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 ghostly[23]. "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.
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.