Frederick William Maitland

VI

Among the operations which belong to that wonderful period of activity which culminated in the History of English Law, two remain to be singled out, the first an enquiry of great delicacy and of crucial importance for the history of legal procedure, the second lying somewhat outside the ordinary sphere of Maitland's investigations but of great moment to the student of parliamentary institutions. We allude to the articles upon the "Register of Original Writs" contributed to the Harvard Law Review in 1889 and to the Memoranda de Parliamento edited for the Rolls Series in 1893.

The Register of the wryttes orygynall and judiciall was first printed by William Rastell in 1531. "In its final form when it gets into print it is an organic book… To ask for its date would be like asking for the date of one of our great cathedrals. In age after age bishop after bishop has left his mark upon the church; in age after age chancellor after chancellor has left his mark upon the Register… To ask for the date of the Register is like asking for the date of English law." Yet this vast and important repertory had never been made the subject of critical examination. No one had examined the principles upon which the printed book was constructed; no one had gone behind the printed book to the manuscripts; no one had traced the life history of the organism, had fixed the chronological sequence of the successive styles in the cathedral. Yet until such critical work had been accomplished the history of the extension of royal justice and of the growth of English legal procedure could not be written in detail. Maitland's treatment of the problem is one of the most beautiful specimens of his workmanship.

He first discovers the principles of classification in the printed book; then turning to the manuscripts – and there are at least nineteen in the Cambridge University Library, over all of which he has cast his eye, – reports that no two manuscripts are alike, but that "gradually by comparing many manuscripts we may be able to form some notion of the order in which and the times at which the various writs became recognised members of the Corpus Brevium." Tests are then laid down by which the age of a Register may be determined, and finally we have "a few remarks about the early history of the Register" which are entirely original and of high importance. The two earliest manuscripts are examined, the MS Register of 1227 in the British Museum with its fifty-six writs, the MS Cambridge Register belonging likewise to the early part of Henry III's reign with its fifty-eight writs; and means are thus supplied for measuring the growth of law during the important period – the period of the Great Charter – which had elapsed between Glanvill's treatise and the third decade of the thirteenth century. Then we are guided through the later and more voluminous manuscripts. We are introduced to a Register with one hundred and twenty-one writs from the middle of the thirteenth century, to an Edwardian Register which contains four hundred and seventy-one writs; we see the writ of trespass taking a permanent place in the Corpus Brevium under Edward II, we trace activity under Edward III and Richard II and then a slackening. By the turn of the fourteenth century the "great cathedral" is practically complete and the Register has assumed a form not substantially different from that which was printed in the reign of Henry VIII.

Maitland's contribution to parliamentary history consisted in the editing of the Parliament Roll for 1305. Of the vivid and picturesque interest of the petitions printed in that volume much might be written, for nowhere else can we gain so full and comprehensive a notion of the miscellaneous transactions and aspirations which came under the purview of a Parliament in the very early stages of its existence. But apart from this the volume is important as furnishing a closer and more accurate view of the evolution of parliament than had previously been obtainable. All readers of Stubbs' Constitutional History are familiar with "the model Parliament of 1295." We are accustomed to think of that date as marking an epoch at which government by a Parliament of Three Estates is definitely secured, and as, in a certain sense, the close of the formative period of parliamentary institutions. It is true that Parliament is not yet divided into Lords and Commons, and that procedure by Bill is in the distant future. Still we have been wont to regard a Parliament as being throughout the fourteenth century a definite well-recognised institution, distinct from the King's Council and implying the presence of representatives from shire and borough. Maitland's preface to the Memoranda de Parliamento showed that such an impression should be modified. Ten years after the Model Parliament practice and nomenclature were still fluid. There was no distinction between Parliament and Council; the word Parliamentum is never found in the nominative; any solemn session of the Kings Council might be termed a Parliament. The business too, transacted at these great inquests, was for the most part administrative and judicial, conducted through the examination and endorsement of petitions. At the beginning of the fourteenth century, despite the exploits of the English Justinian, we were still far from a legislature composed of the Three Estates.

Meanwhile, in a profusion of articles, Maitland was correcting old mistakes and throwing out pregnant suggestions in many departments of legal theory. The principal ideas which are to be found not only in his work upon the History of Law but in his subsequent speculations on Corporateness and Communalism were already in his mind during the early days of work at Downing. In his lectures on Constitutional History, delivered in 1888, he gave a description of English medieval land-tenure which substantially corresponds to the more complete exposition of the History in 1895, and had already hit upon that comparison between the course of feudal land-law in England and Germany, which runs, a brilliant shaft of illumination, through his whole treatment of the subject. In Bracton's explanation that the rector of a parish church is debarred from a writ of right his keen eye had detected, as early as 1891, "the nascent law about corporations aggregate and corporations sole."

He had already begun to apply dissolvent legal tests to "our easy talk of village communities." The English village, he remarked in 1892, "owns no land, and, according to our common law, it is incapable of owning land. It never definitely attained to a juristic personality." The village community of the picturesque easy-going antiquarian, who, fascinated by Maine's beautiful generalisations, was ready to find traces of archaic communism in every quarter, only reminded him of the remark in Scott's Antiquary "Pretorian here Pretorian there I mind the bigging o't." In two weighty articles contributed to the Law Quarterly Review in 1893 upon the subject of Archaic Communities, Maitland pricked some antiquarian bubbles with delicious dexterity and threw out a suggestion that the formula of development should be "neither from communalism to individualism" nor yet "from individualism to communalism" but from "the vague to the definite." In common with Hegel he believed that the world process consisted in the development of the spirit of reason becoming more and more articulate with every fresh discrimination of the intellect.

By amazing industry and a most rigid economy of time Maitland had combined with his professional duties and with the publication of several volumes of unprinted matter the composition of an elaborate treatise upon medieval law. The History of English Law up to the time of Edward I appeared in 1895. The work had been planned in conjunction with Maitland's old friend, Sir Frederick Pollock, was revised in common with him and issued under their joint names; but as Sir Frederick explained in a note appended to the Preface "by far the greater share of the execution" both in respect of the writing and the research belonged to Maitland. The book at once took rank as a classic. In range and quality of knowledge it invited comparison with the monumental achievement of Stubbs; and though it was necessarily of a highly technical character, the style was so easy and lucid that persons previously unversed in the technicalities of medieval, or indeed of modern, law, were able to read it with enjoyment.

The greater portion of the book deals advisedly with a comparatively limited period, – the age which lies between 1154 and 1272. "It is a luminous age throwing light on both past and future. It is an age of good books, the time of Glanvill and Richard FitzNeal, of Bracton and Matthew Paris, an age whose wealth of cartularies, manorial surveys and plea-rolls has of recent years been in part, though only in part, laid open before us in print. Its law is more easily studied than the law of a later time, when no lawyer wrote a treatise, and when the judicial records had grown to so unwieldy a bulk that we can hardly hope that much will ever be known about them. The Year Books – more especially in their present disgraceful plight – must be very dark to us if we cannot go behind them and learn something about the growth of those 'forms of action' which the fourteenth century inherited as the framework of its law. And if the age of Glanvill and Bracton throws light forward, it throws light backward also. Our one hope of interpreting the Leges Henrici, that almost unique memorial of the really feudal stage of legal history, our one hope of coercing Domesday Book to deliver up its hoarded secrets, our one hope of making an Anglo-Saxon land-book mean something definite, seems to lie in an effort to understand the law of the Angevin time as though we ourselves lived in it."

Perhaps the most distinct impression which the reader derives from the study of Maitland's work in the History is that he "seemed to understand the law of the Angevin time as though he himself lived in it." We feel that, if he had been going circuit with Walter Raleigh or William Pateshull, his learned brethren would have had little or nothing to tell him which he did not already know. The case law of the twelfth and thirteenth centuries – so far as it has survived in plea-rolls or chronicles or legal collections – was part of the familiar furniture of his mind. He knew it all and enjoyed it all in every one of its facets human and lawyerly. And with this he combined a remarkable capacity for appreciating the general tone and colour of legal thinking in that remote age. If the thinking was fluid and indistinct, Maitland would not attempt to make it clearer or more consistent than it really was. The vagueness would be analysed and measured. The opaque thought would be exhibited in its fluctuating and conflicting subconscious elements. We are always being reminded of that wise saying in the Fellowship Dissertation, that English political philosophy has suffered by overmuch simplicity.

A mind so exact and disinterested and endowed with so rare a capacity for divesting itself of the intellectual accretions of its own age was naturally full of dissolvents for ambitious theories. Maitland expressed in his Inaugural lecture his high respect for the genius and learning of Henry Maine, and nothing which was then written would have been afterwards retracted. Yet the close study of English medieval law had brought him to the conclusion that some of the generalisations to which Maine seemed disposed to assign a general validity, at least for the Indo-Germanic races, received no adequate support from the English evidence. In a brilliant discussion of the antiquities of inheritance he argues that in the present state of the evidence it would be rash to accept "family ownership," or in other words a strong form of birth-right, as an institution which once prevailed among the English in England. Maine, operating chiefly with Roman law but also drawing upon Teutonic, Slavonic and even Indian evidence, had argued that the primitive unit of society was an agnatic patriarchal group and that the ownership of land was vested in a family or clan constructed on strict agnatic principles and governed by the paterfamilias. Maitland submits the conception of common ownership to analysis. Common ownership implies corporate ownership, and the idea of a corporation is modern, not primitive. Co-ownership indeed there was, but co-ownership spells individualism. If there is a law which declares how shares should be distributed among the members of the group upon partition, then there is a law which assigns ideal shares in the unpartitioned land. There was no proof that anything which ought to be called family-ownership existed among the Anglo-Saxons; there was no proof of the patriarchal gens, of the agnatic group. On the contrary there was a grave difficulty in accepting the patriarchal family as the primitive unit of English society, for the earliest rules about Anglo-Saxon inheritance and the Anglo-Saxon blood-feud exhibit the fact that "the persons who must bear the feud and who may share the weregild are partly related through the father and partly through the mother." Birth-rights indeed there were, but birth-rights do not imply agnation or corporate ownership. In some cases they may even be the consequence of intestate succession. Submitted to concrete tests of this character the evidence for the strict agnatic land-owning group in England became in Maitland's eyes very ghostly23. "In Agnation," wrote Maine, "is to be sought the explanation of that extraordinary rule of English law which prohibited brothers of the half-blood from succeeding to one another's lands." Maitland's solution of "this extraordinary rule" is very different and highly characteristic of his concrete, practical turn of mind. In his opinion it is "neither a very ancient nor a very deep-seated phenomenon." He points out that the problem of dealing with the half-blood must always be difficult, and the solution is always likely to be capricious. "The lawyers of the thirteenth and fourteenth centuries had no definite solution, and we strongly suspect that the rule that was ultimately established had its origin in a few precedents…" "Our rule was one eminently favourable to the King; it gave him escheats; we are not sure that any profounder explanation of it would be true."

In Maitland's hands a treatise upon antiquarian law became something greater than an antiquarian treatise. It became a contribution to the general history of human society. Even the most superficial reader must be struck by the number of foreign books quoted in the footnotes and by the way in which analogues and contrasts from French and German law are brought in to illustrate the course of our legal history. English law became insular; pursued a course of its own. We avoided torture; we escaped the secret and inquisitorial procedure of the continent; we developed the jury; primogeniture became the general rule among us in case of intestacy; the retrait lignager of the French customs did not become established in our land-law. But just for this reason it was the more necessary to understand the main stream of continental development. Many a rule which, if considered from a purely insular standpoint, might seem part of the natural order, would assume its true character of a deviation from the normal, if viewed in the larger context of European law; many features of our law apparently arbitrary would in that larger context receive explanation. Maitland takes care to know that which was known to Glanvill and Bracton; but he does not for that reason neglect Brunner or Gierke, Esmein or Viollet. A piece of continental evidence suggested by the history of the Inquisition points to the reason why in England alone the public trial of primitive Teutonic civilisation survived through the Middle Ages. It survived because the Inquisition was never introduced into this country, and England had no Inquisition because at the critical period it was singularly unfertile in heresy.

"It has generally been apprehended," writes Reeves in the Preface to the First Edition of the History of English Law (1783), "that much light might be thrown on our statutes by the civil history of the times in which they were made; but it will be found on enquiry that these expectations are rarely satisfied." It would be difficult to find in a single sentence a more complete measure of the gulf which separates Pollock and Maitland's History of English Law from the book which it supplanted. Reeves wrote in an unhistorical age and with imperfect materials. "Let us think," wrote Maitland, "what Reeves had at his disposal, what we have at our disposal. He had the Statute Book, the Year Books in a bad and clumsy edition, the old text-books in bad and clumsy editions. He made no use of Domesday Book; he had not the Placitorum Abbreviatio nor Palgrave's Rotuli Curiæ Regis; he had no Parliament rolls, Pipe, Patent, Close, Fine, Hundred Rolls, no proceedings of the King's Council, no early Chancery proceedings, not a cartulary, not a manorial extent nor a manorial roll; he had not Nichol's Britton, nor Pike's nor Harwood's Year Books, nor Stubbs' Select Charters, nor Bigelow's Placita Anglo-Normannica; he had no collection of Anglo-Saxon land-books, only a very faulty collection of Anglo-Saxon dooms, while the early history of law in Normandy was utter darkness." And in addition to this he did not believe that the general history of a people could throw illumination upon its law. It is a sufficient commentary upon such a view to read Maitland's opening paragraph upon the Norman Conquest.