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The Right Historical Stuff

F.W. Maitland

by G.R. Elton
Yale University Press, 118 pp., $15.00

Frederic Maitland is arguably England’s greatest professional historian. Before he died in 1906, aged fifty-six, he changed the way historians worked on English medieval history. Almost alone among the Victorians he put into practice what German scholars were doing. Not that he spent time on Historismus or the attack upon positivist history by the Hegelians. Maitland learned from Germany the lesson that the historian must get into the archives and read. But he must read with a critical mind and ask himself what the words in a document were intended centuries ago to mean: he must not take evidence at its face value.

He understood what was wrong about the writing of history in his own country. “Then in the nineteenth century came the critical movement,” he wrote. “Would Englishmen see and understand what was happening in Germany? Would they appreciate and emulate the work of Savigny and Grimm? It can hardly be said they rose to the occasion.” He meant that whereas English historians were still obsessed by the politics of the struggle between Crown and Parliament, the Germans had interpreted the history of nations not through their rulers, the battles they had fought, and the treaties they had made, but through the origins of their law, their institutions, their language, and their folk tales and myths.

We use the names of Gibbon and Macaulay as shorthand in referring to their famous works. Not so Maitland, Other historians made their reputation by ranging over centuries in a free-flowing narrative. Faithful to his sources, Maitland refused to do so. He did not write a history of the constitution as Stubbs did or narrative history as did Freeman. He picked a single field and drew his conclusions from what he found in the documents. Apart from his Domesday Book and Beyond, the titles of his works are enough to make the common reader flinch. The Pleas of the Crown for the County of Gloucester before the Abbot of Reading, 1221; Township and Borough; Trust and Corporation; the three volumes on the Eyre of Kent; Three Rolls of the King’s Court—the texts he edited with introductions are legion. Perhaps his most renowned editions were the three-volume Bracton’s Note-Book and the Year Books from the reigns of Edward I and Edward II, which were compilations of notes made by students in court (though he mistakenly believed they were semiofficial collections of cases for the use of judge and counsel). His introduction to Memoranda de Parliamento put the study of parliamentary origins on a new level. But all he claimed to be doing was “to provide materials for the formation of opinions.” “He was introducing a set of documents,” said Edward Miller, “and not rewriting the history of Parliament.”

He did in fact once write a piece of narrative history on the Elizabethan church settlement and the Reformation in Scotland. But though it was scintillating he left that form of history to others. Let others write impressive tomes based on printed sources. He was going to work from the actual documents which revealed how men thought about their legal and economic problems. In so doing he liberated from limbo not merely the documents but the dead themselves. The quantity and quality of his twenty-two years of research were remarkable.

Although he worked astonishingly fast, Maitland could only sample the vintages. He would concentrate on a single source and work outward to other sources. He got things wrong only when the speed at which he worked induced him to accept other men’s findings without testing them against the primary sources. The chips that fell from his hammer were as inspiring as the finished statue itself. Suddenly you find him telling you why the men of Kent were not bound by the law of primogeniture, but preferred the law of gavelkind, by which all offspring, and not just the eldest, inherit land. Or, in discussing the terms “sake” and “soke,” he will add in an aside that sake “is still in use among us; although we do not speak of a sake between two persons, we do speak of a man acting for another’s sake, or for God’s sake, or for the sake of money.” He rarely had theories; he preferred to give suggestive warnings. He warned against the prevailing practice of interpreting history in terms of unilinear progress. In some localities medieval customs survived for centuries whereas in others they disappeared never to be revived. When he wrote, “We dare not represent the stream of economic history as flowing uninterruptedly from a system of labour service to a system of rents,” he was identifying a site which Kosminsky and Munia Postan were to excavate in their studies of the medieval manor. Time and again Maitland’s hints have enabled later historians to write a major work.

He was not trained as a historian. He read a course at Cambridge which his university in its folly allowed to disintegrate only to see it revived at Oxford after the First World War in the guise of Modern Greats. It consisted of the study of philosophy, political science, and economics. He then took up the law and was called to the bar. The law is probably the worst training for a historian because lawyers while appealing to the past regard the most recent decisions of the courts as most authoritative and regard the past as valuable only insofar as it explains the present. As Maitland put it:

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 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.

Most of the materials that enable historians to reconstruct medieval history are the records of the law and the courts, and you have to master, as Maitland put it, “an extremely formal system of pleading and procedure” and “a whole system of actions with repulsive names.” Maitland, who soon gave up the law and returned to Cambridge, had to do more than that. He read enormously in several languages, taught himself paleography to decipher the Gloucester roll of 1221 (“anyone who knows some law and some Latin will find that the difficulty disappears in a few weeks”), and produced a grammar of Norman French. He understood the limitations of the records and also what with squeezing they could yield. Whereas Freeman wanted to prove that the Anglo-Saxons cared as passionately about freedom as Gladstonian liberals, Maitland showed that medieval men reasoned in ways foreign to us. When we today perceive a wrong our instinct is to say that the law must provide a remedy. Maitland deduced that in the early Middle Ages men argued that if no remedy existed no wrong had been committed.

The secret of his reputation was that he wrote like no other medieval historian has written before or since. He went for a stroll with his reader, explaining the landscape, cutting a path through the thorns, and warning him of pits and bogs along the way. When at the age of eighteen I was told to read Domesday Book and Beyond I could not criticize his arguments because I lacked the skills and the knowledge to do so—nor indeed can I today. I knew that Domesday Book, the record of the general census ordered by William the Conqueror in 1085, was a central historical document, but I had not the faintest idea how historians interpreted what it meant. Yet the gate opened on a new landscape in history that I had never seen before, and Maitland’s style took me by the hand and led me through it.

Of course Domesday Book is not a treatise on jurisdiction…. On the whole we take it that the lord who enjoyed soke had a right to keep a court if he chose to do so…. We may in later times see some curious compromises. If a thief is caught on the land of the Prior of Canterbury [he is taken to] the court of the hundred of Wye, which belongs to the Abbot of Battle. Then if he is not one of the Prior’s men, he will be judged by the hundred. But if he is the Prior’s man, then the bailiff of Brook will “crave the Prior’s Court.” But a much more difficult case comes before us in Warwick…. We are likely to see here a relic of the ancient “house peace.” If you commit an act of violence in a man’s house, whatever you may have to pay to the person whom you strike and to the King, you will also have to make amends to the owner of the house…for you have broken his peace.

Maitland not only loved research. He loved to make a story out of his discoveries for his readers. “We can hardly go so far as to say….” “We might here pause to consider….” How can any undergraduate resist the charm of Maitland’s injunction: “Fidelity with a leaning to correctness should be our aim”? His style, G.R. Elton writes, “combines earnestness and wit, charm and sinew, in a manner so personal that any attempt to learn from it would be idiocy.” He avoided circumlocutions and illustrated abstract notions by showing how they affected in practice ordinary men and women. He was courtesy itself to those whom he found to be in error. Maitland treated Bishop Stubbs, twenty-five years his senior, with decent respect even though he was undermining the foundations of the bishop’s history of the constitution; and only the horrible Horace Round, who in controversy had the manners of a ferret, ever felt the edge of his tongue.

He could be funny about the contents of those dusty documents and he had a turn of phrase: “John Knox was shipped off with the rest, and was kept in the galleys for nineteen months, to meditate on faith that justifies”; he could be funny about the so-called feudal system, a term that schoolboys used to learn and proceeded for the rest of their lives to misuse, imagining it to mean a more or less stable form of government like parliamentary democracy. Maitland pretended in his constitutional history that “a learned and laborious antiquary,” Sir Henry Spelman, had introduced the term into England in the seventeenth century. Spelman observed that something like the English modes of land tenure and services existed on the Continent. So there must have been a system. His successors embroidered the theme to such a degree that Maitland declared that the feudal system attained its most perfect state of development in the eighteenth century. Scholarship, alas, he concluded, has revealed the difference rather than the similarities between one century and another and between England and the Continent, so that “it is quite possible to maintain that England was the most, or for that matter the least, feudalized; and that William the Conqueror introduced, or for that matter, suppressed the feudal system.”

In a series of books in which historians write about historians no one could be a better choice to write on Maitland than Geoffrey Elton. Not only has Elton, like Maitland, spent thousands of hours in the archives and written many books and articles. He took a field, Tudor history, which had been tilled until one would have thought the soil was exhausted, and produced a work that put him in the front rank of contemporary historians. Elton gave a new meaning to the phrase “the Tudor revolution in government.” His analysis of the pattern of government instituted by Thomas Cromwell—a pattern that lasted until the early nineteenth century—transformed our understanding of Henry VIII’s reign, of Tudor rule, and of Parliament. No longer was the king seen as the prime force in the reshaping of government. It was Cromwell, not the king, who was the first to recognize that the machinery of the state could be used systematically to make a better and stronger society. The same discovery had been made in France and Spain but there the power of the state had been used to make war more efficiently. In England the state imposed a new pattern of duties upon courts and institutions in order to improve central and local government. Some of Elton’s conclusions have been challenged by Lawrence Stone, Joel Hurstfield, and J.P. Cooper; but Elton’s interpretation is generally conceded to be the most convincing.

He now holds the Regius chair at Cambridge; and when it last fell vacant, no other choice was possible. He holds court surrounded by a conclave of American graduate students and though he declares that, since he is not a medievalist, he lacks the proper qualifications to criticize Maitland, no one who reads this book will be taken in by the disclaimer. He possesses an unrivaled authority; and it is all the more convincing, because as one who believes that Maitland showed the way to the archives, which other historians have often ignored, and set standards of critical diligence which other historians have often found beyond their powers to follow, he who has followed Maitland’s precepts, has the right to criticize Maitland at the same time as he honors him. What is more, Elton writes with vigor, ease, and a rasping wit. They are needed. It is not as if no one had ever praised Maitland until now. The tributes by fellow historians, anxious to convince a wider public that here was a prince among their company, have been loud and continuous. As Elton says, the difficulty is in not adding to the hagiography.

How then, admiring Maitland as he does, can Elton avoid doing so? He begins with a general account of Maitland’s work and claims that, while others have referred to matters on which subsequent research has modified Maitland’s conclusions, none has shown when and where Maitland actually erred. Why did he sometimes, despite his habitual caution, betray his own principles? Elton gives some examples. For against his wont, Maitland did once put forward a theory. The theory was that towns began their life not as centers of trade, but as garrisons. Elton makes the acid comment that in doing so “he never proved himself more the lawyer than in his relative neglect of economic influences.” The criticism is just, but perhaps one should recall that economic history when Maitland wrote scarcely existed: William Cunningham, who was bracketed with Maitland at the top of the moral science tripos, was the first English economic historian—though he was never again to be regarded as Maitland’s equal. It was not as if Maitland was ignoring a multitude of books and articles in an allied field of learning.

Another example: Elton thinks Maitland should not have ignored the ability of a plaintiff to set out his grievance and petition the Crown for a remedy. This was a form of action that was used often in the reign of Henry III and the legal history of that reign was an open book to Maitland. Or again: so strong was Maitland’s faith in the completeness of the Register of Writs that he misinterpreted the law of trespass. Worse still he convinced a generation or two of historians that in the fifteenth century the common law had ossified and that was why new courts such as Chancery or Star Chamber had to be set up. Elton has brought evidence to light which he considers Maitland should not have overlooked. This shows that the common law renewed itself in response to need. Elton then draws attention to the work of S.F.C. Milsom, like Maitland an academic lawyer, who has convicted him of seeing too readily in the past a state of affairs current at a later date, an error that he had warned his successors not to commit. The reign of Henry II was not the turning point Maitland thought it to be: until the end of the twelfth century lords ruled over their land, and the royal courts only occasionally gave a remedy to an aggrieved party against his lord. Milsom concludes, says Elton, that “Maitland antedated the settled and sophisticated state of the law by a hundred years at least.” These scholarly disputes Elton analyzes with astonishing grace and clarity.

Yet these are mere preliminaries. Elton warms to his task by analyzing at length “four cases” so that he can judge some solid piece of history that Maitland wrote. On one occasion when Maitland stuck his nose into the sixteenth century his instinct failed him because he was unfamiliar with the documents that had not by then been calendered. Terrible consequences ensued: he used the term Rex Legia from which arose the catch-phrase “Tudor despotism,” a notion that Elton has been trying for years to destroy. More irritating still, Maitland allowed his readers to deduce that Henry VIII attacked the common law. That error enabled his inferior Holdsworth to correct him—Holdsworth whose history of the English law in sixteen volumes was “produced solely out of printed materials” and, says Elton, “has for years been as much an obstacle as an aid to the correct understanding of the themes he treated.”

On the second occasion when Maitland invaded the sixteenth century he was more fortunate. His chapter in the Cambridge Modern History on the Anglican Settlement and the Scottish Reformation was a surprising triumph. Elton is vexed by Maitland’s allusive style and, wearied by his short crisp sentences, yearns for the amplitude of an occasional long sentence replete with dependent clauses. But he admits that Maitland had worked at his sources and that his foray into sixteenth-century Scottish history was more than what had up to then been customary, “a diligent copying of John Knox.” Nor did his Whiggish view of the Reformation distort his sensible conclusion that Elizabeth could not have put the clock back and opted for Catholicism. J.E. Neale, who taught Elton as a graduate student, tried to show that Elizabeth had been put under pressure by a group of Protestant members of the Commons. Elton exposes his old teacher’s misreading and vindicates Maitland.

Another case tells us something about Maitland’s personality as well as his historical judgment. Was it perhaps a certain love of mischief that provoked him to turn his attention to the status of Canon Law and to twit the clergy? Anglican apologists wanted to show that in the Middle Ages the pope’s writ ran only when the English ecclesiastical courts sanctioned it; the Roman Catholics wanted to show that Canon Law was always supreme. Maitland showed that both were wrong. It was indeed unclear whether in some cases Canon Law was valid, but it was the Crown, not the ecclesiastical courts, that challenged Canon Law. In coming to this conclusion Elton thinks Maitland was lucky: he worked from a single main source. But he had “that good luck that springs from perfect instincts.” He belonged, says Elton, “to that not unfamiliar brand of historian who, brought up as a Protestant, retains for the rest of his agnostic days a sympathy for the Reformation as the punishment of clerical arrogance.”

For Elton the supreme test is the view a historian takes of Parliament. Stubbs followed the seventeenth-century lawyers, who declared that Parliament had been an assembly of the estates of the realm (nobility, clergy, and commons). According to him the king called them to discuss and advise on the great affairs of the nation. Here, for Stubbs, was evidence of the genesis of Parliament. But when Maitland came to examine the medieval writs summoning men to Parliament he found they were commanded to discuss “certain matters touching our affairs.” Nothing great about these affairs: they were often petitions by private persons. Parliament was not the expression of the political power of the nation. It was simply yet another court in which justice was dispensed because there was no other appropriate court where it could be dispensed. Parliament did not hear petitions. It was a session of the king’s council and its committees that heard petitions.

Once again Maitland’s instinct was right. On certain particulars he made mistakes and, in noting them, Elton paints a brilliant vignette of the historiography of parliamentary history. He claims that Maitland’s followers, such as Charles McIlwain at Harvard, exaggerated some of Maitland’s errors, but for this he was not to blame: it was not he who argued that Parliament’s role did not change. But on the main issue Maitland was right—and Elton is right—to hold that the king did not call Parliaments to shackle him. Even today only “politicians ignorant of history and historians untutored in politics” believe that Parliament rules. Certainly Parliament today shackles arbitrary rule by a clique. But Queen in Council or, in practice, the cabinet and its committees and ministers rule: Parliament enables ministers to claim that they rule by consent.

Elton praises Maitland for being a don who did the things dons do—he examined, lectured, and sat on committees. His patience was such that he even accepted membership in the Council of the Senate (the most important committee of government in Cambridge), “a body designed to teach men the mortification of the spirit.” This book is peppered with such agreeable observations and Elton sets about other scholars with glee. Heinrich Brunner, he writes, “was not entirely alone in regarding himself as the leading legal historian of his generation.” A.F. Pollard, a “careful avoider of manuscripts,” treated Parliament with “a massive as well as repulsive insularity.” Arthur Ogle was foolish enough to attack Maitland with a wooden sword, Charles Duggan to criticize him for a view he did not hold, and Canon Malcolm MacColl had the effrontery of a numbskull. H.E. Bell’s biography of Maitland is dismissed as “an honest but uninspired piece of plod.” G.M. Young, who wrote a glowing tribute to Maitland which he reprinted in Daylight and Champaign, is referred to as a “self-confident nonscholar.”

Well, Young was certainly not a professional historian, but that is an odd description of one who could quote from Blue Books by heart, inspired two generations of Victorian scholars, and whose Portrait of An Age a Cambridge historian, George Kitson Clark, thought it worth editing, and identified Young’s allusions with the help of thirty-eight contributors. No doubt Young wrote the kind of history Elton detests, but it would have been more conventional to insert his name in the index and wiser not to refer to Young’s book as “Daylights and Champagne” as if it were the recollections of a roué nursing a hangover.

The view Elton has taken of the work of other scholars and other branches of history has always been somewhat robust. I do not question his judgments on medieval and Tudor and Stuart history, or his assessment of other historians in those periods: I am not competent to judge. But Elton has never been interested in personality. In his work on the Tudors he does not focus on Cromwell the man; he uses different techniques. And when he writes about Maitland as a man, I have some reservations to make.

Some of his Victorian references are inaccurate. It is not true that the only subjects to be studied when Maitland came up in 1869 were classics and mathematics. The natural science and moral science triposes had been established in 1851. The Apostles to which Maitland belonged is a society that discusses topics. It does not debate them, nor does it call itself a club; and while one would expect a journalist to refer to it as having become “notorious as the nursery of the traitors of 1930,” the phrase comes oddly from a historian of Elton’s distinction.

He reminds us that in Victorian times manners were more formal and men addressed each other by their surnames. “One never used first names; only members of the family, and that included brother-in-law Herbert Fisher, were ever so addressed. At all other times Maitland used surnames.”* In a footnote he admits that “this may not be absolutely true” since “Maitland’s letters to Leslie Stephen survive only in Fisher’s memoir, where they are printed without address or subscription.” But they aren’t. In C.H.S. Fifoot’s collection of Maitland’s letters two letters to Stephen are printed (pp. 138, 158), both beginning “My dear Leslie,” and both are in the Cambridge University Library. In fact Maitland could express emotion when he felt it. Virginia Woolf, who always referred to Maitland as Fred, said that he wrote one of the few letters worth keeping about her father and was one of the very few who wrote something that she thought true and inspiring about her brother on his death. Curious that the way Maitland signed his letters seems to be given equal weight as evidence as the testimony of his friends that he was affectionate as well as loyal, and his manners were informal not starchy. (Incidentally, numbers of references to Fifoot’s volume have gone haywire; and the name of Maitland’s elder daughter, marvelously called Fredegond, is misspelled.)

None of this matters much. What matters more is Elton’s audible sighs of disappointment when the views Maitland held diverge from those Elton thinks sensible men ought to hold. Maitland was a Liberal and a utilitarian. “The Boer War…brought out his profound distrust of Joseph Chamberlain (a very conventional attitude).” No doubt, but quite a good attitude. Still, being a Liberal enabled him to do at least one good thing: he supported at the turn of the century the admission of women to the university. Unfortunately “the cause of progress lost when it would have made sense for it to win.” Does that imply a host of issues for which it does not make sense for it to win? Maitland had the tastes and opinions of his profession, his class, and his calling—except that unlike professors of law in those days he wanted to reform land law and regarded the common law with a mixture of affection and contempt. Equity he called a “short-sighted busybody.”

One feels that Elton would like Maitland to have exhibited somewhat more strongly his own scholarly characteristics. If only he had been a bit more trenchant, trouncing, and truculent! He hopes that Maitland enjoyed “the opportunity to execute justice on a persistent offender”; and when someone praises Maitland for being critical “about established figures sitting on their eminence,” Elton finds “this last observation perhaps the most sympathetic thing I have seen said about Maitland.” On the other hand he does not find Maitland’s passion for Blake’s poetry sympathetic. It is “perhaps the only fact about him that I find incomprehensible.” So he concludes that Maitland “was a reasonably uncomplicated man of honour, good humour and general kindness.” The verdict? “When all is said and done, no reason can be found for dissenting from Fisher’s verdict ‘a nature of singular charm and beauty.’ ”

The prisoner has been acquitted without a stain on his character, and Elton’s summing up is so judicious that there is scarcely a passage from which one could dissent. And yet at the same time one feels that the fear of hagiography has the writer so inexorably in its grip that in the end justice has not been done. Nil admirari is a Horatian tag peculiarly honored in Cambridge: A.E. Housman carried it to such lengths as to cast a blight upon classical studies there for a generation. In the chapter on the “four cases” one feels that Elton is treating Maitland as if he were answering questions in an examination paper and marking them with magical symbols—alpha minus, beta minus, query query alpha, alpha double minus—which Cambridge dons use with such self-confidence to describe the exact nuances of ability or ineptitude that their students display in examinations. In the biographical chapter is there not some quality lacking that every biographer should have: a compassion, an empathy with the man or woman, an understanding of his or her faults and limitations, successes and distinctions, and also of the frustrations or achievements we all experience during our encounter with our times? It is a faint disappointment to be handed a balance sheet.

Yet anyone who is really interested in history will be in Geoffrey Elton’s debt. Elton has always emphasized that in history one must study the sources of power and the way in which men are governed. That, for him, comes first; and it is a view with which I am in sympathy. He is less interested in how men reason about power and discuss its limitations. But Maitland was; and it was his long and dazzling introduction to Otto Gierke’s Political Theories of the Middle Ages that made me first realize what the history of ideas could be. When Leslie Stephen’s wife died, Maitland wrote to him, “I have an irrepressible wish, however foolish and wrong it may be, to touch your hand and tell you in two words what I think of you.” I have the same foolish and irrepressible wish about Maitland.

  1. *

    In Edwardian times manners became more informal but it was still an embarrassment to call a friend by his first name in some circles. So nicknames came into vogue. Between 1914 and 1945 the following held posts of importance in the British secret intelligence service: “Dummy” Oliver, “Blinker” Hall, “Biffy” Dunderdale, “Lousy” Payne, “Buster” Milmo, “Quex” Sinclair, “Pay” Sykes, “Tar” Robertson, “Sinbad” Sinclair, and “Barmy” Russell.