Excellence in the Mundane -- The Law of the (Mait)Land
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."
by Philip Robert Liebson
The Chicago Literary Club and
The Fortnightly of Chicago
March 7, 2003
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
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
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
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.