The year which brought Maitland to Downing witnessed the appearance
of a new volume from his pen entitled _Select Pleas of the Crown
1200-1255_. It was a handsome quarto, bound in dark blue cloth, and the
first publication of a Society called after the name of John Selden.
The Selden Society, planned in the autumn of 1886 and founded in the
following year "to encourage the study and advance the knowledge of
English law," was the creature of Maitland's enthusiasm, and of all his
achievements stood nearest to his heart. Indeed, without disparagement
to accomplished help-mates and contributors, it may be said that
without Maitland's genius, learning and devotion the Selden Society
would have been unthinkable. Eight of the twenty-one volumes issued by
the Society during his lifetime came from his pen; a ninth was almost
completed at his death. "Of the rest every sheet passed under his
supervision either in manuscript or in proof, and often in both[18]."
He set the standard, planned the programme, trained many of the
contributors. It is difficult to recall an instance in the annals of
English scholarship in which so large an undertaking has owed so much
to the diligence and genius of a single man.
Both in conception and execution it is a noble series of volumes.
Maitland's interest in law was not bounded by a province, a period, or
a country; and the thirteen good and lawful men who on November 24,
1886, signed the letter from which the Selden Society sprang did not
make their appeal to the Bar and Bench of England in the cause of any
narrow or pedantic antiquarian curiosity. The Common law of England
ruled two vast continents, and was the concern of Americans, Canadians,
and Australians as well as of Englishmen and Irishmen. Its history
had never been written; few of the materials for its exploration had
been given to the world. There was no scientific grammar or glossary
of the Anglo-French language; there was no accurate dictionary of law
terms; a great province, that of Anglo-Saxon law, had fallen into the
occupation of the Germans. A short account of some of the principal
classes of Records which might be dealt with by the Society was
appended to the first two volumes and exhibited a prospect of great
breadth, richness and variety. The state of the Criminal law in early
times might be shown from the Eyre rolls and Assize rolls. The records
of the Court of the Exchequer and the Court of Chancery, the Privy
Council Registers, the proceedings before the Star chamber, the Court
of Requests and the Court of Augmentations would illustrate the history
of royal justice in its different sides and in different ages, in
the formative period of legal and parliamentary growth, in the dreary
turmoil of Lancastrian anarchy, under the vigorous despotism of the
Tudors and in the dust of the great conflict which led to the Civil
War. Then there were the records of the Courts Christian, of the Courts
of the Forest and the Manor, records illustrating the history of the
Palatine jurisdictions, the franchises of the Lords Marchers of Wales,
the Court of the Staple in London and Calais, the Court of Castle
Chamber in Dublin. Borough customs would throw light on one quarter of
history; records of the Stanneries of Devon and Cornwall upon another.
The origins of mercantile and international law might be explored; and
closer knowledge could be obtained of many important State trials by
a systematic account of the contents of the _Baga de Secretis_. The
Society held out the further hope of scientific contributions to the
knowledge of the Anglo-Saxon law and Anglo-French language of the Year
Books.
In the selection of specimens from this copious material, Maitland
displayed a felicitous strategy the aim of which was to exhibit,
as rapidly as might be, the range and versatility of the Society's
operations. A sequence of volumes illustrating any one department
of law would fatigue attention, warn off subscribers and fail to
make the desired impression on the general historical public. It was
better to begin upon several different types of record than to work
one vein without intermission; better for the cause of science, and a
course more likely to bring forward good contributors as well as to
stimulate public interest in the undertaking. With a general editor
less perfectly equipped such a scheme might have been hazardous; but
Maitland was master of the whole field and could be trusted not to
fail in proportion and perspective. In swift succession the members of
the Selden Society received volumes illustrating Pleas of the Crown,
Pleas of Manorial Courts, Civil Pleas, manorial formularies, the Leet
jurisdiction of Norwich, Admiralty Pleas; then an edition of the
_Mirror of Justice_ followed by a volume on _Bracton and Azo_. Of these
first eight volumes Maitland wrote four and contributed a brilliant
introduction to a fifth--the edition of the _Mirror_, executed by his
pupil and friend Mr W. J. Whittaker. It was an astonishing performance;
even had the work been spread over twelve years of robust energy it
would still have been astonishing. It was accomplished in half that
time by a busy, delicate, University Professor who apart from statutory
Professorial lectures was simultaneously engaged in writing the
classical _History of English Law_.
Much might be said by qualified persons as to the exquisite technique
displayed in Maitland's contributions to the Selden Society. He spared
no pains in the examination and collation of manuscripts, and although
he modestly disdained expert paleographical knowledge, he need not,
we imagine, fear comparison with the most accurate transcribers of
medieval documents, or with those who have achieved a special renown
for their studies in "diplomatic" or in the affiliation of manuscripts.
He possessed other qualities which are not often combined with such a
passion and gift for minute scholarship. In the first place he was
exceedingly anxious to make his work practically useful and to ease
the path for students whose tastes might lead them to attempt similar
explorations. He takes the reader into his laboratory and exhibits
the whole process of discovery, showing where the difficulties lie,
pointing out hopeful lines of enquiry, and providing always a clear
chart to the documents, published and unpublished, of his subject.
Secondly he combined in an extraordinary measure the gift for
hypothesis with the quality of patience. He did not aim at providing
sensational or curious results;--"the editor," he writes in the
introduction to the first Selden volume, "has not conceived it his
duty to hunt for curiosities, the history of law is not a history of
curiosities"--he wished for plain truth--to discover the course of
medieval justice in all its natural and instructive monotony, in its
common forms and in its everyday working garb. "It has been necessary,"
he writes, referring to his selection of manorial pleas, "to print
some matter which in itself is dull and monotonous; a book full of
curiosities would be a very unfair representative of what went on in
the local courts. We cannot form a true notion of them unless we know
how they did their ordinary work, and this we cannot know until we
have mastered their common forms." Such a scheme no doubt involves
repetition, but there is at least one student of English history
who, despite some acquaintance with histories and chronicles, never
understood the everyday working of medieval life until he had the good
fortune to dive into the publications of the Selden Society.
A saying used to be attributed to E. A. Freeman to the effect that it
is impossible to write history from manuscripts; and it is obvious that
a man who uses manuscript authority to any great extent, especially if
he imposes upon himself great labours of transcription, will run the
risk of losing his perspective and will be inclined to attach undue
importance to those parts of his evidence which have cost him most
sacrifice to obtain. On the other hand it is clear that the editor
of historical manuscripts will do his work much better if he is also
an historian; and this is specially true if he is called upon to
pick and choose out of a vast repository of unedited material those
specimens which are most likely to promote the advance of scientific
knowledge. Maitland brought to the task of editing legal records an
exact and comprehensive knowledge of the various problems, each in its
proper order of importance, towards the solution of which his material
might be expected to contribute. Like a skilful advocate examining
a string of reluctant witnesses he had in his mind a provisional
scheme of the whole transaction to quicken and define his curiosity.
"These rolls," he writes, "are taciturn, they do not easily yield up
their testimony, but must be examined and cross-examined." It was a
close, seductive, patient cross-examination, one in which a little
matter would often suggest an important conclusion, as where it is
shown that the rapid development of the Common law in the thirteenth
century is mirrored on the surface of the plea-rolls, which become
fuller, more regular and more mechanical as the century goes on. And
this cross-examination being conducted with great subtlety, vividness
and penetration resulted in substantial discoveries. Each volume
contributed new thought as well as new facts. The preface to _Select
Pleas of the Crown_ traced the gradual differentiation of the several
branches of the Royal Court in the early part of the thirteenth century
and embodied valuable conclusions "drawn from a superficial perusal
of all the rolls of John's reign" as to the state of criminal justice
and criminal procedure at that epoch. The Introduction to the _Select
Pleas of Manorial Courts_ was even more important, giving as it did for
the first time an account of the stages in the decline of the English
private courts and supplying an analysis, subtler than any which had
yet been attempted, of the legal connotation of the term "manerium"
and of the composition of the manorial courts. One suggestion was
startling in its originality. The orthodox theory, contained in the
works of Coke, had laid it down that a Court Baron could not be
held without at least two freeholders. Maitland came upon the whole
to the conclusion--though he is careful to state countervailing
arguments--that originally no distinction was made between the
freeholders and customary tenants. Both classes attended the Manorial
Court and both classes gave judgment. Distinctions, however, did come
to be drawn, and this by reason of a force the operation of which had
escaped the notice of enquirers who had not been trained to attend
to legal phenomena--by the force of legal procedure. "New modes of
procedure are emphasising distinctions which have heretofore been
less felt. The freehold suitors can maintain their position[19], the
customary suitors become mere presenters and jurymen with the lord's
steward as their judge. Every extension of royal justice at the expense
of feudal does some immediate harm to the villein. It is just because
all other people can sue for their lands and their goods in the King's
own Court that he seems so utterly defenceless against the lord: 'the
custom of the manor' looks so like 'the will of the lord' just because
the humblest freeholder has something much better than the custom of
the manor to rely upon, for he has the assizes of our lord the King,
the Statutes of King and Parliament."
The third volume edited by Maitland for the Selden Society consisted
of two parts--a collection of Precedences for use in seignorial and
other local courts belonging to the thirteenth and early part of the
fourteenth century, and Select Pleas from the Bishop of Ely's Court
at Littleport. Here there was less matter for elaborate historical
disquisition, for the main problem with regard to the first class
of document was to settle the age of the manuscripts; but the brief
introduction to the Littleport pleas contained an important suggestion
with regard to the early history of the English law of Contract.
Were not the local courts enforcing "formless" arguments long before
the King's Court had developed the action of "assumpsit" for the
enforcement of agreements not under seal? The reader is reminded that
the King's Court never by any formal act or declaration took upon
itself to enforce the whole law of the land, that only by degrees
did its "catalogue of the forms of action become the one standard of
English law." There was an action for defamation in the local courts
long before the Kings Court had undertaken to punish the slanderer;
and what was true of defamation might equally be true of "parol"
agreements. The Bishop's Court at Littleport was certainly enforcing
agreements and it was difficult to suppose that the villeins of
Littleport put their contracts into writing. Here again a few slight
indications had prompted a secure and far-reaching inference.
In the _Institutes_ of the learned but uncritical Coke there are many
tales drawn from a curious Anglo-French treatise entitled the _Mirror
of Justices_, "a very ancient and learned treatise of the laws and
usages of this kingdom," opined Sir Edward, "whereby the Common-wealth
of our nation was governed about eleven hundred years past." For a long
time the book was accepted at Coke's high valuation with no little
injury to the sober study of legal antiquities. Then it was exposed as
apocryphal by Sir Francis Palgrave. It could not be taken as evidence
"concerning the early jurisprudence of Anglo-Saxon England." But could
it be taken as evidence of anything at all? _Wahrheit und Dichtung_
was Vinogradoff's verdict,--sediments of truth floating in a sea of
absurdity. It was worth while at least to establish the text and to
examine the credentials of a treatise which, like the pseudo-Ingulph,
had done much harm to sound learning.
One reassuring result was obtained from Mr Whittaker's critical enquiry
into the manuscript. The _Mirror_ was never in the middle ages a
popular or influential book. It existed in a single unique manuscript.
Such authority as it obtained was conferred upon it by lawyers who
lived some three hundred years after it was written, were "greedy
of old tales and not too critical of the source from which they were
derived." Still, in a book so full of concrete positive statement,
so full of denunciation of practical abuses, there might for all its
rubble of absurdity be a quarry for historians.
In a brilliant piece of persiflage Maitland once and for all demolishes
the author of the _Mirror_. He exposes his wilful lies, his unctuous
piety, the perverse originality which amuses itself by playing havoc
among technical terms, his absence of all lawyerly interest, his
perplexing and fantastic inconsistencies. A most ingenious hypothesis
is advanced to explain the source of this curious piece of apocryphal
literature. "In order to discover the date of its composition we ask
what statutes are, and what are not, noticed in it, and we are thus
led to the years between 1285 and 1290. Then we see that its main and
ever-recurring theme is a denunciation of 'false judges,' and we call
to mind the shameful events of 1289. The truth was bad enough; no doubt
it was made far worse by suspicions and rumours. Wherever English men
met they were talking of 'false judges' and the punishment that awaited
them. All confidence in the official oracles of the law had vanished.
Any man's word about the law might be believed if he spoke in the tones
of a prophet or apostle. Was not there an opening here for a fanciful
young man ambitious of literary fame? Was not this an occasion for a
squib, a skit, a topical medley, a 'variety entertainment,' blended
of truth and falsehood, in which Bracton's staid jurisprudence should
be mingled with freaks and crotchets and myths and marvels, and
decorated with queer tags of out-of-the-way learning picked up in the
consistories?" No doubt, as Maitland admitted, this was guess-work;
the certainty was that no statement not elsewhere warranted could be
accepted from the _Mirror_ unless we were prepared to believe "that an
Englishman called Nolling was indicted for a sacrifice to Mahomet."