Frederic William Maitland and the Earliest English Law

Law and History Review

Volumn 16, Issue 1, 1998, Pages 1-25

  Wormald, Patrick ^a  

^a NONE

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EID: 84903342998     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744319     Document Type: Article

References (98)

1. S. F. C. Milsom, “F. W. Maitland,” Proceedings of the British Academy 66 (1980): 265-81. Compare Milsom's Introduction to PM, vol. 1, p. xxiii, and “A Supremely Good Historian,” Times Literary Supplement, February 28,1986, 226; see also Milsom, ‘“Pollock and Maitland’ : A Lawyer's Retrospect,” Centenary Essays, 259. For Maitland's own horror of fossilization as orthodoxy, see his famous response to criticism of DBB by the young James Tait, Letters (Fifoot), no. 200, together with Letters (Fifoot), no. 271, and now Letters (Zutshi), no. 311, on disagreement voiced by a stripling Chadwick's Studies on Anglo-Saxon Institutions. Compare, too, the celebrated remarks of his Inaugural Lecture about the difference between law and history, CP, vol. 1, 491. Other Academy honorati do include Macaulay but (as with Kemble orCarlyle's second appearance) in a capacity other than historian or Master-Mind. Other Academy fellows so honored (Bemont, Bergson, Delisle, and Rostovtseff) were “corresponding” continentals.
2. Centenary Essays. But White, “Maitland on Family and Kinship,” 91-113, and Hyams, “Maitland and the Rest of Us,” 21541, do raise some historiographical issues, and my own paper, “Maitland and Anglo-Saxon Law,” 1-20, addressed questions more fully discussed here.
3. See G. R. Elton, F. W. Maitland (London: Weidenfeld, 1985), 97-98 (echoed by Helen Cam, SE, p. ix, and R. W. Southern, review of Letters (Fifoot), History and Theory 6 [1967]: 110). Much the most important of Elton's reviews is that of Milsom himself (TLS, February 28, 1986, 225-26) whose central point is that Elton understated the lawyer in Maitland. See also, e.g., R. Brentano, Speculum 63 (1988): 151-52; P. R. Hyams, English Historical Review 104(1989): 186-87.
4. Given the impossibility of covering substantial points of legal history in the requisite breadth or depth, reference is apologetically made to my The Making of English Law (Oxford: Blackwell, forthcoming) for the matters addressed in footnotes 22-23, 41-43, 67-72, 81-82,88-91.
5. Among Oxford colleagues, I am particularly grateful to John Burrow and William Thomas. Among participants in the centenary conference, I owe special debts to Toby Milsom, George Garnett, and John Hudson. And on both counts, as well as all others, I am indebted to Jenny Wormald.
6. Letters (Fifoot), no. 109 (compare no. 138); The Pollock-Holmes Letters, ed. M. dew. Howe (Cambridge: Cambridge University Press, 1942), vol. 1, 60-61.
7. I have discussed this problem in considerably greater detail in the more appropriate setting of my centenary conference paper: “Maitland and Anglo-Saxon Law,” in Centenary Essays, 2-A, and notes 3-12. See also Maitland's sketches of the topic, “Outlines of English Legal History,” in Social England, ed. H. D. Traill (London: Cassell, 1893; repr. in CP, vol. 2, esp. 418-35) and “History of English Law,” in Encyclopedia Britannica (10th ed., 28th supplement, 1902), repr. in SE, esp. 97-102. The description of the legislation of Alfred's successors as “capitularies” occurs in Maitland's new introductory chapter to the second edition of PM, 19, also in these papers at 422, 98 respectively, but not in Pollock's original first chapter, or in Pollock's acknowledged works. Other evidence consists, of course, of the second chapter in DBB, once intended for PM (Hudson, “Maitland and Anglo-Norman Law,” Centenary Essays, 28-30). See also PM, vol. 1, 296-305, 568-82; vol. 2, 240-60, 314-23, 449-58, 503-4, 598-603; CP, vol. 1, 202-46, 304-28; vol. 3, 447-73; SE, 41-51; Letters (Fifoot), nos. 87, 96, 238, 271, 305; Letters (Zutshi), nos. 37, 175, 311.1 criticized Pollock's picture of Anglo-Saxon law in PM, vol. 1, 25-63, esp. 38-41 (when still under the unfortunate impression that it was Maitland's own): “Charters, Law and the Settlement of Disputes in Anglo-Saxon England,” in The Settlement of Disputes in Early Medieval Europe, ed. W. Davies and P. Fouracre (Cambridge: Cambridge University Press, 1986), 149-68.
8. PM, vol. 1, [p.] 1; compare vol. 1, 225, vol. 2, 672-73, and Maitland, “Outlines of English Legal History,” 418. For Maitland “as historian of situation,” see R. W. Southern, review of Letters (Fifoot), 111.
9. Glanvill=Tractatus de Legibus et Consuetudinibus Regni Angliae qui Glanvilla vocatur, ed. G. D. G. Hall (Edinburgh: Nelson's Medieval Texts, 1965); Leges=Leges Henrici Primi, ed. and tr., L. J. Downer (Oxford: Oxford University Press). For Maitland's comparison of the two, see, e.g., PM, vol. 1, 165, vol. 2, 448; CP, vol. 1, 332, vol. 2, 29-30, 36, 443-44, vol. 3, 451, 467-68; SE, 102.
10. For comment on the Leges's limitations, see PM, vol. 1, 32 (Pollock?), 100-101; DBB, 80-87; CP, vol. 2, 433; Letters (Zutshi), no. 37, p. 53; and compare Hudson, “Maitland and Anglo-Norman Law,” Centenary Essays, 44-5.
11. Political Theories of the Middle Ages, by Otto Gierke, trans. F. W. Maitland (Cambridge: Cambridge University Press, 1900), pp. xv-xvii; PM, vol. 1, 44 (echoing “Outlines of English Legal History,” 429): “purest specimens of pure Germanic law.”
12. CP, vol. 2, 12-13,19-20.
13. Above all from P. H. Sawyer, Anglo-Saxon Charters: An Annotated List and Bibliography (London: Royal Historical Society Handbooks, 1968), now being revised under Academy auspices by Susan Kelly and Simon Keynes.
14. Letters (Fifoot), no. 395; Letters (Zutshi), no. 311.
15. A. L. Smith, Frederic William Maitland: Two Lectures and a Bibliography (Oxford: Oxford University Press, 1908), 39-0; PM, vol. 2,672-73. Maitland did expect to be overridden by Liebermann's eventual publication of the Anglo-Saxon and Anglo-Norman laws (PM, vol. 1, 97, n. 3) and declared that controversies about proprietary right “are better left to those who have more copious materials for the history of very remote ages than England can produce” (PM, vol. 2, 77 [with reference in n. 2 to Brunner's review of the first edition]). Compare, too, his pessimism about Anglo-Saxon legal materials (CP, vol. 2, 12).
16. CP, vol. 3, 506. This was doubtless one reason why “of all that I have written, DBB makes me most uncomfortable”: Letters (Fifoot), no. 271.
17. DBB, 258-92, quoted at 283. Compare Letters (Fifoot)., 80-107; PM, vol. 1, 43 (the more hesitant formulation of the first edition's 20-21, omitted from the second with reference to DBB, perhaps hinting that Pollock and Maitland did not quite see eye to eye); also Letters (Fifoot)., vol. 1, 73, 576-80, vol. 2, 453-55.
18. Hn com 3; H. Adams, “The Anglo-Saxon Courts of Law,” in Essays in Anglo-Saxon Law (Boston: Macmillan, 1876), 27-54; J. Goebel, Felony and Misdemeanour (repr, Philadelphia: University of Pennsylvania Press, 1976), 339-78.
19. II Cn 12; N. Hurnard, “The Anglo-Norman Franchises,” English Historical Review 64 (1949): 289-323, 433-60.
20. P. Wormald, “Lordship and Justice in the Early English Kingdom: Oswaldslow revisited,” in Property and Power in the Early Middle Ages, ed. W. Davies and P. Fouracre (Cambridge: Cambridge University Press, 1995), 114-36; see also footnote 23 below.
21. H. M. Cam, “The ‘Private’ Hundred in England before the Norman Conquest,” and “The Evolution of the Medieval English Franchise,” both repr. in Cam, Law-Finders and Law-Makers in Medieval England (London: Merlin, 1962), 59-70, 22-43.
22. DBB, 277, 86-103; on the Anglo-Saxon “land-book,” see both repr. in Cam, Law-Finders and Law-Makers in Medieval England., 226-58 (esp. 229-43, 247-52).
23. P. Wormald, “A Handlist of Anglo-Saxon Lawsuits,” Anglo-Saxon England 17 (1988): 247-81; see also Wormald, “Lordship and Justice,” 132. In chapter five of his unpublished 1987 Leicester Ph.D. thesis, “Nottinghamshire and the North: A Domesday Study” and in “Brought to Book: Lordship and Land in Anglo-Saxon England,” another unpublished paper he has kindly shown me, Dr. David Roffe demonstrates that the normal Domesday pattern was for courts whose revenues had been alienated to be run by royal officials notwithstanding.
24. DBB, 267. Two of the earlier charters that mattered most to his argument, Sawyer, Anglo-Saxon Charters, nos. 183,278 (compare no. 292), are deeply problematic. And few of the writs he cited at 260-61 have withstood later scrutiny. See Wormald, “Oswaldslow,” 128-29.
25. DBB, 80; Leges, 20-23, 25-33, 41-50, 55-57, 61, etc.
26. PM, vol. 1, 73 (n. 2), 576; compare the justly famous passage on the Frenchification of English legal terminology (DBB., 80-87).
27. “Outlines,” CP, vol. 2, 423; see also CP, vol. 3, 8-9, and DBB, 295-318. To judge from Letters (Fifoot), no. 96 (to Pollock, 1891), the work that became DSB's “England before the Conquest” germinated as a History of English Law draft chapter on “Origins of Feudalism” (Hudson, “Maitland and Anglo-Norman Law,” Centenary Essays, 30). For Maitland's definitions, see PM, vol. 1,66-67, “an unfortunate word,” etc.; CP, vol. 1, 175, “a good word [that] will cover a multitude of ignorances”; above all, see the immortal squib in A Constitutional History of England (Cambridge: Cambridge University Press, 1908), 142, already anticipated in his 1889 inaugural lecture (CP, vol. 1, 489).
28. PM, vol. 1, 68 (1st ed., 45) and (e.g.) 527.
29. J. W. Burrow, A Liberal Descent: Victorian Historians and the English Past (Cambridge: Cambridge University Press, 1981), 109-11, 119-25, 138, 150, 162-63, 169, 172, 176-77; id., “Lord Acton's Inaugural,” The Historian 48 (1995): 2-6. For comparable influences on Maine, see id., Evolution and Society. A Study in Victorian Social Theory (Cambridge: Cambridge University Press, 1966), 142-46, and “The Village Community and the Uses of History in Late Nineteenth-Century England,” in Historical Perspectives: Studies in English Thought and Society in Honour ofJ.H. Plumb, ed. N. McKendrick (Cambridge: Cambridge University Press, 1974), 257-73. See also J. Campbell, Stubbs and the English State (Stenton Lecture 21, Reading 1989), 6, 8; and Letters of William Stubbs, ed. W. Hutton (London: Constable, 1904), 118 (citing his “Inaugural Lecture,” Seventeen Lectures on the Study of Mediaeval and Modern History [Oxford: Oxford University Press, 1900], 12-14), also 140-43, 159, 162, 175, 182-87, 356-58. In Freeman's case, the connection was less welcome to both sides but real enough: Burrow, Liberal Descent, 120; Life and Letters of Edward A. Freeman, ed. W. R. W. Stephens (2 vols., London: Macmillan, 1895), vol. 2, 379-80, and compare Letters of Stubbs (from Pauli), 183-84.
30. SE, 262. One wonders how many subsequent English medievalists have sent copies of their latest work to counterparts of Brunner, Gierke, Liebermann, Meyer, and Petit-Dutaillis (Letters [Zutshi], no. 306); compare A Liberal Descent: Victorian Historians and the English Past., no. 295, “debts of a very personal kind” to Gierke, Brunner, Stutz, Hiibner, and Liebermann. Brunner features with honor (more than do English scholars-compare footnote 32, below) in his first published work (CP, vol. 1, 174), while late in his life his review of Liebermann (CP, vol. 3, 460) speaks of “that fatal disease of contented insularity which so easily besets us.” See too CP, vol. 3,417. For more on his debts to Germans, see Letters (Zutshi), nos. 267, 276; and for his respect for them, see his “German Civil Code” (CP, vol. 3, 474-88), and the pointed remark in his Gierke translation that “much else besides blood, iron and song went into the remaking of Germany” (p. xvi). This topic is addressed by M. Graziadei, “Changing Images of the Law in XIXCentury English Legal Thought (The Continental Impulse),” in The Reception of Continental Ideas in the Common Law World, ed. M. Reimann, Comparative Studies in Continental and Anglo-American Legal History 13 (Berlin: Dunker and Humblot, 1993), 115-63, esp. 149-63. Most instructive is B. Kumin, ‘“How Good Gierke is!'-Frederic William Maitland in seinem europaischen Kontext,” Zeitschrift fur neuere Rechtsgeschichte 17 (1995): 268-82, which its author was kind enough to send me before publication.
31. Kumin, “'How Good Gierke is!’” 269-70; the exact figures are 34 out of 390.
32. CP, vol. 3, 447-73, at 472. For Anglo-German tensions, see Letters (Zutshi), no. 331. Examples of this view, which was at once picked up by Pollock in his obituary of Maitland, “F. W. Maitland,” Quarterly Review 411 (1907): 409-10, are easily multiplied: PM, vol. 1, p. cv; Letters (Fifoot), no. 14 (“constant fear that some German or Russian or Turk will edit Bracton and shame the nation which has produced six volumes of rubbish”-targeting the wretched SirTravers Twiss); CP, vol. 1,485 (“who else [than Liebermann] should publish the stupid things?”); CP, vol. 3,424 (“terror lest the Savigny Stift or the Ecole des Chartes should undertake an edition” of the Year Books). Compare, too, the introduction to Bracton's Note Book, quoted by H. A. L. Fisher, Frederic William Maitland (Cambridge: Cambridge University Press, 1910), 34 (with the comment of this brother-in-law of Maitland, 53) and a passage in the first of Maitland's Selden Society Year Book series (vol. 17, 1903, pp. xxxii-xxxiii), climaxing on a characteristic Biblical note, “Lo! they turn unto the Gentiles.”
33. Letters (Fifoot), no. 95. The particular discussion to which he refers is Fustel de Coulanges, L'Origine de la systeme feodale (Paris: Hachette, 1890), 336-125. English reaction to Maitland's view is now being matched by minimalization of the effects of Frankish immunity. See P. Fouracre, “Eternal Light and Earthly Needs: Practical Aspects of the Development of Frankish Immunities,” Property and Power, 53-81.
34. DBB, 263-65, 278-79 (see especially n. 1), 280, 282-85.
35. DBB., 102-3.
36. Compare Maitland's enquiry to Round himself, Letters (Fifoot), no. 134 (1894): “Is the battle over yet?”
37. E.g., his inaugural, CP, vol. 1,489-90; and “Is the battle over yet?”., vol. 2,4, vol. 3,434; compare Fisher's remarks, Frederick William Maitland, 81.
38. PM, vol. 1, 138-44; “Outlines,” CP, vol. 2,454; “History,” SE, 101; but compare also PM, vol. 1, 151-52 (“puzzling”), vol. 2, 642-43 (“matter of doubt”), SE, 49 (“the… oftdebated passage in the laws of Ethelred…”). The literature on this subject is, of course, vast. It is enough to say that the authoritative review by R. C. Van Caenegem, “Public Prosecution of Crime in Twelfth-Century England,” in Church and Government in the Middle Ages. Essays presented to C. R. Cheney on his 70th Birthday, ed. C. N. L. Brooke et al. (Cambridge: Cambridge University Press, 1976), 41-76, is a vindication of Maitlandian first principles.
39. PM, vol. 1, 568-71, 580-81. There is a yet clearer account of the link in “Leet and Tourn,” excerpted from Maitland's introduction to Select Pleas in Manorial Courts (Selden Society 2, 1888, pp. xxvii-xxxviii) in SE, 41-51; and not to be ignored is his remarkable 1881 paper, “The Criminal Liability of the Hundred,” CP, vol. 1, 230-46, which left regrettably little trace in either PM or any of Maitland's later writings.
40. SE, 46, 49.
41. Leges 8:1-3; II Cn 20-20-a, 31-31:1,1 Atr 1:10-11, 4-4:1; III Atr 3:1-2.
42. II Cn 21; III Em 1, Af 1, II Ew 5. Maitland, in fact, raised the possibility that a Frankpledge's duty to produce its members in court originated with sthelstan (PM, vol. 2,529, n. 3).
43. Capitularia Regum Francorum, ed. A. Boretius (Monumenta Germaniae Historica, Legum Sectio II, 2 vols., 1883-97) 260:4 + Addit. 1; H. Brunner, Die Entstehung der Schwurgerichte (Berlin: Weidmann, 1872), 458-63 (the Italian capitularies he cites, Capitularia 91:8, 213:3, do not materially reinforce his case).
44. Southern, review of Letters (Fifoot), 107; CP, vol. 1, 162-201. Plucknett also spotted its relevance, “Maitland's View of Law and History,” Law Quarterly Review 67 (1951): 184-85, as indeed had Pollock himself, “F. W. Maitland,” 406.
45. CUL Add MS 7006; quoted by H. E. Bell, Maitland. A Critical Examination and Assessment (London: A & C. Black, 1965), 62.
46. CP, vol. 1, 493-96; vol. 3, 474-88 (and cf. A Critical Examination and Assessment., 438-39). For the autobiographical side of the inaugural, see Milsom, “F. W. Maitland,” 273. Plucknett's dismay, “Maitland's View of Law and History,” 187-91, might have been tempered by considering the likely relevance for Maitland of the fact that most German legal historians were, then as now, members of faculty of “Juristen”-the requirement of “failure” in England presumably arising from the considerably lower academic salaries west of the North Sea (then as now): Letters (Fifoot), no. 135. This, pace Elton, F. W. Maitland, 2-3, is precisely why Liebermann's obituary tribute, “dieser geborene Historiker” was so appositely heartfelt.
47. So, his demolition of the “Common Law tradition” that the Year Books had an “official” origin: Selden Society 17 (1903), xi-xiv. Compare footnote 49 below.
48. PM, vol. 1, 141-2; compare “Outlines,” CP, vol. 2, 445.
49. William of Malmesbury. Gesta Regum Anglorum, ed. W. Stubbs (2 vols., Roll Series 90, London, 1887-89), vol. 2, 122, vol. 1, 129-30; Stubbs's introduction, vol. 2, p. li. Compare W. A. Morris, The Frankpledge System, Harvard Historical Monographs 14 (Cambridge Harvard University Press, 1910), 6; PM, vol. 1, xcviii, 65; CP, vol. 2,422. In “Maitland and Anglo-Saxon Law” I note the likely relevance of his wrestling, throughout the time that he was writing the History of English Law, with the Mirror of Justices, which had a mischievous regard for Alfred's legal activity (13).
50. CP, vol. 3,438-39: “strenuous endeavours to improve the law were not impeded, but forwarded by a zealous study of legal history”; Stubbs's introduction. vol. 2, 9-10: “nothing strange in the coincidence” that “the great years of the Record Commission… were those of ‘radical reform’… the desire to reform the law went hand in hand with the desire to know its history.” The point is anticipated in “Real Property,” Stubbs's introduction. vol. 1, 198-99; likewise, Germans were “pioneers… masters” of legal history, which “encouraged them to believe that every age should be mistress of its own law,” Stubbs's introduction., vol. 3, 486-87.
51. Letters (Zutshi), no. 116 (to A. W. Dicey, 7 1896).
52. CP, vol. 1, 493.
53. Such is a central message of Burrow's two notable books, Evolution and Society, e.g., 65-118, 260-76, and Liberal Descent, e.g., 11-17, 84-88, 106-8, 163-73, 220-28.
54. DBB, 520. This passage, among the most often cited of Maitland memorabilia, is echoed to special effect in G. M. Young, Daylight and Champaign, 2d ed. (London: Hart Davis, 1948), 274-77. This scholar's unrivaled sensitivity to Victorian mentalities qualified him better than most to pick out Maitland's modernity.
55. Fisher, Frederick William Maitland, 96: “[W]e doubt whether any historian… ever set himself down so seriously to get inside the medieval mind”; compare Maitland's significant mention in Fisher, “The Whig Historians” Proceedings of the British Academy 14 (1928): 297-339, at 300; Smith, Frederic William Maitland, 15-17; C. Petit-Dutaillis, Studies… Supplementary to Stubbs’ Constitutional History, tr. W. E. Rhodes (Manchester: Manchester University Press, 1908), xii-xiii.
56. On all this, note the perceptive chapter on Maitland by P. Blaas, Continuity and Anachronism, Parliamentary and Constitutional Development in Whig Historiography and in the Anti-Whig Reaction between 1890 and 1930, International Archive of the History of Ideas 91 (The Hague: M. Nijhoff, 1978), 240-73. Compare S. Rothblatt, Tradition and Change in English Liberal Education: an Essay in History and Culture (London: Faber, 1976), 174-206. See also a revealing analysis by R. Fleming, “Picturesque History and the Medieval in Nineteenth-Century America,” American Historical Review 100 (1995): 1061-94, esp. 1084-93.
57. But see Blaas, Continuity and Anachronism, 2AX-AA; also Milsom, “F. W Maitland,” 269-70.
58. Letters (Fifoot), no. 4 (1880): Maitland asks Sidgwick to destroy “a certain MS of mine,” evidently a sequel to the 1879 diatribe, and admits temporary defeat “in a projected explanation of Property Law,” while thanking Sidgwick “for having set me on the inquiry.”
59. See S. Collini, D. Winch, and J. Burrow, That Noble Science of Politics: A Study in Nineteenth-Century Intellectual History (Cambridge: Cambridge University Press, 1983), 277-307 (quotation at 298), the study that has guided my understanding of Sidgwick. See also Rothblatt, Tradition and Change, 149-52; C. Harvie, The Lights of Liberalism: University Liberals and the Challenge of Democracy. 1860-86 (London: Allen Lane, 1976), esp. 32-33, 41-4, 194-217; J. B. Schneewind, Sidgwick's Ethics and Victorian Moral Philosophy (Oxford: Oxford University Press, 1977), esp. 412-22. The effect of master on pupil was such that, although Sidgwick never himself quite abandoned hope of erecting an “inductive political science,” Maitland could tell him to his face that the project was “rubbish”: Letters (Fifoot), no. 146.
60. Quotation from J. W. Burrow, Whigs and Liberals: Continuity and Change in English Political Thought (Oxford: Oxford University Press), 139.
61. Burrow, “Village Community,” 275-83: an argument developed in his Whigs and Liberals, 135-53. See also E. Barker, “Maitland as a Sociologist,” Sociological Review 29 (1937): 121-35.
62. It is noteworthy that his Trinity Fellowship thesis, written under Sidgwick's immediate influence in 1875, repeats the odyssey from the utilitarians through the historically sensitized romantics that Mill had traversed in the crisis of his own life: CP, vol. 1, 1-161; compare W. E. S. Thomas, Mill (Oxford: Oxford University Press, 1985; reprinted in Great Political Thinkers, ed. K. Thomas [Oxford: Oxford University Press, 1992]), 284-89, 316-24, 332-40, and 345 (page citations are to the reprint edition); see also Burrow, Evolution and Society, 67-75. Maitland's range of historical reference in this essay is incidentally a good deal wider than implied by Elton's trenchant aside, E W. Maitland, 17-18.
63. PM, vol. 1, 46, vol. 2, 449.
64. PM, vol. 1, 48, vol. 2, 451-52; CP, vol. 1, 225-26, vol. 2, 428.
65. PM, vol. 2, 451-52, vol. 1, 74, vol. 2, 448, 458. Compare PM, vol. 1, 106, 576, vol. 2,514,522-23.
66. Chronicon Monasterii deAbingdon, ed. J. Stevenson, vol. 2, 104 (the crime was theft); J. Gillingham, “1066 and the Introduction of Chivalry into England,” in Law and Government in Medieval England and Normandy. Essays in Honour of Sir James Holt, ed. G. Garnett and J. Hudson (Cambridge: Cambridge University Press, 1994), 31-55.
67. E.g., N. Gray Hill, “Excavations on Stockbridge Down, 1935-6,” Papers and Proceedings of the Hampshire Field Club and Archeological Society 13 (1937): 246-59.
68. E.g., Wormald, “Handlist,” nos. 23, 25, 31, 37-39,41,45, 56,60, 100, 102, 124,127, 129, 132 (theft); 40, 50, 54, 58, 61, 71, 145, 148 (homicide and mayhem); 29, 53, 68, 78 (sexual offenses); K. Leyser, “The Crisis of Medieval Germany,” Proceedings of the British Academy 69 (1983): 409-43, esp. 425-34; compare his Rule and Conflict in an Early Medieval Society. Ottoman Saxony (London: Edward Arnold, 1979), 36-38, 153.
69. PM, vol. 1, 303; cf. vol. 2, 464-70, 478-502. Compare S. F. C. Milsom, Historical Foundations of the Common Law (London: Butterworth, 1969), 355: “a mystery.”
70. Compare W. Kienast, Unteraneid und Treuvorbehalt in Frankreich und England (Weimar: Bohlau, 1952), 15-27. Kienast mostly missed the evidence from pre-Conquest England (173-74) but made a strong case that such an oath was unknown in Normandy before 1066-a point that may carry more weight than the possibility that Carolingian inquests are better attested in Normandy than England, as Brunner made Maitland think (PM, vol. 1, 141-44).
71. PM, vol. 2, 515, n. 4 (already in the first edition, 514); for further scouting of possible Frankish influence, see references in “Maitland and Anglo-Saxon Law,” 15, n. 62.
72. DBB, 3-8, 446-75; see the debate between John Gillingham and Ken Lawson, English Historical Review 104-5 (1989-90), with J. Campbell, “The Anglo-Saxon State: A Maximum View,” Proceedings of the British Academy 87 (1994): 39-65. For hints of a change in Maitland's view of Anglo-Saxon law itself, see “Maitland and Anglo-Saxon Law,” 15-16, n. 63.
73. PM, vol. 1, 19-24, 88-93, 105; CP, vol. 2, 20, 36, 422-23; SE, 97-102; PM, vol. 1, 167-68, 302-3, n. 3; compare M. T. Clanchy, England and Its Rulers (1066-1272) (London: Fontana, 1983), 145; see also Holt, “The Writs of Henry II,” and Helmholz, “The Learned Laws in ‘Pollock and Maitland’” in Centenary Essays, 47-64, 145-69.
74. For ways in which bewigged perspectives blinkered understanding of feud in a different, but perhaps not entirely dissimilar, context, see J. Wormald, “Bloodfeud, Kindred and Government in Early Modern Scotland,” Past and Present 87 (1980): 90-97.
75. CP, vol. 1, 226: “nice questions might arise from the mutual interference of family obligations”; see, too, Letters (Zutshi), nos. 54, 84. For modern appreciation of the point, see T. M. Charles-Edwards, Early Irish and Welsh Kinship (Oxford: Oxford University Press, 1993), 181-200; and for the anthropology see (of course) M. Gluckman, “The Peace in the Feud,” Custom and Conflict in Africa (Oxford: Blackwell, 1956), 1-26.
76. PM, vol. 2, 240-45; see White, “Maitland on Family and Kinship,” Centenary Essays, 91-113. In contrast to his warm inaugural remarks on Maine (CP, vol. 1, 486-87), see (e.g.) CP, vol. 3, 460, Letters (Fifoot), nos. 97, 279, 370, and Fisher's comments (Frederic William Maitland, 27, 79-80); PM, vol. 1, pp. xciii-xcv, vol. 2, 240, DBB, 344-47, Township and Borough (Cambridge: Cambridge University Press, 1898), 21-25; and note 79,below. On Maine's theories, see Burrow, Evolution and Society; see also P. Stein, Legal Evolution: The Story of an Idea (Cambridge: Cambridge University Press, 1980), 86-116 (and for Maitland's critique, 106-10).
77. CP, vol. 3, 300. The statement is part of a notable essay on “The Body Politic” that represents Maitland's most considered (if otherwise unpublished) critique of the school of Maine.
78. PM, vol. 1, 106, vol. 2, 448, 458; “Outlines,” CP, vol. 2, 428.
79. PM, vol. 1, 100-101; CP, vol. 2, 28-29, vol. 3,470-71 (reviewing Liebermann); Letters (Zutshi), no. 37, p. 53. On the Leges, see Hudson, “Maitland and Anglo-Norman Law,” Centenary Essays,, 44-45; and P. Wormald, “'Quadripartitus’” in Garnett and Hudson, Law and Government, 133-47.
80. For the new legal learning and its apparent failure to influence the lieges, see PM, vol. 1, 77-78, 108, 134, CP, vol. 2, 31, and SE, 104. But see also Wormald, “'Quadripartitus,’” 143-14. As to the sorts of priorities that would encourage King Alfred and his heirs to preserve a minutely detailed tariff of compensations for bodily injuries, while leaving everyone but William of Malmesbury in ignorance of what they envisaged by “oath and pledge,” see Wormald, “Lex Scripta and Verbum Regis: Legislation and Germanic Kingship from Euric to Cnut,” in Early Medieval Kingship, ed. P. H. Sawyer and I. N. Woods (Leeds: Leeds University Press, 1977), 105-38.
81. CP, vol. 1, 480-86; cf. CP, vol. 2, 8-12. Maitland seems to have garbled his memory of Vinogradoff's introducing him to the PRO (Letters [Fifoot], no. 374); Fisher, Maitland, 24-25; Plucknett, “Maitland's View,” 186-87; Fifoot, Frederic William Maitland (Cambridge: Harvard University Press, 1971), 60. But it is significant that he recalled the event in the spirit of a typical Victorian “conversion.” For Maitland's professionalism, see above all Elton, F. W. Maitland, together with Milsom's review. Elton's case was partly anticipated as early as Smith's tribute (Maitland: Two Lectures, 5-6).
82. Compare Milsom, “Introduction,” PM, vol. 1, pp. lxxii-lxxiii; id., “F. W. Maitland,” 276-80; Elton, Maitland, 29-30,45-8. See also Brand, “The Age of Bracton,’” and Milsom, ‘“Pollock and Maitland,’” Centenary Essays, 74-79, 254, to the effect that Bracton may mislead as a guide even to the thirteenth century.
83. CP, vol. 2, 37: “towards the end of the [Angevin] period the history of law begins to be… a history of professional learning”; cf. PM, vol. 1, p. xcvii, 108-9, 138, 153-54. For a seminal modern assessment on this point, see P. A. Brand, The Origins of the English Legal Profession (Oxford: Blackwell, 1992), 1-69; and (to something of the same effect) id., “Multis Vigiliis Excogitatam et Inventam: Henry II and the Creation of the English Common Law,” Haskins Society Journal 2 (1991): 197-222.
84. For a de facto gulf in England, see CP, vol. 2, 36. Maitland to his sister is Letters (Fifoot), no. 98; the relevance of his view of his grandfather for his own values is noted by Fisher, Maitland, 2-3, by Maitland's sister, “F. W. Maitland,” Cambridge Law Journal 11 (1951-53): 67-68, and by Fifoot, Maitland, 10-11; cf. also Southern, review of Letters (Fifoot), 108.
85. PM, vol. 1, 19, n. 2, 27, 175-76.
86. Compare R. Mortimer, “The Family of Rannulf de Glanville,” Bulletin of the Institute of Historical Research 54 (1981): 1-16; H. M. Cam, “An East Anglian Shire Moot of Stephen's Reign,” English Historical Review 39 (1924): 568-71; and compare Hudson, “Maitland and Anglo-Norman Law,” Centenary Essays, 23-25,40-45. The most important recent study of the background to the Glanvill treatise stresses its French flavor: See P. R. Hyams, “The Common Law and the French Connection,” Anglo-Norman Studies 4 (1982/ 3): 77-92. For Maitland's unwillingness to treat early laws with the same subtlety as charters, see DBB, 226.
87. To the works in footnote 84 above, add Milsom's Legal Framework of English Feudalism (Cambridge: Cambridge University Press, 1976); R. Palmer, “The Feudal Framework of English Law,” Michigan Law Review 79 (1981): 1130-64; id., “The Origins of Property in England,” Law and History Review 3 (1985): 1-50; J. Hudson, “Milsom's Legal Structure: Interpreting Twelfth-Century Law,” Tijdschrift voor Rechtsgeschiedenis 59 (1991): 47-66; P. A. Brand, “The Origins of English Land Law: Milsom and After,” The Making of the Common Law (London: Hambledon, 1992), 204-25. Note, too, Elton's version of the Milsom critique: “[Maitland] does overlook the likelihood that it took more than one king, even a Conqueror, to triumph over the social structure and world of ideas within which he had been able to conquer England in the first place” (F. W. Maitland, 47-48).
88. See above, 6-8. Compare the Leges use of “felonia” to denote simply “breach of the feudal bond” (43:7, 46:3, 53:4, 88:14) or the way that Norman aristocratic solidarity limited the use of the death penalty against its members for 250 years (Gillingham, “1066 and the Introduction of Chivalry,” 31-55).
89. Glanvill xiii 38, and compare, e.g., iii 8, iv 11, viii 5, ix 10, x 12; see PM, vol. 2, 41-45, 519, 539, 572-73. For more emphasis than Milsom on royal initiative in the earlier twelfth century, see J. Hudson, Land, Law and Lordship in Anglo-Norman England (Oxford: Oxford University Press, 1994), 36-51, 13-33. For a persuasive reconciliation of Milsom's and Maitland's positions (though one where any Anglo-Saxon legacy is conspicuously absent), see J. Biancalana, “For Want of Justice: Legal Reforms of Henry II,” Columbia Law Review 88 (1988): 433-536.
90. PM, vol. 1, 24, 109-11, 131-35, vol. 2, 313, 558-59, 632, 673; CP, vol. 1, 482-83, vol. 2, 64, 434-45; Gierke, pp. ix-xiii; Letters (Fifoot), nos. 50, 202, 449.
91. Compare M. T. Clanchy, “Law and Love in the Middle Ages,” in Disputes and Settlements. Law and Human Relations in the West, ed. J. Bossy (Cambridge: Cambridge University Press, 1983), 47-67; id., “A Medieval Realist: Interpreting the Rules at Barnwell Priory Cambridge,” in Perspectives in Jurisprudence, ed. E. Attwooll (Glasgow: Glasgow University Press, 1977), 176-94. In the latter work, Clanchy points out (179) that the introduction to the edition by J. Willis Clark, Liber Memorandorum Ecclesie de Bernewelle (Cambridge: Cambridge University Press, 1907), pp. xliii-lxiii, with its revisionist potential, was ironically Maitland's very last work. See also Hyams, “Maitland and the Rest of Us,” Centenary Essays, 215-16, 234-37.
92. See footnote 92 above and add Maitland's major rehearsal of the “drama,” English Law and the Renaissance (Cambridge: Cambridge University Press, 1901). On the latter, see Elton, F. W. Maitland, 79-88, and, in general, Helmholz, “The Learned Laws in ‘Pollock and Maitland,’” 156-58. Maitland was clearly once again much influenced by what German scholars had written of their own experience of a “Rezeption.”
93. PM, vol. 1, 224-25; note the waspish antiprogress asides at vol. 2, 453 (“worst cruelties”), 582 (“decent people who pay good fees”).
94. PM, vol. 2, 673-74; the point in some ways emerges more clearly from CP, vol. 3, 434.
95. CP, vol. 1, 485-86; vol. 2, 2-3; vol. 3, 459; Pleas of the Crown for the County of Gloucester (London: Macmillan, 1884), p. vii. The point was well appreciated by (of all people) Marc Bloch, Revue de synthese historique, 39-40 (1925), 8In. I owe this last reference to Chris Wickham.
96. E.g., PM, vol. 1, 148, 159, 202, 224, 357-60, 587-94; vol. 2, 48; compare CP, vol. 1, 413, 430; vol. 2, 438; “Introduction,” Select Pleas of the Manorial Courts, pp. lxxii-lxxii.
97. Plucknett, “Maitland's View,” 181, considers this “unfortunate.”
98. For Stubbs's “divine plan,” see his “Inaugural,” Seventeen Lectures, 26-27; for Macaulay's classicism, see Burrow, Liberal Descent, 36-64.