Meanwhile Maitland had been recalled from London to his old University.
The reading which had been "very dear to him" when he took the first
plunge into London work, had become dearer in proportion as the
opportunities for indulging in it became more restricted. He was
earning an income at the bar which, though not large, was adequate to
his needs, but a barrister's income is uncertain and Maitland may have
felt that while he had no assured prospect of improving his position
at the bar, the life of a successful barrister, if ever success were
to come to him, would entail an intellectual sacrifice which he was
not prepared to face. Accordingly in 1883 he offered himself for a
Readership in English Law in the University of Oxford, but without
success. A distinguished Oxford man happened to be in the field and
the choice of the electors fell, not unnaturally, upon the home-bred
scholar. But meanwhile a movement was on foot in the University of
Cambridge to found a Readership in English Law. In a Report upon the
needs of the University issued in June, 1883, the General Board of
Studies had included in an appendix a statement from the Board of Legal
Studies urging that two additional teachers in English Law should be
established as assistants to the Downing Professor. Nothing however
was done and the execution of the project might have been indefinitely
postponed but for the generosity of Professor Henry Sidgwick, who
offered to pay £300 a year from his own stipend for four years if a
Readership could be established. Sidgwick's action was clearly dictated
by a general view of the educational needs of the University, but
he had never lost sight of his old pupil and no doubt realised that
Maitland was available and that he was not unlikely to be elected. The
Senate accepted the generous offer, the Readership was established, and
on November 24, 1884, Maitland was elected to be Reader of English Law
in the University of Cambridge. In the Lent term of 1885 he gave his
first course of lectures on the English Law of Contracts.
Cambridge offered opportunities for study such as Maitland had not yet
enjoyed. A little volume on Justice and Police, contributed to the
English Citizen series and designed to interest the general reading
public, came out in 1885, and affords good evidence of Maitland's
firm grasp of the Statute book and of his easy command of historical
perspective. But this book, excellent as it is, did not represent the
deeper and more original side of Maitland's activity any more than an
admirable series of lectures upon Constitutional History which were
greatly appreciated by undergraduate audiences but never published
in his lifetime. The Reader in English Law was by no means satisfied
with providing excellent lectures covering the whole field of English
Constitutional history, though he had much that was fresh and true
to say about the Statutes of the eighteenth century and about the
degree to which the theories of Blackstone were applicable to modern
conditions, and though he drew a picture for his undergraduate audience
which in some important respects was closer to fact than Walter
Bagehot's famous sketch of the English Constitution published while
Maitland was an Eton boy. Text book and Lectures were but interludes in
the main operations of the campaign against the unconquered fastnesses
of medieval law. First came a remarkable series of articles contributed
to the _Law Quarterly Review_ upon the medieval doctrine of seisin
which Maitland's sure insight had discerned to be the central feature
in the land law of the Norman and Angevin period: and then in 1887
Bracton's Note Book.
"Twice in the history of England has an Englishman had the motive, the
courage, the power to write a great readable reasonable book about
English Law as a whole." The task which William Blackstone achieved in
the middle of the eighteenth century, Henry de Bratton, a judge of the
King's Court, accomplished in the reign of Henry III. His elaborate but
uncompleted treatise _De Legibus et Consuetudinibus Angliæ_, composed
in the period which lies between the legal reforms of Henry II. and
the great outburst of Edwardian legislation, while the Common law of
England was still plastic and baronage and people were claiming from
the King a stricter observance of the great Charter, is naturally
the most important single authority for our medieval legal history.
Though influenced by the categories and scientific spirit of Roman
Law, Henry de Bratton was essentially English, essentially practical.
His book was based upon the case law of his own age--_Et sciendum est
quod materia est facta et casus qui quotidie emergunt et eveniunt in
regno Angliæ_--and especially upon the plea-rolls of two contemporary
judges, Walter Raleigh and William Pateshull. An edition in six volumes
executed for the Rolls Series by Sir Travers Twiss had been completed
in 1883, the year before Maitland paid his first visit to the Record
Office and discovered the plea-rolls of the County of Gloucester; but
the text was faulty and far from creditable to English scholarship.
On July 19, 1884, Professor Vinogradoff, "who in a few weeks" wrote
Maitland, "learned, as it seems to me, more about Bracton's text than
any Englishman has known since Selden died," published a letter in the
_Athenæum_ drawing attention to a manuscript in the British Museum,
which contained "a careful and copious collection of cases" for the
first twenty-four years of Henry III., a collection valuable in any
case, since many of the rolls from which it was copied have long since
been lost, but deriving an additional and peculiar importance from the
probability that it was compiled for Bracton's use, annotated by his
own hand and employed as the groundwork of his treatise. Yet, even if
the connection with Bracton could not be established, a manuscript
containing no fewer than two thousand cases from the period between
1217 and 1240 was too precious a discovery to be neglected. Here was a
mass of first-hand material, valuable alike for the genealogist, the
lawyer, the student of social history:--glimpses of archaic usage,
of local custom, evidence of the spread of primogeniture, important
decisions affecting the status of the free man who held villein lands,
records of villein service, vivid little fragments of family story,
some of it tragic, some of it squalid, as well as passages of general
historical interest, entries concerning "the partition and therefore
the destruction of the Palatinate of Chester" or the reversal of the
outlawing of Hubert de Burgh the great justiciar who at one time "held
the kingdom of England in his hand."
The Note Book was edited by Maitland in three substantial volumes and
with the lavish care of an enthusiast. An elaborate argument, all
the more cogent because it is not overstrained, raised Vinogradoff's
hypothesis to the level of practical certainty. "The treatise is
absolutely unique; the Note Book so far as we know is unique; these two
unique books seem to have been put together within a very few years
of each other, while yet the Statute of Merton was _nova gracia_;
Bracton's choice of authorities is peculiar, distinctive; the compiler
of the Note Book made a very similar choice; he had, for instance,
just six consecutive rolls of pleas _coram rege_; Bracton had just the
same six; two-fifths of Bracton's five hundred cases are in this book;
every tenth case in this book is cited by Bracton; some of Bracton's
most out of the way arguments are found in the margin of this book ...
the same phrases appear in the same contexts.... Corbyn's case, Ralph
Arundell's case are 'noted up' in the Note Book; they are 'noted up'
also in the Digby MS of the treatise; with hardly an exception all the
cases thus 'noted up' seem plainly to belong to Bracton's county....
Lastly we find a strangely intimate agreement in error; the history of
the ordinance about special bastardy and the 'Nolumus' of Merton is
confused and perverted in the two books. Must we not say then that,
until evidence be produced on the other side, Bracton is entitled to
a judgment, a possessory judgment?" The penultimate argument in the
pleading was characteristic of Maitland's ingenuity and also of a
favourite pastime. He describes an imaginary walking tour through Devon
and Cornwall and points out that ten cases noted up in the margin of
the Note Book refer to persons and places which must have been well
known to Bracton. "Many questions are solved by walking. _Beati omnes
qui ambulant._"
The appearance of the Note Book showed that Cambridge possessed a
scholar who could edit a big medieval text with as sure a touch as
Stubbs, and the book received a warm welcome from those who were
entitled to judge of its merits. It had been a costly book to prepare
and it was brought out at Maitland's own charges. In the introduction
he took occasion to point out that in other countries important
national records were apt to be published by national enterprise; and
that in England the wealth of unpublished records was exceptional. "We
have been embarrassed by our riches, our untold riches. The nation put
its hand to the work and turned back faint-hearted. Foreigners print
their records; we, it must be supposed, have too many records to be
worth printing; so there they lie, these invaluable materials for the
history of the English people, unread, unknown, almost untouched save
by the makers of pedigrees." As an advertisement of these unknown
treasures no more fortunate selection could have been made than this
manuscript note book which could with so high a degree of probability
be associated with the famous name of Bracton. But Maitland was not
content with urging that the publication of our unknown legal records
should not be left to depend upon the chance enthusiasm of isolated
scholars; he demanded, as things necessary to the progress of his
subject, a sound text of Bracton's treatise and a history of English
Law from the thirteenth century.
In 1888 there was by reason of the death of Dr Birkbeck a vacancy
in the Downing Chair of the Laws of England. Maitland stood and was
elected. His Inaugural Lecture delivered in the Arts School on 13th
October, 1888, was entitled, "Why the History of Law is not written."
The reason was not a lack of material; on the contrary England
possessed a series of records which "for continuity, catholicity,
minute detail and authoritative value has--I believe that we may safely
say it--no equal, no rival in the world," nor yet the difficulty
of treating the material, for owing to the early centralization of
justice, English history possessed a wonderful unity. Rather it was
"the traditional isolation of English Law from every other study"
and the fact that practising lawyers are required to know a little
medieval law not as it was in the middle ages, but as interpreted by
modern courts to suit modern facts. "A mixture of legal dogma and
legal history is in general an unsatisfactory compound. I do not say
that there are not judgments and text books which have achieved the
difficult task of combining the results of deep historical research
with luminous and accurate exposition of existing law--neither
confounding the dogma nor perverting the history; but the task is
difficult. The lawyer must be orthodox otherwise he is no lawyer; an
orthodox history seems to me a contradiction in terms. If this truth is
hidden from us by current phrases about 'historical methods of legal
study,' that is another reason why the history of our law is unwritten.
If we try to make history the handmaid of dogma she will soon cease to
be history."
Maitland concluded with an appeal for workers in an untilled field, but
with characteristic veracity held out no illusory hopes. "Perhaps,"
he wrote, "our imaginary student is not he that should come, not the
great man for the great book. To be frank with him this is probable;
great historians are at least as rare as great lawyers. But short of
the very greatest work, there is good work to be done of many sorts
and kinds, large provinces to be reclaimed from the waste, to be
settled and cultivated for the use of man. Let him at least know that
within a quarter of a mile of the chambers in which he sits lies the
most glorious store of material for legal history that has ever been
collected in one place and it is free to all like the air and the
sunlight. At least he can copy, at least he can arrange, digest, make
serviceable. Not a very splendid occupation and we cannot promise him
much money or much fame.... He may find his reward in the work itself:
one cannot promise him even that; but the work ought to be done and the
great man when he comes may fling a footnote of gratitude to those who
have smoothed his way, who have saved his eyes and his time."
[Illustration: stock or marketable securities which undoubtedly are not
the same things as the land and trade marks.'
Now it may occur to you that in their anxiety to avoid a confusion
of the persons our courts fall into the opposite of error and divide
the substance. But that is not so. The old things still exist and are
owned, though new things 'transferable in the books of the company'
have come into being. Also it seems possible that we may easily
over-estimate the creative]
[Illustration: powers of lawyers and courts and legislators. Let us
remember that these new things will be things for the man of business,
things for the Stock Exchange. And in passing let us ask ourselves
whether if these 'things' are not unreal, the personality of the
company must needs be fictitious?
_Fragment of a Lecture_]
As yet Maitland had not conceived himself as the author of that
"History of English Law from the thirteenth century," the need for
which he proclaimed to his Cambridge audience. A less extensive scheme
had framed itself in his mind "some thoughts about a plan of campaign
for the History of the Manor." The thoughts were communicated to
Frederick Pollock and were not unfruitful, for they grew up seven years
later into that massive _History of English Law_ which is perhaps
Maitland's most enduring title to fame; but of his learned projects in
this seed-time and of some other concerns, grave and gay, a few scraps
of correspondence may here most fittingly be adduced in evidence.