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FREDERIC WILLIAM nuitlanò

"In an age of great historians I

think that Maitland was the greatest."
SIR W I L L I A M HOLDSWORTH

"Maitland is one of the immortals."

SIR MAURICE POWICKE
UNIVERSITY OF CALIFORNIA PRESS
BERKELEY AND LOS ANGELES-1960
rmitlanò
FREDERIC WILLIAM

HISTORIAN

selections from his writings

edited, with an introduction
ly ROBERT LIVINGSTON SCHUYLER
 UNIVERSITY OF CALIFORNIA PRESS
BERKELEY AND LOS ANGELES, CALIFORNIA
CAMBRIDGE UNIVERSITY PRESS
LONDON, ENGLAND
© 1 9 6 0 BY THE RECENTS OF THE
UNIVERSITY OF CALIFORNIA
LIBRARY OF CONGRESS CATALOG CARD NUMBER: 60-9650
DESIGNED BY HARRY MARKS
PRINTED IN THE UNITED STATES OF AMERICA
 Preface

A word should be said about the general editorial

principles followed in compiling this collection of
writings by Frederic William Maitland. Because the
book is intended for students of history and of
historical method rather than for the Maitland spe-
cialist, the original footnotes, with two or three
exceptions, have been omitted. In choosing and
editing the selections themselves, I have tried to
follow a policy of rigid selectivity, restricting myself
to those passages that seem best to illustrate what
needs to be said of Maitland as a historian. This has
meant that severe excisions had occasionally to be
made—sometimes only a sentence or two, sometimes
a couple of paragraphs, sometimes ten or a dozen
pages in one fell swoop—if the book were to be kept
within reasonable compass. In order to prevent the
pages from being riddled with the resulting ellipses,
these have not been indicated except where they
occur at the beginning or in the middle of para-
graphs. A reader who wishes to turn to the orig-
vi Preface

inals should for the most part have no difficulty in

readily spotting what has been dropped and what
has been retained.
Except for changing single quotation marks to
double, no attempt has been made to standardize
or to make uniform the variety of styles of punctua-
tion or spelling of the originals. It is hoped that
readers accustomed to shifting from British to Amer-
ican sources will not find this unduly disturbing.
In preparing the introduction to these selections,
I have drawn heavily on an address on Maitland en-
titled "The Historical Spirit Incarnate," which I
gave at the annual meeting of the American His-
torical Association in 1951.
Thanks are due the original publishers of these
Maitland writings, the sources of which are more
specifically identified in the prefatory notes at the
heads of the several chapters.
R. L. S.
 Contents

Introduction 1
I Historical-Mindedness 46
II The Meanings of Words 81
III Historical Imagination 106
IV Textual Criticism 118
V Why the History of English Law
Was Not Written 132
VI Interpretation of Anglo-Saxon Land
Books and Charters 145
VII Ownership in Old English
Communities 173
VIII The Suitors of the County Court 188
IX In Defense of Bracton and
Refutation of Sir Henry Maine 198
X The Mirror of Justices 204
XI The Year Books and Their Origin 231
XII Statesmanship in an "&c." 252
 Introduction

During Maitland's lifetime he came to be generally

regarded by those best qualified to judge his work as
the greatest historian English law had ever known,
and in the half century that has passed since his
death his stature as a legal historian has not dimin-
ished. His writing, however, was not confined to the
field of legal history. Whatever its subject, it is per-
meated with a spirit that is the essence of the his-
torical mind. He has a message for everyone who is
interested in history, whether professionally or not
and no matter in what branch of history or in what
particular subjects. His own interests and the char-
acter of his historical materials were such that he
was often led to offer opinions on questions to which
final answers could not be given, though in doing
so he was, characteristically, not opinionated. It is
not surprising that some of his views have been dis-
puted by other scholars, in his own day and since.
But his writings retain their power to stimulate and
2 Introduction
inspire, even where later investigations, not a few
of them stemming from ideas which he himself
threw out, have made it necessary to qualify opinions
that he advanced. What a distinguished historian
of our day, Sir Frank Stenton, has said about one of
his books could be said equally well of others, that
"the vitality of Maitland's writing, the acuteness of
his mind and above all the interest which he could
impart to the austerest of technical problems, have
made Domesday Book and Beyond a source of in-
spiration which is hardly affected by changes of
opinion about its subject-matter." The extent and
variety of his historical output seem the more re-
markable in view of the brevity of his career as a
professional historian—it lasted little more than
twenty years—and the fact that much of his time
and energy during that short period was consumed
in the performance of academic duties. In a bibliog-
raphy compiled by one of his warm admirers and
published soon after his death (A. L. Smith, Fred-
eric 'William Maitland: Two Lectures and a Bibliog-
raphy) there are listed more than one hundred
thirty items, including the books he wrote, the
volumes of legal records and other source materials
he edited, with introductions which in many cases
amount to historical treatises, articles he contributed
to various journals, and some of his book reviews.
Maitland was a lawyer, and he is generally thought
of, and rightly so, as primarily a historian of English
law. But law was not the earliest of his intellectual
 Introduction 3
pursuits. His habits of thought were not formed in
the discipline of legal study, which, as law has been
taught and learned, has not been calculated to de-
velop a historical mind. He gave evidence of his-
torical interests before he became a lawyer, and it
would be a mistake to think of him as essentially a
lawyer who just happened to become interested in
the history of his subject. He was, rather, what his
friend and collaborator Sir Frederick Pollock called
him, "a man with a genius for history, who turned
its light upon law because law, being his profes-
sion, came naturally into the field." One of Mait-
land's students at Cambridge was George Macaulay
Trevelyan, who was to become perhaps the most
popular historian of his day in England. He has told
us that Maitland used medieval law as a tool to
"open . . . the mind of medieval man and to re-
veal the nature and growth of his institutions." Mait-
land was a potential historian who became tempo-
rarily, and not very willingly it would seem, a
practicing lawyer.

Maitland was born in London on May 28, 1850,

and died at Las Palmas in the Canary Islands on
December 19, 1906. He was the only son, and the
youngest in a family of three children, of John
Gorham and Emma (Daniell) Maitland. His
mother died in 1851, his father in 1863, and he and
his sisters were brought up by an aunt, his mother's
sister. He came of distinguished forebears; his father
4 Introduction
and both his grandfathers appear in that British hall
of fame, the Dictionary of National Biography. His
father, a fellow of Trinity College, Cambridge, be-
came a lawyer but left legal practice for the civil
service. His maternal grandfather, John Frederic
Daniell, was a fellow of the Royal Society and pro-
fessor of natural science at King's College, London.
More should be said about his paternal grandfather,
who undoubtedly had very considerable influence
upon his historical thought and methods.
Samuel Roffey Maitland, like his son and grand-
son after him, was a student at Trinity College,
Cambridge, was called to the bar, and did not
remain long in legal practice. But unlike them, he
took holy orders and became Librarian to the Arch-
bishop of Canterbury at Lambeth Palace, London,
a position which has been held by several famous
historians, William Stubbs and John Richard Green
among them. He retired to his small estate in
Gloucestershire, where he studied and wrote history
and where his grandson as a boy visited him from
time to time. At his death, in 1866, this property
passed to Frederic William, who came to be known
in the county as "Squire Maitland."
The principal writings of the elder Maitland, like
those of his grandson, are in the field of medieval
history, and there are striking resemblances between
the two as historians. Both show a strong historical
sense, a strong feeling for the general cultural con-
text in which medieval institutions were embedded
 Introduction 5
and a keen awareness of differences between it and
the cultural milieu of their own times, and both are
therefore repelled by anachronism. Both are dis-
tinctly critical in handling historical evidence and
therefore skeptical in their attitude toward historical
traditions. Neither is content to stop short of the
most reliable original sources available for historical
knowledge. In a preface to a volume entitled The
Dark Ages Samuel Roffey Maitland speaks well of
medieval monasticism, but its merits in its own day
were not, to his mind, a valid reason for reviving the
monastic system in nineteenth-century England, as
had recently been proposed. He did not believe that
the medieval monastic system could be revived. "It
seems to me," he writes, "that we can no more re-
vive the Monastic System than the Feudal System.
We cannot recall the days of ancient republicanism,
or medieval chivalry. . . ." The attempt to do so
would be as anachronistic as if "the Duke of Well-
ington should go down to the house [of lords] in
complete armour, or if Julius Caesar should tread
the stage in afield-marshal'suniform." The past in
the present and the present in the past were equally
anachronistic and therefore equally distasteful to
him. The elder Maitland lived long before the term
"historical relativism" had been coined, but in his
historical outlook he was a thorough relativist. He
perceived clearly that the institutions of the past
could be understood only when viewed in their con-
text, and he knew also that a nineteenth-century
6 Introduction
man, even a historian, could not become absolutely
and consistently medieval.
A letter of Maitland's, written to one of his sis-
ters in 1891, shows his appreciation of his grand-
father's critical method in testing historical evidence:

Judging him merely as I should judge any other

literary man, I think him great. It seems to me that
he did what was wanted just at the moment when it
was wanted and so has a distinct place in the history
of history in England. The Facts and Documents1 is
the book that I admire most. . . . One has still to do
for legal history something of the work which S. R. M.
did for ecclesiastical history—to teach men, e.g., that
some statement about the thirteenth century does not
become the truer because it has been constantly re-
peated, that "a chain of testimony" is never stronger
than its first link. It is the "method" that I admire
in S. R. M. more even than the style or the matter
—the application to remote events of those canons
of evidence which we should all use about affairs of
the present day. . . ?

At Eton, which he entered in 1863, young Fred-

eric did not distinguish himself in study or in play.
He was not attracted to the classics, Greek as it was
taught seems to have been actually repulsive to him,
and history was not then a recognized study in the
1 Facts and Documents illustrative of the History, Doctrine,
and Rites of the ancient Albigenses Ó Waldenses. By the Rev.
S. R. Maitland, London, 1832.
2 H. A. L. Fisher, Frederic William Maitland: A Bio-
graphical Sketch, Cambridge, 1910, pp. 2-3.
 Introduction 7
English "public schools." In 1869 he followed his
father and grandfather to Trinity College, where
his earliest interests—athletics, music, and mathe-
matics—had no obvious relation to what was to be-
come his lifework. Before long, however, he came
under the influence of the celebrated Cambridge
philosopher Henry Sidgwick, a man of many in-
terests, with results important for his intellectual
growth; he later called Sidgwick "one of the acutest,
profoundest and most influential thinkers of our
time." He read widely in various branches of phi-
losophy, won a scholarship at Trinity, and in 1872
came out at the head of what was called the Moral
and Mental Science Tripos. He acquired a reputa-
tion as a humorous and brilliant talker and an effec-
tive public speaker and already, as an undergraduate,
gave more than a hint of that flair for pointing an
argument with an epigram that was to characterize
his writing and lecturing in after years.
Though Maitland entered Lincoln's Inn, an an-
cient and famous English law school, in 1872, before
his graduation from Cambridge in the following
year, the practice of law was not his earliest choice
for a profession. While an undergraduate he seems
to have been attracted to an academic career. He
became much interested in the history of political
theory and competed for a Trinity College fellow-
ship with a long essay, "A Historical Sketch of
Liberty and Equality as Ideals of English Political
8 Introduction
Philosophy from the Time of Hobbes to the Time
of Coleridge." 3 Had he won the fellowship, it seems
doubtful that he would have become a lawyer. The
essay, his earliest substantial piece of historical writ-
ing, foreshadows some of his later traits as a his-
torian. It shows in the young scholar, still in his
early twenties, a vivid historical sense, a critical
faculty, and an interest in legal concepts and in
changes which had taken place in them.
Having acquired a thorough training in English
law at Lincoln's Inn, he was called to the bar in
1876 and practiced law thereafter for several years,
specializing in conveyancing. His familiarity with
that highly technical branch of law served him well
in his later interpretation of early English land deeds
and charters, and afterwards, speaking as a historian,
he attached great importance to legal training for
anyone who aspired to do good work in legal his-
tory. In the law chambers of Benjamin Bickley
Rogers, who is still remembered in classical circles
for the translations of the comedies of Aristophanes
with which he beguiled his leisure hours, the young
barrister worked as a conveyancer, and Rogers' remi-
niscent testimony is eloquent as to his legal talents:
". . . he had not been with me a week before I
found that I had in my chambers such a lawyer as
I had never met before . . . his opinions, had he
"Privately printed in 1875; reprinted in The Collected
Papers of Frederic William Maitland, ed. by H. A. L. Fisher,
3 vols., Cambridge, 1911, I, 1-161.
 Introduction 9
suddenly been made a judge, would have been an
honor to the Bench." Rogers expressed doubt, how-
ever, whether Maitland would have made a profes-
sional success as a barrister: ". . . he was the most
retiring and diffident man I ever knew; not the least
shy or awkward . . . but he was the last man to put
himself forward in any way." 4 Maitland himself
seems to have shared this doubt. Sir Paul Vinogra-
doff, the Russian medievalist who became a profes-
sor at Oxford, in an obituary article on his long-time
friend, recalled Maitland's saying to him when they
first met, in 1884, that he "would much rather de-
vote his life to the historical study of English law
than watch in his chambers . . . for the footsteps
of the client who never comes." 5
At any rate, Maitland's principal interest in law
was in its history rather than its practice. He began
a translation, never completed, of the famous work
of the German legal historian Friedrich Karl
Savigny, Geschichte des Römischen Rechts, and
hoped to be able to do for English law what Savigny
had done for Roman law. He later said that his in-
terest in legal history was first aroused by Frederick
Pollock, who became his intimate friend and col-
laborator. Pollock was a few years older than Mait-
land and preceded him by a few years in the educa-
tional procession—at Eton, Trinity College, and
'Fisher, op. cit., pp. 15-17.
s
"Frederic William Maitland," English Historical Review,
XXII, 280-281.
10 Introduction

Lincoln's Inn. The two friends collaborated in writ-

ing the great treatise which quickly became a classic
in English legal history, The History of English Law
before the Time of Edward I, published in two
volumes in 1895 and commonly cited as "Pollock
and Maitland." The order in which the authors'
names appeared on the title page was in accordance
with professional legal usage, the order of seniority
at the bar. But a note by Pollock, appended to the
preface, records that Maitland's share in the work,
both in research and in composition, was by far the
greater.®
It seems evident that Maitland was not really
happy in legal practice. He came to perceive clearly
a fundamental difference between the legal mind
and the historical mind. Many lawyers have written
history, and often sadly distorted history. The time-
honored method of studying law, in English inns of
court and American law schools, has had for its aim,
of course, the training of lawyers, not of historians.
The lawyer is concerned with precedents, to be sure,
but not with the context of his precedents. If, to
quote some penetrating words that have been
ascribed to the late Thomas Reed Powell, professor
of American constitutional law at Columbia and
Harvard, who devoted himself to the study of how
' I n a letter to Justice Holmes of the U. S. Supreme Court
(Aug. 23, 1895) Pollock tells how small his share was: only
the introduction (not quite all), the chapter on Anglo-Saxon
law, and the bulk of the chapter on the early history of
contract. Holmes-Pollock Letters, I, 60-61.
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