The Historical Spirit Incarnate: Frederic William Maitland
By Robert Livingston Schuyler
Presidential address read at the annual dinner of the American Historical Association in New York on December 29, 1951. Published in American Historical Review 57:2 (January 1952): 303–22.
The hundredth anniversary of the birth of Frederic William Maitland fell in 1950. There is, however, a better reason than belated centennialism for pausing to consider what he stood for as a historian because what he stood for, unless I am much mistaken, needs to be emphasized today. Maitland has a message not only for professional students, teachers, and writers of history but for everybody who aspires to balance and sanity in his attitude toward the past. If a confession of historiographical faith on my part can be found in what I am going to say about him, this is something that will not greatly concern anyone but me. Yet it should perhaps be stated explicitly at the outset, rather than left to be inferred by you later, that Maitland has meant more to me than any other historian—not primarily for the subjects he dealt with, but for his methods, his insights, and his superb historical sense. He was a lawyer, and his specialty was the history of English law, though he did original and important work in other branches of history. But it would be wrong to think of him as just a lawyer who happened to become interested in the history of his subject. He was, rather, what his intimate 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 profession, came naturally into the field.” As a professor of legal history at Cambridge, he used medieval law as a tool to “open . . . the mind of medieval man and to reveal the nature and growth of his institutions,” as one of his students, George Macaulay Trevelyan, has told us. I doubt whether any medievalist has ever made a more earnest and sustained effort to get inside the medieval mind.
The only one of Maitland’s forebears who needs to be spoken of here is his grandfather, the Reverend Samuel Roffey Maitland, who was librarian to the archbishop of Canterbury at Lambeth Palace and wrote a number of books, mainly on medieval religious history. As a boy Frederic William visited from time to time at Maitland House, his grandfather’s home in Gloucestershire, and later he came to have a great admiration for his historical writings. There were, in fact, striking resemblances between grandfather and grandson considered as historians.
The eider Maitland was never content to stop short of the most reliable available original sources for his historical knowledge, and he was distinctly critical, exceptionally so for his day, in handling historical evidence. He was, therefore, skeptical in his attitude toward historical traditions. As a medievalist he had a strong feeling for the general cultural context in which the institutions of the Middle Ages were embedded, and he was keenly sensitive to the differences between it and the cultural milieu of his own day—which is to say that he was historically-minded, and, being so, he was repelled by anachronism. He liked the medieval in the Middle Ages but not in modern times. Thus he had good things to say about medieval monasticism, but its merits in its own day were not, in his opinion, a valid reason for reviving the monastic system in nineteenth-century England, as had recently been proposed. Indeed, he did not believe that the medieval monastic system could be revived.
We have been hearing so much of late about subjectivity and objectivity in historianship, about the historian’s “frame of reference” and “controlling assumptions,” about history as faith versus history as science, that we may be in some danger of supposing that thought on such subjects is an exclusively twentieth-century form of cerebration. Samuel Roffey Maitland lived long before the term “historical relativism” had been coined, but in his historical outlook he was a thorough relativist. He understood quite clearly that the institutions of the past could be comprehended only when viewed in their context, and he knew equally well that a man of the nineteenth century, even if he was a historian, could not become absolutely and consistently medieval. Here is a remark of his that could serve as a text for a discourse on historical relativism at a meeting of historians today: “Do what he may, no man can strip himself of the circumstances, and concomitants, which it has pleased God to place around him.” Frederic William Maitland’s indebtedness to his grandfather’s critical methods and historical point of view was undoubtedly very considerable. A private letter of his, written early in his career as a historian, tells us as much.
As a student at Cambridge, where his earliest interests—in music, mathematics, and athletics—had little enough obvious relation to what was to be his lifework, Maitland before long came under the influence of the eminent philosopher, and professor of philosophy, Henry Sidgwick, with results of importance for his intellectual development. He read widely in various branches of philosophy, and to such good purpose that he came out at the head of the first class in the Moral and Mental Science Tripos of 1872. He acquired a reputation as a humorous and brilliant talker and an extremely effective public speaker, and already as an undergraduate he gave more than a hint of that flair for pointing an argument with an epigram that was to characterize his lecturing and writing in after years.
Maitland entered Lincoln’s Inn in 1872 and was called to the bar in 1876. 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 specialized in conveyancing, and his familiarity with that highly technical branch of English law served him well in his later study of early English land deeds and charters. The testimony of Mr. Rogers is eloquent as to Maitland’s extraordinary 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 suddenly been made a judge, would have been an honour to the Bench.”
Many lawyers have written history, and often, in sorrow be it added, quite untruthful history. The time-honored method of studying law, in English inns of court and American law schools, has not made for historical-mindedness. The lawyer is concerned with precedents, to be sure, but usually not with the context of his precedents. If, to quote some penetrating words that I have seen ascribed to my old friend Reed Powell, who has devoted his years of discretion to the study of how judges think, “If you think that you can think about a thing, inextricably attached to something else, without thinking of the thing it is attached to, then you have a legal mind.” The historical mind, on the other hand, sees past events in their contemporary contexts. In his inaugural lecture as Downing Professor of the Laws of England at Cambridge, delivered in October, 1888, and entitled “Why the History of English Law Is Not Written,” Maitland, with characteristic insight, thus contrasted the legal mind and the historical mind:
. . . what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the Middle Ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts. A lawyer finds on his table a case about rights of common which sends him to the Statute of Merton. But is it really the law of 1236 that he wants to know? No, it is the ultimate result of the interpretations set on the statute by the judges of twenty generations. The more modern the decision, the more valuable for his purpose. That process by which old principles and old phrases are charged with a new content, is from the lawyer’s point of view an evolution of the true intent and meaning of the old law; from the historian’s point of view it is almost of necessity a process of perversion and misunderstanding.
Let me underscore one phrase in that quotation; we shall be coming back to it: a knowledge of medieval law as it was in the Middle Ages.
As a young man, and in fact throughout his life, Maitland took a lively interest in current affairs, though he did not find time to write much on them. For it was a settled conviction of his—in the opinion of some, this may be thought to date him—that the highest function of a historian is to be a historian. Law reform, however, was one of his early and abiding interests. His approach to the subject was historical, as we should expect, and his attitude toward it decidedly radical. As a young conveyancer, he declared in an article published in 1879 that what was needed was “nothing less than a total abolition of all that is distinctive in real property law,” and it was his mature judgment, expressed toward the end of his life, that the historical spirit, far from being the handmaid of conservatism, was the natural ally of rational reform. He was spiritually akin to the great English law reformers of the early nineteenth century, and he could use equally vigorous language. He belonged in what Sir William Holdsworth called the “long series of judges, conveyancers, and legislators” whose efforts led to the drastic reforms in English property law in the 1920’s. He was ever a sworn foe of what he called “out-worn theories and obsolescent ideas,” though it should quickly be added that his historical sense prevented him from making the crude mistake of condemning theories or ideas in the past because they later became incumbrances and impediments. In connection with the law of real property he spoke of the need of clearing up what he called “that great medieval muddle which passes under the name of feudalism,” but he never expressed contempt for feudalism in the feudal ages. He did not endorse what he described as “the cheerful optimism which refuses to see that the process of civilization is often a cruel process,” but on the other hand he never beheld myopic visions of golden ages in the good old days.
Two of Maitland’s contemporaries, both of them close personal friends of his, did much to determine his lifework. One of these was Frederick Pollock, whose name is always linked with his. Pollock was a few years older than Maitland and preceded him by a few years in the educational procession—at Eton, Trinity College, Cambridge, and Lincoln’s Inn. Maitland has recorded that it was through Pollock that his interest in legal history was first aroused. The two friends collaborated in writing the treatise that has been a classic in English legal history for more than a half-century, The History of English Law before the Time of Edward I, always 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, namely, of seniority at the bar, but a note by Pollock, added to the preface, recorded that Maitland’s share in the work, both as to research and as to composition, was by far the greater. One of my predecessors in this chair, who was also my old chief at Yale, George Burton Adams, pronounced “Pollock and Maitland” to be unequaled as a work of continuous institutional history—and Professor Adams was not addicted to uncritical eulogy.
The other friend whose influence on Maitland was very great was the Russian medievalist Paul Vinogradoff. Visiting England in search of materials for medieval history, Vinogradoff became greatly impressed by the immense stores of unexploited archive sources for English legal history in the Public Record Office in London. Meeting Maitland by chance in January, 1884, he communicated his enthusiasm to him, with results that were to be decisive in Maitland’s career and momentous for the history of English law. “I often think,” Maitland wrote to Vinogradoff some years later, “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.” The first fruit of Maitland’s enthusiastic explorations at the Public Record Office was an edition of an early thirteenth-century plea roll, which he published before the end of 1884, with a masterly introduction and an appropriate dedication to Vinogradoff. He had now entered on his lifework as a legal historian.
In that same year, 1884, Maitland began to teach at Cambridge. Four years later he was elected Downing Professor of the Laws of England, and he held this chair for the rest of his life. As a lecturer he was pre-eminently original—illuminating, suggestive, and stimulating in what he had to say, which was carefully prepared, and impressive, humorous, and even at times dramatic in his manner of saying it. Students spoke of his power to create historical atmosphere and make dry bones live. In addition to formal lectures he used to give informal instruction in paleography and diplomatics to small groups of advanced students. My colleague Professor Shotwell, who knew Maitland in his later years and was familiar with the character and quality of his teaching, has spoken of this work of his as a kind of informal Ecole des Chartes.
In 1887 the Selden Society was founded for the purpose of advancing the knowledge of English law by publishing first-hand materials for the study of its history. Maitland was the prime mover in its establishment, became its literary director, and remained its inspiring genius until his death. Twenty-one volumes were issued by the society during his lifetime, of which eight were his own contributions, and all the others, some of them undertaken at his suggestion, underwent his editorial supervision. As a historical editor he was the opposite of perfunctory, and his introductions to his own volumes have been a boon to students because of his lucid presentation of his findings, his clear-visioned insights, his original and ingenious hypotheses, and his critical historical methods.
After all the argument and controversy that have been raging in historical circles regarding the uses and objectives of historical study, the nature of historical knowledge, and that perennially alluring apple of discord, historical relativism, most of us still speak respectfully, if not enthusiastically, about historical truth—that is, when we speak of it at all. Some of us are old enough to have listened to the impressive and beautiful address on “Truth in History” read before this Association nearly forty years ago by its President, my old and honored teacher, William Archibald Dunning, and all of us could read it with profit.
Only a selfless dedication to historical truth could have sustained labors so laborious and pains so painful as those to which Maitland subjected himself. A single instance must suffice for illustration. He turned from a continuation of The History of English Law, which he had much at heart, to the preparation of a critical edition of early Year Books because he regarded this latter as an indispensable preliminary to the former. To an understanding of the Year Books, however, there was also an indispensable preliminary—a thorough knowledge of the language in which they were written, the Anglo-French language spoken in English law courts in the thirteenth and fourteenth centuries. And hence our historian turned grammarian, orthographer, and phoneticist. For the competence with which he performed this exacting and intensely laborious task we have the testimony of a distinguished contemporary French philologist, who recommended Maitland’s excursion into medieval law French, published in the introduction to the first volume of the Year Books which he edited for the Selden Society, to all students of Old French in any of its numerous varieties. Maitland’s achievement seems all the more remarkable in that he took no interest in philology for its own sake and that his work on the Year Books was done in the closing years of his life, under the severe handicap of illness and enforced absences from England. He retained to the very end his capacity for the drudgery involved in scholarship. The pursuit of historical truth, as he understood that term, was Maitland’s ruling passion, and it explains, I think, most of his traits as a historian.
Anyone who has read more than a very little of Maitland is sure to be impressed by his concreteness and mastery of detail. He had a healthy distrust of the glittering generality that disdains illustration for he knew that concrete events are the stuff of history. One of the chief virtues of Stubbs’s Constitutional History of England, in his judgment, was a concreteness exceptional in books on that subject. “People can’t understand old law,” he once remarked, “unless you give a few concrete illustrations; at least I can’t.” And so his writing is alive with facts and the doings of men, even though the men are sometimes necessarily left anonymous. He never forgot that human institutions and ideas have no existence, no life of their own, apart from human beings.
This concreteness of Maitland’s, his factualism, goes far, if it does not go all the way, to explain his historical interpretations and conceptions of causation. You will search his writings in vain for any reference to historical laws, universal determinism of any variety (providential, economic, racial, geographical, or other), controlling social forces, or Zeitgeister. He himself, when young, had eagerly pursued philosophy as an academic subject, to be sure, and he must have heard great argument about causation, but the bent of his genius was historical. Perhaps he was too essentially and wholeheartedly the historian to take kindly to historical philosophy. You can find some “necessary conditions” in Maitland, but he did not misspend time and energy in the futile attempt to establish “fundamental causes.” He knew that causation in history is always multiple and complex, and that among antecedents there are always events that look like historical accidents, events, that is to say, which it seems impossible to account for as even probable results of their known antecedents. He was never guilty of the folly of brushing aside as useless or vain, conjectures on the part of historians in response to hypothetical questions contrary to historical fact. Without such conjectures, indeed, it would seem to be impossible to form any estimate of the significance of events and personalities in history, and he himself engaged explicitly in them. For example, in a passage in The History of English Law dealing with the results of the Norman Conquest in English legal history he asks whether a charter of liberties would ever have been granted in England if William the Conqueror had left only one son instead of three. And again, in his English Law and the Renaissance, where he is speaking of what he considered to be England’s narrow “escape” from a reception of Roman law in the middle years of the sixteenth century, he says:
If Reginald Pole’s dream had come true, if there had been a Reception—well, I have not the power to guess and you have not the time to hear what would have happened; but I think that we should have had to rewrite a great deal of history. For example, in the seventeenth century there might have been a struggle between king and parliament, but it would hardly have been that struggle for the medieval, the Lancastrian, constitution in which Coke and Selden and Prynne and other ardent searchers of mouldering records won their right to be known to schoolboys.
With all his concreteness, however, Maitland was not bogged down in detail so as to be incapable of generalization. On the contrary, he exhibited the rare combination of mastery of detail and high generalizing power, though he knew that most historical generalizations need qualification. Generalization is constantly in evidence in his writings. It is shown in surveys such as his article on the history of English law in the eleventh edition of the Encyclopaedia Britannica, it is shown in epigrams scattered through his writings. These are never mere purple patches, sewn on for ornament. They are used to drive points home, to clinch arguments.
Though primarily a legal historian, Maitland was not a narrowly legal historian. He knew, of course, that specialization, division of labor, is necessary if historical study is to advance. But no historian has perceived more clearly that the various departments into which the whole field of history, considered as knowledge about the past, has been divided for convenience and scientific utility are not severally self-sufficient or self-explanatory. No historian has felt more sensitively that this departmentalization of knowledge does not correspond to anything in history, considered as the flow of events in the past, to anything, that is to say, inherent in the historic process itself—that it tends, on the contrary, to obscure relationships that have always existed in that process as an undivided whole. He counted it for righteousness in his friend Leslie Stephen that he was “a great contemner of boundaries, whom no scheme of the sciences, no delimitation of departments, would keep in the highway if he had a mind to go across country.” Maitland knew that the historian of law must often go outside his own bailiwick for explanations, and, conversely, that specialists in other historical domains should often turn to the history of law. If medievalists today make greater use of legal materials as sources for English social, economic, and constitutional history than their nineteenth-century predecessors did, some of the credit for this improvement belongs to Maitland.
Maitland’s mind, like that of every other great historian, was of strongly critical cast. Constant exercise of private judgment must have strengthened the critical faculty in him, and reliance upon private judgment became very early a part of the man. There was in him, however, no tinge of arrogance or false pride of opinion. His ego never took precedence over his devotion to historical truth, and therefore he was never “exhausted in the effort to be omniscient,” as has been said of Karl Marx. In religion private judgment made him a dissenter even from Dissent, and it made him, as a historian, critical in his approach to historical evidence. What he admired most in his grandfather as a historian was his critical power. Maitland’s mind was of the rare type that does not take even commonplace things for granted. A useful collection of essays in historical criticism could be compiled from his writings.
Maitland’s independence of judgment could not fail to bring him at times into conflict with opinions and schools of thought that enjoyed wide acceptance and the endorsement of great names. But he was not polemical by preference. He never sought controversy, I think, or rejoiced in it, like some of his predecessors—and successors. Yet he was never overawed by authority, however eminent, and he did not shrink from taking issue with historians whom he respected if he became convinced that they were in error. He was habitually considerate and generous in his attitude toward other historical scholars and always tried to think the best of their performances. His historical criticisms, according to Vinogradoff, exemplified the maxim suaviter in modo, fortiter in re. Only if he thought that injustice had been done did he show signs of strong feeling, and then he could be devastating, even though the injured party had been dead for half a dozen centuries.
Suggestiveness is a conspicuous characteristic of Maitland’s writing. He addressed himself to a limited public, though he had no contempt for historical popularizers provided they were “honest and reasonably industrious,” and he himself possessed literary gifts that could have placed him high in their ranks. In reviewing a ponderous work of Germanic historical scholarship he confessed that Gallic “high vulgarization” had its attraction for him. He was devoid of the intellectual snobbishness that values knowledge the more when it is esoteric. Still he was primarily a historians’ historian, and he was always eager to aid other scholars and encourage them to labor, not in his vineyard (for no historian has been less monopolistic or proprietary in his attitude toward his field of specialization) but in the vineyard with him. His perception of historical problems awaiting solution and of work to be done in aid of historical scholarship made him extraordinarily fertile in suggestion, and a goodly crop of historical writing has stemmed from ideas which he threw out. To eliminate from written history, in the name of art, the evidences and inferences on which opinions have been based, to obscure the process of which the finished work is the final product, he considered to be a crime against history. He spoke with playful sarcasm of England as a land “where men are readily persuaded that hard labour is disagreeable and that the signs of hard labour are disgusting.” He gave high praise to historians like Stubbs and Liebermann, who took their readers into their confidence and showed them historianship behind the scenes. Of Stubbs he said: “No other Englishman has so completely displayed to the world the whole business of the historian from the winning of the raw material to the narrating and generalising.” This judgment can be applied with equal propriety to himself. Stubbs and Maitland were both historians’ historians, both mighty contributors to historical knowledge, both eager to help others in advancing it, and both historical editors who carried the editorial art to its highest levels. No other series of introductions to historical sources and records—at least none in the English language—deserves to be placed abreast of Stubbs’s or of Maitland’s. No other English historian’s footnotes have been more seminal than theirs. The dean of English medievalists of our own day, Professor Powicke, has declared that nothing can deprive the great works of these two masters of their pre-eminence.
Maitland conclusively refutes the false and mischievous notion, widely entertained though it is both in professional historical circles and by the history-reading public, that great learning and good writing are incompatible. We gild historians (with some exceptions of course) have tended to be suspicious of anything verging on style—that is, on good style. On the other hand, the esthetic sense of the public, at any rate as interpreted by commercial publishers (and few publishers known to me are wholly uncommercial), is offended by obtrusive evidences of scholarship, insisting, for example, upon the elimination of footnotes or, at least, their consignment to the rear, where those whom they may concern can examine them—with a maximum of inconvenience. Maitland had, it is true, no craving for popularity, and his appeal has not been to the general reading public, largely no doubt because of the nature of his subject matter. A chapter which he contributed to the Cambridge Modern History, on “The Anglican Settlement and the Scottish Reformation,” shows that he could write narrative history of the first quality when he wanted to. But the historian of institutions and ideas, and this, essentially, is what he was, has never enjoyed the popular favor accorded to narrative historians. “The History of Institutions cannot be mastered,—can scarcely be approached,—without an effort”—such is the majestic sentence with which Stubbs began the preface to his Constitutional History of England. You simply cannot imagine Domesday Book and Beyond superseding the latest best-selling novel on dressing tables in young ladies’ boudoirs, the ambition that Macaulay cherished for his History. The kind of history to which Maitland devoted himself requires for its understanding more active response, more mental effort, a higher degree of sympathetic imagination on the reader’s part, than the incisive rhetoric of Macaulay or the glowing prose of John Richard Green. It is also, as Maitland came to see, more risky than narrative history. “Would Gibbon’s editor,” he asked, “find so few mistakes to rectify if Gibbon had seriously tried to make his readers live for a while under the laws of Franks and Lombards?”
Yet Maitland was a consummate master of the art of expressing thought in English prose. Contemporaries who were familiar with his writings were all impressed by his literary qualities; and a generation after his death the editors of a collection of his articles coupled what they called “the matchless attraction of his style” with “the brilliant scholarship and originality of thought which he brought to bear upon every topic that he handled.” He had no set method, nor any single manner, of writing. He was eloquent (though never pompous) or homely (though never vulgar) or gay (though never flippant), as the nature of his subject and his mood moved him. His style, if it can be spoken of in the singular, is singularly various, but it never lacks the quality of distinction. Humor is certainly one of its salient features, humor “abounding in delightful surprises,” says Pollock, “overflowing even into the titles of learned papers, breaking out in footnotes with rapid allusive touches.” “Humor in footnotes” is itself a delightful surprise which I respectfully commend to the attention of my fellow members of this Association. Maitland had darts of sarcasm and irony in his armory, and he knew how to discharge them with telling effect, but his darts, however pointed, were never poisoned, and they were rarely aimed at individuals. He was well equipped with devices for fixing attention, facilitating understanding, and driving home arguments—reiteration and the use of the leitmotif, striking characterization, dramatic visualization, apt (and sometimes bold) literary quotation. A single example of the last, of almost audacious quotation, must suffice for illustration. In the introduction to his first major historical work, Bracton’s Note Book, Maitland expressed the opinion that Bracton found some specific rules of Roman law handy, but that in the main he borrowed them for application in concrete cases only when there was no applicable English authority. Such a general statement was all very well, yet it might not stick. But who will forget the point after Maitland has called upon Hamlet to help him drive it in?
Imperial Caesar dead and turned to clay
Might stop a hole to keep the wind away.
John Fiske, in the preface to his Discovery of America, emphasizes the need of freeing our minds from “bondage to the modern map”—a phrase which he borrowed from Edward A. Freeman—if we wish to understand what the great mariners of the fifteenth and sixteenth centuries were seeking. “The ancient map,” he says, “must take its place. . . . In dealing with the discovery of America one must steadily keep before one’s mind the quaint notions of ancient geographers. . . . It was just these distorted and hazy notions that swayed the minds and guided the movements of the great discoverers.” Bondage to the modern map, however, has been only one phase of bondage to the modern in general, from which the writing of history has always suffered and from which, if a counsel of perfection is permissible, it ought to be freed. The process of emancipation needs to be extended to all branches of history—the history of institutions and ideas no less than the history of geographical discovery. Maitland’s clear and steady perception of this need in historiography and his fidelity to the liberating and therapeutic principle of historical-mindedness were, it seems to me, the most distinguishing factors in his greatness as a historian. His appreciation of ideological differences between past and present was plainly in evidence early in his career as a writer—in a dissertation in the field of political theory which he submitted in competition for a fellowship at Cambridge and in his earliest important contribution to legal history. His work, taken as a whole, remains a standing protest against what Professor Sayles has recently called the “perverse historical doctrine that the past could only be understood in the light of the present.”
A historical conviction of Maitland’s that was rooted in his historical-mindedness was often reiterated in his writings, namely, that the course of development in legal thinking has been from the vague to the definite. In a striking passage in Domesday Book and Beyond he put this thought in these words:
The grown man will find it easier to think the thoughts of the school-boy 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.
Haze, Maitland often seems to be telling us, ought to be recognized for what it was. It should be allowed to remain hazy. It should not be given the semblance of clarity by having an unhistorical and false lucidity forced upon it. The temptation to clarify medieval haze is strong in the mind of the modern historian, but it ought to be strongly resisted: “We shall have to think away distinctions which seem to us as clear as the sunshine; we must think ourselves back into a twilight. This we must do, not in a haphazard fashion, but of set purpose, knowing what we are doing.”
The baffling problems of interpretation with which Maitland, as a medievalist, felt himself forced to wrestle, raised no perplexing difficulties for the medievals themselves—did not, indeed, exist for them—but that was because haze was not disturbed by haziness. There were no medievalists in the Middle Ages, there were just medievals. The medievalist is an exclusively modern phenomenon, a fact to which most of his spiritual tribulations are attributable.
Historical-mindedness, Maitland soon came to realize, was especially difficult in the field of early law and custom. It was far harder to find out what our remote ancestors thought than to find out what words they used or what implements they made. Again and again, explicitly and implicitly, he tells us that we ought not to force modern ideas on the Middle Ages. The problem in hand may be the status of the servus of Domesday Book. We moderns can call him a slave, but was he thought of at the time as a thing or as a person—or as neither? “We may well doubt,” Maitland’s answer is, “whether this principle—‘The slave is a thing, not a person’—can be fully understood by a grossly barbarous age. It implies the idea of a person, and in the world of sense we find not persons but men.” Modern legal theories are, in general, too definite, modern legal distinctions too sharply drawn, to suit medieval facts. The distinction, for example, between “alodial ownership” and “feudal tenure,” a sharp distinction, as modern historians had usually supposed, ought not to be pushed back too far, for in the eleventh century men were said to hold land of others in alodio. It was the same in the domain of political ideas and theories—“our medieval history will go astray, our history of Italy and Germany will go far astray . . . unless we both know and feel that we must not thrust our modern ‘State-concept,’ as a German would call it, upon the reluctant material.” Sometimes Maitland’s interpretations involving striking contrasts between archaic and modern ways of thinking are positively startling, as in what he has to say about Anglo-Saxon ideas of justice in relation to judicial proof by oath:
The swearer satisfies human justice by taking the oath. If he has sworn falsely, he is exposed to the wrath of God and in some subsequent proceeding may perhaps be convicted of perjury; but in the meantime he has performed the task that the law set him; he has given the requisite proof. . . . The plaintiff, if he thought that there had been perjury, would have the satisfaction of knowing that some twelve of his enemies [the defendant’s oath-helpers] were devoted to divine vengeance.
After-mindedness, that is to say, the retrojection into a past age of interests and ideas and attitudes and standards of later times, is likely, Maitland perceived, to lead us far astray in our interpretations of historical movements and tendencies, of human motives, of values in general. It may, for example, mislead us into mistaking progress for retrogression, it may persuade us that what was really contempt for a conquered people was an enlightened spirit of toleration, it may turn us topsy-turvy in our historical judgments on all kinds of questions. Even in the domain of ethics there were for Maitland no absolutes. All human conduct ought to be judged in relation to time and circumstance. Bracton, for instance, should not be accused of plagiarism because he did not conform to modern standards in acknowledging indebtedness to others. In his time nobody did. “Literary communism” was the order of the day.
Anachronism was as distasteful to Maitland, with his keen sense of time-depth, as it had been to his grandfather, and the obligation of the historian to be eternally vigilant in taking precautions against this historical disease is one of the great lessons to be learned from him. Anyone gifted with historic sense must, he felt, dislike to see a rule or an idea unfitly surviving in a changed environment.
An anachronism should offend not only his reason, but his taste. Roman Law was all very well at Rome; medieval law in the Middle Age. But the modern man in a toga, or a coat of mail, or a chasuble, is not only uncomfortable but unlovely.
Anachronism, he perceived, often leads us to follow false scents. Many questions that have been asked about the past are unhistorical questions because they are anachronistic. It was peculiarly difficult, he realized, to avoid anachronism in the realm of ideas:
Against many kinds of anachronism we now guard ourselves. We are careful of costume, of armour and architecture, of words and forms of speech. But it is far easier to be careful of these things than to prevent the intrusion of untimely ideas. . . . If, for example, we introduce the persona ficta too soon, we shall be doing worse than if we armed Hengist and Horsa with machine guns or pictured the Venerable Bede correcting proofs for the press.
What Maitland called “antedating the emergence of modern ideas” he declared to be the “besetting sin” in the traditional attitude of the English legal profession toward medieval English legal history. It was not difficult, for example, for the modern lawyer to find corporations in England much too early—“when we turn to a far-off past we may be in great danger of too readily seeing a corporation in some group of landholders, which, if modern distinctions are to be applied at all, would be better classed as a group of joint tenants than as a corporation.” We must take care, he urges us in many different connections, not to hurry history.
Antiquarianism, on the other hand, might run to excess and defeat its own purpose. Thus in the matter of orthography, Maitland’s sound judgment saved him from following the example of Green, who sprinkled his pages on Anglo-Saxon England with such outlandish name-forms as Eadwine, Bæda, and Ecgberht. Maitland knew that the letter often killeth, and he felt, in all probability, that such antiquarian literalism tended to give a false impression of the bizarre and the fantastic, which impeded rather than facilitated historical comprehension. In dealing with Bracton he had to decide between the traditional spelling of his name and the spelling as it was written in Bracton’s own day—“Bratton.” He decided in favor of tradition: “Bracton he has been for centuries, and so let him be to the end.”
Maitland knew too much history, and felt too historically about what he knew, to suppose that after-mindedness is a distinctly modern phenomenon. He knew that men in all ages had trodden that primrose path which has always led to anachronism, distortion, and falsification of earlier ages. Thus medieval English lawyers were thoroughly after-minded. This was shown, for example, in the law of villeinage in the thirteenth century—“it seems to betray the handiwork of lawyers who have forced ancient facts into a modern theory.” It was shown, too, in their attitude toward the old forms of action. As long as these were still in use it was difficult to tell the truth about their history:
There they were, and it was the duty of judges and text writers to make the best of them, to treat them as though they formed a rational scheme provided all of a piece by some all-wise legislator. . . . It was difficult to discover, difficult to tell the truth, difficult to say that these forms of action belonged to very different ages, expressed very different and sometimes discordant theories of law, had been twisted or tortured to inappropriate uses, were the monuments of long forgotten political struggles; above all it was difficult to say of them that they had their origin and their explanation in a time when the king’s court was but one among many courts.
In a recent discussion of the quo warranto proceedings against franchise-holders in Edward I’s reign Professor Plucknett has spoken of the application of new doctrines in the interpretation of old deeds and charters by “royal lawyers who had political reasons for exaggerating their natural lack of historical sense.”
Maitland’s Domesday Book and Beyond is a conspicuous example of what he himself called the “retrogressive method” in history, the method, that is to say, of proceeding from the later known to the earlier unknown. The question may properly be asked whether this method was consistent with his teaching against after-mindedness. There was, obviously, a danger that, in using the light of Domesday Book to lighten the darkness that lay beyond, anachronism and distortion would result, that what was true of England on the day when Edward the Confessor was alive and dead would be read back too far. Maitland was alert to this danger. We have his word for it that “the method which would argue from what is in one century to what was in an earlier century, requires of him who employs it the most circumspect management.” It is clear, I think, that he looked upon the retrogressive method as one to be resorted to only for want of a better, only for lack of adequate contemporary evidence. It might sometimes be necessary, but it was never for him the ideal method. It is in this sense that I read the following sentences in that trail-blazing introduction which he wrote to his edition of the roll of the Lenten Parliament of 1305:
It is hard to think away out of our heads a history which has long lain in a remote past but which once lay in the future; it is hard to be ever remembering that such ancient terms as house of lords and peers of the realm were once new terms; it is hard to look at the thirteenth century save by looking at it through the distorting medium of the fourteenth. . . . We must judge the rolls of Edward I’s reign on their own merits without reference to the parliament rolls of his grandson’s, or of any later, reign.
Did Maitland, any more than his grandfather, believe that absolute historical objectivity could be attained? Some words of his in Township and Borough suggest an answer he might have given to this question:
If we speak, we must speak with words; if we think, we must think with thoughts. We are moderns and our words and thoughts can not but be modern. Perhaps, as Mr. Gilbert once suggested, it is too late for us to be early English. Every thought will be too sharp, every word will imply too many contrasts. We must, it is to be feared, use many words and qualify our every statement until we have almost contradicted it.
Yet Maitland never yielded to discouragement, he never became a defeatist. He was too morally wise to grow cynical about ideals because it is of their nature to be not completely attainable. He knew that a man’s reach should exceed his grasp, but it never occurred to him to build a philosophy of historiography upon the difference between the two. At the end of Domesday Book and Beyond he concludes with a paragraph of “last words,” and this paragraph concludes with these last sentences of hopeful prophecy concerning the state of materials for the knowledge of “ancient English history,” and the historical sense necessary for their interpretation, at the close of the twentieth century:
Above all, by slow degrees the thoughts of our forefathers, their common thoughts about common things, will have become thinkable once more. There are discoveries to be made; but also there are habits to be formed.
A mind as acute as Maitland’s was inevitably much concerned with precise meanings of words, with nice distinctions between words, with varying senses in the use of words. His sensitivity to differing shades of meaning in words is shown, for instance, by the pains he took to demonstrate that in Bracton’s day the word “manor” (manerium) was not a technical term of law, susceptible of precise definition. As a historian of law he was impressed by the fact that lawyers had taken their terms from the popular speech and given them technical meaning and definition. Sometimes, he noted, “a word continues to have both a technical meaning for lawyers and a different and vaguer meaning for laymen.” In the sixteenth century, which to Maitland’s mind was so critical a period in the history of the common law, it was no small matter, it seemed to him, that English lawyers had been able to define their concepts sharply, to construct an adequate technical vocabulary, to think with precision. Technicality made the common law tough and immune to foreign legal influences. Had it been less technical and more homely, “Romanism would have swept the board in England as it swept the board in Germany.”
At the very beginning of his career as a historian Maitland showed that he was already what might be called a historical semanticist, alert to changes in meaning which words have undergone in the course of time. He was ever conscious of the truth later expressed by Mr. Justice Holmes in a beautiful and famous metaphor: “A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.”
Maitland’s ear for gradations in the scale of meaning was extraordinarily sensitive; it would be difficult, in any of his writings, to find cases of semantic tatting or sharping. In Anglo-Saxon diplomata he could distinguish the tones of a whole “graduated scale of carelessness, improvement, and falsification” that lay between “unadulterated genuineness and wicked forgery.” For an understanding of early English landholding much hinges, he found, upon nice distinctions between the two Latin prepositions, sub and de. “We catch a slight shade of difference between the two,” he tells us in Domesday Book and Beyond; “sub lays stress on the lord’s power, which may well be of a personal or justiciary, rather than of a proprietary kind, while de imports a theory about the origin of the tenure; it makes the tenant’s rights look like derivative rights:—it is supposed that he gets his land from his lord.” A vivid appreciation of the instability of meaning attached to words was one of Maitland’s major historical perceptions. An instance in point was the word “landlord.” “We make one word of it,” he said, “and throw a strong accent on the first syllable. The lordliness has evaporated; but it was there once. Ownership has come out brightly and intensely; the element of superiority, of government, has vanished.”
The problem that lies at the heart of semantics arises from the false identification of, or confusion between, the verbal labels, or symbols, put upon things, objects, qualities, ideas, and, in general, whatever talk or writing is about, and the things, objects, qualities, and ideas to which the symbols refer, the referents, as semanticists call them. In reality, of course, there is no direct and inherent connection between the verbal label and the object referred to, as Locke was at pains to point out in his Essay concerning Human Understanding. You are no more really ladies and gentlemen than you are mesdames et messieurs, and a rose by any other name would smell as sweet. But the assumption that a direct connection between symbol and referent actually exists is deeply engrained in human thinking, and semanticists regard this assumption as Public Enemy Number One. Symbols are often indeterminate and vague, and evoke widely different conceptions in different minds. Agreement regarding the referent may be called the goal of semantics.
Maitland did not employ the vocabulary of present-day semantics, which is not strange since the term itself was only beginning to come into English usage as the name of a theory, or science, of meaning toward the close of his life. But semanticists can claim him as one of theirs. Listen to this:
When King John granted the vill of Cambridge to the burgesses and their heirs, did he mean to confer an ownership of the soil upon a municipal corporation? One point seems certain. Neither John nor his chancellor would have understood the terms of our question. Both the right that is given and the person or persons to whom it is given are hazily and feebly conceived.
Isn’t Maitland telling us that King John’s referents were not sharply defined in his own mind? From a modern point of view, they were vague and hazy. And if King John’s thirteenth-century referents leave something to be desired from our standpoint, what can we expect of the referents of Anglo-Saxon kings in their land-books? Again let Maitland tell:
. . . when our kings of the eighth century set their hands to documents written in Latin and bristling with the technical terms of Roman law, to documents which at first sight seem to express clear enough ideas of ownership and alienation, we must not at once assume that they have grasped these ideas.
In translating from other languages into English Maitland was confronted with the semantic problem. He frequently had to probe for an English equivalent of some foreign word and could not always find it. It was often difficult, if not impossible, he discovered, to translate a medieval Latin word accurately, and sometimes he had to be satisfied with the least inadequate English rendering of a German expression. He came to the conclusion that an English translation of the work of a German lawyer could, at best, never be entirely satisfactory: “To take the most obvious instance, his Recht is never quite our Right or quite our Law.” Sometimes a German word seemed to Maitland definitely preferable to its not quite equivalent English translation. He was led to speculate on the comparative semantic merits of the English and German languages for legal history. The German historian, he concluded, had at his disposal more accurate terms and concepts than his English counterpart, but this was not an unmitigated advantage for it might lead him to construct theories about early times too sharp to be true. Still he could see possibilities, said Maitland, that are “concealed from us in our fluffier language; and the sharp one-sided theory will at least state the problem that is to be solved.”
Maitland’s writings—his books, articles, introductions, and reviews—come to us from the generation before last, and it should go without saying that they are not at all points fully abreast of today’s scholarship. Some of his opinions have been questioned, and here and there they have been corrected. To demonstrate this specifically would serve no present purpose, even if the hour were earlier. It should be said, however, that this is how he would have had it, for nothing was nearer to his heart than the hope that the work which was so dear to him would be carried forward by others, and he was, as we have seen, a welling source of inspiration. We may say of him what he said of an English historian of the generation before his own, J. M. Kemble—that no one “who has felt the difference between genius and industrious good intentions” can ever differ with him lightly or without regret. It is significant that Maitland’s principal critics have been among his warmest admirers.
Judged, as every scholar ought to be judged, in relation to the state of knowledge and the standards of learning of his own day, Maitland was a towering figure. In an obituary article on his old friend and collaborator, Sir Frederick Pollock wrote:
It is not easy to convey an adequate notion of Maitland’s work to those who have not themselves labored in the same field. It is still less easy for any one to appreciate the difficulties or the success who does not remember the conditions under which he started. . . . Looking back some twenty-five years, we see the early history of the Common Law still obscure, insulated, a seeming chaos of technical antiquities. Historians excusably shrank from it, and the lawyers who really knew much of it could almost be counted on one’s fingers. . . . This was the world which Maitland’s genius transformed. . . . So complete has the transformation been that our children will hardly believe how uncritical their grandfathers were, and on what palpable fictions they were nourished. . . . Maitland commanded the dry bones to live, and henceforth they are alive.
And one final estimate, by Sir William Holdsworth, the historian of English law, who was proud to profess himself a disciple of Maitland: “In an age of great historians I think that Maitland was the greatest, I think that he was the equal of the greatest lawyers of his day, and that, as a legal historian, English law from before the time of legal memory has never known his like.”
Robert Livingston Schuyler was professor of history at Columbia University
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