Excellence in the Mundane -- The Law of the (Mait)Land
by Philip Robert Liebson

Delivered to
The Chicago Literary Club and
The Fortnightly of Chicago
March 7, 2003

In Las Palmas in the Canary Islands lies the body of the Downing Professor of the Laws at Cambridge University, buried since the year 1906, at age 56. He had been spending the winters there for several years because of failing health, possibly with tuberculosis and diabetes, and he succumbed to pneumonia. He had entered the legal profession after failing to obtain a fellowship in political science at Cambridge after graduation. Eventually his early studies in land law brought him a position in academia at Cambridge and later renown. His methodological evaluations of medieval English land law were to influence the approach to studies of medieval documents on both sides of the Atlantic. His 2 volume History of English Law has been considered a pathfinding work of medieval legal history in the English language. His legal writings were revered at the Harvard Law School, at the time the paramount academic repository of Anglo-American law in this country. Even years later, his methodology remained an influence on American medieval studies. For example, at the Princeton graduate school, the Chair of History, Joseph Strayer, had his medieval history doctoral students spend most of their time reading medieval tax rolls, because, as he put it to a recalcitrant student: "if we historians don't do it, nobody will."

Who was this unique individual, rarely criticized by his peers or followers, indeed considered by some as an academic saint? He was generous, known for his epigrams, thin and athletic, with a magnetic intensity in his eyes. He was virtually alone in the University Senate in supporting women's right to take degrees at Cambridge, and viciously attacked for his efforts. He could have had the prestigious Regius professorship in history at Cambridge but possibly declined it because of poor health.More likely, as he put it, he would be "expected to speak to the world at large and even if I had anything to say to (it), I don't think that I should like full houses and the limelight."

Frederic William Maitland was his name, and as a young lawyer, he had much time on his hands for his clients were few. One can speculate on how valuable idleness was in Victorian England in spurring productivity -- Karl Marx and Arthur Conan Doyle being other examples at the time. Maitland used this idle time to attempt to resolve an issue that plagued English lawyers -- his area was land law, or conveyancing as it was called. The land law of England was virtually unchanged since medieval times -- it had been modernized in the United States almost half a century earlier. But in the England of the mid-1880's this 34 year old lawyer was baffled by the bewildering intricacies of a body of law that seemed distinctly dysfunctional to the society around him.

Then Maitland pursued a very rational idea but one that escaped the historians of his time -- there must have been some social rationale in medieval times when these laws were developed that made the laws quite pertinent to that society. This brought Maitland to the British Museum library and especially to the Public Record Office in London, where, with time on his hands, he pored over law cases and plea rolls from as early as the 12th century, using the original documents, transcripts, or photographs of documents. Needless to say there were reams and reams of mundane writing, but fortunately well-scripted. In this manner Maitland was undertaking an approach that many young medieval historians in France and Germany were already applying, studying the actual records and deducing the social fabric -- how people thought at the time, what made sense to them and how the land law of that period accommodated the social fabric.

Compare the researches of this young lawyer with the very Victorian concepts of history at the time. A leading example of the Victorian historical perspective was William Stubbs, then an Oxford constitutional historian. A few of Stubbs' comment will suffice: "The polity developed by the German races on British soil is the purest product of their primitive instinct", and "English liberty [was] won...by the strength of the Wise ruler", and "The constitution was written by men who had no personal ambition, but abundant patriotic honor and ambition." Contrast this with later Maitland: "Our one hope of interpreting [medieval English law].. seems to lie in an effort to understand the law of [the] times, to understand it thoroughly, as though we ourselves lived under it", and "A Natural History of Institutions is a fascinating ideal, but we must have a care or our Natural History will bear to real history the relation that Natural Law bore to real law."

Maitland was by no means isolated in his early searches. In his quest for knowledge at the British Museum library he had the good fortune to meet two scholars from the continent who knew as much if not more about the history of English common law than any English lawyer of the time, one a German named Felix Liebermann, who later wrote a classic three volume book on the Laws of the Anglo-Saxons, and the other, a Russian scholar named Paul Vinogradoff, who was in England researching English manorial law of the eleventh century. Maitland, unlike many British historians of the time, had made an effort to learn German fluently on his many trips to the continent as a young student, and this allowed him to discuss with ease the subtleties of mastering the law rolls with Felix Liebermann. Liebermann, in fact, had traveled all over England studying law codes from the seventh to the twelfth centuries. Vinogradoff also had examined reams and reams of plea rolls available in London. Eventually, the Russian would use his researches to develop his principal publications, English Society in the Eleventh Century, and Outlines of Historical Jurisprudence. Here were these three, going right to the primary sources, not relying on a perceived Natural Law, but developing a framework of historical perspective devolved from the day to day functioning of a dynamic but distant society.

But it was at the Public Record Office in London that Maitland began to explore the law rolls, probably at the urging of Vinogradoff. The Public Record Office has been described as an "impressively absurd piece of Victorian gothic" that housed numerous parchment rolls. Let us imagine the young Maitland looking at his first parchment rolls, stretched and bleached calfskin or lambskin that survived the moist climate as no paper would. Stenographic records of plea rolls from English central courts, mostly from the 14th and 15th centuries, frequently running to 400 pages, few published, were lying around. Those few from the 12th and 13th centuries, mostly Latin, were relatively easy for Maitland to read, in characters termed Carolingian miniscule, using lower case and upper case letters. As court stenographers became more pressed for time, with the Carolingian miniscule not too susceptible to rapid transcription, these texts became harder to read. Special training and experience would be needed to understand these. Also, after 1150, texts were inscribed in the vernacular, especially medieval French. Maitland, for his part, understood written Latin well but was completely uninstructed in the reading of these medieval French rolls. He had to teach himself the techniques to decipher them. These plea rolls, or medieval court cases, were used by Maitland to determine how the common law emerged and developed in response to the social and cultural environment of the time. The origin of the term "common law" itself is obscure and can either mean law common to the whole of the English kingdom, that is, royal law, or for secular law as distinct from church law. Common law originated roughly between 1160 and 1270, creating an alternative to Roman or civil law, which continued to be used on the Continent.

Maitland was fortunate in that he received a readership in English law at Cambridge within one year of the initiation of his researches, thanks to the sponsorship of one of his mentors while Maitland was a student there, and within three years achieved his professorship of laws.

From 1884 until his death 22 years later, Maitland undertook prodigious research and extensive publication based upon these rolls. He had several talents that assisted him in this endeavor: a photographic memory and an ability to categorize complex issues, and, most importantly, a graceful yet incisive writing style. He had no copying machines, word processors or research assistants. Much of his work was accomplished traveling from Cambridge to London, copying notes from these scrolls by hand. It is interesting that he had two handwriting styles, usually a fast, upright stroke but occasionally a slower and rounder script inclining to the right. What would Sherlock Holmes have made of these in interpreting character? More on Holmes later.

Although he had been an athlete as a young man, Maitland suffered ill-health for over a decade before he died. This caused him to seek a more salubrious climate during the winter months, in the Canaries or Madeira, for the last 8 years of his life. These absences from the vile climate of Cambridge were tolerated by the University and Maitland compensated for them by his intensive lecture series on returning in March.

One can well understand how mundane many of these plea rolls and writs may have seen to the average person, but they were the source of inspiration for Maitland. Here was a treasure trove of unread and mostly unedited records of legal, financial, social activities of people living 700 years before.

Why was Maitland called "sainted" by another historian, and treated with honors? His name has remained honored over the years. A historian from Oxford stated a few years after his death: "The world lost in Maitland not only a great and original scholar but also a nature of singular charm and beauty." Although the historian was Maitland's brother-in-law, this reflected the opinions of others.

There were several aspects of Maitland's accomplishments that typified his excellence: his approach to history as a lawyer, his writing style, his academic activities, and his personality and wit. He approached history by diligent reading of the sources. Other historians of his time did as well, but wrote long narrative descriptions of a period, frequently with preconceptions based upon presumed national characteristics. Maitland abhorred broad narrative. He focused upon close explorations of a period, attempting to eliminate assumptions and working from the records. As he wrote: "An orthodox history seems to be a contradiction in terms -- if we try to make history the handmaid of dogma she will soon cease to be history." As a lawyer Maitland insisted, so far as the medieval period was concerned, that history was inscribed in the laws contained in the vast store of rolls, writs and accounts that he found in the Public Record Office. "Legal documents, documents of the most technical kind, are the best, often the only evidence we have of social and economic history." He explored the jury system, indicating precisely how trial by jury came into existence, and how a cumbersome trial jury of 48 from the 4 points of the compass was whittled down to 12, the number of the Apostles. Also, how the circuit judges of the period wanted trials lasting only 5-10 minutes, sometimes carrying a hung jury to the next circuit site until they arrived at a decision.

The capstone of his prodigious output was the 2 volume History of English Law before the time of Edward I, i.e, between 600 and 1272. The monumental work was aimed at lawyers, certainly, on both sides of the Atlantic, but also the educated public. He collaborated with Sir Frederick Pollock, Corpus Professor of Jurisprudence at Oxford, at the urging of the Director of the Cambridge University Press. Pollock was better known in legal circles at the time and the Director considered him the more attractive draw for professional book sales. For his part, Pollock contributed but one chapter on Anglo-Saxon Law, or 1% of the work. It is said that Maitland hurriedly wrote the rest of the two volumes to prevent Pollock from writing another chapter, primarily because of Pollock's writing style and attitude toward historical analysis.

We have mentioned Sherlock Holmes. There is a strong parallel between the methodology of Holmes and Maitland. Maitland analyzed early English law in the volume "Domesday Book and Beyond." Beyond in this context was earlier. Maitland evaluated earlier English law by extrapolating from the well known law and society of the 12th and 13th centuries backwards to whatever previous scanty records were available, from the known to the unknown. This technique was remarkably similar to Sherlock Holmes's approach: " The grand thing is to reason backward There are few people, who, if told a result, would be able to evolve from their own consciousness what the steps were which led up to the result. This power is what I mean when I talk of reasoning backward, or analytically." Did Conan Doyle meet Maitland, one wonders?

Among the numerous results of Maitland's analyses was the evidence that the early English Parliaments were not forums for the legislation by representative of the people but instead were convenient foci for pleas before the king, ultimately decided by the king's own council. These pleas were quite mundane and dealt with local issues such as granting pardons, building bridges, questions of property infringement, etc. The Model Parliament was hardly a model. As to Maitland's writing style there are many pithy examples: "the king's lordship and the hands that gather the king's dues are everywhere; and where they have come the king's law will follow;" and, "A king shall be kidnapped, and a king shall be murdered, as of old: It is the custom of the country;" and: "The Lorrainers were not France: their enemies told them that they were not French."

He was generous as a reviewer of other manuscripts of history but occasionally he could be roused by ill-mannered comments. Once he reviewed a book by an Oxford historian that was quarrelsome in tone. He cited a comment by this author about a minor error of a historian who happened to be a woman: "one must not be severe on a lady's Latin." For Maitland, this was the last straw. He found a German name miss-spelt in the book and commented that the author's "acquaintance with the German tongue is but gentlemanly." When this ill-mannered historian later complained that a clique of Oxford historians were endeavoring to silence him at any cost, Maitland commented: "they must be simple folk down there at Oxford to think that [he] will ever be silent."

As for his academic activities, Maitland was a diligent contributor of volumes and co- founder of the Selden society, dedicated to the publication of historical law materials. He became the society's literary director and assisted in promoting other's research. He tirelessly worked to edit Year Books that were elucidations of contemporary students' compilations of court notes during the reign of Edward II. He very clearly indicated the separation of legal approaches to history from the historian's approach: "A lawyer finds on his table a case about rights of common which sends him to the Statute is it the [ancient] law he wants to know? No, it is the ultimate result of the interpretations set on the statute by the judges of twenty generations What the lawyer wants is authority and the newer the better. What the historian wants is evidence and the older the better."

In the end, it was Maitland's excellence in combining the skills of legal investigation with the historian's perspective, working in a field of mundane writs and plea roles, that produced not only a crystallized framework of medieval knowledge, but a methodologic substrate upon which generations of historians could build.

I close with the last line of The History of English Law, which has pertinence to our time. "These few men who were gathered around Westminster were penning writs that would run in the name of kingless commonwealths on the other shore of the Atlantic Ocean; they were making right and wrong for us and for our children."


1.Cantor, N.F., Law and Society: Frederic William Maitland, in, Inventing the Middle Ages. New York, Quill, 1991.

2. Elton, G.R., F.W. Maitland. London, Weidenfeld and Nicolson, 1985.

3.Pollock F. and Maitland F.W., The History of English Law before the time of Edward I. 2 volumes. Second Edition. Cambridge, at the University Press 1898. Reprinted by the Lawbook Exchange, Ltd. Union, New Jersey, 1996.

4. The History of English Law. Centenary essays on Pollock and Maitland. John Hudson, ed. Oxford University Press, 1996.