Meanwhile Maitland had been recalled from London to his old University. The reading which had been "very dear to him" when he took the first plunge into London work, had become dearer in proportion as the opportunities for indulging in it became more restricted. He was earning an income at the bar which, though not large, was adequate to his needs, but a barrister's income is uncertain and Maitland may have felt that while he had no assured prospect of improving his position at the bar, the life of a successful barrister, if ever success were to come to him, would entail an intellectual sacrifice which he was not prepared to face. Accordingly in 1883 he offered himself for a Readership in English Law in the University of Oxford, but without success. A distinguished Oxford man happened to be in the field and the choice of the electors fell, not unnaturally, upon the home-bred scholar. But meanwhile a movement was on foot in the University of Cambridge to found a Readership in English Law. In a Report upon the needs of the University issued in June, 1883, the General Board of Studies had included in an appendix a statement from the Board of Legal Studies urging that two additional teachers in English Law should be established as assistants to the Downing Professor. Nothing however was done and the execution of the project might have been indefinitely postponed but for the generosity of Professor Henry Sidgwick, who offered to pay Cambridge offered opportunities for study such as Maitland had not yet enjoyed. A little volume on Justice and Police, contributed to the English Citizen series and designed to interest the general reading public, came out in 1885, and affords good evidence of Maitland's firm grasp of the Statute book and of his easy command of historical perspective. But this book, excellent as it is, did not represent the deeper and more original side of Maitland's activity any more than an admirable series of lectures upon Constitutional History which were greatly appreciated by undergraduate audiences but never published in his lifetime. The Reader in English Law was by no means satisfied with providing excellent lectures covering the whole field of English Constitutional history, though he had much that was fresh and true to say about the Statutes of the eighteenth century and about the degree to which the theories of Blackstone were applicable to modern conditions, and though he drew a picture for his undergraduate audience which in some important "Twice in the history of England has an Englishman had the motive, the courage, the power to write a great readable reasonable book about English Law as a whole." The task which William Blackstone achieved in the middle of the eighteenth century, Henry de Bratton, a judge of the King's Court, accomplished in the reign of Henry III. His elaborate but uncompleted treatise De Legibus et Consuetudinibus AngliÆ, composed in the period which lies between the legal reforms of Henry II. and the great outburst of Edwardian legislation, while the Common law of England was still plastic and baronage and people were claiming from the King a stricter observance of the great Charter, is naturally the most important single authority for our medieval legal history. Though influenced by the categories and scientific spirit of Roman Law, Henry de Bratton was essentially English, essentially practical. His book was based upon the case law of his own age— On July 19, 1884, Professor Vinogradoff, "who in a few weeks" wrote Maitland, "learned, as it seems to me, more about Bracton's text than any Englishman has known since Selden died," published a letter in the AthenÆum drawing attention to a manuscript in the British Museum, which contained "a careful and copious collection of cases" for the first twenty-four years of Henry III., a collection valuable in any case, since many of the rolls from which it was copied have long since been lost, but deriving an additional and peculiar importance from the probability that it was compiled for Bracton's use, annotated by his own hand and employed as the groundwork of his treatise. Yet, even if the connection with Bracton could not be established, a manuscript containing no fewer than two thousand cases from the period between 1217 and 1240 was too precious a discovery to be neglected. Here was a mass of first-hand material, valuable alike for the genealogist, the lawyer, the student of social history:—glimpses of archaic usage, of local custom, evidence of the spread of primogeniture, important decisions affecting the status of the free man who held villein lands, records of villein service, vivid little 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 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 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— 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." 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 Vinogradoff.6, New Square, 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 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 Pollock.15, Brookside, 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 rest Sectator tuus set minus sufficiens. F. W. Maitland. To Paul Vinogradoff.15, Brookside, "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 book 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 Pollock.Jubilee Teapot Tor, 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 To Frederick Pollock.15, Brookside, 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. 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 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. Dni. To Paul Vinogradoff.3, Albany Terrace, I ought before now to have sent you my address to meet the case of your having any MS to send me. To Frederick Pollock.3, Albany Terrace, Many thanks for your telegram: it was kind of you to send so prompt a message To Frederick Pollock.3, Albany Terrace, Your letter from Downing tells me what I expected, namely, that the struggle was severe. I can very well understand that there was much to be said against me—some part of it at all events I have said to myself day by day for the last month. My own belief to the last moment was that some Q.C. who was losing health or practice would ask for the place and get it. As it is, I am reflecting that in spite of all complaints the bar at large must still be doing a pretty profitable trade, otherwise this post would not have gone begging. To Paul Vinogradoff.22, Hyde Park Gate, S.W. Has this occurred to you?—how extremely different the whole fate of English land law would have been if the King's court had not opened its doors to the under-vassals, to the lowest freeholders. But this was a startling interference with feudal justice and only compassed by degrees, in particular by remedies which in theory were but possessory etc. Now if the lower freehold tenants had not had the assizes, the line between them and the villein tenants would have been far less sharp. You hint at all this in chap. IV but might it not be worth a few more words—for there will be a tendency among your readers to say of course freeholders had remedies in the King's courts while really there is no of course in the matter. The point that I should like emphasized—but perhaps you are coming to this—is that not having remedies in the King's own court is not equivalent to not having rights. Downing. I have been picking up my strength and am doing a little work. Yesterday I got through my inaugural lecture; possibly I may print it and in that case I will ask you to accept a copy; but it was meant to be heard and not read and so I allowed myself some exaggerations. ... I am now quite ready to see proofs of your book.... My Introduction for the manorial rolls is taking shape; it will deal only with the courts, their powers and procedure. You can I think trust me not to take an unfair advantage of our correspondence and your kindness—but if you had rather that I did not see the sheets of your book which deal with the courts, please say so. I hope to have got this Introduction written in a month or six weeks. To Henry Sidgwick.The West Lodge, I have been reading your proof sheets As regards the existence of different laws in different parts of a country you might reckon among the advantages the gain in experience. I have no doubt that Scotch experience has improved English law and English experience Scotch law. Thus some use of an experimental method is made possible; e.g. take "Sunday closing" we can experiment on Wales and Cornwall. On the whole I have been surprised to find how little harm is done by the difference between Scotch and English law. I have read but very few cases that were caused by such differences. I admire the chapter on International Law and Morality; it is the best thing that I have read about the subject. In my view the great difficulty in obtaining a body of international rules deserving the name of law lies in the extreme fewness of the "persons" subject to that law and the infrequency and restricted range of the arguable questions which arise between them. The "code" of actually observed rules is thus all shreds and patches. In short, international law is so incoherent. To Paul Vinogradoff.20 Feb. 1889. You ask me about the Preface To Paul Vinogradoff.The West Lodge. Your long letter was very welcome. When I wrote I must have been in a bad temper and after I had written I wished to recall my letter. But now I no longer regret what has brought from you so pleasant an answer. Really I have no fear at all about the success of your book, if I had I would expatriate myself. But it stands thus:—Introductions are of "critical importance," by which I mean that they are of importance to critics, being often the only parts of a book which casual reviewers care to read. As a matter of prudence therefore I put into an Introduction a passage about the book which I mean critics to copy, and they catch the bait—it saves them trouble and mistakes. But your "philosophy of history," I mean philosophy of historiography, will not lend itself to such ready treatment and may give occasion to remarks as obvious and as foolish as mine were. But I hope for better things. All that you say about Stubbs and Seebohm and Maine is, I dare say, very true if you regard them as European, not merely English, phenomena and attribute to them a widespread significance—and doubtless it is very well that Englishmen should see this—still looking at England only and our insular ways of thinking I see Stubbs and Maine as two pillars of conservatism, while as to Seebohm I think that his book is as utterly devoid of political importance, And now as to Essay I. I have nothing to withdraw or to qualify. I think it superb, by far the greatest thing done for English legal history. I am looking forward with the utmost anxiety to Essay II. To Paul Vinogradoff.Downing. Even the title page has been passed for the press and I am now awaiting your book. I shall be proud when I paste into you the piece of paper that you sent me. I have felt it a great honour to correct your proof sheet and am almost as curious about what the critics will say as if the book were my own. I often think what an extraordinary piece of luck for me it was that you and I met upon a "Sunday tramp." That day determined the rest of my life. And now the Council of the University has offered me the honour of doctor "honoris causa." I was stunned by the offer for it is an unusual one and of course I must accept it. But for that Sunday tramp this would not have been. As to the reception of your book my own impression is that it will be very well received. Good criticism you can hardly expect, for very few people here will be able to judge of your work. But I think that you will FOOTNOTES: |