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Robert Louis Stevenson, Henry Maine, and the Anthropology of Comparative Law

Published online by Cambridge University Press:  21 December 2012

Roslyn Jolly
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Journal of British Studies , Volume 45 , Issue 3 , July 2006 , pp. 556 - 580
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Copyright © North American Conference of British Studies 2006

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References

1 Stevenson, Robert Louis, In the South Seas, ed. Rennie, Neil (1896; London, 1998), 9Google Scholar.

2 Ibid.

3 On the problems caused for himself and his readers by Stevenson's attempt to produce an anthropological work within the form of a personal travel narrative, see Rennie, “Introduction,” in ibid., xx–xxxi. Julia Reid shows how Stevenson's interest in anthropology informed his early Scottish as well as his late Pacific writings; she shows him to be “an illuminating figure for the history of the discipline [of anthropology], exemplifying the intertwined nature of anthropology and creative literature at the fin de siècle” (“Robert Louis Stevenson and the ‘Romance of Anthropology,’” Journal of Victorian Culture 10, no. 1 [2005]: 47Google Scholar).

4 Reid, “Robert Louis Stevenson and the ‘Romance of Anthropology,’” 47–49, 55.

5 Maine, Henry Sumner, Ancient Law (1861; repr., New York, 1986), 2Google Scholar.

6 The increasing concern with primitive law in twentieth-century anthropology was exemplified in the debates between Bronislaw Malinowski and A. R. Radcliffe-Brown in the 1930s. See Stocking, George W. Jr., After Tylor: British Social Anthropology, 1888–1951 (London, 1996), 361–62Google Scholar.

7 Stevenson, Robert Louis and Osbourne, Lloyd, The Wrecker (1892; repr., New York, 1982), 124–25Google Scholar.

8 Mommsen's The Provinces of the Roman Empire was published in German in 1885 and translated into English in 1886. Haverfield, 's The Romanization of Roman Britain (Oxford, 1912)Google Scholar developed a thesis first presented to the British Academy in 1905. Richard Hingley notes that the term “Romanization” was little used by English writers before Haverfield, although several explored the concept; see his Roman Officers and English Gentlemen: The Imperial Origins of Roman Archaeology (London, 2000), 90Google Scholar.

9 Stevenson, Robert Louis, The Letters of Robert Louis Stevenson, ed. Booth, Bradford and Mehew, Ernest (New Haven, CT, 1994–95), 7:187Google Scholar.

10 Stevenson, In the South Seas, 14.

11 See Jolly, Roslyn, “Robert Louis Stevenson and Samoan History: Crossing the Roman Wall,” in Crossing Cultures: Essays on Literature and Culture of the Asia-Pacific, ed. Bennett, Bruce, Doyle, Jeff, and Nandan, Satendra (London, 1996), 113–20Google Scholar.

12 Stevenson, Letters, 7:374.

13 “Mr. R. L. Stevenson on Reading and Literature: An Interview,” The Argus (Melbourne), 6 May 1893. A different version of this interview had been published in The Press (Christchurch), 24 April 1893; it also contains the comment about the Roman Empire.

14 See Foucault, Michel, The Order of Things: An Archaeology of the Human Sciences (London, 1970)Google Scholar.

15 Balfour, Graham, The Life of Robert Louis Stevenson (London, 1901), 2:102Google Scholar.

16 Stevenson, M. I., From Saranac to the Marquesas and Beyond, ed. Balfour, Marie Clothilde (London, 1903), 71Google Scholar. In the Gilbert Islands in 1889, Stevenson was still, or again, reading Gibbon. See Stevenson, In the South Seas, 221.

17 Gibbon, Edward, The Decline and Fall of the Roman Empire, introduction by Christopher Dawson (1776–88; London, 1969), 4:374–75Google Scholar.

18 Peter Stein argues that “the Roman notions which were introduced into Scots law during its formative period were embedded so firmly in its structure that many parts still bear an unmistakably Roman stamp; they cannot be fully comprehended without a knowledge of the Roman institutions from which they derive” (“The Influence of Roman Law on the Law of Scotland,” in The Character and Influence of the Roman Civil Law: Historical Essays [London, 1988], 358–59Google Scholar).

19 Mackenzie, Lord, Studies in Roman Law with Comparative Views of the Laws of France, England, and Scotland, 2nd ed. (Edinburgh, 1865), 41Google Scholar. Lord Guthrie, one of Stevenson's fellow law students at Edinburgh, listed the five law exams they had to pass: Civil (i.e., Roman) Law, Scots Law, Scots Conveyancing, Constitutional Law and Constitutional History, and Medical Jurisprudence. See his Robert Louis Stevenson: Some Personal Recollections (Edinburgh, 1920), 36Google Scholar.

20 Stevenson, Letters, 1:498; see also 1:499 n. 2.

21 Ibid., 1:504.

22 See ibid., 2:3, 5, 11.

23 Stevenson, Robert Louis, “Notes from his Mother's Diary,” in The Works of Robert Louis Stevenson, Vailima Edition, vol. 26, Miscellanea (London, 1923), 328Google Scholar. He also did well in public law (323), and Paul Maharg argues that this, rather than civil law, was his favorite subject (“Lorimer, Inglis and R.L.S.: Law and the Kailyard Lockup,” Juridical Review, 1995, pt. 3, 281). Stevenson's later application for the chair of constitutional law and history at Edinburgh supports that view, but his letters from the 1870s refer far more often to Roman law than to any other law subject.

24 Smith, T. B., Studies Critical and Comparative (Edinburgh, 1962), xiiGoogle Scholar.

25 Maine, Ancient Law, preface.

26 Ibid., 282–83.

27 Ibid., 283, 289 (“extraordinarily indebted to Roman jurisprudence”), 295–98, 94 (“scarcely conceals its Roman derivation”), and 60 and 282 (“The theory of Natural law is exclusively Roman”).

28 Ibid., 302.

29 “Rome continued to matter because of its history as well as its poetry,” Norman Vance writes in The Victorians and Ancient Rome (Oxford, 1997), 197Google Scholar. There is no suggestion in Vance's study that Rome mattered to the Victorians because of its law, and the jurists Stevenson names in In the South Seas as framers of the modern, Western mind do not appear among the Latin writers he discusses.

30 Frederick Pollock, “Maine, Sir Henry James Sumner,” Encyclopedia Brittanica, 11th ed., 17:432.

31 Maine, Henry Sumner, “Roman Law and Legal Education” (1856), in his Village-Communities in the East and West, new ed. (London, 1890), 361, 333Google Scholar.

32 Ibid., 346.

33 Ibid., 353, 377–78; Cocks, R. C. J., “Maine, Sir Henry James Sumner,” in Oxford Dictionary of National Biography, ed. Matthew, H. C. G. and Harrison, Brian (Oxford, 2004)Google Scholar.

34 Pollock, “Maine,” 432.

35 Stevenson, Letters, 6:20, 60. “His whole relation to Latin,” Balfour noted, “was very curious and interesting. He had never mastered the grammar of the language, and to the end made the most elementary mistakes. Nevertheless, he had a keen appreciation of the best authors, and, indeed, I am not sure that Virgil was not more to him than any other poet, ancient or modern.” “Technicalities of law,” Balfour also noted, “were admitted to equal rights with authors of the Golden Age” in Stevenson's appreciation of Latin texts (Balfour, Life, 2:102).

36 Stevenson, Robert Louis, “The Ebb-Tide,” in South Sea Tales, ed. Jolly, Roslyn (Oxford, 1996), 125Google Scholar.

37 Balfour, Life, 1:61.

38 Collini, Stefan, Winch, Donald, and Burrow, John, “The Clue to the Maze: The Appeal of the Comparative Method,” in That Noble Science of Politics: A Study in Nineteenth-Century Intellectual History, ed. Collini, Stefan, Winch, Donald, and Burrow, John (Cambridge, 1983), 210CrossRefGoogle Scholar; Cocks, R. C. J., Sir Henry Maine: A Study in Victorian Jurisprudence (Cambridge, 1988), 1–2CrossRefGoogle Scholar.

39 Montesquieu's Spirit of the Laws (1748) was, of course, “the great precursor” but lacked the systematic approach the Victorians deemed essential. See Pollock, Frederick, “The History of Comparative Jurisprudence,” Journal of the Society of Comparative Legislation, 2nd ser., 5 (1903): 83, 86Google Scholar.

40 Maine, Ancient Law, 141, 140.

41 Stocking, George W. Jr., Victorian Anthropology (New York, 1987), 124Google Scholar.

42 Stevenson, In the South Seas, 9.

43 Maine, Ancient Law, 135.

44 Ibid., 99.

45 Ibid., 220.

46 Ibid., 194, 200.

47 Maine, Henry Sumner, “The Effects of Observation of India on Modern European Thought,” Rede Lecture for 1875, University of Cambridge, in Village Communities in the East and West, 3rd ed. (London, 1876), 210Google Scholar.

48 Ibid., 230.

49 Terry, R. C., ed., Robert Louis Stevenson: Interviews and Recollections (London, 1996), 159CrossRefGoogle Scholar.

50 Balfour, Life, 1:106.

51 Stevenson, Robert Louis, A Footnote to History: Eight Years of Trouble in Samoa (London, 1892), 1–2Google Scholar.

52 Maine, Ancient Law, 101–2. See Stocking, Victorian Anthropology, 117; and Kuper, Adam, “The Rise and Fall of Maine's Patriarchal Society,” in The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal, ed. Diamond, Alan (Cambridge, 1991), 99–110CrossRefGoogle Scholar. For the opposing theory, see McLennan, John F., Primitive Marriage: An Inquiry into the Origin of the Form of Capture in Marriage Ceremonies, ed. Riviére, Peter (1865; Chicago, 1970)Google Scholar; and Morgan, Lewis H., Ancient Society, ed. White, Leslie A. (1877; Cambridge, MA, 1964)CrossRefGoogle Scholar. Morgan identified Maine as “holding foremost rank” among the patriarchal theorists (428). Maine defended his patriarchal theory against the ideas of McLennan and Morgan in his “Theories of Primitive Society,” in Early Law and Custom, new ed. (London, 1890), 192–219Google Scholar.

53 Maine, Ancient Law, 303–4, 197, 223–24.

54 On the individual replacing the kinship group as the unit of society, see ibid., 104, 140, 152, 214; on the emergence of private property, see 215, 223–24; and on the development of contract, see 140–41, 252–55.

55 Ibid., 216, 217.

56 Ibid., 222–23.

57 Stevenson, In the South Seas, 12.

58 Kuper, “Rise and Fall,” 109. For the influence of Maine's jural approach on twentieth-century British social anthropologists, see ibid., 110; J. D. Y. Peel, “Maine as an Ancestor of the Social Sciences,” in Diamond, Victorian Achievement, 180; and Stocking, After Tylor, 357–58. Stocking identifies Radcliffe-Brown's essay “Patrilineal and Matrilineal Succession” (1935) as “the moment when Sir Henry Maine, whose commitment to patriarchy had pushed him to the sidelines of British anthropology during its evolutionary and early post-evolutionary phases, reentered the emerging social anthropological mainstream, as the precursory theoretician of corporate groups” (357). He notes that “Radcliffe-Brown's succession article was full of the terminology of Roman law … and clearly drew on Maine at a number of points. … From that point on, Maine was to be a potent influence on several generations of British social anthropologists” (357–58).

59 Maine, Ancient Law, 6. Positive law theory rejected the concept of customary law, arguing that custom did not belong to the province of jurisprudence, but to that of “positive morality,” a set of social norms “binding only by moral sanctions—by the penalties of opinion”; custom could be turned into law, but only through the actions of a “sovereign legislator,” in which case it became positive law ([Mill, John Stuart], “Austin on Jurisprudence,” Edinburgh Review 118 [1863]: 457–58Google Scholar).

60 For example, the Society of Comparative Legislation noted that in a single year the Judicial Committee of the Privy Council might “be called upon to consider questions of constitutional law of moment to all civilized countries, cases dependent on Hindu or Mahommedan law, on texts of the Digest, on the Ordonnances of Louis XIV, on the Coutume de Paris or other portions of the old customary law of France before the Revolution, or on the ancient customs of Normandy” (“Statement of the Objects of the Society,” Journal of the Society of Comparative Legislation 1 [1896–97]: viiGoogle Scholar).

61 Bryce, James, The Ancient Roman Empire and the British Empire in India; The Diffusion of Roman and English Law throughout the World: Two Historical Studies (London, 1914), 107–22Google Scholar.

62 Mill, John Stuart, “Mr. Maine on Village Communities,” Fortnightly Review 15 (1871): 550Google Scholar. Mill's own role in the administration of India is discussed by Stokes, Eric in The English Utilitarians and India (Oxford, 1959)Google Scholar.

63 Hogbin, H. Ian, Law and Order in Polynesia: A Study of Primitive Legal Institutions (1934; repr., Hamden, CT, 1961), 77Google Scholar. Hogbin included Maine in his criticisms (76), but Maine's argument against Bentham and Austin is very close to Hogbin's own assertion that “the system of clearly recognised obligations that has been discovered wherever a primitive tribe has been carefully investigated, does not trace its origin to a series of express commands issued by some superior authority, not is it the outcome of a purposive effort” (78).

64 Malinowski, Bronislaw, Crime and Custom in Savage Society (London, 1926), 14, 56Google Scholar.

65 Ibid., 55, 56.

66 Robert Louis Stevenson, “The Beach of Falesá,” in South Sea Tales, 24.

67 Stevenson, Letters, 7:187.

68 Stevenson, A Footnote to History, 2.

69 Malinowski, Crime and Custom, 55.

70 Stevenson, In the South Seas, 160.

71 Ibid., 161.

72 Maine, Ancient Law, 6.

73 “Maine, Sir Henry James Sumner (1822–1888),” in Dictionary of National Biography, ed. Lee, Sidney (London, 1893), 35:345–46Google Scholar.

74 Pollock, “History of Comparative Jurisprudence,” 79.

75 See Stocking, Victorian Anthropology, 125–28; Alan D. J. Macfarlane, “Some Contributions of Maine to History and Anthropology,” in Diamond, Victorian Achievement, 138–40; and Peel, “Maine as an Ancestor of the Social Sciences,” 182.

76 Maine, “Theories of Primitive Society,” 219.

77 Maine, Ancient Law, 223, 282.

78 Pollock, “Maine,” 433.

79 Stevenson, A Footnote to History, 27.

80 Stevenson, “The Beach of Falesá,” 55. See also Stevenson, A Footnote to History, 41. Kathleen Bailey Linehan discusses “the conception of the Polynesian as a child” in a range of Stevenson's Pacific works; see “Taking Up with Kanakas: Stevenson's Complex Social Criticism in ‘The Beach of Falesá,’” English Literature in Transition, 1880–1920 33, no. 4 (1990): 410–11. She argues that “Stevenson's likening of Polynesians to children is part of a larger framework of hierarchical thinking about race probably so unreflectingly absorbed from popular culture that he could not easily see its inconsistency with his own consciously proclaimed egalitarian views” (411).

81 Stevenson, “The Beach of Falesá,” 28.

82 Robert Louis Stevenson, “The Isle of Voices,” in South Sea Tales, 112.

83 Reid, “Robert Louis Stevenson and the ‘Romance of Anthropology,’” 49–50, 55–57.

84 Maine, Ancient Law, 10. He argued that the era of customary law was followed by the era of legal codes, which came with the discovery of the art of writing (12).

85 Stevenson, In the South Seas, 163–64.

86 Ibid., 238.

87 Stevenson, Robert Louis, “The Day after Tomorrow” (1887), in The Lantern-Bearers and Other Essays, ed. Treglown, Jeremy (New York, 1988), 203Google Scholar. “Society will then [under socialism] be something not wholly unlike a cotton plantation in the old days,” a “beneficent tyranny” (206, 203); cf. “the beneficence” of the “stern rule” in Apemama, where “life flows in the isle from day to day as in a model plantation under a model planter” (Stevenson, In the South Seas, 237).

88 Stocking, Victorian Anthropology, 126.

89 Stevenson, In the South Seas, 72. Maine identified the same feature of primitive societies (Ancient Law, 105) but would not have made a comparison exceeding the Indo-European “family.”

90 Stevenson, A Footnote to History, 43.

91 Maine, Ancient Law, 9.

92 Maine, “Effects of Observation of India,” 224.

93 Stevenson, In the South Seas, 13.

94 Stocking, Victorian Anthropology, 127, 159. “Comparing similar phenomena, without regard to racial origin” was also Andrew Lang's method in studying myth and ritual (Stocking, After Tylor, 81–82). The methodological differences between Stevenson and Maine in the field of comparative jurisprudence paralleled those between Lang and Müller in the field of comparative mythology (ibid., 53–55).

95 Stevenson, In the South Seas, 39.

96 Maine, Ancient Law, 13.

97 Stevenson, In the South Seas, 9, 39.

98 Ibid., 39, 40.

99 Ibid., 175, 178, 220, 38.

100 Ibid., 38, 40.

101 Ibid., 40–41.

102 Maine, Ancient Law, 15.

103 Stevenson, In the South Seas, 39.

104 Ibid., 41.

105 Ibid.

106 Ibid., 42.

107 Ibid., 53–54.

108 Ibid., 53.

109 Ibid., 40.

110 Malinowski, Crime and Custom, 24.

111 Stevenson, A Footnote to History, 13.

112 Ibid., 17, 13.

113 Ibid., 14.

114 Justinian wrote that the mutuum concerns things “we give to a person with the intention of making them his, and on the understanding that not the same things, but others of like kind and quality shall some time be given back” (Institutes, bk 3, title 14, quoted in Lee, R. W., The Elements of Roman Law, 4th ed. [London, 1956], 296Google Scholar). Lee explains that the contract created an obligation for “the transferee (borrower) to make over to the transferor (lender) at the time expressly or impliedly agreed, or at a reasonable time after demand, other money or goods equal in quantity and quality” (290).

115 Malinowski, Crime and Custom, 23; see also his classification of reciprocity as a legal institution, “sanctioned not by a mere psychological motive, but by a definite social machinery of binding force” (55).

116 Stevenson, In the South Seas, 9.

117 Ibid., 12.

118 Stevenson, A Footnote to History, 15–16.

119 Ibid., 17.

120 Stevenson, In the South Seas, 122.

121 Stevenson, Robert Louis, The Works of Robert Louis Stevenson, Tusitala Edition, vol. 20, In the South Seas (London, 1924), 186Google Scholar. Stevenson comments, “Even a [Hawaiian] judge, skilled in the knowledge of the law and upright in its administration, was found insusceptible of those duties and distinctions which appear so natural and come so easy to the European” (186). The “Eight Islands” (Hawaiian) section was left out of both the 1896 (Edinburgh Edition) text of In the South Seas (on which Rennie's 1998 Penguin edition is based) and the first edition as an independent volume (London: Chatto & Windus, 1900); it was included in many twentieth-century editions of Stevenson's collected works. As Stebbings, Chantal demonstrates in The Private Trustee in Victorian England (Cambridge, 2002)Google Scholar, the responsibilities of trusteeship did not always come easily to Europeans and, in fact, became increasingly complex and onerous, and were increasingly perceived as such, in nineteenth-century England.

122 Smith, David H., Entrusted: The Moral Responsibilities of Trusteeship (Bloomington, IN, 1995), 4CrossRefGoogle Scholar.

123 Maine, Ancient Law, 258, 259.

124 Ibid., 255.

125 Robert Louis Stevenson, “Something in It,” in South Sea Tales, 255.

126 Ibid., 256.

127 Ibid.

128 Ibid., 256, 255.

129 Ibid., 256–57.

130 See, e.g., Williams, John, Missionary Enterprises in the South Sea Islands (London, 1840), 18–19Google Scholar.

131 Stevenson, “Something in It,” 257.

132 Stevenson, In the South Seas, 122. Relations of trusteeship are always “triadic,” consisting of settlor or entruster, trustee, and beneficiary. Although this structure is characteristic of all trusts, the missionary's trusteeship in “Something in It” is less like the financial trusts discussed by Stebbings and more like the charitable trusts discussed by Smith, which require the trustee's loyalty to and identification with the founding idea and purpose of the organization (Smith, Entrusted, 5, 9). In “Something in It,” the entrusting organization is the temperance society, the trustee is the missionary, and the beneficiaries are the would-be or struggling temperance adherents. Both the cause of the entrusting organization and the hopes of the beneficiaries have been entrusted to the missionary.

133 On the close relation between promise and contract, and mutual promises, see Sweet, Charles, A Dictionary of English Law (London, 1882), 648Google Scholar.

134 Oxford English Dictionary, 2nd ed., s.v. “pledge.”

135 Stevenson, “Something in It,” 257.

136 Ibid.

137 On Maine's interest in applying the comparative method to problems of Indian administration, see Collini, Winch, and Burrow, “The Clue to the Maze,” 216. On the general importance of comparative legal study for imperial government, see “Statement of the Objects of the Society,” vii. Later, Malinowski advocated a close relation between comparative jurisprudence, legal anthropology, and colonial administration; see his introduction to Hogbin, Law and Order in Polynesia, xviii, xxix.

138 Stevenson expressed his willingness to become British consul (a position of significance under the Berlin Treaty's arrangements for the government of Samoa) and may also have been interested in the position of chief justice (Letters 7:310–11n, 386–87n, 460n).

139 On Maine's career in India, see Lyall, A. C.'s obituary article, “Sir Henry Maine,” Law Quarterly Review 14 (1888): 129–35Google Scholar. According to Lyall, Maine believed that British legislation should not artificially preserve decaying Indian institutions or give fixed form to usages that would naturally evolve over time, nor should it introduce abrupt changes for which the country was not ready. See also Stokes, English Utilitarians, 313, 315.