1. Evans, M.O., Theories and Criticisms of Sir Henry Maine (London: Stevens and Haynes, 1896)Google Scholar at v.

2. Ibid, at v-vi.

3. Cocks, R.C.J., Henry Maine: A Study in Victorian Jurisprudence (Cambridge: Cambridge University Press, 1988)CrossRefGoogle Scholar at 64.

4. Ibid, at 78.

5. K. Kumar, “Maine and the Theory of Progress” in Diamond, A., ed., The Victorian Achievement of Sir Henry Maine: A Centennial Reappraisal (Cambridge: Cambridge University Press, 1991)CrossRefGoogle Scholar at 77.

6. A.D.J. MacFarlane, “Some Contributions of Maine to History and Anthropology” in ibid, at 137.

7. G. Johnson, “India and Henry Maine” in supra note 5 at 382, 385.

8. Burrow, J. W., Evolution and Society: A Study in Victorian Social Theory (London: Cambridge University Press, 1966)Google Scholar at 163.

9. George Feaver in his study of Maine provides immense detail not only with regard to Maine’s work in India and with the India Council when back in England but also his critique of Gladstone’s Irish policy, particularly the Irish Land Act of 1881, and a series of other political engagements. With regard to both Maine and James Fitzjames Stephen, the author of the aggressively antidemocratic Liberty, Fraternity and Equality, he states: “Upon returning from India they shared the view that there was little to commend the domestic politics of either the Liberals or Conservatives.” Quoted in Feaver, G., From Status to Contract; A Biography of Sir Henry Maine 1822–1888 (London: Longmans, 1969)Google Scholar at 196. He tells an interesting story regarding Maine’s flirtation with, but ultimate decision against, standing as the Tory candidate for the Cambridge Member of Parliament in 1882. “It is,” Feaver writes, “probable that a distaste for partisan politics was an important factor in his decision not to stand. At the time of the general elections of 1885, he reputedly told a friend who inquired after his political affiliation that if there was an ideal Toryism he would probably be a Tory, but since in his estimation, modern party politics entailed a compromising of principles, he preferred not to be stigmatized by a party label.” Ibid, at 177. This, of course, was uttered by a man who spent so much time in the law and government of India and wrote so many political missives in the journals of his day.

10. Supra note 5 at 80.

11. S. Collini, “Democracy and Excitement: Maine’s Political Pessimism” in supra note 5 at 94.

12. Supra note 9 at 257.

13. Supra note 3 at 99.

14. SirDuff, M.E. Grant, Sir Henry Maine: A Brief Memoir of His Life (New York: Harper & Row, 1969)Google Scholar at 69–73.

15. Ibid, at 69.

16. Ibid, at 68–69.

17. Supra note 9 at 11, 15.

18. Ibid, at 125 on Grant Duff interceding on Maine’s behalf for the K.C.S.l.

19. See H. Grotius, The Rights of War and Peace (1625).

20. SirLauterpacht, H., Private Law Sources and Analogies of International Law, With Special Reference to International Arbitration (Hamden, CN: Archon Books, 1970).Google Scholar

21. See Hartigan, R.S., ed., Lieber’s Code and the Law of War (Chicago, IL: Precedent, 1983)Google Scholar containing General Orders no. 100. On Lieber, see Freidel, F., Francis Lieber: Nineteenth-Century Liberal (Baton Rouge, LA: Louisiana State University Press, 1947).Google Scholar

22. SirMaine, H.S., International Law: A Series of Lectures Delivered Before the University of Cambridge, 1887 (New York: H. Holt, 1888)Google Scholar at 1.

23. On the growth of the Anglo-American peace movement, see Phelps, C., The Anglo-American Peace Movement in the Mid-Nineteenth Century (New York: Columbia University Press, 1930).Google Scholar

24. Supra note II at 93.

25. Collini, S., Public Moralists: Political Thought and Intellectual Life in Britain, 1850–1930 (Oxford: Clarendon Press, 1991)Google Scholar at 17.

26. Ibid. at 21.

27. Ibid, at 18.

28. In trying to envision the figure of Maine before his Cambridge audience, I am drawn to David Kennedy’s effort to describe Hans Kelsen’s Holmes Lectures on international law in 1941 as a job talk in which Kelsen had to decide among his various areas of specialty which would be the most appropriate. Kennedy goes on to bring us into the lecture for the six evenings of Kelsen’s lecture series—“while we wait for the crowd to settle”—and suggests what the expectations of the crowd might be. D. Kennedy, “Symposium: The Internationa) Style in Postwar Law and Policy” (1994) Utah L. Rev. 7 at 30.

29. J.F. McLennan, Primitive Marriage: An Inquiry into the Origin of the Form of Captivity in Marriage Ceremonies (1865) and Morgan, L.H., Ancient Society or Researches in the Lines of Human Progress from Savagery, Through Barbarism to Civilization (New York: H. Holt, 1877).Google Scholar

30. Graham, W., English Political Philosophy from Hobbes to Maine (New York: B. Franklin, 1899)Google Scholar at 352.

31. Ibid, at 415.

32. Collini wonderfully describes him as a “terrible political hypochondriac.” Supra note 11 at 94.

33. R.C.J. Cocks tells us that “[a]ll the articles which made up Popular Government were read before publication by Fitzjames Stephen.” Supra note 3 at 140.

34. Stephen, J.F., Liberty, Equality, Fraternity, and Three Brief Essays, 2d ed. (Indianapolis, IN: Liberty Fund, 1993)Google Scholar at 9.

35. SirMaine, H.S., Popular Government; Four Essays (London: J. Murray, 1885)Google Scholar at 29.

36. Ibid, at 34–35.

37. Ibid, at 133.

38. Ibid. at 175–76.

39. Supra note 3 at 87.

40. Stokes, E., The English Utilitarians and India (Oxford: Clarendon Press, 1959).Google Scholar

41. Supra note 3 at 87–88.

42. C. Dewey, “The Influence of Sir Henry Maine on Agrarian Policy in India” in supra note 5 at 355.

43. Ibid, at 357.

44. Supra note 3 at 46.

45. Supra note 9 at 174–75.

46. See SirMaine, H.S., Ancient Law (London: J. Murray, 1870)Google Scholar at 88.

47. Ibid, at 89.

48. Ibid, at 90.

49. Ibid, at 93.

50. Ibid, at 96.

51. Ibid.

52. Ibid.

53. Ibid, at 96–97.

54. Ibid, at 100.

55. Ibid, at 103.

56. Ibid.

57. SirMaine, H.S., Village-Communities in the East and West: With Other Lectures, Addresses, and Essays (New York: Arno Press, 1974)Google Scholar at 351.

58. Ibid, at 352.

59. Ibid, at 353.

60. Ibid, at 352.

61. Wheaton, H., Elements of International Law (Oxford: Clarendon Press, 1936).Google Scholar

62. Abdy, J.T., ed., Kent’s Commentary on International Law, 2d ed. (Buffalo, NY: W.S. Hein, 2001).Google Scholar

63. Sir T. Twiss, Law of Nations Considered as Independent Political Communities: On the Rights and Duties of Nations in Time of Peace, 2d ed. (1884).

64. On the standard historical trope of the discipline, see C. Landauer, “J.L. Brierly and The Modernization of International Law” (1993) 25 Vanderbilt J. Transnt’l L. 881 at 884.

65. Supra note 22 at 1.

66. Ibid.

67. Ibid, at 1–2.

68. Ibid, at 2.

69. Ibid, at 13.

70. Ibid, at 13–14.

71. Ibid, at 14.

72. Ibid, at 52.

73. Ibid.

74. Ibid.

75. Ibid.

76. Ibid, at 14.

77. Ibid, at 53.

78. Ibid.

79. Ibid, at 3.

80. Ibid. at 4.

81. Ibid, at 5.

82. Ibid, at 6.

83. Ibid, at 7.

84. Hinsley, F.H., Power and the Pursuit of Peace: Theory and Practice in the History of Relations between States (Cambridge: Cambridge University Press, 1963)Google Scholar at 114.

85. Burn, W.L., The Age of Equipoise: A Study of the Mid-Victorian Generation (New York: W.W. Norton, 1965).Google Scholar

86. Ibid, at 55.

87. Ibid, at 56.

88. Koskenniemi, M., The Gentle Civilizer of Nations: The Rise and Fall of International Law 1870–1960 (Cambridge: Cambridge University Press, 2001)CrossRefGoogle Scholar at 35.

89. Ibid. at 36, quoting Maine in International Law, supra note 22 at 128–29.

90. Hall, W.E., A Treatise on International Law, 5th ed. (Oxford: Clarendon Press, 1904)Google Scholar from preface to 3rd ed. at viii.

91. Ibid, at ix.

92. Ibid. at x.

93. Ibid. at 1. It is, of course, fascinating that to see the treatise style with its obsessional formalism appears two decades later when Coleman Phillipson opens his Termination of Law and Treaties of Peace in 1916 with dry typology: “There are three ways of terminating hostilities between belligerent States, namely….” Phillipson, C., Termination of War and Treaties of Peace (London: Fischer Un win, 1916).Google Scholar

94. Supra note 22 at 45.

95. Ibid, at 5.

96. Ibid.

97. Ibid, at 7.

98. Ibid.

99. Koskenniemi explains that the Chichele Chair at Oxford was founded in 1859 and the Whewell Chair at Cambridge in 1866. James Lorimer held a chair in the Law of Nature and of Nations at Edinburgh, and Travers Twiss held the Regius Professorship of Civil Law at Oxford from 1855 to 1870. See Koskenniemi, supra note 88 at 33. In addition, Leone Levi was Professor of International Law in London during the 1870s and 1880s. See Hinsley, supra note 84 at 137.

100. Seeley, J.R., The Expansion of England (Chicago, IL: University of Chicago Press, 1971)Google Scholar. See, e.g., the discussion of Seeley’s The Expansion of England in Faber, R., The Vision and the Need: Late Victorian Imperialist Aims (London: Faber and Faber, 1966)Google Scholar at 93–95.

101. Supra note 22 at 8.

102. Ibid.

103. Maine begins his attack on Rousseau in the preface to Popular Government, where he states that the “true source” of benevolent state-of-nature theories “has never been forgotten on the Continent of Europe, where they are well known to have sprung from the teaching of Jean-Jacques Rousseau, who believed that men emerged from primitive natural condition by a process which made the very form of government, except Democracy, illegitimate.” Supra note 35 at vii. Rousseau is a constant foil for Maine. In fact, Cocks describes his ongoing antagonism to Rousseau: “If there was any man for whose ideas he had unequivocal hatred it was Rousseau…” Supra note 3 at 73. In 1929, Robert Murray observed that “Rousseauism is so baneful to Maine that he persists in thinking that ‘the theory of natural law is still the greatest enemy of the historical method’. Murray, R.H., Studies in the English Social and Political Thinkers of the Nineteenth Century, Vol. 2 (Cambridge: Cambridge University Press, 1929)Google Scholar at 64.

104. Supra note 22 at 8.

105. Ibid.

106. Ibid.

107. Ibid.

108. Ibid, at 9.

109. Ibid.

110. Ibid.

111. Ibid, at 10.

112. Ibid.

113. Ibid, at 11.

114. Ibid.

115. Ibid.

116. Ibid.

117. Maine, “The Effects of Observation of India on Modern European Thought” in supra note 57 at 238.

118. Raymond Cocks states that of Maine of the 1870s “we know that at this time Maine was interested in Max Muller’s more recent work with comparative philology, E.B. Tylor’s studies in anthropology, William Stubbs’ historical writings and Andrew Lang’s treatment of mythology.” Supra note 3 at 101. In this context, it is interesting to note that Lang returns the favor and spends a number of pages in his chapter on “The Early History of the Family” in Custom and Myth on Maine’s views on kinship. Lang, A., Custom and Myth (New York: Harper & Brothers, 1885)Google Scholar at 245–69.

119. Supra note 22 at 11.

120. Ibid, at 11–12.

121. Supra note 46 at 276.

122. Supra note 22 at 13.

123. Ibid.

124. Ibid.

125. Ibid.

126. Tylor, E.B., Primitive Culture, Vol. 2 (New York: Harper, 1958)Google Scholar at 535.

127. SirMaine, H.S., Lectures on the Early History of Institutions (New York: H. Holt, 1875)Google Scholar at 275.

128. Supra note 22 at 14.

129. Ibid, at 16.

130. Ibid.

131. Ibid.

132. Ibid, at 17.

133. Ibid, at 18–19.

134. Ibid, at 19.

135. “The book of Grotius was making itself felt, and the successors of Grotius assure us that it was his authority which deterred the French king and the French generals from the threatened outrage.” Ibid, at 23.

136. Ibid, at 24.

137. Ibid, at 19.

138. Supra note 46 at 26.

139. Ibid, at 25.

140. Supra note 3 at 78.

141. Supra note 46 at 24.

142. P.G. Stein, “Maine and Legal Education” in supra note 5 at 207.

143. Supra note 57 at 332.

144. Supra note II at 93.

145. Supra note 35 at 97.

146. “At the very point—status to contract—which has been most explored by the later, scholarly, readers of Ancient Law, we find that Maine himself is primarily concerned not with detailed academic analysis but rather with the relationship between his legal ideas and the thoughts of the informed non-specialist reader.” Supra note 3 at 62.

147. In his discussion of the importance of periodicals to British political writing, Stefan Collini notes that Mill’s Utilitarianism, Bagehot’s English Constitution, Arnold’s Culture and Anarchy, Fitzjames Stephen’s Liberty, Equality, Fraternity and Maine’s Popular Government each began five different periodicals, Fraser’s Magazine, Fortnightly Review, Cornhill Magazine, Pall Mall Gazette, and Quarterly Review. See Collini, supra note 25 at 51.

148. Supra note 9 at 211–26.

149. Supra note 22 at 13.

150. Supra note 61 at xiii.

151. Supra note 22 at 52.

152. Supra note 57 at 349.

153. Supra note 22 at 21.

154. Supra note 46 at 112.

155. Supra note 22 at 55.

156. Ibid, at 26.

157. Ibid, at 93.

158. Ibid. at 113.

159. Ibid, at 141.

160. Ibid.

161. Ibid.

162. Ibid, at 222.

163. Ibid, at 223–24.

164. On the importance of these developments, see Hinsley, supra note 84 at 114–49.

165. Supra note 22 at 226.

166. Ibid, at 24.

167. Ibid, at 130.

168. Ibid, at 129.

169. Ibid, at 128.

170. Ibid, at 142.

171. Ibid. at 31.

172. Ibid. at 29.

173. Ibid, at 29–30.

174. It is significant that of the figures of F.H. Hinsley’s study of the European pursuit of peace, the major figures are, with some overlap, almost an entirely different set of names than the standard pantheon of international legal thought.

175. Supra note 22 at 51.

176. Koskenniemi, M., From Apology to Utopia: The Structure of International Legal Argument (Helsinki, Fin.: Finnish Lawyers’ Publishing Company, 1989).Google Scholar

177. Supra note 20 at 51.

178. Supra note 22 at 52.

179. Grewe begins his chapter on “Positivism in International Law” by stating: “The first half of the nineteenth century saw the collapse of the particular foundation of law that was displayed in the comprehensive systems of natural law that had been constructed during the Age of Rationalism.” Grewe, W.G., The Epochs of International Law, rev. ed., trans. Byers, M. (New York: Walter de Gruyter, 2000)CrossRefGoogle Scholar at 503.

180. Ibid, at 504.

181. Ibid, at 506.

182. Ibid, at 507.

183. Ibid, at 510, quoting Maine from International Law, supra note 22 at 32.

184. Supra note 22 at 45.

185. Ibid.

186. Quoted in ibid.

187. Ibid, at 46.

188. Ibid, at 47.

189. Ibid, at 49.

190. Ibid, at 49–50.

191. Ibid, at 50.

192. A. Anghie, “Finding the Peripheries: Sovereignty and Colonialism in Nineteenth-Century International Law” (1999) 40:1 Harv. Int’l. L. Rev. 1 at 22.

193. Ibid, at 2.

194. Supra note 22 at 58.

195. Ibid

196. Supra note 8.

197. Bagehot, W., Physics and Politics, Or Thoughts on the Application of the Principles of “Natural Selection” and “Inheritance” to Political Society (Boston, MA: Beacon Press, 1956).Google Scholar

198. Ibid at 26.

199. Ibid at 115.

200. Ibid, at 134.

201. Ibid. at 135.

202. Ibid, at 161.

203. Supra note 103 at 65.

204. Supra note 35 at 68.

205. Ibid. at 69.

206. Ibid. at 71.

207. Ibid. at 67–68.

208. Ibid, at 37.

209. Maine talks explicitly of “the infirmities of our Constitution in its decay.” Ibid. at 240.

210. Ibid, at 97–98.

211. Ibid.

212. Supra note 25 at 272.

213. Ibid, at 273, 275.

214. In Private Lives, Public Spirit, Jose Harris remarks: “Many promoters of the ‘new democracy’, from Gladstone and Bright in the 1860s through to Sidney Webb and Ramsay MacDonald in the 1900s, shared the view of older-style politicians that the character of the state was intrinsically bound up with the character of its citizens.” Harris, J., Private Lives, Public Spirit: A Social History of Britain, 18701914 (Oxford: Oxford University Press, 1993)Google Scholar at 180. Character is also the core theme of Sandra M. Den Otter’s study of British idealism. See Otter, S.M. Den, British Idealism and Social Explanation: A Study in Late Victorian Thought (Oxford: Clarendon Press, 1996).CrossRefGoogle Scholar

215. Supra note 11 at 89.

216. Supra note 46 at 348.

217. Ibid, at 354.

218. Ibid, at 347.

219. Ibid, at 366.

220. Supra note 25 at 98.

221. Supra note 22 at 51.

222. Ibid.

223. Supra note 46 at 350–53.

224. Ibid, at 353.

225. Supra note 22 at 8.

226. Ibid.

227. Supra note 25 at 272.

228. Supra note 8 at 263.

229. Interestingly, Frederick Smith’s International Law, which initially appeared in 1899 in the Dent’s Primer Series, devotes about two-thirds of the 1918 edition edited by Coleman Phillipson to the law of war, but as Phillipson writes in the preface to the fifth edition, the volume was enlarged “having regard to the number of prodigious events vitally effecting the doctrines of International Law which have happened since August, 1914.” Smith, F., International Law, 5th ed. by Phillipson, C. (London: Dent, 1918)Google Scholar at 8.

230. Supra note 22 at 176.

231. Ibid, at 123.

232. Ibid.

233. Ibid.

234. Ibid, at 125.

235. Ibid, at 177.

236. Ibid.

237. Ibid, at 182.

238. Ibid.

239. Ibid.

240. In this context, it is interesting that John Westlake publishing his Chapters on the Principles of International Law in 1894, a work of similar size to Maine’s lectures, Westlake devotes a chapter to “The Empire of India,” which he describes in his preface as “an attempt to make the British position in India scientifically intelligible.” Westlake, J., Chapters on the Principles of International Law (Cambridge: Cambridge University Press, 1894)Google Scholar at xiv.

241. Supra note 9 at 39.

242. Supra note 8 at 263.

243. Supra note 22 at 14.