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.