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 obliterate[24]. 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.

In the matter of early English land-holding Maitland put the

individualist case with great cogency. While admitting co-operation

he did not find decisive evidence of common ownership either in town

or country. The village community was not a body that could declare

the law of the tribe or nation. It had no court, no jurisdiction. If

moots were held in it, these would be comparable rather to meetings

of shareholders than to sessions of a tribunal. In short, the

village landowners formed a group of men whose economic affairs were

inextricably intermixed; but this was almost the only principle that

made them a unit, unless and until the state began to use the township

as its organ for the maintenance of the peace and the collection of

the taxes. That is the reason why we read little of the township

in our Anglo-Saxon dooms. Even in the German community there was a

solid core of individualism! It is possible that Maitland overrated

the "automatic" character of early agrarian life; that he argued too

much from the silence of the dooms, that his principal tests were too

predominantly legal; and that more may be said for the older theory

than he was able at that time to discover in _Domesday Book and

Beyond_. But the considerations which he submitted were substantial

considerations, and in any picture which is drawn of the early state of

land-holding in this country room will have to be made for a measure of

individualism, if not equal to that which Maitland claimed, greater at

least than the earlier theory had admitted.

Frederick William Maitland, Downing Professor of the Laws of England A Biographical Sketch · 第 37 / 86 题