hat a Will--in the sense of a secret and
revocable disposition of property only taking effect after the death
of the testator--is a conception unknown to early law, and that it
makes its first appearance as a means of transmitting the exercise of
domestic sovereignty, the transfer of the property being only a
subsidiary feature; wills only being permitted, in early times, in
cases where there was likely to be a failure of proper heirs. The
subsequent popularity of wills, and the indulgence with which the law
came to regard them, were due to a desire to correct the rigidity of
the Patria Potestas, as reflected in the law of intestate succession,
by giving free scope to natural affection. In other words, the
conception of relationship as reckoned only through males, and as
resting on the continuance of the children within their father's
power, gave way, through the instrumentality of the will, to the more
modern and more natural conception of relationship.

In the chapter on Property Maine again shows that the theory of its
origin in occupancy is too individualistic and that not separate
ownership but joint ownership is the really archaic institution. The
father was in some sense (we must avoid importing modern terms) the
trustee of the joint property of the family. Here Maine makes an
excursion into the fields of the Early Village Community, and has,
too, to look elsewhere than to Rome, where the village community had
already been transformed by coalescence into the city-state. He
therefore seeks his examples from India and points to the Indian
village as an example of the expansion of the family into a larger
group of co-proprietors, larger but still bearing traces of its origin
to the patriarchal power. And, to quote his own words, "the most
important passage in the history of Private Property is its gradual
separation from the co-ownership of kinsmen." The chapter on Contract,
although it contains some of Maine's most suggestive writing, and the
chapter on Delict and Crime, have a less direct bearing on his main
thesis except in so far as they go to show that the reason why there
is so little in early law of what we call civil, as distinct from
criminal, law, and in particular of the Law of Contract, is to be
found in the fact that, in the infancy of society, the Law of Persons,
and with it the law of civil rights, is merged in the common
subjection to Paternal Power.

Such, putting it in the simplest possible langu