Frederick William Maitland

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.

VIII

In the course of his researches for the History of English Law Maitland had been drawn into the unfamiliar region of ecclesiastical jurisprudence, a department of knowledge once of the highest importance throughout Europe, but, save for one exception, fallen into complete desuetude at the English Universities ever since the study of the Canon Law was proscribed by Henry VIII. The exception was provided by William Stubbs. That great master of medieval history had from his Oxford Chair delivered and subsequently published two lectures upon the Canon Law in England. A stout patriot and a high Anglican, Stubbs was concerned to exhibit the continuity of the English Church before and after the Reformation; and both in his Oxford lectures and in a famous report drawn up for the Royal Commission on Ecclesiastical Courts he gave the weight of his authority to the opinion that the Canon Law of Rome, though held to be of great authority in England during the Middle Ages, was not recognised to be binding on the Courts Christian of this country. The verdict of so fine a scholar was eagerly welcomed by men of High Church opinions. If the Canon Law was not binding, then the Church of England was never in the full sense ultramontane, and the changes of the sixteenth century did not amount to revolution. Zealots went further still. There were those who, as Maitland wittily observed, seemed to believe that the Church of England was "Protestant before the Reformation and Catholic afterwards."

In the quarrel between the Highs and Lows Maitland had no interest. Then, as always, he was a dissenter from all the Churches: but historical truth was precious to him, and in the course of the summer of 1895, while engaged in the preparation of a course of lectures upon the Canon Law, he became gradually aware that the received opinion could no longer stand. The agent of his conversion, if conversion it can be called, was the Provinciale of William Lyndwood, a popular text-book written in 1430 by the principal official of the Archbishop of Canterbury, and representative of the accepted opinion in the century preceding the Protestant Reformation. The following letter to Mr R. L. Poole explains the genesis of a book which has permanently deflected the current of historical opinion.

Horsepools,Stroud.15th August, 1895.

I ought to have been writing lectures about the history of the Canon Law. Instead of so doing I have been led away into a lengthy discourse on Lyndwood. I have come to a result that seems to be heterodox, but I do not know exactly how heterodox it is and should be extremely grateful if you would give me your opinion upon a question which lies rather within your studies than within mine. It seems to me clear, that in Lyndwood's view the law laid down in the three great papal law-books is statute law for the English ecclesiastical courts and overrules all the provincial constitutions, and further that apart from the law contained in these books the Church of England has hardly any law – in short there is next to nothing that can be called English Canon Law. I must wait until I am again in Cambridge to read what has been written about this matter in modern times, but any word of counsel that you can give me will be treasured. From a remark that you once made I inferred that in your opinion our Church historians have been too patriotic. I feel pretty sure of this after spending two months with Lyndwood, and if I find that my conclusions about the law of our ecclesiastical courts are at variance with the prevailing doctrine, may be I shall print what I have been writing, that is to say if either L. Q. R. or E. H. R., will let me trail my coat through its pages.

Roman Canon Law in the Church of England appeared in 1898. It was a collection of six essays, one of which – the delightful story of the Deacon who turned Jew for the love of a Jewess – had been published as far back as 1886. Of the rest the decisive part consisted of articles contributed to the English Historical Review in 1896 and 1897. So far as a case can be demolished by argument, the case for the legal continuity of the Church in England was demolished by Maitland. He proved that the Popes' decretals were regarded as absolutely binding by our English canonists; that throughout Christendom the Pope was regarded as the Universal Ordinary or supreme source of Jurisdiction; that a considerable portion of the Canon Law was built out of English cases; that the provincial constitutions in England were of the nature of bye-laws and insignificant, while the libraries of our canonists were filled with foreign treatises; in fine, that the thirty-two Commissioners who set their names to the opinion that the ecclesiastical judges in England were not bound by the statutes which the Popes had decreed for all the faithful would have been condemned by any English ecclesiastical tribunal in the Middle Ages as guilty of heresy. No doubt portions of the Canon Law were not as a matter of fact enforced in England, but this was not because the Courts Christian rejected them, but because the Temporal power would not permit their enforcement.

Royal prohibitions did not prove the existence of a national Canon Law. "To prove that we must see an ecclesiastical judge, whose hands are free and who has no 'prohibition' to fear, rejecting a decretal because it infringes the law of the English Church or because that Church has not received it." Whatever might be the view of a late age, no such testimony was forthcoming before the breach with Rome. Indeed the "one great work of our English canonist in the fifteenth century" showed that the position which had been attributed to the English Church in the Middle Ages was alien to its whole way of thought. In the age of the conciliar movement, when men of liberal temperament were urging that the Pope was subject to a general council, William Lyndwood evidenced nothing but "a conservative curialism."

The book was necessarily controversial, but written with that complete absence of the polemical spirit which characterised all Maitland's work. "I hope and trust," he wrote to Mr Poole, September 12, 1898, "that you were not very serious when you said that the bishop was sore. I feel for him a respect so deep, that if you told me that the republication of my essays would make him more unhappy than a sane man is whenever people dissent from him, I should be in great doubt what to do. It is not too late to destroy all or some of the sheets. I hate to bark at the heels of a great man whom I admire, but tried hard to seem as well as to be respectful."

An accident of friendship drew Maitland still further into the tormented sea of controversial church history. Lord Acton was appointed Regius Professor of Modern History at Cambridge in 1895, and, despite radical differences of creed and outlook, soon discovered in Maitland a spirit as ardent and disinterested as his own. Outwardly there was a great contrast between the two men, Maitland frail and delicate, his pale eager face a lamp of humour and curiosity, Acton massive, reserved, deliberate; but they understood one another, and soon came to share a common interest in a great literary enterprise. One day Acton propounded to Maitland the scheme for a great Cambridge history written upon the combined plan which was already familiar in France and Germany. It was to be a Universal History, a history of the whole world from the first beginnings to the present day, written by an army of specialists, and concentrating the latest results of special study. Maitland suggested that a more modest plan, a history of modern Europe since the Reformation, would prove to be more practical, and in this view Acton concurred.

The Cambridge Modern History covered a period which did not properly fall within Maitland's special range of study; but he was taken into counsel as to the general execution of the plan, and persuaded to contribute a chapter upon the Anglican Settlement and the Scottish Reformation. That Acton should have chosen Maitland for this particular piece of work may cause some surprise. The ground was intricate, sown with pitfalls and clouded with controversy, and Maitland had made no special study of the sixteenth century upon the political or religious side. On the other hand he could bring to the task a cool, dispassionate judgment, a fine power for appraising historical evidence, and a singular and exact felicity in the expression of delicate shades of certainty and doubt. That he stood outside the Churches might have been a disqualification, had devotional impulses been the staple consideration in the question, or if the banners of rival confessions were not already waving on the battle field; but the age of Elizabeth was theological rather than religious, and it was of the first importance to obtain the verdict of a thoroughly impartial mind upon a subject which could never be treated by a churchman without some suspicion of partisanship attaching to his results. Maitland accepted the task with misgivings, and discharged it with characteristic thoroughness. In an astonishingly short space of time his mind filled itself up with the reports of French and Spanish ambassadors, with the theological treatises and the political intrigues of sixteenth century Europe. A month or so after he had taken the plunge he was talking of Caraffa and Cecil as if he had known them all his life, and seemed to have gathered up the whole complicated web of European policy into his hands. He did not content himself with mastering and reproducing the voluminous literature of the subject; some pretty little discoveries, some "Elizabethan gleanings" were contributed to the English Historical Review, and gave evidence of refined investigations which did not stop at printed material. Results which might have furnished the theme for a substantial volume were packed into a chapter of forty pages. Critics complained of obscurity not of thought but of allusion; others, imperfectly versed in Tudor history, of a defective sympathy with religious emotion. The first charge is true; for Maitland was undoubtedly over-allusive, not from ostentation but from absorption and from a tendency common to learned and modest men to credit the general reader with more knowledge than he is likely to possess. To the second allegation it is some reply that Maitland was inclined to attribute the most decisive act in the period, Elizabeth's resolve to reject the Roman overtures, to religious rather than to political motives.

With habitual modesty Maitland disclaimed the possession of the gift of narration. He would say that he could not tell a story; and the character of his historical work was not adapted to exercise the story-telling gift. But if his narrative has not the liquid flow of some accredited masters of the art, it is entirely devoid of some common defects. It is never indefinite, flabby or verbose, on the contrary it is full of pith and fire, proceeding by a series of brief vivid touches which take root in the memory and ripen there. It would be easy to select from the chapter upon the Scottish Reformation and the Anglican settlement a florilegium of passages which, for keenness of insight and terseness of expression, could not easily be surpassed. It is a style which gives the impression not only of clairvoyance and watchfulness as to small details, transient motives and ephemeral phases of opinion, but also of a sense of the fundamental significance of things and of their relevance in the general march of progress. Every stroke is made to tell. In general nothing is so tedious as a history constructed upon severe philosophical principles. The argument swallows up the life; the characters become faint and evanescent; the colour put upon one event is shaded by the reflection of events which follow, and an oft repeated major premise leads through an appropriate selection of devitalised incidents to a familiar conclusion. Maitland's fragment of Reformation history is philosophical in the best sense. It is alive to the ultimate principles of belief and conduct which governed men and women in the years when the Thirty-Nine Articles were in the making; but it is also very vivid and concrete. The tale has been told more fully, more comfortably, with a greater display of picturesque circumstance, but never with more intellect, or with so exact an appreciation of the chronological order in which successive phases of belief and opinion revealed themselves. Instead of history ready-made Maitland gave us history in the making, antedating nothing and excluding with a care no less scrupulous than Gardiner's the world's knowledge of to-morrow from the world's knowledge of to-day. More than one fairy story dissolved at his touch, among others the tale of a Convocation summoned in 1559 to consent to the Act of Uniformity. The parent of the legend, an Anglican Canon, with a comical misapprehension of his antagonist's resources, ventured to measure swords with Maitland who had exposed his shortcomings in a Magazine. The encounter was amusing and decisive. It was also characteristic of some English peculiarities. We are a nation of bold amateurs. A German pastor who had been corrected by Savigny upon some points of history would hardly have returned to the charge without betraying some suspicion that his enterprise was unpromising if not forlorn.

IX

Not the least brilliant passage in Domesday Book and Beyond was a novel theory as to the origin and early history of the English Borough. The question of municipal origins had produced a library of controversial literature upon the Continent. One writer developed the town from the feudal domain, another from the "immunity," a third from the guild, a fourth from the market, a fifth from the free village, and there were combinations and permutations of these and other factors. Maitland was impressed by the arguments of Dr Keutgen of Jena, who found the origin and criterion of the German borough in its fortification. The idea transplanted into Maitland's mind became surprisingly fruitful. Scattered fragments of evidence seemed to confirm the surmise that in the English Midlands at least the county town was the county fortress, owing its origin to military necessity and supported by a variety of artificial arrangements. There was the evidence of language, for borough originally means a fortified house; the evidence of the map, for in many counties of England the county town is somewhere near the centre; the evidence of warlike stress, for the Danes were foemen even more terrible than those wild Hungarians against whom Henry the Fowler built his Saxon "burhs"; the evidence of Domesday Book, showing contrivances at once careful and varied for maintaining town walls and town garrisons; and here and there a gleam of light from older documents, from the Burghal Hidage of the tenth century, or from a charter of King Alfred. The argument, which was expounded with beautiful clearness and ingenuity, led on to the conclusion that the town court was the product of "tenural heterogeneity," for the garrison men holding of different lords would need a special court to decide their controversies. There was thus a greater degree of governmental artifice in the process than had hitherto been suspected. The borough was not merely a very prosperous village; it was a unit in a scheme of national defence; a fortified town maintained by a district for military purposes with "mural houses" and "knight guilds" and a miscellaneous garrison contributed by shire thegns. By degrees trade, commerce, agriculture, the interests of the market and the town fields would overpower the military characteristics of the county stronghold. But the scheme should not be pressed too far; "no general theory will tell the story of every or any particular town."

In the autumn of 1897 Maitland gave the Ford Lectures in Oxford. The foundation was recent, and Maitland was chosen to succeed S. R. Gardiner, who had delivered the opening course in the previous year. Gardiner had lectured extempore on "Cromwell's Place in History"; Maitland delivered a series of carefully written dissertations upon "Township and Borough," a subject as little likely, one would think, to hold together an audience in the Schools as any that could be imagined. The ordinary man is not interested in law, still less in medieval law, and less again in the metaphysics of medieval law; but a large and constant audience was interested in Maitland. His style of lecturing was distinctive and original – the voice deep, grave, expressive, the delivery dramatic, the substance compounded of subtle speculation and playful wit and recondite learning. The lectures which were learnt by heart were delivered with a verve and earnestness which impressed many a hearer who was entirely indifferent to the particular issues or to the whole region of learning to which they belonged. When and how did the Borough become a Corporation? Who owned the Town fields? In what sense was the medieval borough a land-owning community? What did King John mean when he granted the vill of Cambridge to the burgesses and their heirs? With Maitland's artful spells upon her Oxford felt that such questions as these might be very grave and not a little gay.

X

The wonderful work which has here been imperfectly described was accomplished under a shadow. Maitland, who was never really a strong man, was, even before his marriage, not without warnings that he was overtaxing his physical resources. When he delivered his inaugural lecture he was already conscious that his days might be few. "I see again," writes one who was present, "the dim room, the grey light and the shadowy but inspired fragileness of the lecturer who was then fighting a very serious illness… It was no ordinary lecture, rather a sort of sermon, grave and beautiful with its solemn call to work, even though that work might lie in humble and obscure fields. And the impression that was perhaps most immediately insistent, seeming to underlie each word and sentence, was that the speaker felt the hours of his own work to be already numbered and but few." In 1889, the year after his election to the Downing Chair, a doctor pronounced over him a sentence from which there is generally no successful appeal. "I very much want to see you again," he wrote to a friend, March 12, 1889, "and I don't know that I can wait for another year; this I say rather seriously and only to you; many things are telling me that I have not got unlimited time at my command and I have to take things very easily."

Devoted nursing, great care in diet, and a resolute avoidance of many of the pleasant things of life enabled the work to proceed as buoyantly as ever. There were bouts of illness and pain, when the French novelist and especially the beloved and well-known Balzac had to be invoked, but there were also periods of revival and at one time an assurance that the alarming symptoms had disappeared. But in truth the malady was never dislodged. "Slowly it is doing for me; but quite slowly," he wrote to a friend in 1899, "and it may cheer you to know that I have had ten happy and busy years under the ban." In the summer and autumn of that tenth year there was a sudden change for the worse and it became clear that Maitland could no longer winter in England. "If I have to sing a Nunc Dimittis," he wrote to Mr R. L. Poole, "it will run 'Quia oculi mei viderunt originalem Actum de Uniformitate primi anni Reg. Eliz.' Few can say as much… I think of a voyage to S. America as S. Africa looks too warm for a man of peace."

From 1898 the Maitlands were compelled to fly south with the approach of winter. Their regular resort was Grand Canary but once, in 1904, this was exchanged for Madeira. Like all other habits idleness requires cultivation and Maitland had never been idle. Under a tropical sky and with an exquisite sense of relief from physical pain he worked his writing muscles as busily as ever. In the first exile he translated that part of Otto Gierke's Deutsche Genossenschaftrecht, which dealt with medieval political theory, and published it with a brilliant Introduction. Later he copied manuscripts of the Year Books lent to him by the wise generosity of the Cambridge University Library and collated or transcribed photographs of those manuscripts which it was impossible to export. The last two winters were divided between the Year Books and the composition of a biography of Leslie Stephen, and so far was exile from being a holiday that the fruit of each winter spent in the fortunate islands was never less than the substantial part of the volume. Some letters shall speak of the impressions and activities of these years.

To Leslie StephenHotel Santa Catalina,Las Palmas,Gran Canaria.5 Nov. 1898.

I am beginning Guy Fawkes's day by sitting in the verandah before breakfast to write letters for a homeward-bound mail. Certainly it is enjoyable here and I mean to get good out of a delightful climate. Also I mean to convert your half promise of a visit into a whole, and without going beyond the truth I can say that there is a good deal here that should please you. At first sight I was repelled by the arid desolation of the island. I suppose that I ought to have been prepared for grasslessness, but somehow or another I was not. But then the wilderness is broken by patches of wonderful green – the green of banana fields. Wherever a little water can be induced to flow in artificial channels there are all manner of beautiful things to be seen. I have picked a date and mustered enough Spanish to buy me a pair of shoes in the "city" of Las Palmas – a dirty city it is with strange smells; but we are well outside of it. Between Las Palmas and its port there is a little English colony. This hotel is so English that they give me my bill in £ s. d. and my change in British ha'pence which have seen better days. Indeed now I know where our coppers go to when they have become too bad for use at home. Also the "library" of this hotel seems a sort of hades to which the bad three-voller is sent after its decease. But the proposition that all the worst books collect there is (as you must be aware) not convertible into the proposition that only bad books come there, and I see a copy of a certain Life of Henry Fawcett which you may have read. I laze away my time under verandahs and in gardens – but am not wholly inactive. Sometimes when it is cool I walk some miles and explore country that is well worth exploration. By the time you come I shall be ready for an ascent of our central range with you – it touches 6000 ft. I think, and by that time we shall be having cooler weather. Yesterday we were breathless: to-day is cloudy but would be September in England.

It is breakfast time and the porridge is good.

To Leslie StephenSta Brigida,Monte,G. Canary.9 Jan. 1899.

I won't pretend but that I am disappointed by your decision, the more so because my hopes of your advent stood higher than Florence's and I had endeavoured to argue that your half-promise was a valuable security. However, I know that we are far from England, and that you are unwilling to leave your household for any long time. Also the two last boats that have come here suffered much in the Bay of Biscay and were very late. So I forgive, though I badly want someone to walk with. The time has come when I feel that walks are pleasant and do me good, but that I am very tired of the contents of my own head. But even a solitary tramp is better than a day in bed, and I am really grateful to this magnificent climate and to those who sent me here. To those who cannot speak Spanish, and I cannot and never shall, the remoter parts of this island are not very accessible. I sometimes find myself beset by a troop of boys who take a fiendish pleasure in dogging the steps of an Englishman who obviously is deaf, dumb and mad. Attempts to reason with them only lead to shouts of Penny! or Tilling! – I cannot even persuade them that Tilling is not an English word. Still at times they leave me in peace and then I can be happy until the next crowd assembles.