Frederick William Maitland

The Note Book was edited by Maitland in three substantial volumes and with the lavish care of an enthusiast. An elaborate argument, all the more cogent because it is not overstrained, raised Vinogradoff's hypothesis to the level of practical certainty. "The treatise is absolutely unique; the Note Book so far as we know is unique; these two unique books seem to have been put together within a very few years of each other, while yet the Statute of Merton was nova gracia; Bracton's choice of authorities is peculiar, distinctive; the compiler of the Note Book made a very similar choice; he had, for instance, just six consecutive rolls of pleas coram rege; Bracton had just the same six; two-fifths of Bracton's five hundred cases are in this book; every tenth case in this book is cited by Bracton; some of Bracton's most out of the way arguments are found in the margin of this book … the same phrases appear in the same contexts… Corbyn's case, Ralph Arundell's case are 'noted up' in the Note Book; they are 'noted up' also in the Digby MS of the treatise; with hardly an exception all the cases thus 'noted up' seem plainly to belong to Bracton's county… Lastly we find a strangely intimate agreement in error; the history of the ordinance about special bastardy and the 'Nolumus' of Merton is confused and perverted in the two books. Must we not say then that, until evidence be produced on the other side, Bracton is entitled to a judgment, a possessory judgment?" The penultimate argument in the pleading was characteristic of Maitland's ingenuity and also of a favourite pastime. He describes an imaginary walking tour through Devon and Cornwall and points out that ten cases noted up in the margin of the Note Book refer to persons and places which must have been well known to Bracton. "Many questions are solved by walking. Beati omnes qui ambulant."

The appearance of the Note Book showed that Cambridge possessed a scholar who could edit a big medieval text with as sure a touch as Stubbs, and the book received a warm welcome from those who were entitled to judge of its merits. It had been a costly book to prepare and it was brought out at Maitland's own charges. In the introduction he took occasion to point out that in other countries important national records were apt to be published by national enterprise; and that in England the wealth of unpublished records was exceptional. "We have been embarrassed by our riches, our untold riches. The nation put its hand to the work and turned back faint-hearted. Foreigners print their records; we, it must be supposed, have too many records to be worth printing; so there they lie, these invaluable materials for the history of the English people, unread, unknown, almost untouched save by the makers of pedigrees." As an advertisement of these unknown treasures no more fortunate selection could have been made than this manuscript note book which could with so high a degree of probability be associated with the famous name of Bracton. But Maitland was not content with urging that the publication of our unknown legal records should not be left to depend upon the chance enthusiasm of isolated scholars; he demanded, as things necessary to the progress of his subject, a sound text of Bracton's treatise and a history of English Law from the thirteenth century.

In 1888 there was by reason of the death of Dr Birkbeck a vacancy in the Downing Chair of the Laws of England. Maitland stood and was elected. His Inaugural Lecture delivered in the Arts School on 13th October, 1888, was entitled, "Why the History of Law is not written." The reason was not a lack of material; on the contrary England possessed a series of records which "for continuity, catholicity, minute detail and authoritative value has – I believe that we may safely say it – no equal, no rival in the world," nor yet the difficulty of treating the material, for owing to the early centralization of justice, English history possessed a wonderful unity. Rather it was "the traditional isolation of English Law from every other study" and the fact that practising lawyers are required to know a little medieval law not as it was in the middle ages, but as interpreted by modern courts to suit modern facts. "A mixture of legal dogma and legal history is in general an unsatisfactory compound. I do not say that there are not judgments and text books which have achieved the difficult task of combining the results of deep historical research with luminous and accurate exposition of existing law – neither confounding the dogma nor perverting the history; but the task is difficult. The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms. If this truth is hidden from us by current phrases about 'historical methods of legal study,' that is another reason why the history of our law is unwritten. If we try to make history the handmaid of dogma she will soon cease to be history."

Maitland concluded with an appeal for workers in an untilled field, but with characteristic veracity held out no illusory hopes. "Perhaps," he wrote, "our imaginary student is not he that should come, not the great man for the great book. To be frank with him this is probable; great historians are at least as rare as great lawyers. But short of the very greatest work, there is good work to be done of many sorts and kinds, large provinces to be reclaimed from the waste, to be settled and cultivated for the use of man. Let him at least know that within a quarter of a mile of the chambers in which he sits lies the most glorious store of material for legal history that has ever been collected in one place and it is free to all like the air and the sunlight. At least he can copy, at least he can arrange, digest, make serviceable. Not a very splendid occupation and we cannot promise him much money or much fame… He may find his reward in the work itself: one cannot promise him even that; but the work ought to be done and the great man when he comes may fling a footnote of gratitude to those who have smoothed his way, who have saved his eyes and his time."

stock or marketable securities which undoubtedly are not the same things as the land and trade marks.'

Now it may occur to you that in their anxiety to avoid a confusion of the persons our courts fall into the opposite of error and divide the substance. But that is not so. The old things still exist and are owned, though new things 'transferable in the books of the company' have come into being. Also it seems possible that we may easily over-estimate the creative powers of lawyers and courts and legislators. Let us remember that these new things will be things for the man of business, things for the Stock Exchange. And in passing let us ask ourselves whether if these 'things' are not unreal, the personality of the company must needs be fictitious?

Fragment of a Lecture

As yet Maitland had not conceived himself as the author of that "History of English Law from the thirteenth century," the need for which he proclaimed to his Cambridge audience. A less extensive scheme had framed itself in his mind "some thoughts about a plan of campaign for the History of the Manor." The thoughts were communicated to Frederick Pollock and were not unfruitful, for they grew up seven years later into that massive History of English Law which is perhaps Maitland's most enduring title to fame; but of his learned projects in this seed-time and of some other concerns, grave and gay, a few scraps of correspondence may here most fittingly be adduced in evidence.

To Paul Vinogradoff6, New Square,Lincoln's Inn.28 April, 1884.

I am indeed glad that you are working at Bracton and settling the relation between the MSS. I wish that you would stay here and teach us something about our old books. Pollock is looking forward to your paper and I am diligently reading Bracton in order that I may understand it. I have written for Pollock a paper about seisin and had occasion to deal with a bit of Bracton which, as printed, is utter rubbish. I therefore looked at some of the MSS and found that the blunder was an old one. I shall not have occasion to say any more than that there are manuscripts which make good sense of the passage – but I have made a note12 about the matter which I send to you thinking it just possible that you may care to see it, as it goes some little way (a very little way) to show that certain MSS are closely related.

I have to dine in Oxford on Saturday, 10th May, and shall be there on Sunday the 11th. I hope that you will be in Oxford on that day and that we shall meet.

To Frederick Pollock(On a postcard.)Jan. 1881.

Et Fredericus de Cantebrigia essoniavit se de malo lecti, et essoniator dixit quod habuit languorem. Set quia essonium non jacet in breui de trampagio consideratum est quod summoneatur et quod sit in misericordia pro falso essonio suo. Postea uenit et defendit omnem defaltam et sursisam et dicit quod non debet ad hoc breve respondere quia non tenetur ire in trampagio nisi tantum quando dominus capitalis suus eat in persona sua propria nec vult nec debet ire cum ballivo vel preposito, et ipse et omnes antecessores sui semper a conquestu Anglie usque nunc habuerunt et habent talem libertatem, et de hoc ponit se super patriam, etc.

Revera predictus F. seisitus fuit de uno frigore valde damnando. Judicium – Recuperet se ipsum.

To Frederick Pollock15, Brookside,Cambridge.12 Nov. 1887.

Very many thanks to you for a copy of your book on "Torts" – I am already deep in it and am reading it with delight. You will believe that coming from me this is not an empty phrase, for you will do me the justice of believing that I can find a good book of law very delightful. I hope that it may be as great a success as "Contracts" – I can hardly wish you better. I now see some prospect of getting the Law of Torts pretty well studied by the best of the undergraduates. For weeks I have been in horrible bondage to my lectures – Stephen's chapters about the Royal Prerogatives and so forth – I speak of the Stephen of the Commentaries – are a terrible struggle: when one is set to lecture on them three days a week one practically has to write a book on constitutional law against time.

I cannot, alas, be at the Selden meeting on Monday, for I have undertaken to audit some accounts.

With many more thanks I restSectator tuus set minus sufficiens.F. W. Maitland.To Paul Vinogradoff15, Brookside,Cambridge.12 June, 1887.

"Cuius linguam ignorabant" – I feel now the full force of these words – I am in tenebris exterioribus, and there is stridor dencium; but I heartily congratulate you upon having finished your book13, and thank you warmly for the copy of it that you sent me and for the kind words that you wrote upon the outside. Also I can just make out my name in the Preface and am very proud to see it there. Also I have read the footnotes and they are enough to show me that this is a great book, destined in course of time to turn the current of English and German learning.

My book also is finished, but the printers are slow. I hope to send you a copy in the autumn. I have been able to add a few links to the chain of argument that you forged. My happiest discovery was about a note that you may remember, "Ermeiard et herede de Hokesham." I found (1) that the heir of Huxham was in ward to William of Punchardon, (2) that William's wife was Ermengard, (3) that Ermengard brought an action for her dower against Henry of Bratton. I have also had some success with Whitchurch, Gorges, Corner and Winscot.

To Frederick PollockJubilee Teapot Tor,Horrabridge.26 July, 1887.

Horrabridge seems to be as much our post town as any other place; but I have not fully fathomed our postal relations. The legend is that the old gentleman who squatted here – and if ever I saw an untitled squatment I see one now – held that the post was "a new found holiday" and charged the postman never to come near him – and the postman, holding this to be an acquittance for all time, refused and still refuses to visit Pu Tor, but leaves our letters somewhere, I know not where, whence they are fetched by Samuel the son of the house – which Samuel learned the first half of the alphabet in the school "to" Sumpford Spiney Church-town when as yet there was a school, but the school scattered and beyond N Samuel does not go – howbeit, there will be a school again some day if ever Mr Collier can catch A. J. Butler at the Education Office, which is hardly to be expected. But if I begin to tell the acts of the Putorians, I shall never cease, for they are a race with a history and a language and (it may be) a religion of their own. Villani de Tawystock fecerunt cariagium – but the ignorant beggars did not know Pu Tor cottage and it seemed that we should wander about all night. This is a right good spot and we are grateful to you for discovering it. We have a sitting-room and two bedrooms and we could find place for a visitor if his stomach were not high. Have you seen the new ordnance map of the moor? Mr Collier showed it me. Pew Tor is the spelling that it adopts.

To Frederick Pollock15, Brookside,Cambridge.7 April, 1888.

I have returned from a brief incursion of Devonshire. Verrall and I made a descent upon Lynton which is still beautiful and at this time of the year un-betouristed. Bank Holiday was tolerable. I suppose that you spent it upon your freehold and are now returning to the law. You have got an excellent number of the L. Q. R.14 this quarter; really it ought to sell and if it doesn't the constitution of the universe wants reforming…

If P objects to "ville" as a termination for names in America what does he say to "wick" as a termination for names in England? I have been puzzling over the use of "villa" in Kemble's Codex. It seems to be used now for a village or township and now for a single messuage, and thus seems similarly elastic. One never can be quite certain what is meant when a villa is conveyed.

I have had some thoughts about a plan of campaign for the history of the manor. The graver question is whether the story should be told forwards or backwards. I am not at all certain whether it would not be well to begin by describing the situation as it was at the end of cent. XIII. and then to go back to earlier times. But we can talk of this when "possession" is off your mind. Remember that you have to stay here as an examiner. Meanwhile I hope to form a provisional scheme for your consideration.

I have got hold of a German, one Inama Sternegg, who seems to be the modern authority as to the growth of the manorial system on the continent.

To Frederick Pollock. (On a postcard.)9 May, 1888.

Predicti sokemanni habebunt remedium per tale breve de Monstraverunt.

R tali duci salutem. Monstraverunt nobis N N homines de trampagio vestro quod exigis ab eis alia servicia et alias consuetudines quam facere debent et solent videlicet in operibus et ambulationibus, et ideo vobis precipimus quod predictis hominibus plenum rectum teneas in curia tua ne amplius inde clamorem audiamus, quod nisi feceris vicecomes noster faciat. Teste Meipso apud Cantebrigiam die Ascen. Dn̄i.

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1

"The Cambridge Apostles," by W. D. Christie. Macmillan's Magazine, Nov. 1864.

2

A Biographical Notice by Mrs Reynell (privately printed).

3

Cambridge University Reporter, Dec. 17, 1904.

4

A punning squib, very spirited and amusing, entitled "A solemn Mystery," and contributed to The Adventurer, June 4, 1869, seems to have been Maitland's first appearance in print.

5

Cambridge University Reporter, Dec. 7, 1900.

6

There were four candidates for the Fellowship: W. Cunningham, Arthur Lyttelton, F. W. Maitland, and James Ward, every one of them distinguished in after life. With so strong a competition the College might have done well to elect more Fellows than one in Moral and Mental Science.

7

Such for instance as: —

"The love of simplicity has done vast harm to English Political Philosophy."

"No history of the British Constitution would be complete which did not point out how much its growth has been affected by ideas derived from Aristotle."

"The idea of a social compact did not become really active till it was allied with the doctrine that all men are equal."

"In Hume we see the first beginnings of a scientific use of History."

8

For a good instance of Maitland's trained insight see Domesday Book and Beyond, p. 232.

9

Maitland once conducted an argument before Jessel, M. R. Re Morton v. Hallett (Feb. & May, 1880, Ch. 15, D. 143).

10

Browning, Ring and the Book. See Maitland, Bracton's Note Book, vol. 1.

11

An account of Maitland's "valuable" lectures "On the Cause of High and Low Wages," given to an average class of some twenty workmen in the Artizan's Institute, Upper St Martin's Lane, in 1874, and "followed by a very useful discussion in which the students asked and Mr Maitland answered many knotty questions" may be read in H. Solly, These Eighty Years, vol. II. p. 440.

12

The note shows a knowledge of 18 Bracton MSS.

13

The Russian edition of Studies in Villeinage.

14

Law Quarterly Review.