything he wrote reads like the utterance of “a very superior person,” who speaks always out of his own knowledge, observes from a high coign of vantage, and concludes the matter with an authoritative judgment. And so you get the feeling that he has had no predecessors, and fears no successors.

I do not say this in disparagement of this great writer; it seems to me necessary to say it simply by way of exegesis, — the manner is there, and we shall not understand Maine unless we reckon with it. It is partly, perhaps chiefly, due to the absence of footnotes and references. He seems to have covered all this wide field without assistance from other authors, and to feel the need of no support of extraneous authority in any statement. He seems to have found it all out himself. “Starting with a little fact here and a venerable tradition there,” as one of his critics has said, “he lays a foundation with these, and proceeds to build up an edifice from stags to stage, till those who do not watch the process very closely imagine a great deal proved which, in reality, is highly plausible conjecture,” with the result that “much that the author himself puts forward as only theory has been assumed to be settled doctrine.” You get much the same impression in reading Mommsen’s History of Rome. Here, too, you are without references, and a bold master of statement confidently builds up the great story of Rome before your eyes, age by age, the earliest times as definitely as the latest, with the air of one who remembers rather than with the caution of one who has heard and been led to infer, until at last you are fairly awed, and wonder whether the master will ever graciously vouchsafe to you any hint of his sources of information.

But it is more than the mere absence of footnotes: it is also the tone, — the tone of perfect confidence. Maine’s books are one and all books of generalization, — of the sort of generalization which sweeps together the details of centuries into a single statement and interpretation. Maine is seldom, in fact, daring or beyond the evidence in his broad judgments: they were come at, you shall find, if you will take the pains to test them, by slow consideration and a careful elimination of the elements of error; they are sober, too, and without flavor of invention or of radical fancy. They spring always from the reason, never from the literary imagination. There is the air of a scientific calm and dispassionateness about them. But, for all that, they are so confidently spoken, they range over such spaces of time and inference, look so far abroad upon the fortunes and policies of men and nations, have such a spacious way of thought about them, and are set to so high a tune of stately diction that they quite overwhelm us with a sense of their importance not only, but of the importance of their author also. “A man of the calibre of Montesquieu and de Tocqueville,” the Times calls him. “He brought,” it says, “to the study of law, politics, and institutions an intelligence as penetrating as theirs, a grasp of mind as comprehensive, a judgment as sober and impartial, and a method incomparably more searching and fruitful,” — a style, it might have added, less personal, more cosmic, as if it were conceived by some general intelligence. And this, let it be said at once, is Maine’s greatness. It would be easy to show that he got practically all of the material of Ancient Law at second hand; it would doubtless be possible to prove that he had no gift for investigation, and, though a man of the widest reading, possessed no real erudition. His power lay in the art and mystery of divination. It has been said that he did nothing more than interpret for English lawyers and students of institutions the work of the great students of comparative jurisprudence in Germany; but this is not a judgment that can be held by those who are sensible of the effects which lie beyond detail. Without interpretation detail is dead, and Maine was a master of interpretation. Interpretation does not merely give details significance; it adds something of its own, and shows that, at any rate in divination, the whole is greater than the sum of the parts. It is fact enhanced and vitalized by thought. It is the face of learning quickened and made eloquent by the suffused color, the swift play of light in the eye, the subtle change of line about the mouth that bring the spirit forth which dwells within. It is, to change the figure, a guide to the high places from which the details of the plain may be seen massed and in proportion not only, but made more significant also in their relations than they are in themselves, — added to by the touch of perspective. This is the highest function of learning.

It is this, no doubt, which gives us the sense of exhilaration we get in reading Maine: we are moving in high spaces, and command always a broad outlook. And yet we are not in the air; there is no uneasy sense of having our feet off the ground. There is in every generalization that Maine makes a reassuring implication of detail, — just as there is in a towering mass of crag and mountain: we know somehow that the fine, aspiring lines are carried by granite and rooted in the centre of the solid globe. There is in such writing more than a sense of elevation, however: there is also a sense of movement, — the steady drawing on of a great theme, — a movement strong, regular, smooth, inevitable, like that of a great river, sweeping from view to view, but never turning upon its course, never doubting of its direction, unimpeded, noiseless, more powerful than swift. This large and general power was characteristic of Maine in all that he did. The year after the publication of Ancient Law, he was offered, and accepted, the post of law member in the council of the governor-general of India. He removed to India, and the next seven years of his life were spent in a deep absorption in the affairs of that great dependency, which has drawn to its administration so much of the best genius of the English race. He showed in council the same gifts that made him a great writer, — those singular gifts of generalization, which are, after all, in their last analysis, executive in kind. “His method, his writings, and his speeches at the Indian council board,” says Sir Alfred Lyall, “have had a strong and lasting effect upon all subsequent ways of dealing with” matters pertaining to India, “whether in science or practical politics. He possessed an extraordinary power of appreciating unfamiliar facts and apparently irrational beliefs, of extracting their essence and the principle of their vitality, of separating what still has life and use from what is harmful or obsolete, and of stating the result of the whole operation in some clear and convincing sentence.” “The local expert,” he adds, almost with a smile, “the local expert, who, after years of labor in the field of observation, found himself with certain indefinite impressions of the meaning or outcome of his collected facts, often found the whole issue of the inquiry exactly and conclusively stated in one of Maine’s lucid generalizations.” It is odd to learn, after hearing of the mass of difficult work he crowded into those seven years in India, that Maine was sometimes privately charged with indolence and idleness by his colleagues: and yet the charge carries with it a certain interesting significance. To those whose idea of labor is, to be forever poring upon a task, forever plodding from record to record, from memorandum to memorandum, he must of course have seemed idle. For all he loved reading and preferred his books to a walk abroad, his was not a mind for searching and sorting and annotating. It was a mind, rather, for brooding, and did its work with no outward show of being busy. No man hustles at thinking. The greater sorts of flight are made without noisy beat of wing.

Maine’s appointment in 1862 to be law member of the governor-general’s council in India determined the rest of his career: from that time till the end of his life, in 1888, his chief energies were given to the great and arduous business of governing India. A writer in the Spectator declares him to have been for seven years the avowed, and for twenty-six years the actual, English lawmaker for that troublesome dependency, and ascribes to him nearly three hundred successful statutes. He left India in 1869, and upon his return to England accepted, in 1870, the position of Corpus Professor of Jurisprudence at Oxford, — a position specially created that he might occupy it; but in the autumn of the next year, 1871, he was appointed to a seat in the council of the secretary of state for India, and returned to the work for which he had so singularly fitted himself. He continued to lecture at Oxford for seven or eight years, speaking every year to an eager and steadily increasing company of serious students in the quiet little hall of Corpus Christi College, and the fruits of his work appeared from time to time in that series of interesting volumes which we now always read along with Ancient Law, as expanded gloss and commentary: Village Communities, East and West, published in 1871; The Early History of Institutions, published in 1875; and Early Law and Custom, published in 1883. These all grew out of his Oxford lectures, or out of articles which he had contributed to the reviews, and are rich with the knowledge he had taken from India and from the later students of institutions in the West. “Every man,” he says, in an interesting passage to be found in his Village Communities, “every man is under a temptation to overrate the importance of the subjects which have more than others occupied his own mind; but it certainly seems to me that two kinds of knowledge are indispensable, if the study of historical and philosophical jurisprudence is to be carried very far in England, knowledge of India and knowledge of Roman law: of India, because it is the great repository of verifiable phenomena of ancient usage and ancient juridical thought; of Roman law, because, viewed in the whole course of its development, it connects these ancient usages and this ancient juridical thought with the legal ideas of our own day.” Ignorance of India he thought more discreditable to Englishmen than ignorance of Roman law, and at the same time more unintelligible in them. “It is more discreditable,” he said, “because it requires no very intimate acquaintance with contemporary foreign opinion to recognize the abiding truth of de Tocqueville’s remark, that the conquest and government of India are really the achievements in the history of a people which it is the fashion abroad to consider unromantic. The ignorance is, moreover, unintelligible, because knowledge on the subject is extremely plentiful and extremely accessible, since English society is full of men who have made it the study of a life pursued with an ardor of public spirit which would be exceptional even in the field of British domestic politics.” It is evident from the strong pulse that beats in these sentences that a new spirit and a new and absorbing interest have come into the writer’s mind because of his actual contact with the life of the East. It colors henceforth every part of his thought. “If there were an ideal Toryism,” he writes, in the midst of the general election of 1885, “I should probably be a Tory; but I should not find it easy to say which party I should wish to win now. The truth is, India and the India Office make one judge public men by standards which have little to do with political opinion.”

It was in 1885 that his volume on Popular Government showed us how far India and the India Office had formed his opinions. No doubt he was by constitution and temperament — a Tory, most men of delicate health and cautious thought must be. Now and again some invalid touched with genius gets the air of the sea and the quick currents of the out-of-door world into his blood, as Robert Louis Stevenson did; but men like Maine dull their blood while they are young by close, confining study, and no subsequent experience can take them out of the atmosphere of rooms and books. Popular Government is the only book in which Maine leaves his accustomed fields of study to make practical test of his opinions in the field of politics, — which is, after all, an out-of-door, and not an indoor world. The book abounds in good things. Its examination of the abstract doctrines which underlie democracy is in his best manner, — every sentence of it tells. The style is pointed, too, and animated beyond his wont, — hurried here and there into a quick pace by force of feeling, by ardor against an adversary. He finds, besides, with his unerring instinct for the heart of a question, just where the whole theory and practice of democracy show the elements that will make it last or fail. “After making all due qualifications,” he says, “I do not deny to Democracies some portion of the advantage which so masculine a thinker as Bentham claimed for them. But, putting this advantage at the highest, it is more than compensated by one great disadvantage. Of all the forms of government, Democracy is by far the most difficult. Little as the governing multitude is conscious of this difficulty, prone as the masses are to aggravate it by their avidity for taking more and more powers into their direct management, it is a fact which experience has placed beyond all dispute. It is the difficulty of democratic government that mainly accounts for its ephemeral duration.” Unquestionably this is true, and is the central truth of the whole matter. He is right, too, beyond gainsaying, when he says that “the fact that what is called the will of the people really consists in their adopting the opinion of one person or a few persons admits of a very convincing illustration from experience.” “The ruling multitude will only form an opinion by following the opinion of somebody: it may be, of a great party leader; it may be, of a small local politician; it may be, of an organized association; it may be, of an impersonal newspaper.” But he is wrong—and the error is very radical—in supposing that democracy really rests on a theory, and is nothing but “a form of government.” It is a form of character, where it is successful, — a form of national character; and is based, not upon a theory, but upon the steady evolutions of experience. Mr. Morley was not just in describing the book as a rattling political pamphlet, — though he did say some fine things about it. His review of it brought forth, among other things, that fine remark of his, that any human institution will look black if held up against the light that shines in Utopia. But Maine cannot in fairness be called a partisan. The real and very astonishing fault of the book is, that its criticism rings false to the standards he had so greatly set up in the works which gave him his high fame. He speaks of democracy in the United States as if it were only one success amidst a host of failures, and had been nullified by the lamentable experiences of France and Spain and the republics of turbulent South America. The stability of the government of the United States is, he admits, “a political fact of the first importance; but the inferences which might be drawn from it,” he says, “are much weakened, if not destroyed, by the remarkable spectacle furnished by the numerous republics set up from the Mexican border-line to the Straits of Magellan.” The democracy of North America—to be found in Canada no less than in the United States—is as natural, as normal, as inevitable a product of steady, equable, unbroken history as the Corpus Juris of Justinian; and the heady miscarriages of attempted democracy in Spanish countries are as easily and as satisfactorily explicable as the principles of contract or the history of inheritance by will. No champion of the comparative method of historical study ought to have discredited his own canons by comparing things incomparable.

Maine’s style in Popular Government is, as I have said, much more spirited than his style elsewhere, and smacks sometimes with a very racy flavor. “The short history of the United States,” he says, “has established one momentous negative conclusion. When a democracy governs, it is not safe to leave unsettled any important question concerning the exercise of public powers. I might give many instances of this, but the most conclusive is the war of secession, which was entirely owing to the omission of the ‘fathers’ to provide beforehand for the solution of certain constitutional problems, lest they should stir the topic of negro slavery. It would seem that, by a wise Constitution, democracy may be made nearly as calm as water in a great artificial reservoir; but if there is a weak point anywhere in the structure, the mighty force which it controls will burst through it and spread destruction far and near.” It was perhaps his style in this book that led the writer of his memoir in the Times to say that “his conversation was less epigrammatic than his writings. He did not strive at epigram, and his presence and influence irradiated the society in which he moved rather with a diffused and steady effulgence than with brilliant but evanescent flashes.” This is probably spoken of the later days, in which he had fallen rather silent, the effervescence of youth being quieted and the meditative habit grown strong; but it is a very questionable choice of words to call anything he ever wrote epigrammatic. We are so accustomed to dull writers that when we find any vivid significance in what we read, we are apt to attribute it to some trick or turn in the way the thing is put. Maine’s sentences, in Popular Government, as well as elsewhere and upon less lively themes, break with no sudden light, but are radiant, rather, from end to end, burning steadily and without flash. We see the whole page irradiated, find point in every sentence, and say, out of habit, that it is epigrammatic. But no one sentence carries the meaning; it is spread upon the whole page.

Honors came thick and fast upon Maine after his return from India. In the spring of 1871, the year in which he accepted a seat in the council at the India Office, he was gazetted Knight Commander of the Star of India, and was henceforth Sir Henry Maine. In 1877 he was chosen Master of Trinity Hall, Cambridge, — the college in which, thirty years before, he had coached youngsters in the best “dodges in translation,” and had delighted a select circle of friends with his luminous talk, — and he of course gave up the Corpus Professorship at Oxford to accept it. He still kept his seat and sedulously attended to his work at the council board of the India Office, and continued to reside in London; but he made himself felt at Cambridge none the less, and let no one feel that he was neglecting the duties or letting down the social traditions of the Mastership of Trinity Hall. He was offered the permanent under-secretary-ship of the Home Office in 1885, and in 1886 the chief clerkship of the House of Commons, to succeed Sir Thomas Erskine May. No doubt, as one of his friends has suggested, it was well understood that Sir Henry would himself know whether he was fitted for these offices, and could be relied upon to decline them if he was not. He accepted, in 1887, the Whewell Professorship of International Law at Cambridge, but just made vacant by the retirement of Sir William Harcourt, and in the same year delivered those lectures on disputed questions of international obligation and practice now preserved in a thin volume which we should be very loath to miss from our shelves. It is said that before going to India, in 1862, “he had projected, and to a great extent prepared, a work on International Law, intended as a companion to” his Ancient Law, and “conceived in the same spirit,” but that “when he returned from India the manuscript of this work could not be found,” and was never recovered. Like the true scholar he was, he took the loss very cheerfully, assured that what he could write upon the subject now would be much more full-bodied and much more abreast of the best scholarship than what he had written then; but alas! he was not to do the work he had projected, after all. He died suddenly, of apoplexy, February 3, 1888, at Cannes, whither he had gone, alone, expecting to recuperate, not looking for the end; and we have only his first lectures, unrevised. They are singularly finished in tone, manner, and substance, like everything he wrote, but they are only a fragment of what he meant to do.

His friends thought, when he was gone, not of the great writer whom the world had lost, but of the genial, sweet-spirited, enlightened gentleman who would never again make their gatherings bright with his presence. The general world of society and of affairs had never known Sir Henry Maine. He gave the best energies of his life to public duty, — to the administration of India; but he rendered his service at quiet council boards, whose debates were of business, not of questions of politics, and did not find their way into the public prints. He had no taste for publicity; preferred the secluded groups that gathered about him in the little hall of Corpus Christi to any assembly of the people. He did not have strong popular sympathies, indeed, and disdained to attempt the general ear. He loved knowledge, and was indifferent to opinion. It perhaps went along with his delicate physique and sensitive temperament that he should shrink from crowds and distrust the populace. His “quickness of apprehension, power of expression, and luminous intuition,” the writer in the Saturday Review tells us, would perhaps have led an uninformed observer to the conclusion that their possessor had the temperament of a poetical enthusiast. But “no greater mistake,” he declares, “could have been made. They were associated with a temperament which was liable to err on the side of caution, regard to actual circumstances, and a total absence of any sort of enthusiasm or illusion.” And certainly no man who is without any sort of enthusiasm or illusion can easily be a democrat or a politician; for he will take democracy in the abstract, as Maine did, instead of taking it practically and in the bulk, and will lack that serviceable confidence in good average sense and sober second thought on the part of the people, which leaders have and are justified in having among a self-possessed populace accustomed to the drill and orderly action of self-government. But immediate leadership was not Maine’s function. It was his suitable part in the world to clarify knowledge, to show it in its large proportions and long significance to those who could see. His mind was an exquisitely tempered instrument of judgment and interpretation. It touched knowledge with a revealing, almost with a creative, power, and as if the large relationships of fact and principle were to it the simple first elements of knowledge. He thought always so like a seer, moved always in so serene an air! His world seemed to be kept always clear of mists and clouds, as if it were blown through with steady trade-winds, which brought with them not only pure airs, but also the harmonious sounds and the abiding fragrance of the great round world.