Frederick William Maitland
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The state of English law in the twelfth century cannot be explained unless we look beyond the strict legal sphere. Explanations which seemed adequate even to the great Stubbs – the action of race upon race, the fusion of law with law, the analogy of a river formed by two streams, of a chemical compound formed of two elements – do not satisfy Maitland. The process was far more complex. It was affected by influences which had nothing whatever to do with the law of Normandy or with the law of England before the Conquest, by the rebellion of the Norman feudatories, by the characters of certain great men, by the strong political centralization, even by so accidental a fact as that the Conqueror had three sons instead of one. Economic, political, personal forces must all be reckoned up in the account.
While the pages of the History were passing through the press, two other works had been planned and were already partially accomplished. In his edition of the Note Book Maitland had proclaimed the necessity for a new edition of Bracton, an edition based not upon inferior manuscripts but upon the best manuscripts, and accompanied by an adequate critical apparatus. Such a task would demand many years of painful toil and Maitland had more pressing calls upon his energies. Nevertheless he regarded it as important to arrive at a definite conclusion with regard to one fundamental question respecting his favourite author. What was the precise extent and character of Bracton's indebtedness to Roman Law? Sir Henry Maine in his famous lectures upon Ancient Law, published in 1860, went so far as to assert that Bracton "put off on his countrymen as a compendium of pure English law a treatise of which the entire form and two thirds of the contents was directly borrowed from the Corpus Juris." But the amount of matter which Bracton directly borrowed from the Corpus Juris was comparatively insignificant, "not a thirteenth part of the book"; the Devonshire justice went for his Roman law not to the original springs but to a famous Italian doctor. Dr Carl Guterbock established the fact that large portions of Bracton's De Legibus were derived from the works of Azo, a Bolognese Jurist who flourished at the end of the twelfth and at the beginning of the thirteenth century, and whose fame endured throughout the Middle Ages. But what was the precise measure of Bracton's obligation to "the master of all the masters of the laws"? It was Maitland's opinion that the debt might easily be overstated. In order that the matter might be thoroughly cleared up he planned a volume for the Selden Society which should exhibit in parallel columns the text of the Bolognese Summa and the corresponding portions of Bracton. From this he drew three conclusions, that Bracton's obligations to Roman Jurisprudence were small in extent, that Bracton was an indifferent Romanist, and thirdly that Bracton only borrowed from Roman law when he had no English cases to cite. Bracton was, in fact, a thorough Englishman. Like everyone else in the Middle Ages he regarded Roman law as a source of authority to which recourse should be had when the stock of home-bred law ran out, but it was improbable that he had ever received a University training in the Leges and it is certain that he was far more comfortable with his English writs and his English plea-rolls than with the elegant refinements of the Code or the Digest.
"Bracton and Azo" did more than define the "Romanesque" quality of the great treatise; it was a brilliant contribution to the scholarly edition of the future. The best manuscript (Bodl. Digby 222) was minutely described, four others carefully collated, and fifteen in all examined. One of the features of the Digby manuscript, which, though not a perfect copy of the autograph, appeared to Maitland on many grounds to be the best approach to the autograph to which research had attained, was the presence of a large mass of additional matter written in the margins. Now these marginalia were not glosses but additions to the text and additions possessing a peculiar value from the fact that they came from Bracton himself. "If the annotator was not Bracton he had just Bracton's interests and just Bracton's style." In later manuscripts some or all of this supplementary matter is received into the text but "too often at inappropriate places." Accordingly the future editor of the Treatise will be obliged to pay special heed to these "addiciones"; and, to smooth a path which will be none too easy, Maitland made a list of more than a hundred and fifty passages in the printed text of 1869 which in the Digby manuscript stand in the margin. Such labour occupying but a few pages of Appendix looks but a small thing on paper, and is too technical to interest the general reader: but scholars will measure the devotion which it implies; and the future edition of the De Legibus will be based on the results of Maitland's unsparing toil among the Bracton manuscripts in London and Oxford, Cheltenham and Eton.
VII
In the summer vacation of 1895 Maitland wrote as follows to his friend, Mr R. L. Poole, the editor of the English Historical Review:
"I have been thinking of asking you to let me have a talk about Domesday. I have a great deal of stuff written. Some of it Round has forestalled, as I knew he would. At one time it was to have gone into the book that Pollock and I published. Then I did not wish to collide with Round and now I know that Vinogradoff is again at work, and there are many economic and social questions which I would rather leave to him. So I have not and shall not have enough that is new to make a book. On the other hand I have a few legal theories that I should like to put before the public in one form or another. What do you think? Would the E. H. R. bear a little Domesday – two or three articles? However I will stand out of Frederick Pollock's way if he has anything to say, so when you have ascertained his intentions will you tell me whether you would take some papers from me. I would begin with some talk about Round's work of which I think very highly. I hope that you will say first what you think; in no case shall I be disappointed."
The publication of the Domesday Inquest was begun in 1783 and completed in 1816 and in the whole range of English history there is no authority alike so crucial in importance and so difficult of interpretation. Of the value of this unique statistical record compiled from the returns of local jurors twenty years after the Norman Conquest there has never been any dispute. Long before the text was published it was the subject of antiquarian monographs and the established base of local histories and genealogical enquiries. Transcripts of parts of Domesday were scattered up and down the country in public and private collections, and its fame was spread by the testimony of John Selden, who pronounced that, so far as he knew, it was by several centuries the oldest official record extant in autograph in the whole Christian world. The enterprise of the Record Commission made the record accessible to the student, and a popular Introduction to Domesday, written by Sir Henry Ellis in 1833, provided a pleasant quarry for the general historian whose soul was not vexed by the fundamental problems of Anglo-Norman society and finance.
But the survey was not understood. Even Freeman, who devoted to it a whole chapter in the fifth volume of the Norman Conquest, did not attack the central difficulties. He was a political historian, and appreciated the political interest of the record; but this is not the main interest. The survey owes its chief importance to the fact that it exhibits the social, economic and legal condition of the English people twenty years after the shock of the Norman Conquest.
Light gradually broke in from the labours of the specialist, from Eyton and Hamilton and above all from Mr Horace Round, who, in two brilliant papers composed for the Domesday Commemoration of 1888, cleared up some of the crucial questions connected with Domesday measures and Domesday finance. But perhaps the most exciting contribution proceeded from a book which was neither the work of a professed specialist nor yet a Domesday monograph. Mr Seebohm's English Village Community appeared in 1876 and gave English readers for the first time a luminous account of that system of medieval husbandry which the enclosures of the eighteenth century did not entirely avail to obliterate24. Alike in its methods and conclusions the English Village Community was an epoch-making book. Reversing the ordinary chronological procedure and arguing from comparatively recent periods, where evidence is abundant, past the cartularies and extents of the twelfth and thirteenth centuries, past Domesday to the twilight of the Saxon land-books and the darker regions beyond, Mr Seebohm arrived at the conclusion that the English village community was the outgrowth of the Roman vill and that whatever might have been the case in other regions of national life there was no breach in the continuity of agrarian history. A bold challenge was flung against the tradition accepted by a line of distinguished scholars from Kemble and Von Maurer to Freeman and Stubbs. The English village community was the offspring, not of a community of Teuton freemen, but of a system moulded by the Latin genius and rooted in slavery. The influence of Roman Britain was not so insignificant after all, nor was the completeness of the Teutonic Conquest so complete. In the most fundamental part of her economic and social texture England was indebted not to Germany but to Rome. The battle between the Germanists and the Romanists brought into clearer relief the importance of Domesday studies. Questions of Domesday nomenclature – the meaning for instance of the Domesday hide – acquired a new relevance, and might turn the scale in grave issues. A large hide of a hundred and twenty acres would naturally imply an early society of free peasant proprietors, a small hide of thirty acres might, on the contrary, be fitted into the Romanist hypothesis. Domesday was the key to the position. Properly interpreted, it would not only explain the influence of the Conquest, but throw light upon the Anglo-Saxon land-system and the obscure problem of agrarian origins. Mr Round's further contributions to the understanding of the Record, which were published in Feudal England in 1895, were recognised as having a bearing upon the largest problems of English history.
It was left to Sir Frederick Pollock to appraise Mr Round's work in the pages of the English Historical Review. Maitland's researches, which were pushed to a conclusion with astonishing rapidity, appeared in 1896 in a volume entitled Domesday Book and Beyond – Three Essays in the Early History of England. The first essay was called "Domesday Book," the second "England before the Conquest," the third "The Hide." The title was chosen to indicate the fact that Maitland had followed the retrogressive method from the known to the unknown which Mr Seebohm had pursued with such admirable effect. "Domesday Book appears to me not as the known but as the knowable. The Beyond is still very dark: but the way to it lies through the Norman record. The result is given to us; the problem is to find cause and process."
Identity of method, however, did not imply identical conclusions. Eight years before Maitland had revised the sheets of a remarkable study of Villainage in England, by Paul Vinogradoff, the conclusions of which were decidedly adverse to the Romanist hypothesis of servile origins; but whereas Vinogradoff had confined himself to the analysis of agrarian conditions as revealed by the post-Domesday evidence, Maitland made his assault upon the mysterious fortress of the great survey itself. "That in some sort I have been endeavouring to answer Mr Seebohm, I cannot conceal from myself or from others. A hearty admiration of his English Village Community is one main source of this book. That the task of disputing his conclusions might have fallen to stronger hands than mine I well know. I had hoped that by this time Professor Vinogradoff's Villainage in England would have had a sequel. When that sequel comes (and may it come soon) my provisional answer can be forgotten."
All scientific work is in a sense provisional, and Domesday Book and Beyond contains some theories which we believe that Maitland would have subsequently revised. But whether it be regarded as a model of acute and substantial investigation, or weighed by the mass of its contributions to the permanent fabric of historical understanding and knowledge, it will assuredly rank among the classical monographs of historical science. Maitland did not profess to cover the whole field of economic and social development. He approached the history of the eleventh century mainly as a lawyer anxious to analyse the legal conceptions of that age, and fully conscious of the extreme difficulty and delicacy of his task. "The grown man," he remarks, "will find it easier to think the thoughts of the schoolboy than to think the thoughts of the baby. And yet the doctrine that our remote forefathers being simple folk had simple law dies hard. Too often we allow ourselves to suppose that, could we but get back to the beginning, we should find that all was intelligible and should then be able to watch the process whereby simple ideas were smothered under subtleties and technicalities. But it is not so. Simplicity is the outcome of technical subtlety; it is the goal not the starting-point. As we go backwards the familiar outlines become blurred; the ideas become fluid, and instead of the simple we find the indefinite… We must not be in a hurry to get to the beginning of the long history of law. Very slowly we are making our way towards it. The history of law must be a history of ideas. It must represent not merely what people have done and said, but what men have thought in bygone ages. The task of reconstructing ancient ideas is hazardous and can only be accomplished little by little. In particular there lies a besetting danger for us in the barbarian's use of a language which is too good for his thought. Mistakes then are easy, and when committed they will be fatal and fundamental mistakes. If for example we introduce the persona ficta too soon, we shall be doing worse than if we armed Hengest and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press; we shall have built upon a crumbling foundation." The main argument of the book was directed against the view that the English manorial system was the outcome of the Roman villa. The English language, the names of our English villages, were sufficient to rebut the hypothesis that the bulk of the agricultural population was of Celtic blood descended from the slaves or coloni of Roman times. Romanism would give no rational explanation of the state of things revealed by the Domesday survey in the northern and eastern counties. Nor would it explain seignorial justice. It was shown that at the time of the survey England was still incompletely manorialised, that the Domesday manors varied indefinitely in size and type, that some had freeholders, some not, that in some there were courts, in others none, and that no general proposition respecting either jurisdictional rights or agrarian continuity would apply to them universally. That the manors of Domesday were mainly tilled by villeins who in a certain sense were unfree, was doubtless true, but there was evidence to show that the position of the agricultural class had deteriorated during the period which elapsed between the Conquest and the survey, and many calamities natural or fiscal, a murrain, a hailstorm, a levy of Danegeld, a judicial fine, might be enumerated to account for a gradual decline in the status of the rural population during the Saxon age.
Evidence from an entirely different quarter supported the main conclusion. Far back at the beginning of the eighth century Bede had spoken of the hide as the normal holding of the English householder. By a train of very subtle and elaborate calculations Maitland came to the conclusion that the hide of which Bede spoke and to which Domesday testifies contained 120 arable acres, – a tenement too large for any serf or semi-servile colonus and therefore precluding the idea that the manorial system was dominant in England in very early Saxon times. How then did the system arise? Maitland advanced an ingenious hypothesis, admitting, "that nothing which could be called a strict proof could be offered" – that the word manerium as used by the Domesday commissioners possessed a technical sense. Domesday was a fiscal inquest; the object of the commissioners was the collection of geld; geld is collected from persons who live in houses and the word manerium means a house. For the fiscal purpose of these Norman officials manerium meant "the house at which geld is charged." The lord, in other words, was made responsible to the state for the payment of geld from his demesne land and the land of his villeins, and was bound to take measures to see that the tax was paid by such freemen and socmen as might be attached to his manor. The theory was not of course intended to provide a solution for the main problem. It suggested an answer to the question "What is the technical meaning attached to the word manerium in Domesday?" it revealed one of the possible forces which may have contributed to manorial dependence: but it did not explain or pretend to explain either the forces which made for the subjection of the peasantry to seignorial justice or the peculiar system of ownership and cultivation which was distinctive of the manor.
The problem was no doubt mainly economic, but it possessed its legal aspect. A brilliant analysis of Anglo-Saxon diplomata, which could hardly have been accomplished save by a practised lawyer, revealed the fact that the Anglo-Saxon kings had been freely alienating public powers, fiscal and jurisdictional, to churches and private persons. The Saxon land-book does not transfer land, but superiorities over land. It may be true that the gift has all the appearance of being unconditional, "granted as a reward for past services, not as a condition for the performance of future services"; but the contrast between the deeds of the Saxon and Norman period is one rather of form than of substance. Every Saxon grant of "immunities" reserves the "trinoda necessitas," that fundamental military obligation which lay upon every freeman, and if that service was not performed the land was forfeit to the king. Then again land-loans were not uncommon, and land-loans and land-gifts shaded imperceptibly into one another. All the lineaments of the feudal land system are already visible in the later Anglo-Saxon period. The feudal formula of dependent tenure is known; the exercise of jurisdictional rights by private persons is a familiar fact; in places one could even see, "a four-storied feudal edifice." No large historical transformation is matter for unqualified regret. Feudalism was a necessary stage in the education and development of the barbarian world. "There are indeed historians who have not yet abandoned the habit of speaking of feudalism as though it were a disease of the body politic. Now the word feudalism is and always will be an inexact term, and, no doubt, at various times and places there emerge phenomena which may with great propriety be called feudal, and which come of evil and make for evil. But if we use the term, and often we do, in a very wide sense, then feudalism will appear to us as a natural and even a necessary stage in our history. If we use the term in this wide sense, then (the barbarian conquests being given to us as an unalterable fact) feudalism means civilisation, the separation of employment, a division of labour, the possibility of national defence, the possibility of art, science, literature and learned leisure; the cathedral, the scriptorium, the library are as truly the work of feudalism as is the baronial castle."
One of the inevitable consequences of the process was a confusion in legal ideas. Distinctions which in the classical Roman law were clearly drawn became obliterated in the Middle Ages. Ownership and sovereignty, rents and taxes, public and private rights, became blended together in one large, hazy, undistinguished concept. Even the contrast between freedom and unfreedom which appears to the modern mind so elementary and so logical did not fit the intricate economic facts of the eleventh century. Of freedom there were many grades and many criteria. In one sense the villein was free, in another sense unfree, as a combination of forces fiscal, economic, penal were assimilating the rural population free and servile to the hybrid type. "Freedom is measured along several different scales. At one time it is to the power of alienation or withdrawal that attention is attracted, at another to the number and kind of services and 'customs' that the man must render to his lord." The closer the facts of Domesday were scrutinised the more impossible did it appear to arrive at exact definitions.
Maitland's subtle powers of analysis were never shown to better advantage than in this attempt to rethink "the common thoughts of our forefathers, their common thoughts about common things." We doubt whether any historian had ever set himself down so seriously to get inside the medieval mind. The pompous phraseology in the early diplomata does not deceive him, for he knows that the romanesque terms neither express the thoughts nor represent the facts of a barbarian age. Large phrases confidently used by modern historians, such as "property" or "joint liability," must be closely scrutinised before they can be applied to a remote age; property is a bundle of rights, and with every advance in economic progress, in material aspirations, in intellectual definition, rights and powers multiply, the conception of dominium becomes more intensive, fuller of content and discriminations. There is no fixed immutable limit to the implications of such a concept. The Saxon chieftain learnt the extent of his powers in the process of alienating them to the Church, as some African chieftain tempted by gin and rifles may acquire a knowledge that land is not made for sheep alone, but may also yield gold and diamonds. But as the barbarian is vague, so also he is for all his materialism an idealist. "He sees things not as they are but as they might conveniently be. Every householder has a hide; every hide has 120 acres of arable; every hide is worth one pound a year; every householder has a team; every team is of eight oxen; every team is worth one pound. If all this be not so, then it ought to be so, and must be deemed to be so. Then by a Procrustean system he packs the complex and irregular facts into his scheme!" It is no light enterprise to understand the puzzled and inadequate thought which lies at the basis of our social history; Maitland believed that the reward was worthy of the effort.
It appeared to Maitland that one of the obstacles to an exact understanding of the past was the general acceptance of the idea that a normal programme could be laid down for the human race. Even if there were sufficient evidence to show that each independent portion of the human race must move through a fated series of changes, it remained a fact that the rapidly progressive groups had not been independent. "Our Anglo-Saxon ancestors did not arrive at the alphabet or at the Nicene Creed by traversing a long series of 'stages'; they leapt to the one and to the other." And again the complexity and interdependence of human affairs render it impossible to hope for scientific laws which will formulate a sequence of stages in any one province of men's activity. Consequently it was unwise to fill up the blanks that occurred in the history of one nation by institutions and processes which had been observed in another quarter. Even if it were proved that the Roman gens was a close agnatic group, and that the house community was the primitive unit of Roman society, we should not "force our reluctant forefathers through agnatic gentes and house communities." In particular we were not entitled to assume without further enquiry that the early English village community owned land.
Such criticisms, implying as they did that the Roman evidence had been accredited with a wider relevance than it did or could possess, were calculated to abate the more sanguine claims alike of comparative jurisprudence and of anthropology. In a subsequent paper contributed to the Eranus Club Maitland recurred to his central thesis, that the experience of the progressive nations was interdependent and unique, and incapable, for that very reason, of affording a basis for an inductive science of politics. It is among the many refreshing qualities of Maitland's work that while he is always close to his facts he is never out of the atmosphere of large and animating ideas.