Introduction

The movement of the progressive societies has been uniform in one respect. Through all its course it has been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account. But, whatever its pace, the change has not been subject to reaction or recoil, and apparent retardations will be found to have been occasioned through the absorption of archaic ideas and customs from some entirely foreign source. (…) Starting, as from one terminus of history, from a condition of society in which all the relations of Persons are summed up in the relations of Family, we seem to have steadily moved towards a phase of social order in which all these relations arise from the free agreement of Individuals (…). [As a consequence] we may say that the movement of the progressive societies has hitherto been a movement from Status to Contract.

The conciseness, sharpness, and universalistic undertones of Henry Sumner Maine’s all-too-famous “law”, stating the “movement of progressive societies (…) from Status to Contract”, may have been the source of both its success and its hermeneutic demise. As such, it was left as open to impulsive rejections as to strategic appropriations.

Many contributions have warned that focusing too much on this wording concealed the subtlety of Maine’s thought and its deep methodological commitments. Even before dwelling on such details, the words italicized in the quote above warrant precaution. The “movement” is not an unstoppable march towards the end of history. On the contrary, it can be halted by the “absorption” of some “archaic ideas”, keeping progress from even happening or from continuing its course, including in Maine’s own time, hence the “hitherto”. This explains that only a very narrow set of “progressive” societies is involved in a tendency, limited to the structuring principle of “civil laws”, either reducing the entire law of “Persons” to relations within the “Family”, or emphasizing their ability to freely agree on their mutual obligations as distinct individuals. Finally, the diversity of these “progressive” societies is not reduced to that movement since it is only what they have in common “in one respect”, and maybe not in others.

Nevertheless, one cannot but acknowledge that Maine preferred impactful phrases to rigorous empirical observations. Sharp analyses of Maine’s somewhat nebulous methodological stances provide the much-needed context to avoid the temptation of oversimplifying his views. Far from being the representative of an opposing “Historical School” in 19th century England, Maine merely wished to give historical depth to Bentham and Austin’s views on the nature of law and sovereignty, which he considered accurate but only valid for modern Western societies. The “movement” from status to contract only applied to the limited subset of “Indo-European” societies. Indeed, the birth of Indo-European studies in linguistics provided Maine with most of his methodological assumptions, though applied with little rigor and consistency. This means that his “comparative jurisprudence” did not posit a necessary end of history but rather drew parallels between different legal systems of different times, assuming the mechanistic regularity of structural changes within them. More precisely, this ability to change, a rare occurrence in human history, can only be found in “progressive” societies, i.e., those that successfully codified their social norms into a stable but revisable set of laws and principles.

These methodological clarifications set the stage for well-deserved criticisms. Far from behaving like a proper anthropologist, Maine mostly relied on indirect sources that he mixed and oversimplified to serve his argument. This may be explained by the fact that Maine never intended to be an anthropologist and that he was merely collating data from the emerging field and imperial reports and aggregating them with historical, literary, and philosophical analyses of legal phenomena for the sake of his comparative jurisprudence. Even conceding this, Maine was sometimes reluctant to admit the qualifications or the contradictions brought by new evidence. Notwithstanding some welcome rectifications, he maintained a somewhat rigid view of concepts like the “village community”, in spite of contradicting evidence that had become common knowledge in the colonial administration itself.

Playing these methodological shortcomings down would, therefore, prevent us from assessing their political impact, considering Maine’s role in the administration of the Empire in India. Indeed, the immense success of Ancient Law helped put Maine in the position of Legal Member of the Viceroy’s Council in India in 1862. Beyond the influence this gave him, Maine’s ideas became part of the background knowledge of most colonial officers in India after his departure in 1869, and questions about the movement “from status to contract” appeared next to questions about Hobbes in university exams. Ancient Law and later works undeniably impacted how the British viewed and managed the colonies. Because of this, Maine has been deemed instrumental in the systematization of the Empire’s policy of “indirect rule”, based on his conservative views of social change. Under this light, the “movement” from status to contract would have been like an evolutionary scale used by colonial officers to assess how far Indian communities in their “progress” towards the individualization of land, and thereby determine the revenue to be paid by landowners.

However, one should not forget to distinguish Maine’s theoretical views from his actual power as Legal Member in India. It is also essential to carefully investigate how these views were effectively integrated into the work of the administration on the field. Maine’s warnings about the reluctance of “traditional” communities to change came from a concern for the special nature and fragility of customary orders. Maine thus viewed the codification of customary rules not as a way to stop their progress but to allow for their later evolution. When these rules failed to provide any prior framework, Maine embraced the drafting of distinctly progressive pieces of legislation, such as the Indian Succession Act of 1865.

More importantly, understanding Maine’s “conservatism” and the proper meaning of the movement “from Status to Contract” requires zooming out of India. His concerns about the gap between law and social change applied just as much, if not more, to England itself rather than its empire. For Maine, all societies, especially the “progressive” ones, are affected by a constituting tension between the reality of social change and the unwillingness to acknowledge it, with law acting as a buffer to manage that constant gap. Maine was thus a fervent supporter of deep reforms of the English legal system, from the education of lawyers to the full codification of its jurisprudence. Meanwhile, he was part of a fierce debate about the history of property rights, turning into a fierce opponent to Fustel de Coulanges’ view that property was originally individual. For Maine, collectivism was the point of origin of the many societies he was interested in, and individualism was a late and fragile conquest that had to be defended. This is probably why “popular democracy” frightened him so much, and it explains Maine’s attraction to the United States Supreme Court’s ability to check the sovereignty of Parliament.

Further pulling the focus away from India and the Empire, I argue in this paper that Maine’s views in Ancient Law may even be more narrowly focused on the English legal and political context of the second half of the 19th century than previously thought. The movement “from Status to Contract” tells the story of the evolution of a complex nexus of institutions, not quite reducible to dichotomies such as the one between holism and individualism, collective vs. individual property, or family-based obligations vs. contractual freedom. As such, it is as descriptive as it is normative, relying on selected clues from the past to defend further reforms in 19th-century England.

More specifically, I wish to show that Ancient Law was written at least partly in support of the right of English married women to own, inherit, and contract independently. Married women would not obtain such rights until the Married Women’s Property Act of 1870 and the Married Women’s Property Act of 1882, after a legal and political battle that started with the Matrimonial Causes Act of 1857, enacted only four years before the publication of Ancient Law in 1861. This involved undermining and eventually ending the doctrine of coverture, which essentially denied married women legal status through the fiction that it was “merged” with their husbands’. Far from calling for a legal revolution, women and their support in Parliament had, since before the Matrimonial Causes Act of 1857, argued that the rules and principles already developed by English modern equitable courts, more favorable to married women in that regard, should replace common law rules. Though Maine seems to have remained at a distance from these debates, Ancient Law provided strategic support to this argument, consistently using legal Roman history as an example of how the rules and principles developed in English modern equitable courts, more favorable to married women, should supersede common law rules.

This means that the movement “from Status to Contract” involved much more than a liberal defense of individual property rights and contractual freedom. To better understand the “terminus” of that movement as Maine intended it, the first section of this paper will show that an individualistic and formalistic view of the “movement” from status to contract was not quite Maine’s. Contracts and market exchanges had only become possible in a society that had developed a strong culture of social trust beyond family bonds. In 19th century England, this culture emerged in the widening gap between equity and common law rules and principles, the former acknowledging society’s constant development towards a conception of morality, promoting cooperation outside of family and communal relations. The second section thus reframes our general understanding of what the “movement” meant for Maine historically, analyzing this change primarily as an evolution of the institution of inheritance, making contractual and property rights the late products of the gradual release of individuals from the constraints of the “Family” and of its control over the passing down of wealth from one generation to the next. Meanwhile, as will be shown in the third section, supporting this “movement” also meant combatting the systematic exclusion of women from the ability to inherit, own, and contract in their own name when married. Maine’s views, in Ancient Law and beyond, were thus shaped by the fight for autonomous legal personhood for English women as well as they contributed to it, long before the acquisition of political rights.

I. “Contract” as the result of a long institutional evolution

Since a teleological process is defined by its end, reframing the purpose of Maine’s “movement” of societies “from Status to Contract” first requires understanding what it means to say that “Contract” is the “terminus” of history. Considering Maine’s choice of making it the telos of the evolution of societies, it is little surprising to find his statement of the “movement” mentioned in the past century’s most seminal works in contractual theory. For example, Charles Fried, echoing a fairly classical understanding of Maine’s law of evolution from status to contract, presents it as describing an evolution from a community-based perspective to an individualistic view of relations within society. Maine’s view is then described by Fried as being under attack from proponents of a “redistributive thesis,” which would hold that, via contracts, “a set of obligations is imposed on the parties by society for general social purposes”.

On the contrary, for Fried, Maine would sustain that “modern law has moved away from status relations to relations founded on promise, that is, relations defined by the will of the parties.” In a move that reduces Maine’s all-encompassing declaration to the narrow field of contractual theory, Fried opposes the two camps of “Individualism” and “Altruism”. On the one hand, we would find his and Maine’s view of contractual obligations as emerging from “the deliberate assumption by promisors of a set of limited rights and duties”. On the other hand, there is the opposing view, the softer version of which relies on the concept of “good faith,” for which “contractual relations establish ties of community between the parties” beyond the boundaries of their voluntary commitments.

While Fried did capture a part of the essence of Maine’s point, a closer reading of his Ancient Law shows Maine arguing precisely that an increase in diffused “good faith” has been both a foundation and an outcome of the development of contractual relations, not just in the modern era, but nearly for as long as societies have evolved:

(…) The law of the least advanced communities tends more and more to become a mere surface-stratum having under it an ever-changing assemblage of contractual relationships (…) many of us have an almost instinctive reluctance to admitting that good faith and trust in our fellows are more widely diffused than of old, or that there is anything in contemporary manners which parallels the loyalty of the antique world.

These reflections belong to chapter IX of Ancient Law, the book’s second-to-last chapter, a little distant from the end of chapter V and its final statement of the “law” of evolution from status to contract. It is noticeable that Chapter IX is entitled “The Early History of Contract”. As such, it comes as the result of a long process of evolution described from chapters VI to VIII. Interestingly, the chapter starts with a clear rejection of views that overemphasize the role of individual-to-individual transactions in societies and their evolution. “Political Economy” is here Maine’s principal adversary, as it is only valid for modern societies in which “Imperative Law” has receded and has “left men to settle rules of conduct for themselves with a liberty never allowed to them until recently”. The long history of societies has therefore been that one of the gradual expansion of “the province of Contract”. That growing “sphere”, far from being limited to contractual relations in the strictest sense, is that within which “modern law allows [a man] to create [his social position] for himself by convention”, as opposed to the duties assigned to him by his position within his family.

However, the essence of this process is not quite one of individualistic or even atomistic disintegration. Contrary to, admittedly, what the end of chapter V seems to suggest at first glance (“the gradual dissolution of family dependency”, “all (…) relations emerge from the free agreement of individuals”), Maine tells the story of the gradual strengthening of what one would today call social trust. He describes it in his 19th-century vocabulary as collective “morality” and “virtues” which support as much as they are reinforced by the extension of the “sphere” of contract. New additions of types of frauds and crimes are not, like many would believe, proof of the declining morals of modern societies, but rather of their moral development. For Maine, the perfect example would be the very modern introduction of “punishment for the fraud of Trustees” via equitable rules. It is only because members of society have an increased “confidence” in the honesty of others that they are shocked by such breaches of trust and of trusts as legal instruments. As we will later realize about women’s rights, this is a recurring feature of Maine’s arguments. On the one hand, the topic of the gap between equity and common law rules expands well beyond the only context within which it is historically valid, i.e., 19th century England, to become a constitutive tension of all “progressive” societies. On the other, any delay in resolving that tension in Maine’s era is depicted as a manifestation of backwardness.

Meanwhile, on a closer look, Maine’s evolutionary framework does not suggest the emergence of a society of independent individuals. Instead, it presents us with the history of the gradual learning of individuals, accompanied by the slow evolution of the law, to trust and cooperate with others beyond their closed community, with the strangers they will meet on markets but in large-scale societies in general. There is no dichotomy or discontinuity in that process and no opposition between the form of social trust found in both “ends” of history. Maine’s movement from status to contract does not describe the substitution of community-based relations by market-based relations, but rather the slow capitalization of community-based trust. One just moves from a set of institutions that are limited in the capital of social trust they provide, the so-called “village communities”, to a gradually more open society in which the evolution of markets both promotes and relies on a virtuous circle between evolving legal institutions and the development of a shared social disposition, or “virtue”, to cooperate.

As I have argued elsewhere, this focus on institutions confirms that the categories of social ontology, holism vs. individualism, are very limited in their grasp of what I would describe as Maine’s legal ontology. While it may be true, as Louis Dumont argued, that some uses of the concept of “village community” made it a symbol of communal indivision as opposed to individualistic and atomistic societies, this was not Maine’s intention. The “village community” finds its place close to the beginning of the evolution of “Indo-European” societies as a representative of that model in which individuals do exist, but see their status and the duties related to it strictly dependent on their place within the extended family. That extended family, in the later form of the “village community”, is a set of relations structured around the imperative of managing a common fund of resources. In other words, and Maine applies the model of the legal trust explicitly to it, members of the village community are all, to a certain extent, beneficiaries of a trust, while some, and especially what Romans would later call the paterfamilias, are its trustees, but never owners in the modern and free sense of the word. Maine also describes the family as a “Corporation”, the structure of which transcends the succession of generations, as it is organized for the same purpose of the preservation of a common fund of resources.

Maine’s legal ontology thus bypasses the limiting categories of social ontology: whether it is in the ancient “village community” or in the modern corporation, one only finds institutions within which individuals are granted a status. The main difference in modern societies is that these structures are in larger part freely designed, and left, by individuals. This has consequences for multiple aspects of the evolution of the law that are not strictly reducible to contractual freedom or to Fried’s morality of the promise. This supposes the freedom, for individuals, to bequeath, to determine their own position in society via contract, to constitute trusts and corporations. More importantly, as the next two sections will make it clear, it requires the prior dismantlement of collective structures organizing the passing down of a family’s wealth from one generation to the next, which conditions the end of the systematic exclusion of married women from ownership and inheritance in modern English law.

II. The evolution of inheritance relations as the drive for the “movement”

A. Wills before contracts and property rights

Understanding the mechanism that underlies the “movement” from status to contract is the first step to getting a more nuanced view of it and grasping its pressing relevance to 19th-century England, at least according to Maine. Indeed, one may be surprised to see that his universalistic statement about the “movement” of societies followed directly, in the next chapter, by minute considerations about the history of “testamentary succession”. This is because the focus of Maine’s inquiry is not a binary typology of forms of societies. He is interested in the long evolution of inheritance practices instead.

In line with this, a more accurate restatement of the “movement” could be that it is from communities based on the model of the extended family, a collective structured around the imperative of preserving a common fund of resources generation after generation, to societies in which individuals can own, transfer their wealth as well as contract independently from family bonds. This overarching story is caused primarily by the slow assertion of an individual’s ability to dispose of his wealth by testament, caused by increased exchanges between different communities, and correlated with the gradual expansion of the scope of what one can own individually. These are some of the main drives of a general movement from collective to individual forms of ownership, as well as a later movement towards contractual freedom. This explains the importance of the history of testamentary freedom for Maine, and of the otherwise seemingly disproportionate role he confers to the will as a product of legal and social evolution:

[Wills are] powerful instruments in modifying society through the stimulus they give to the circulation of property and the plasticity they produce in proprietary rights.

Chapter VI of Ancient Law is thus built around a critique of the idea that “the posthumous disposal of property is a necessary or natural consequence of the proprietary rights themselves”, a corollary of the assumption that individual property rights are dictated by “Natural law”. Opposed to this view, Maine underlines that the modern view of the will, consecrating the freedom of the individual to write and rewrite the conditions of the transfer of one’s wealth after one’s death, is nothing but one of the “extreme points” of legal history.

At the other extreme of that history, one finds, according to Maine, that testamentary privileges do not exist at all. Conceptualizing the ancient extended family as a “corporation” that “never died”, Maine argues that the original form of inheritance was the transfer of the extended family’s patrimony from one generation as a collective to the next. This would, for example, be exemplified by the “primitive body of Teutonic usage” in which “property is strictly reserved to the kindred” and can neither be “disposed of by testament, nor “capable of being alienated by conveyance inter vivos”. All family members are thus “co-proprietors” of the “endowment of the family”. Traces of this stage of evolution should be found in ancient Roman law, which indicates, for Maine, “(…) that what passed from one Testator to the Heir was the Family, that is, the aggregate of rights and duties contained in the Patria Potestas and growing out of it”.

Whenever and wherever forms of wills started appearing and evolving, the prerogatives of the head of the family were still limited by the claims of all the “co-heirs”. Maine finds such an institution in the modern “Will of Bengal”, noting that this “rudimentary Will” only allows one to govern their succession “so far as it is consistent with certain overriding claims of the family”. In fact, family heads in such systems “do not own their property and their family, but rather own their property through their family”, which explains how the history of the evolution from collective to individual forms of ownership is only secondary to the “movement” of the evolution of inheritance.

At the earliest stages, wills would be a very public and heavy ceremony, a nearly sacred rite, which Maine illustrates with the example of how “Testaments” were, early in Roman history, executed like a “solemn legislative enactment” by the Patrician Parliament. In this specific context, change was only made possible by the appearance of a competitive alternative in the shape of the “Plebeian will”, used by Plebeians because they were excluded from Patrician institutions. Therefore,

It is the ancient Plebeian Will [a complete and irrevocable conveyance inter vivos from one individual to an heir] which in its remote effects has deeply modified the civilisation of the modern world (…). The key to all its characteristics lies in its descent from the mancipium, or ancient Roman conveyance, a proceeding which we may unhesitatingly assign the parentage of two great institutions without which modern society can scarcely supposed capable of holding together, the Contract and the Will.

Using the Roman example, Maine argues that the alternative the Plebeian will constituted took its main features from the heavily public formalities of the Roman mancipatio, from which he believes both modern wills and contracts descend and led to their gradual relaxing. This form of will was gradually validated, simplified, and modified by the jurisdiction of the Praetor, to become a revocable and secret affair that could only confer an “equitable estate to the inheritance”, the full transfer of inheritance being reserved to the persisting ancient form of will. In time, both forms would be merged, requiring only the lightened formalities of the Testament as enforced by the Praetor, but allowing the full passing of “Inheritance”, as ancient forms of the Mancipatory will would. The dynamic of this movement consists of the iteration of the same cycle: rigid rules lead to the popularization of simpler but non-recognized institutions, and the latter are legitimized as exceptions in the way of “equitable” rules until they replace the original institution. This happens thanks to the two agents of “legal amelioration, Fictions and Equity”, the importance of which in Maine’s system and for the evolution of the rights of married women will be discussed below in section 3.

B. The evolution of inheritance as a political argument

(…) Private property, in the shape in which we know it, was chiefly formed by the gradual disentanglement of the separate rights of individuals from the blended rights of a community.

A corollary of the “movement” from status to contract is, as described by Maine above, one of the de-collectivization and correlated individualization of resource management. However, the individualization of property rights (chap. VIII) and the development of individual contractual powers and obligations (chap. IX) are more of an end result, if not just a fortunate by-product of the process of de-collectivization of inheritance rules, as described in the previous section. This sheds additional light on Maine’s contribution to the heated 19th-century debate about property’s origin, whether individual or collective. Despite some understandable appearances, Maine’s focus is not on an abstract argument about the legitimacy of individual property, but rather on a much more precise point about inheritance.

This nuance was not lost on Maine’s contemporaries. For example, an 1873 essay in the Calcutta Review by Charles Tupper, colonial official and known for compiling the customary laws of Punjab, stated the importance of Maine’s “formula that progress has been a movement from status to contract” in providing “Indian administrators” with keys to understanding the level of development of Indian communities, based on how inheritance relations are structured within them, discriminating, for example, between a “distinct proprietary right to a definite portion of the earth’s surface” and “a personal right to maintenance as against the father of the family of the head of the tribe”.

More significantly, this owed Maine the praises of none other than John Stuart Mill, who, as he famously decomposed inheritance between the right to bequeath and the right to inherit to de-legitimize the latter, referred to Ancient Law to explain how 19th century ideas about inheritance originated from an incorrect projection of ancient ideas on a modern context. Mill used Maine’s historical claims to describe the inconsistent connection between the modern individualism of ownership, which grants full powers to dispose of one’s property, and the archaic view of the family, in which one can only be the constrained manager of a common fund, to which all other members of the extended community have a claim. The freedom to bequeath is thus a logical consequence of the modern view of property, while the right to inherit is but a relic of the past obligations of the head of the family towards its members.

On the topic, Maine had his own political and context-dependent argument. This supposed historical reconstruction of the evolution of inheritance and of the institution of the will supports his argument that contemporary criticism of the freedom to bequeath that separates the English common law from the so-called civil law systems is misguided. For Maine, unlike what some might think, the freedom to bequeath did not originate as a way for the individual owner to take inheritance away from his family, or to concentrate it in the hands of one heir, mostly the eldest son. On the contrary, history would show the persistence of constraints on a man’s ability to divert wealth and property from his direct family, preventing him, for example, from interfering with “the right of the widow to a definite share” of his estate after his death. This is true of the Middle Ages, even as the “Will” was gradually seen as allowing to distribute “uneven” portions of his wealth after his passing, but this is also found in Roman legal history. Even primogeniture, according to Maine’s reconstruction of its history, was not meant to concentrate wealth into the hands of one heir, mostly the eldest son, who would then inherit the “sole and despotic dominion” over his father’s estate. Following ancient views, the “heir” merely became a “steward”, the “administrator of a common fund”, and “not therefore a true proprietor”. It is only in its evolved form that primogeniture ends up depriving a man’s close family, widow and direct children, of any control over this estate.

These parallels allow Maine to criticize what he views as a significant misunderstanding of the French revolutionaries about inheritance: incorrectly associating the freedom to bequeath with the spoliation created by mechanisms favoring the eldest son over other family members, they wrongly rejected the former. However, this led to what Maine sees as the establishment of “small perpetual entails, which is infinitely nearer akin to the system of feudal Europe than would be a perfect liberty of bequest”, which he obviously considered contrary to the “movement” of “progressive societies”.

Meanwhile, history shows that the Roman paterfamilias asserted their freedom to bequeath against statutory laws mandating the passing of their wealth to members of their extended family, the gens, in order to favor those for whom they had “Family attachments” and “affections”, like emancipated sons, who were not entitled to a share of their wealth. Similar practices aimed at bypassing Roman statutory laws limiting “the capacity for inheritance possessed by women”, through the use of “Fidei-Commissa, or bequests in trust”, turning their daughters into beneficiaries of their wealth, where statutory rules would have deprived them of inheritance. The translation of “Fidei-Commissa” into the language of trusts law as it was developed in the courts of equity in England is not a matter of convenience: it is part of that implicit but constant parallel that Maine drew between the history of the progress of women’s right to inherit and 1861 England, at a time when married women could only inherit their family’s wealth via settlement. Their fathers or other male relatives used their freedom to bequeath, granted nearly by accident by the courts of equity, to compensate for the unfair exclusion of their female relatives, especially as wives, from inheritance, ownership, and contractual freedom. In light of these developments, I suggest that we now trace our steps back to the first chapters of Ancient Law, to see that the supposed universal “movement” from status to contract can, in fact, be read as a powerful critique of the condition of women, especially wives, in the second half of the 19th century, specifically in England.

III. Ancient Law and the movement to release married women from their “status”

A. The context of the movement for the rights of married women

At the end of chapter V of Ancient Law, Maine describes the change that operates wherever “Contract” becomes a defining feature of societies: it is a stage at which “all relations of Persons”, instead of being narrowly defined by the organization of the “Family” now “arise from the free agreement of individuals”. This frees slaves, children, and women, from the direct power of the head of the family, a history exemplified by the gradual disintegration of the Roman Patria Potestas. The focus is, therefore, not on the emergence of a “contractual” society in the broadest sense but rather on a profound change within the organization of families.

Nevertheless, chapter V and the chapters before it give limited details about this process. Instead, they dwell on lengthy developments, using systematic comparisons between Roman and English law, about the evolution of law itself and about how the main agents of legal change, “Fictions, Equity, and Legislation”, successively enable legal systems to catch up with social change. As discussed above, the following chapters, starting with chapter VI, “The Early History of Testamentary Succession”, unwrap a complex and multi-level argument about the evolution of inheritance. The connection between these different arguments is thus not self-evident. However, it is noticeable that Maine’s statement of the “movement” from “Status to Contract” in chapter V of Ancient Law nearly occupies the exact center of the book, if not in the number of pages, at least within its general structure. There are ten chapters in Ancient Law, and the long paragraph about the “movement” of societies from status to contract is placed exactly at the articulation of what looks like two parts, both made of five chapters. Understanding the meaning of “movement” requires understanding the connection between these two parts of Ancient Law and their relevance to 19th-century debates about legal change, inheritance, and women’s rights.

This task involves replacing Ancient Law in the political context of the fight for women’s rights Maine only alludes to. Ancient Law was published in 1861, four years after the 1857 Matrimonial Causes Act. In 1875, Maine published a “Lecture on the Early History of the Settled Property of Women” in his Lectures on the Early History of Institutions, nearly in the middle of the 1870 Married Women’s Property Act, and 1882 Act of the same name. From a perspective that prioritizes political rights, the 1870 and the 1882 Acts may not seem like the most essential legislations in the fight of English women for equality, as they mostly regard the property rights of married women. Indeed, while the 1870 Act guaranteed wives the ownership of their wages as well as of inherited property, the 1882 Act extended this principle to all forms of property. The role of the 1857 Matrimonial Causes Act in this fight may even seem more obscure, as it granted English courts jurisdiction over marriage, until then reserved to Ecclesiastic Courts

The key to understanding the importance of the 1870 and 1882 acts goes beyond the much-needed support they provided to the material independence of married women. They required a long fight to undermine the deeply rooted doctrine of coverture, according to which women, when becoming wives, saw their legal personhood merge with that of their husband (or, more correctly, disappear into it). As argued by Shanley, this outcome was made possible by a movement started in the 1850s, which originally crystallized around a seemingly very distant topic: the debates that led to the passing of the Matrimonial Causes Act 1857. What was initially a rather technical argument about the jurisdiction over matrimonial issues—marriage being handled by ecclesiastical courts only until then, and divorce granted, exceptionally and solely, by act of Parliament—was conducive to the structuring of further reaching arguments about the legal personhood of married women and of their right to hold property.

The 1857 Act was thus a small victory and a training ground for later accomplishments of the women’s rights movement. This was not meant to be: it was the conclusion of a process started in 1850 with the appointment of a Royal Commission on Divorce, which in 1853 produced a report recommending the establishment of a civil court to examine divorce claims and generally hear matrimonial causes instead of the ecclesiastical courts. Amidst fierce debates about acceptable grounds for divorce for men and women and several failures to pass a Divorce Bill, the technical argument of jurisdiction turned into a broader argument about the legal status of married women.

This evolution of the public discourse owes a lot to the work of an association called Law Amendment Society. The Society was founded in 1844 by Lord Brougham, who had spearheaded the 1832 Reform Act. From 1851, the Society had been promoting the fusion of equity and common law courts. Understandably, the lack of consistency between common and equity law was particularly troubling on the topic of the rights of married women. Equity rules guaranteed the status of the property settled in trust for daughters becoming wives, while common law rules essentially deprived married women of any property. Therefore, merging equity and common law rules would effectively mean putting an end to the doctrine of coverture. This argument seems highly strategic: it was all the more acceptable by conservatives that it seemed merely technical and relied on an existing body of rules.

Reacting to a pamphlet by Caroline Cornwallis, commenting herself on the Law Review’s description of the divergence between common law and equity courts on the topic, the Personal Laws Committee of Law Amendment Society thus issued in 1856 a report asking for the alignment of the status of married women with that of feme sole for property and contracts. On March 31, a resolution of the Society, later withdrawn, called for the abandonment of common law rules and their substitution by the equitable principle of the separate estates of wives and husbands. Meanwhile, the continuing debate increasingly focused on the issue of the equalization of grounds for divorce. For Shanley, this gave a stronger and stronger voice, outside but also inside of Parliament, to the rather revolutionary argument that marriage should be viewed as similar to other civil contracts, thereby protecting both parties like them, an argument reminiscent of Maine’s insistence on the figure of the “contract”:

The man promises during their joint lives to support, protect, and cherish the woman, and that he will never forsake her for another. There can be no more sacred promises … no contract more binding. But if disregards that promise, and abandons his wife, why was the contract still to be binding upon her? In commercial contracts, if one party violated the agreement the other was released from it. Why should not the same principles be extended to cases such as he had mentioned?

The final outcome, in 1857, disappointed these expectations: married women were granted neither separate legal personhood, nor autonomy in the control of their property. There were, however, smaller direct gains for deserted women and those who obtained a judicial decree of separation: they could manage their property as feme sole. Further activism would later continue the work initiated before and after 1850 until the passing of the bills that saw the end of the doctrine of coverture in 1870, and a significant degree of control over property for married women in 1882.

B. Re-reading Ancient Law between the lines

The intriguing features of the structure of Ancient Law make more sense if they are viewed as reflecting these debates: the “movement” from status to contract is placed exactly at the articulation of a first series of chapters about the ever-reopening gap between “equitable” and established legal rules, and of the next series of chapters describing the long evolution of inheritance rules which had for end result the release of women, in particular when they are married, from the control of their husband. One could, however, be intrigued to see Maine keeping a cautious distance from these debates, in stark contrast with John Stuart Mill’s open dedication to this cause. While Maine expansively contributed to other public discussions, as shown by his many contributions to newspapers, there are no identified articles on the topic in his writings, and different accounts of his life, including Feaver’s biography, make no mention of such commitment.

This also seems inconsistent with the fact that most of Maine’s only heated words were dedicated to that precise topic ever since Ancient Law, in which he asserted nothing less that the development of “the proprietary capacities of women” was a fundamental part of “those conquests” that define the process of “civilisation” itself. However, on closer examination, this appears to be rather typical of Maine’s attitude. Maine’s obituary in a 1887-8 of the American Academy of Arts and Sciences makes no secret of his fear of being associated publicly with political debates and reforms. This did not prevent him from having discrete opinions about them, which infused his own writings or his approach to other people’s work.

Indeed, a close look at Maine’s works, from Ancient Law to his later writings, reveals a quiet but consistent commitment to the cause of women, to the point that it may be considered as a structuring topic of his work which followed, if not influenced, the recurring debate about women’s rights. This commitment did not go unnoticed by Maine’s contemporaries, who felt the impact of Maine’s work deeply. This is why, according to Psomiades, Maine’s view “crystallize[d]” criticisms regarding the status of women in Victorian society, on which it had a “profound and lasting impact”. Analyzing the structural echoes between Maine’s description of the marital situation of Victorian women and Trollope’s novel, The Eustache Diamonds, Psomiades thus argues that “Ancient Law was perhaps the most influential Victorian version of the story of the supplanting of what anthropologists would come to call kinship society by market society”. Victorian feminists were particularly impressed by Maine’s acute criticism of the survival of the Roman Patria Potestas in Victorian legal institutions. As a matter of fact, Maine’s later lecture on “The Settled Property of Women” was reprinted in 1873 by request of the Married Women’s Property Committee, while the series of lectures dedicated to the topic can be found in the list of selected entries dedicated to the question of women’s rights in the original fund constituted for the Manchester Public Library.

The fact that Victorian feminists were drawn to Maine’s account of the Patria Potestas is not the result of mere intellectual curiosity. With the context described above in mind, one can tell that Maine’s framing of the history of the evolution of Roman evolution, which ends with the formulation of the movement “from Status to Contract”, stands against the background of the debates about the property of married women in Victorian England. A less-informed reading could miss its topical nature, barely concealed under facts about ancient history. Indeed, Ancient Law’s chapter five makes use of the rediscovery of Gaius’ Institutes in the early 19th century by historian Niebuhr to describe the gradual degradation, from the early to the latest Roman law, of the institution of the Patria Potestas, and of the related power of the Paterfamilias over women, children, and slaves. This process was made possible with the help of legal “expedients”, in particular through natural law principles and “Equity”, devised by late Roman jurisconsults to enable women to “defeat ancient rules” and achieve “equality of the sexes”. The “tutelage” of women had thus “entirely disappeared” from the “mature Roman jurisprudence”, in which women had achieved “great personal and proprietary independence”. Nevertheless, the conservative influence of the Church and of the canon law partially reversed this process in Europe, thereby “deeply injur[ing] civilisation” itself, to the point that “no society which preserves any tincture of Christian institution is likely to restore to married women the personal liberty conferred on them by the middle Roman law”.

Consequently, in modern Western nations, the “tutelage” of women remains the “only exception” to the movement “from Status to Contract”. However, what may first appear as a general historical account ends up singling out Victorian England among Western nations as distinctly conservative. The criticism is even harsher considering that Maine keeps in mind his loose evolutionary framework to contrast modern India, where “the system [of the Patria Potestas] survives in absolute completeness” with European laws, with the exception of England. The English common law is thus implicitly compared to India, where married women are deprived of independent property rights. While most European countries still struggle to release themselves from the influence of Christianity but have succeeded in improving the condition of women,

[…] Yet more stringent in the proprietary incapacities it imposes is the English Common Law, which borrows far the greatest of its fundamental principles from the jurisprudence of the Canonists. Indeed, the part of the Common Law which prescribes the legal situation of married women may serve to give an Englishman clear notions of the great institution which has been the principal subject of this chapter. I do not know how the operation and nature of the ancient Patria Potestas can be brought so vividly before the mind as by reflecting on the prerogatives attached to the husband by the pure English Common Law, and by recalling the rigorous consistency with which the view of a complete legal subjection on the part of the wife is carried by it, where it is untouched by equity or statutes […] The distance between the eldest and latest Roman law on the subject of Children under Power may be considered as equivalent to the difference between the Common Law and the jurisprudence of the Court of Chancery in the rules which they respectively apply to wives.

Maine’s words could hardly be more severe for the English Common Law. Coincidentally, this passage offers the key to understanding how central the debates about reforming the status of married women are to his most theoretical work. Maine systematically opposes the English Common Law and the late Roman jurisprudence on the one hand and the doctrines of equity that evolved similarly in both systems through the Court of Chancery in England on the other. Maine describes this process for the Romans by focusing on the evolution of the institution of marriage. The different forms of ceremonies are gradually replaced by a “lower form of civil marriage” in which the woman no longer loses all property nor becomes the “daughter” of her husband. A direct connection can be established between this Roman evolution and the process started, in England, by the debate preceding the 1857 Matrimonial Causes Act, leading to the final abolition of the doctrine of coverture with the Married Women’s Property Act 1870. Maine’s description of the same evolution in the modern English system directly echoes his contemporaries’ claim that the only reform needed is merely technical: the alignment of the legal status of married women on the equitable doctrine, in particular on the law of trusts, which allows some married women to have their rights to separate property guaranteed via a trust established as a settlement ahead of their marriage.

This may explain the dedication of the first chapters of Ancient Law to long and seemingly abstract developments about the instruments of legal change before the rise of legislation: fictions and equity. Chapters II and III, in particular, lay out Maine’s theory of social change, which starts from the dual assumption that, on the one hand, the legal norms constantly lag behind changes in public opinion within “progressive” societies, and that, on the other, societies are acutely incapable of acknowledging this evolution. This means that, before the later age when legal rules can be changed explicitly via legislation, fictions are mobilized to effect change while concealing it. Equity then intervenes, making adjustments in a more open manner, but justifying them via a set of principles (e.g., natural law) that is said to be internal to all kinds of legal rules, which therefore “ought to conform” to it. The age of legislation comes when an external authority is deemed legitimate to effect changes directly and openly.

This theory is far from being just a neutral exposé about the universal nature of legal change. It is not merely a moderate criticism of Bentham and Austin’s views about the nature of law either. As soon as he aims to explain the nature of “equity”, Maine starts a series of direct comparisons between the institution as found in Rome with the “Praetors” or in modern England with “English Chancellors”. According to him, both systems rest on the very similar idea, which “very early obtained currency both in the Roman state and in England”, that there exists a set of principles that are both internal and superior to existing legal norms. While aware of the limitations of comparisons between them, Maine believed that the functioning of modern English equity could enlighten us on the extension of the powers of the Roman Praetor.

There is surely a historical interest in these remarks, but one can doubt that this is Maine’s only purpose. The parallels and distinctions that he makes between these two examples of equity, noticeably excluding any other example, lead to the conclusion that not only common law and equity courts should merge, along with their principles, but that legislation is now necessary to further social change and progress, as the principles of equity have reached the full extent of their efficacy. Indeed, “the Equity of Rome”, unlike English equity, did not distinguish between the positions of “chief equity judge” and “great common law magistrate”, both occupied by the Praetor. While this fell short of a “complete fusion of law and equity”, which is part of what Maine stands for, this means that the Praetor’s Edict repealed the “old Civil law” doing it “without any express enactment of the legislature”. Then, no matter how far both forms of “equity” had gone in improving the civil law, they eventually became too “rigid”, reflecting the “morality of past centuries”. Instead of infusing them with “the ethical standard of the present day”, it was now necessary to let legislation continue the work of reconnecting the law with “the movement of the collective opinions”.

Is it not particularly interesting that, to give an example of the “levelling” tendencies animating equitable systems, Maine chose the deconstruction of the distinction between Agnatic and Cognatic relations? The former consecrated a view of the family centered on patriarchal authority and the father’s bloodline, while the other united family members on the sole criteria of being “of common descent”. Reliance on the agnatic view of the family is the main source of the subjection of married women to their husbands. On the contrary, its substitution by the cognatic view meant recognizing the rights of women to inherit from their original family, as well from their husband, rights denied to them in the Agnatic system. The movement of history is thus one towards a stage at which the family has not disappeared, but is replaced by a structure that unites individuals who are gradually more equal to one another, and who are no longer dependent on their distant, extended family, or that of their husband. As stated only a few lines before the end of chapter V, and of the description of the “movement” from status to contract, this has a profound effect on the rights of women, which the English law still has to go through:

The status of the Female under Tutelage… has also ceased to exist; from her coming of age to her marriage all the relations she may form are relations of contract.

Echoing this later in Ancient Law, on p. 293 to 295, this change, which affected the “history of ownership”, chiefly through the evolution of forms of inheritance, owes most of its reality to “the mental atmosphere which was breathed by the fabricators of equitable systems”. The overlapping of Roman history with modern English evolutions is here complete:

Following a parallel line of progress, the English Court of Chancery created a special proprietorship for the Mortgagor, for the Cestui que Trust, for the Married Woman who had the advantage of a particular kind of settlement, and for the Purchaser who had not yet acquired a complete legal ownership”.

C. Contemporary confirmations of Maine’s views

Maine’s relative silence about the issue outside of these pages of Ancient Law did not prevent his contemporaries from understanding the implications of his “movement” from “status to contract” for the rights of English women. In 1869, one year before the first Married Women’s Property Act, the magazine of the Law Society, the same that fought hard since the 1850s to support women’s rights, offered a review of the publication of John Stuart Mill’s The Subjection of Women which appears to present it as a continuation of Maine’s work Ancient Law:

The object of this volume is to prove “that the principle which regulates the existing social relations between the two sexes—the legal subordination of one to the other—is wrong in itself, and now one of the chief hindrances to human improvement; and that it ought to be replaced by a principle of perfect equality, admitting no power or privilege on the one side, or disability on the other”.

Mr. Maine remarks that, if we understand by the word status the personal conditions which are derived from the powers and privileges anciently residing in the family, the whole progress of society may be described as a transition from status to contract.

Not only does the author of the essay see an intimate connection between Maine and Mill’s works on the topic of the rights of women, but it also views the coming end of their subjection to men in marriage as the next logical stage of the “transition from status to contract”:

We allow the son to become independent of his father but to have full powers to contract with him as with any one else, as soon as he becomes of age to enter into contract with any one. We forbid slave labour, which the ancients regarded as existing under the jus naturale, and permit in its stead only labour by contract. The Patria Potestas has been dismembered in every direction by one. The woman is still in manu of the husband.

By focusing on the “Patria Potestas”, the essay follows Maine’s arguments closely, and puts forward the same legal argument against the doctrine of coverture and the consequences it has on the ability of married women to own, contract, and inherit. It also underlines that the relief provided by equity rules remains an insufficient and unfair exception:

English law, in particular, has much to answer for. By the old law the husband was called the lord of the wife—had dominion over her, was regarded as her sovereign, so that the murder of him by her was treason. She can do not act but by his permission. Her existence ceases on marriage, is merged in that of the husband. They two become one, that one being the husband. He takes her property, can do what he likes with her personalty, receives the rent and profits of, and becomes entitled to a tenancy by courtesy, in her realty. She can acquire no property but for him; the instant it becomes hers, even if by inheritance, it becomes ipso facto his. Even the Roman slave was better off in this respect than she (…) A rich women may have a settlement, which will at least prevent her husband from depriving her of the property she possesses or obtains on marriage. But even here, she, the rightful owner, is debarred from the use of the property. The settlement is, however, altogether exceptional. In the great majority of marriages none exists. If, indeed, the Married Women’s Property Bill become law much will be done towards remedying this stage of things. In other words, we shall be making one more step from status to contract.

The author then continues, expressing doubts about the ability of women to eventually get on an equal footing with men, and about the possibility of extending the suffrage to them without delay. For him, nevertheless, the law should not be its own source of inequalities, and women cannot show their ability to participate in political debate before being given the opportunity. Regardless of these considerations, the author does consider that the 1870 Married Women’s Property Act is a logical consequence of Maine’s argument in Ancient Law.

Indeed, at the time, Maine’s movement “from Status to Contract” seems to have become a shared standard to explain past evolutions of marriage law and of the status of married women, and to press for further advancements. In an 1870 essay on “The Natural History of Law”, George J. Johnson, dealing with legal evolution by the “differentiation of the sacred from the secular” considers that “the steps of this progress”, the one that is “described by jurists as the transition from Status to Contract”, will be found “in Maine’s Ancient Law, and with still greater minuteness in M. Lennan’s Primitive Marriage”. For the author, the process of the affirmation of the “secular or purely contractual view of marriage” starts before the 1850s, with the Marriage Act of 1835, allowing marriage “without the intervention of a priest” and “religious ceremony”.

There is no better confirmation of the fact that Maine’s work and formula was a common reference point than finding it in the opposition to the women’s rights movement. In 1866, another essay called “‘Woman’s Rights’, Again”, worrying about “socialist” doctrines undermining “the framework of society and specifically about the “anarchic” tendency of the “woman’s rights movement”, which “sets the sexes against each other”, refers implicitly but clearly to Maine:

I am perfectly aware of all that recent philosophers and jurists have said about the progress of society from status to contract. But it seems to me that there are some relations from which the element of status can never be entirely removed; e. g., the parental and the filial. (…) Whether the relation of marriage is one from which we can entirely expel the idea of status, we need not trouble ourselves to examine at length. (…) the French law declares marriage merely a civil contract, but makes it lifelong—a grave distinction which introduces something very like the idea of status.

One could even say that as years passed after the publication of Ancient Law, Maine’s views became part of the regular “textbook” presentation about the evolutions of law. In 1885, William Marky, at one point judge in the High Court of Calcutta, offered to explain, in his Elements of Law, the meaning of the idea that “the progress of society is from status to contract” as follows:

(…) The rights and duties which are attached to individuals as members of a class are coming gradually more and more under the control of those upon whose assent they came to existence; and that the remedy for any breach of them is more frequently now than formerly the ordinary remedy for breaches of contract. This is obviously the case with the rights and duties which attach to master and servant: and it is even beginning to show itself very strongly in the relations of husband and wife.

On the same page, a footnote informs the reader that “(…) another step in reducing marriage from status to contract has been taken in the Married Women’s Property Act of 1883”. The example of Markby’s Elements of Law is worth paying close attention to because the textbook, meant for law students, was re-edited several times after 1871. Previous editions contained numerous mentions to Maine’s work. The footnote mentioned above, added only to the 3rd edition, not only explains the “movement” from status to contract without mentioning Maine directly, indicating how widespread the expression had become but associates it directly with the evolution of the rights of married women and to the “contractualization” of marriage.

Conclusion

The course of modern legislation is but a continuation of that historical movement in the marriage relationship from status to contract so ably traced in Maine’s Ancient Law.

Maine’s “movement” from status to contract seems to have become, in the second part of the 19th century, a structuring narrative, both factual and normative, to support the evolution of women’s rights, particularly those of married women. In this way, it was understood, maybe as Maine would have wanted, as universal. This contextualized reading makes sense of both the structure of Ancient Law and the role Maine intended the movement “from Status to Contract”, to play in it. The first chapters of Ancient Law set the stage for the argument that common law and equity rules should be merged but also supplemented by legislative efforts, bringing historical support to the key argument that Maine’s contemporaries wielded to defend the rights of married women to own, inherit, and contract in their own name. The chapters following the statement of the “movement” make the evolution of inheritance the main mechanism behind it. Part but not all of their argument is that, historically, the rights of women and married women were asserted against the institutions that excluded them from inheritance at the same time as their rights were subjected to the control of either their original family or their husbands.

Therefore, the singular methodological commitments that underlie Maine’s comparative jurisprudence, by allowing infinite back-and-forth, through time and space, between institutions, provided a framework for legal as well as political arguments. Understood like this, the movement towards “Contract” has, therefore, deep implications, which are obviously not limited to the rights of women. It drives a complete shift in the way marriage is conceived, making it a secular, though very unique, agreement between independent legal persons. More broadly, it is a narrative that explains the individualization of inheritance relations. It encompasses both a defense of the freedom to bequeath and the ability, via the formation of trusts and corporations, to dispose of one’s property via agreement, enhancing the creativity and cooperative capabilities of individuals well beyond the small circle of their community of origin.

Marc Goetzmann

Associate Professor in Legal English, University of Tours. Chair of the Law and Foreign Languages Department. His research specializes in the intersections of philosophy, law, and social sciences, with a focus on how individuals come together and cooperate in institutions, from the commons to corporations. Specific research topics include customary law, property theory, social trust, the history of British India, and more broadly, liberalism.