SOURCE: "The Historian," in F. W. Maitland, Yale University Press, 1985, pp. 19-55.

In Maitland's day historians, especially English historians, virtually never reflected on their activities. Most of them wrote history—or failed to commit their knowledge to paper—because they enjoyed doing so, and they did not feel called upon to philosophize about it; at most they would stake claims for the role their calling played in the formation of public men. Philosophers accepted the triumph of historical studies which had followed in the wake of the renewal of the methods of enquiry that in the course of the nineteenth century had spread from Germany to all of Europe. Sprung from the rise of romanticism and nationalism which had originated in the later eighteenth century, the dominance of historical studies as the best way to understand humanity was later reinforced by Darwinian theories of evolution which seemed to demonstrate that all creation rested on historical principles. True, other social studies were beginning to make themselves felt. Anthropology directed the influential, though in the end misleading, work of Sir Henry Maine, and theoretical sociology, operating by analysis of the present without much regard for roots and antecedents, began to make itself felt through such writers as Auguste Comte and Herbert Spencer. Nor was there much debate about methods in that positivist age: diligent reading of the sources, assisted by a conventional view of human nature (Freud had still to cast his baleful shadow) and plain common sense, was mostly regarded as adequate. Some historians went to the archives, as James Anthony Froude did; such others as Edward Augustus Freeman made do with what was in print. Guides to the student, full of the distillation of experience and over-methodizing everything, appeared in German and French, but not in English. The ideal goal was generally held to be the large, mainly narrative, description of a segment of time, of the past of a nation, or of such an institution as the papacy. William Stubbs, Regius professor at Oxford and afterwards bishop there, received special admiration because after years of labour devoted to the editing of chronicles he triumphantly produced his three volumes of the Constitutional History of England (1874-8). Stubbs drew his line at 1485, and indeed professionally respected history tended to be medieval. The search for origins, so powerful a stimulus to the historical studies of the seventeenth century, had revived in an age which regarded Victorian England as the outstanding culmination of a long development in human government, power and civilization.

Maitland distrusted generalizations, or rather the glibness with which large generalizations were made, and if he never wrote the 'great book' in the manner of Stubbs or Froude it was because he saw no point in doing so until historians had gone much more deeply into the sources. It is notable that this admirer of the German historians never pronounced the conventional encomium on Ranke which one finds scattered through much comment at the time; perhaps more surprisingly, he seems never to have encountered Jakob Burckhardt whose interest in the general history of civilization rather than politics he shared. Most of his asides on history reveal only his genuine modesty about himself. He thought that he lacked the ability to write great books of the conventional kind, a performance he was content to leave to others. He expressed sincere admiration for Stubbs's achievement, even though he knew well enough that he was engaged in destroying many of the foundations of that Tory scholar's whiggish synthesis. And in spite of his philosophical training he rarely put thoughts on his concept of history on paper.

Only in his inaugural lecture, 'Why the History of English Law Remains Unwritten', did he come close to a statement of his credo. He explained the absence of a history of the law in part by means of the isolated position occupied by lawyers: they who, unlike other scholars, could understand and use the materials were not interested in using them historically and never looked around at other forms of intellectual enterprise. Yet 'history involves comparison': the closed exploration of a single system cannot produce history. This is very true: much history always was and continues to be hampered by such isolation, and one of the chief virtues of historical studies lies in the breakdown of unconscious assumptions when they come up against alternative circumstances and convictions. Much of the impact of Maitland's work stood linked to his knowledge of the legal history of other countries. Furthermore, to him historical enquiry demanded the subversion of what had been said before: 'An orthodox history seems to me a contradiction in terms … If we try to make history the handmaid of dogma she will soon cease to be history.' Another very true observation which a great many modern historians would do well to heed.

Such views arise in part from a naturally sceptical temperament (essential to the good historian) which questions everything until genuine proof is proffered, but in Maitland this inclination received reinforcement from his never ceasing awareness of the vast reservoir of historical materials that remained unexplored. Piled up in the archives, so far unread and even more commonly unedited, he saw the deposits of men's experience and deeds—not just the letters which most historians knew about but records legal, financial, economic, of men's thoughts: how could anyone understand an age without their use? How could one continue to write history out of chronicles, aided only by a few samples of those archives that happened to have been put into print? His understanding of the historian's labours was dominated by his awareness of those mountains of writs, rolls, accounts and so forth stored (mostly) at the Public Record Office, all waiting to be read and analysed. 'Hoarded wealth,' as he told his audience, which enjoyed the lecture but had no idea what the professor was talking about, 'yields no interest.' He wished that wealth to be put in circulation.

The interest, he knew well enough, would not materialize in constitutional histories (Stubbs) or narrative accounts of the Tudor age (Froude): 'Perhaps,' he cried out, 'there are countries in which the writing of historical monographs has become a nuisance; but surely it is better to have too many than none at all.' When he said this there existed almost no monographs written by Englishmen about the history of their law and government; such work as had been done came from Germany and the United States. A year later, introducing a very learned account of 'The Materials for English Legal History', he recorded the words of 'a distinguished English lawyer' who was prepared to leave the writing of a history of English law to 'some of the antiquarian scholars of Germany and America' since Englishmen would lack 'the patience and learning to attempt it'. Gentlemen at most write pretty little essays; they leave it to dull foreigners to get their hands dirty in the dust of the archives. As usual Maitland was too courteous to express the contempt for such attitudes which he clearly felt and which helped to fuel those twenty-odd years of feverish work on the sources.

One other remark in that inaugural lecture deserves attention here. Aware that one of the obstacles to good legal history lay in the lawyer's necessary preoccupation with the current meaning of the law, he stated 'that a thorough training in modern law is almost indispensable for anyone who wishes to do good work on legal history'. That was probably truer in his day than it has since become; the many reforms of the last hundred years have terminated so much of the old law that present-day lawyers tend to be more bewildered by what they encounter in the middle ages or the sixteenth century than assisted by their legal expertise. But Maitland's reason was specific: the legal historian would 'often have to work from the modern to the ancient, from the clear to the vague, from the known to the unknown'. That method he was to employ particularly in Domesday Book and Beyond, but it can be traced through a great deal of his work. It has its dangers; it can harden the teleological attitudes and manners of reflection habitual with lawyers; we shall see that Maitland did not always escape them. But he was right in thinking this way of proceeding frequently unavoidable as well as highly illuminating.

As Maitland always insisted, in the middle ages the materials of history were mainly the materials of the law; to him the history of the law constituted a preliminary step towards the history of medieval people in general. The accident of his training and the nature of the sources that captivated him thus took him into what some have called the narrow limits of legal history. The vast bulk (though by no means all of it) of medieval historical material is indeed the product of the law and its courts. Maitland, however, understood what has not always been grasped so clearly since, namely that those records enshrine the lives of individuals and communities in all sorts of aspects—that properly understood they could be used to recover the real fullness of those lives. A short passage in his inaugural lecture in a way constitutes his own programme of work which even for the middle ages, not to mention later sectors of English history, remains uncompleted:

Think for a moment what lies concealed within the hard rind of legal history. Legal documents, documents of the most technical kind, are the best, often the only evidence we have for social and economic history, for the history of morality, for the history of practical religion. Take a broad subject—the condition of the great mass of Englishmen in the later middle ages, the condition of the villagers. That might be pictured for us in all truthful detail; its political, social, economic, moral aspects might all be brought out; every tendency of progress or degradation might be traced; our supply of evidence is inexhaustible: but no one witl extract its meaning who has not the patience to master an extremely formal system of pleading and procedure, who is not familiar with a whole scheme of actions with repulsive names. There are large and fertile tracts of history which the historian as a rule has to avoid because they are too legal.

The first part of this pronouncement—wise as well as exacting—has quite often been heeded by scholars who thought the second needlessly persnickety; very few have brought to the use of legal records in the search for history other than legal that understanding of the law which alone unlocks the records. Maitland did. Yet examples still abound of the errors lurking in wait for those who think that the materials of the law, especially when in print, can be understood by common sense; and those errors get aggravated when scholars commit the other sin condemned by Maitland—when history is made to serve dogma. Legal records are indeed a repository of knowledge stretching far beyond the reconstruction of the history of law, but they cannot well be used by the ignorant and innocent. However, as Maitland knew and said, that means only that the ignorant should learn, the innocent grow wise, not that the records should be left unstudied.

Thus Maitland in effect declared that in the first instance the historian must grasp the law that produced those records, which means the law of that day in its own right and operation. This comprehension determined his evident strategy: he needed to understand before he could write. In consequence, a great part of the corpus of his work consists of preparatory labours leading up to the coping stone of either a genuine synthesis or at least a powerful suggestion how the synthesis will come out. This is a manner of proceeding which only a man of his phenomenal speed and memory can afford to practise if those coping stones are ever to be reached. His astounding capacity for holding things in the mind also appears in his obedience to his own dictum that history calls for comparisons. Maitland not infrequently described himself as ignorant of other laws and other countries, and no doubt by the side of his knowledge of the common law his understanding of other systems looked pale. However, his work, and especially his footnotes, contradict these well-meant expressions of modesty. In his discussion, for instance, of 'The Early History of Malice Aforethought', an essay published as early as 1883, he showed himself well acquainted with the laws of Germany and France; a later paper on the esoteric theme 'Possession for Year and Day' displayed a special knowledge of the ancient laws of those countries. Evidence abounds of his enormously wide reading in several languages: there are a good few scholars of his day who would now be totally forgotten but for their appearance in his footnotes. The author of Roman Canon Law in the Church of England knew a great deal about that system, and although the book did not appear until 1898 it included essays written as early as 1886. Maitland knew enough of it—of its sources and its implications—to understand why the high-church men of his own day thought it wiser to cultivate their ignorance of it. As for the civil or Roman law, though he regularly professed himself to be but indifferently learned in it and certainly never acquired a full mastery, he knew its sources and could direct others to the right books: he knew it better than he thought or said. He no sooner made the acquaintance of a Scots lawyer than he eagerly enquired after the old law of that country. No man more diligently struggled to avoid the insularity of the common law; much of the enduring strength of his learning derives from his well-instructed ability to see the history of that law three-dimensionally in a world which held those other laws as well.

The mainstay of that strength, however, lay in his determination really to understand his sources—their contents and their limitations. Though he never explained his working methods they jump from the page as one reviews his labours. London was in his day probably a little more accessible from Cambridge than it is now, but even so there were problems of distance and travel, especially in a busy term time. But Maitland spent a great many hours—sometimes any spare moment he could snatch from other engagements in the capital—at the Public Record Office; quite manifestly, as casual remarks show, he saw a very wide range of manuscripts from feet of fines and plea rolls to letters patent and state papers, some of which never got used in his writings. He had an advantage over the present day: at that time the P.R.O. attracted few people and produced documents at enviable speed. True, the two fat volumes of The History of English Law appear to rest entirely on records in print (listed at the start in three and a half crowded pages), but—apart from the fact that a knowledge of unprinted and uncited manuscripts lay behind much that was said—quoting only print was made possible in great part by his own previous editorial labours—especially Bracton's Note-Book, Memornda de Parliamento, and several Selden Society volumes. His edition of the Note-Book—identified by him as the collection of cases on which the author of that famous thirteenth-century treatise rested his description of the law of England—constituted his major breakthrough to an understanding of the treatise itself; and this remains crucial even if we have to think him mistaken, as shortly we shall see he was, about both Bracton and the Note-Book. What matters here is the manner of working—from the sources, through preliminary labours to the great work. Maitland's lesser writings frequently combine the character of research programmes with the preliminary sorting out of problems; and one reason for his long influence lies in the fact that he himself was not given the time to follow up all the lines he opened.

The story of Maitland's long love affair with the Year Books is instructive. Like every other lawyer with an interest in history, he knew, of course, about these collections of cases put together annually from about the reign of Edward I onwards. That is to say, he was familiar with the mainly pretty poor editions in black-letter, published in the sixteenth century. He revelled in their immediacy and reality—the record of arguments and discussion in court, of obiter dicta and jokes and (rarely) grounds given for decisions. He also knew their serious shortcomings—texts often corrupted and contents quite insufficiently explained. Then on Wednesday, 21 April 1886, he was approached by Henry Maxwell Lyte (deputy keeper of the public records, then the title of the head of the P.R.O.) with the suggestion that the Year Books needed a modern edition. This would in fact appear to have been the first personal contact between the two men. By Saturday Maitland had thought the problem through to the point of being able to submit a full-scale programme of editing and publication, a programme which he then found himself committed to initiating in person. The surviving volumes for Edward I had already been edited, very poorly, for the Rolls Series (1866-79), while an encouraging start had been made in the same series on the reign of Edward III. Maitland therefore proposed to tackle the extensive collection for Edward II. He asked to be allowed to wait until he had finished Bracton's Note-Book, but in fact a great many other engagements intervened before, in 1903, he was able to produce his first Year Book edition. However, when at last he found time for the task he not only produced a model edition but prefaced it with another of those preparatory exercises he knew to be essential to a true understanding: he reconstructed at length the grammar and vocabulary of the medieval Law-French in which the Books were written. Since the use of this specialized jargon had been abolished by statute in 1731, understanding of it had become a lost art: only Maitland's remarkable excursus into philology made the proper use of those invaluable materials possible.

In his introduction the editor further settled the real character of the Year Books (a point he himself had still been uncertain about even two years earlier): he showed them to have been students' compilations made from notes in court, and not, as had been supposed on ancient authority, semi-official collections of cases made for the use of judges and counsel. At the same time he set out the arguments for their use by historians in ways that have become classic. Here, as he told us, we find the living language and practice of the law—a guide not only to the law but to the very life of the nation. I think myself that, though he was on the right lines, his enthusiasm exaggerated the profit likely to be got from that source: it does tell us more about law than about life. Even so, Maitland's enthusiasm helps to explain why he never continued writing the history of English law beyond the reign of Edward I. No one was more convinced than he that this could not be done until the Year Book material had been properly digested, which meant first properly edited. It added a whole new dimension to the sources available to the legal historian, enabling him to see the law in operation and not only as defined in edicts or collected in codes. He himself edited two more volumes in the three remaining years of his life, the last brought out after his death by G. J. Turner, whose combination of fine scholarship and indolence had often driven Maitland to distraction. For a while the Selden Society's Year Book series continued active, and from 1914 the Ames Foundation at Harvard joined in with editions for Richard II's reign. But the gaps remain enormous: twenty-three volumes now cover only the first twelve of Edward II's twenty regnal years, and we have only three volumes edited for Richard II's twenty-two, not to mention the bare sprinkling of volumes for the fifteenth century. The drive behind the editing of Year Books has slackened: it is widely held that a man can do more important work and earn a greater repute by less laborious exercises. Yet it is true that Maitland diagnosed their value pretty correctly and that they remain underused.

Thus equipped, Maitland tackled the task of writing real history. Reading the sources properly and solving their problems may seem so obvious a preparatory stage that it hardly deserves so much comment. It is nothing of the sort: great reputations have been made, both before Maitland's day and after, by men who fudged both the reading and the analysis of their sources; because Maitland was a medievalist, it has proved easier for this state of affairs to endure in the post-medieval period. The strength behind Maitland's astounding endurance lay in the fact that—instinctively, it seems, for he had no guide or model—he chose to work correctly. Another source of that strength, however, may be found in his careful restriction of his area of operations. Maitland wrote so much, nearly all of it of genuine importance, that one can forget his decision to limit himself in time. Not for him the writing of sixteen volumes covering all the history of English law from Anglo-Saxon times to 1875, which remarkable achievement Sir William Holdsworth produced solely out of printed materials. (It is said that he saved time by never taking a note but worked at his desk at All Souls, surrounded by terraces of books with marking slips in them.) Not for Maitland either the often slender and sometimes credulous foundation of evidence and interpretation employed by Holdsworth, whose great work has for years been as much an obstacle as an aid to the correct understanding of the themes he treated. Maitland was, in effect, content to be the historian of English law from the Conquest to the reign of Edward I—quite a sufficient era to study from the sources, in all conscience. Of course, he did extend his range on occasion—back into pre-Conquest England, or into the fifteenth century for the canon law, or less successfully into the supposed Renaissance of the sixteenth—but in the main he stayed with the ages of Glanvill and Bracton which it was his achievement to show forth as the formative and decisive era in the history of the common law.

There was another limitation in his method which assisted the concrete definition and solidity of his work but does not seem to have been noticed before. Though many of his essays, particularly the earlier ones before he fully realized the nature of his sources, ranged across stretches of time and varieties of materials, his great books took their origin from concentration on one particular source, usually an ancient treatise. The method recalls the principle of the old 'readings' at the Inns of Court for which the lecturer chose a single statute and built up his exposition of the law by tracking developments upon one section after another through the subsequent case-law. The History of English Law ('Pollock and Maitland') took its origin from a study of the treatise ascribed to Henry de Bracton; it is not without significance that the section on pre-Norman England was Pollock's sole contribution. Domesday Book and Beyond announces the principle in its title: an analysis of Domesday Book was used to extrapolate law and society backwards, from (as Maitland had advised in his inaugural lecture) the known to the unknown. The treatise on the canon law contained, as already mentioned, a collection of essays on various aspects of the subject, but its core consisted of a study of William Lyndwood's fifteenth-century Provinciale. In his Ford lectures at Oxford, Township and Borough, the single book was replaced by the single town, and a pretty small one at that: he used medieval Cambridge to recreate the realities of medieval urban and rural conditions. It may be doubted whether any other great historian ever so regularly received inspiration from a restricted and restricting source, only to burst out of it by pursuing the suggestions he found there into a whole range of sources and problems. The method helps to explain Maitland's astonishing productivity. Concentrate a well-stocked mind upon a single compilation, apply to it the kind of precise reasoning and concrete imagination Maitland possessed, and useful, even powerful, results will come forth far more rapidly than they do to the historian who reads a whole body of source materials with a mind to finding out what actually happened. Both are thorough, but one starts from inspiration and the other from perspiration—not a new crack, I know, but distinctly apposite here. Maitland's ability to discern patterns of existence and development—that skill with which he rapidly ordered an inchoate mass of details, and which has convincingly been linked to his training as a lawyer—owed a great deal to his habit of working outwards from a central source.

Maitland's skill in producing a convincing shape of the past is the more remarkable because he in effect avoided the most common and most traditional of expository schemes. He wrote no, or almost no, narrative, and he regarded himself as incapable of telling a story in the usual manner. When during the planning of The History of English Law Pollock tried to persuade him to write a short outline history of that law at least covering the middle ages, Maitland retorted with an explanation of his approach to the writing of history. He himself, he said, could not forget the many problems which ignorance placed in the way of the treatment proposed: he needed to analyse and dispose of them first. But he encouraged Pollock to go ahead and write 'a famous book'. He could not pass over complex issues 'in a few brief paragraphs—if I am to write about it I can not but write at length.' 'I quite see that a brief history of English law is much wanted and might be written, but I also see that I can not write it.' He did actually change his mind sufficiently to produce eighty pages of such 'Outlines of English Legal History, 560-1600' for a once famous collection of essays on English social history. Its author, were he not known, is unmistakable on every page, but the sum total leaves a good deal to be desired. Episodic and epigrammatical, it solves far fewer of the problems along the road than it seems to think, and once Maitland leaves his familiar stamping ground to look at the fifteenth and sixteenth centuries he loses most of his sovereignty. His accounts, for instance, of Parliament and Star Chamber, though they contain some of his typical flashes of insight, are really caricatures. This happened because here Maitland was of necessity forced to rely on other people's views which he had not had the time to test against the sources: where he happens to know some piece of evidence properly he at once corrects vulgar error, but this happens rarely in that gallant, and misconceived, survey.

Thus analysis, not narrative, constituted Maitland's organizing principle for the writing of history. His admiration for Stubbs, he said, grew every day, and with that model of the long narrative before him he felt quite unable to think of emulating it. He really did not believe that he could write continuous narrative. Now in a way this is absurd: no one could tell a story better than Maitland, as his daughter (among others) testified. The History of English Law teems with brief tales that transform abstract analysis into the living experience of real people. Take just one example, the explanation of the survival in Kent of the peculiar custom known as gavelkind (partiple inheritance among male heirs). Where others might have laboriously set out the law of this exception to the rule and perhaps speculated about the endurance of ancient custom, Maitland in two pages written in the present tense brings the men of Kent—tenants as well as lords—vividly before us in what is in effect a tale of their dealings with one another, and by the end we understand why gavelkind survived there at a time when primogeniture was sweeping the board everywhere else. Thus if Maitland really believed himself to be incapable of narrative history he was wrong; it was his purpose—his determination to understand and explain before he told—not his deficiencies that pointed the way to essentially analytical techniques. His disavowals should perhaps be read in the context of his time. While. narrative nowadays ranks rather low in the estimation of professional historians, in the age of Stubbs and Froude, of Freeman and Gardiner the notion that real historians tell great (and lengthy) stories still prevailed. This was not the only aspect of professional history in which Maitland proved himself to be the first of the moderns.

Maitland's method has its dangers which shall be discussed in a moment. But in the first place it made Maitland into the enduring writer of history that he became. The history he wrote concerned itself with highly technical issues and used materials and terms of art that are not accessible to the general reader; indeed, too few historians have bothered to master them since. In Maitland's hands they created lasting orthodoxies. The age of Henry II as the foundation era of settled government and the common law; the age of Bracton as the era of codification and consolidation, as English custom underwent scrutiny by eyes trained in the law of Rome; the lore of the forms of action as the essence of medieval jurisprudence; the analysis of society in terms of tenures; the discovery of Anglo-Saxon social and economic arrangements by working backwards from 1086; the medieval Parliament as a court rather than a political assembly; the dominance of papal law in the English church down to the Reformation; the vital significance of the Year Books—all these and many more commonplaces of our understanding of the English middle ages were created in Maitland's two decades of almost feverish activity. A hundred years of teaching have anchored them in concrete so well set that every effort of doubt or modification calls for dynamite.

Once Maitland had found his vocation he treated it as a solemn duty which, being the most unsolemn of men, he somewhat shamefacedly admitted he enjoyed enormously. When he assured the editors of a technical collection of legal cases that they had given him hours of unalloyed pleasure, we believe him literally where with anyone else we might suspect hypocrisy; his book on the canon law, he said, brought him more fun than 'any other job I ever did'. In fact, that he enjoyed himself all the time both researching and writing springs from just about every page he wrote. This is among historians by no means a common experience, even among the active sector of the profession; far more of them will recognize the truth of A. F. Pollard's remark about 'the toil of producing research which it is only a pleasure to pursue'. Maitland enjoyed both the seeking of the truth—in materials immensely more difficult and indeed repellent than Pollard, careful avoider of manuscripts, ever studied—and the telling of it.

A striking irony lies embedded in Maitland's long ascendancy over the territory which he not only made his own but also persuaded others to regard as the central region of medieval history. The man who declared that an orthodox history was a contradiction in terms created despite himself an orthodoxy so enduring that even his latter-day critics speak as though in the presence of a god whose wrath might still strike them down. We have no English historian before him whose work is still treated as though it was the latest, even the last, word, and among his immediate successors only T. F. Tout and a little later Sir Frank Stenton are still read for the serious, by now much criticized, content of their books. Sir Charles Firth, A. F. Pollard, Sir Maurice Powicke, Sir Lewis Namier, Sir John Neale (knighthoods came to historians after Maitland's day), all great names once and still respected for what once they did: but no one refers to them as though despite their tiresome departure to the grave they were living colleagues and fellow-workers. That is how we treat Maitland. Some on that list—especially the last two—actually wished to create orthodoxies and enduring truths. They failed where Maitland, modestly unconvinced that final answers are possible for historians, became an oracle whose sayings, it seems, do enshrine such impossible truths. Why?

Some points are obvious but also rather superficial. There is the manifest fact that Maitland knew what he was talking about, had done a vast deal of work, and seemed always able to distinguish speculation from certainty. Criticizing Maitland has in part proved so difficult because of the caution with which he formulated his answers, a caution not at first apparent in the transparent lucidity of his style. However, there were two very special reasons which assisted in the prolonged survival of his work. In his own line, he has never until very recently had numerous successors, able to take up his questions and his sources, and able to develop his themes beyond the point to which he had taken them. And secondly, he wrote better than any serious historian of England has ever done, before or since his time. It is virtually impossible to be bored by Maitland even at his most technical, and seeing how very boring even good historians can be this gives him a remarkable advantage. Without any intention of playing the advocate, he insensibly persuades, even enslaves, by the beauty of his style. These two points need a little more analysis.

Why have there been so few historians of the law—real historians of quality, I mean? For a time it seemed as though only one of rank was to be permitted to every generation, the staff passing, after an interval, from Maitland to Theodore Plucknett (difficilis descensus … ?) and then to Samuel Thorne, though of late the great revival of legal history has at last picked up the message and inspiration of Maitland. This has led to a major extension of the territory covered by sound legal history and almost inevitably has brought with it the discovery that even Maitland needs revising, at the periphery and in the centre. By real historians of the law I mean scholars who can satisfy both historians and lawyers that they understand their themes. Maitland's inaugural lecture proves that he knew the fundamental problem well enough. Practitioners and historians concern themselves with the same body of materials, but in it they seek totally different things.

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.

No two breeds of learned men differ more widely in their acquired mental characteristics, and the accident that they operate on the same sources disguises the essential irreconcilability of their concerns. I have always found it much easier to understand the thought processes of physicists or biologists, analysing their problems empirically, than those of lawyers seeking guidance for present action from decisions and sayings whose very words have quite probably changed their meaning several times over the centuries. Their circumstances certainly have. The lawyers' teleological preoccupation, in which all things past have meaning only insofar as they can be shown to have led to a present use, beset English history for centuries: historians were led to believe that their task lay in explaining the present rather than the past.

The distance between minds that wish to know what seven centuries have made of the Statute of Merton, and those who wish to know what the makers of the statute thought they were doing, is so great as to be ordinarily unbridgable. Men who have an instinctive grasp of the law and its ways stand at the opposite end of the spectrum from men who have an instinctive grasp of the past and its ways. Yet, as Maitland understood and demonstrated, the medieval past and its ways have mainly to be reconstructed from sources produced by the law and its operation. Small wonder that a true historian who can cope with the law of the past is a rare thing, even though I could now name a dozen who have really learned to tie the ends of the spectrum together; small wonder that an exceptional historian like Maitland, who to the uncommon double skill added wonderful gifts as a scholar and writer, found himself elevated to a plinth on which the word veritas was engraven by generations of admirers.

As for Maitland's style, much has been written about it, most of it true. It combines earnestness and wit, charm and sinew, in a manner so personal that any attempt to learn from it would be idiocy. We are often warned not to imitate Maitland, and no one has ever seriously tried to do so, but it has to be confessed that a solid diet of reading Maitland does have its effects. All of a sudden one finds oneself using the first person plural (one of Maitland's most obtrusive hallmarks), starting sentences with 'Now, … ', introducing concrete metaphors by way of explanation. Maitland, in his innocence, works insidiously. Yet resistance is very necessary; more than most historians, Maitland testifies to the truth that the style is the man. Those usually short, often vibrating, sentences, the avoidance of learned circumlocutions and even long words as such; the manner in which the royal 'we' gathers the reader into the company of the writer; the constant illumination of abstract or general notions by anchoring them in the experience of real people; the frequent (possibly unconscious) echoes from a whole cultural reservoir filled with, among other things, the Bible; the wit which, because it grows naturally from the discourse, remains funny to this day; and the courtesy which renders the not infrequent stabs of the stiletto painless: all these compass Maitland the man, a man both wise and artless. It seems that Maitland was in no sense a conscious stylist, a careful and particular carpenter of words and architect of sentences: nobody who wrote so much so fast could have been. True, he wrote even his lectures out in full and practised them before delivery, a delivery which depended upon the presence of a script. This might argue against spontaneity and for painful labour, but the conclusion would be false. Indeed, it is rather that Maitland's manner of lecturing explains his style: whether speaking or writing, he was always talking to the reader as much as to a listener. It is because his written words bring the sound of his voice even to generations that could never hear him that he remains so alive, so immediate, so insidious a writer.

One genre of writing, rarely commented on in thinking about Maitland, will help to explain further. One of the duties of the learned is to review the work of others, and Maitland did a certain amount of this: not all that much because what in his wake was to become a flood of medieval monographs, in his own day was still but a trickle. Still, he wrote a number of notices all of which show the same characteristics: generous acknowledgment of the reviewed author's attainment, plain but courteous correction of error, and an elegant conciseness. Models of their kind, in a way, for reviews must neither evade the duty to advance the state of scholarship nor do so with savagery, but as a rule a bit anodyne. Once, however, Maitland removed the baffles. He was reviewing John Horace Round's The Commune of London and Other Studies (1899), and he felt obliged to speak out about that sinister, touchy and quarrelsome controversialist's manner and defects. The result was a unique piece of learning mixed with invective, the more devastating because it spoke quietly, with irony and a touch of condescension. It shows what Maitland could do when really roused. He took Round to task for never producing a real book but only collections of disparate papers, a habit which, Maitland said, gave grounds unhappily to those who thought that serious research stood in the way of writing history, and he topped this by citing Renan's remark that no one can be at one and the same time a good controversialist and a good historian. Then he cut loose. Round had made a nasty crack about a minor error of Kate Norgate's to the effect that 'one must not be severe on a lady's Latin'; finding a German name misspelt in the book before him did not, said Maitland, make him point out that the author's 'acquaintance with the German tongue is but gentlemanly'. Round, still pursuing his endless feud with the long-dead Freeman, refered to a little clique of Oxford historians who had 'endeavoured, without scruple and with almost unconcealed anger, to silence me at any cost'; 'they must be simple folk down there at Oxford,' said Maitland, 'to think that Mr Round will ever be silent' about his own rightness and the wrongs committed by his adversaries. Round's whine that 'in England, at the present, there is neither inducement nor reward' for original research calls forth the retort that anyone writing in Round's antiquarian fashion must expect to remain unread by the general public: 'We know of no country in the world where there is any pressing demand for short studies of disconnected themes.' And on he went to dissect the book, mixing open admiration for its excellences with precise critique of its deficiencies. As Maitland should have expected, the review caused deep offence, and what had been a quite regular correspondence between the two eminent scholars came to an end. Maitland foresaw 'that I shall now have J.H.R. as an assailant for our joint lives'. But it is plain that he had no regrets. He abominated Round's manners, which he had had occasion to deplore before when Round had attacked the misfortunate Hubert Hall, a scholar who had invited the tiger-cat's assault by producing a far from perfect edition: 'If all that R. says is true, I still think that he is using language which should be reserved for cases of a different sort … Poor Hall has a fluffy mind but never scamps work, besides being (but this alas is irrelevant) the most unselfish man I have ever known.' Maitland evidently thought Round's behaviour intolerable in a fellow scholar, and when finally provoked said so. It was in fact virtually impossible to live in the same world as Round without causing him in the end to take offence: to him, the taking of offence was the elixir of life. He who had hitherto flattered Maitland 'absurdly' no doubt felt particularly shattered by an attack from that quarter, but I think that Maitland enjoyed the opportunity to execute justice on a persistent offender. I certainly hope he did.

Maitland's greatness and the elements that went to the making of it should thus not be doubted. However, it is no service to him to turn admiration into adulation. It was no service to his own convictions to set him up for orthodoxy and for decades to cite him as scripture. He never believed himself to be a god or even to be humanly perfect in his ways, and we should not evade the duty to say something about the weaknesses or errors that may—are bound to—accompany his transcendent skills. In the last twenty years or so, a good deal of his work has at last been accorded the honour of proper criticism; at last his unwanted orthodoxy has gone, leaving behind his true achievement, to be assessed in the historian's manner which he wished to teach to others.

There have before this been attempts to evaluate Maitland's work against revisions and departures since his day; they have been marked by a careful listing of changing views and all avoidance of the possible reasons why Maitland, so formidably persuasive in his judgments, might here or there have erred. They have also usually and rightly recognized that Maitland's habitual caution allowed him to qualify even very positive assertions in such a way as to prepare the road for his revisers. I shall confine myself to some major issues, taking it for granted that a century of research will bring with it some modifications here and there.

The 'garrison theory' of the origin of English boroughs (that they started as places fortified against Danish invaders), a theory he put forward in Domesday Book and Beyond as well as in Township and Borough, and which his disciples came to overwork, was criticized in a famous review by James Tait who then took some forty years to bring out his definitive, and very soporific, statement on the matter. Maitland, it is clear, underestimated the part which trade and merchants played in the rise of towns; he never proved himself more the lawyer than in his relative neglect of economic influences. Maitland's disparaging judgment of the law-book called Fleta (compiled early in the fourteenth century)—'an edition of Bracton much abridged and "brought up to date" by references to the earlier statutes of Edward F—has been thoroughly overthrown by H. G. Richardson and G. 0. Sayles (Maitland worshippers) in their edition of that work. Maitland's conviction that Domesday Book was what he called a 'geld-book'—a register of potential payers of the tax called danegeld—arose mainly from the state of Domesday studies in his day; it has been proved to be both wrong and seriously misleading. Errors of that kind, in themselves inevitable, do affect a historian's general interpretation both of the sources and of the history he gets from them, but they do not affect the greatness of Maitland's achievement over all, nor did those critics suppose that they did. Here I shall also omit a discussion of the one work which has been almost universally rejected—Maitland's Rede lecture on English Law and the Renaissance. ... But there remain three issues which seem to reach further and deserve a closer look: Maitland's teaching on writs and the forms of action; Maitland's assessment of Bracton; and Maitland's analysis of the law of the twelfth century.

Maitland in effect taught us that the system of writs by means of which actions were started constituted the essential structure of the medieval law. This interpretation seemed to be directly derived from the compendia produced at the time: both the commentators (Glanvill, Bracton and so forth) and the practitioners (in the so-called Register of Writs) built their analysis of the law around these forms of action. In this law of procedure Maitland identified the predominant jurisprudence of the middle ages; as he once said, the medieval law reversed the natural course of justice, for whereas justice demands that for every wrong there shall be a remedy, the middle ages held that where there is no remedy no wrong has been committed. If there is no writ appropriate to a complaint, the complainant can have no recourse to the law. It matters little that he was wrong to doubt the existence of an 'official' Register kept in the Chancery or did not give sufficient place to the history of the judicial writ before the age of Henry II: those are the normal details of disputable research. The former mistake stemmed from the fact that Maitland did not have as large a sample of versions of the Register at his disposal as did later scholars; the second from his excessive respect for Henry II and relative ignorance of both Anglo-Saxon England and pre-Conquest Normandy. In both instances, the correctors acknowledge his inspiration. They would also do well to admire his farseeing caution: thus a page in The History of English Law leaves the door wide open for the sort of revision since carried out by R. van Caenegem.

Of far greater importance is the fact that Maitland ignored the plaint by bill, the bringing of an action not by original writ but by a form of petition in which the plaintiff could set out his grievance and pray for remedy. This, of course, made it possible for any alleged sufferer of a wrong to approach the king's court in search of justice, and indeed some of the forms of action owed their development to the provision of new remedies for wrongs raised by bill. Maitland knew this but the growing reluctance of Chancery to make new writs persuaded him to suppose that actions by bill disappeared from the courts and the common law not later than about the end of the fourteenth century as the Register of Writs settled into a final and immutable form; he held that in the later middle ages actions by bill belonged solely to the chancellor's court. This may be true of Common pleas but it is not true for the law at large. Not only was procedure by plaint freely used in the reign of Henry III; it remained available in the King's Bench to the end of the middle ages and beyond. Its willingness to hear plaintiffs by bill as well as by writ enabled that court to recover from the late-medieval slump in business that it experienced and to take over much litigation that earlier would have gone to other courts.

More surprising than this failure to remember the bill was Maitland's treatment of trespass. Here, too, his understanding of the Register obscured his vision. Trespass troubled medieval lawyers by not fitting too well into any of their established categories. Here was a civil remedy for wrongs not very different from the crimes pursuable at the crown's suit. Its peculiarities are well summed up in the fact that unlike other forms of action it could command an enforcement procedure which culminated in outlawry, a means otherwise reserved to pleas of the crown (felonies). The lawyers' inability to cope with trespass lay at the heart of the deplorable underdevelopment of the medieval criminal law. Maitland saw the writ bobbing about the Register like a homeless waif, now accommodated here and now farmed out there, and he thus called it an intruder still not properly at home in the law by the end of the sixteenth century. And he had virtually nothing to say about its offspring, trespass on the case, or simply case. Yet as a practitioner at the bar he must have been well aware that such actions as assumpsit (the basis of contract law) or trover (the basis of fraudulent conversion) stemmed from case, and he should have seen that in the fifteenth century case opened the law to new actions almost as freely as procedure by bill had done. In his lectures to students of the law he came very close to saying it all. But he failed to draw the inferences. By ignoring bills and playing down case, Maitland for generations convinced historians that the late-medieval common law had 'ossified', so that it needed action by new courts (Chancery, Star Chamber) as well as Parliament to supply litigants with chances of redress in much altered circumstances. As we shall see, he thus totally missed one of the most remarkable events in the history of the common law as it renewed itself from within in response to need. The fundamental cause of this mixture of error and blindness would seem to have lain in his trust in the Register of Writs as an authoritative and complete statement of the law.

The problem of Henry de Bracton, supposed author of the great treatise ascribed in Maitland's day to about the middle of the thirteenth century, is highly complex, and a brief summary must distort its subtleties. Bracton was central to Maitland's work: an inspiration and guide whose book he knew inside out. One of his greatest feats of historical research produced the three-volume edition of what he called Bracton's Note-Book, a collection of cases which he identified as Bracton's source-book for his treatise. The reconstruction seemed the more convincing because Maitland found some of the cases so collected marked for transcription on the plea rolls. Maitland also convinced himself that though the author of the treatise had some acquaintance with the law of Rome he was insufficiently learned in it to have used it for the systematizing of English law: thus the ordered and advanced state of the law described in Bracton implied a highly developed achievement for the native law of England. Of all this very little now stands. The destroyer has been one of Maitland's greatest admirers, Samuel E. Thorne of Harvard University, who gave twenty years of his life to a final edition and accurate translation of 'Bracton'. Thorne has demonstrated that the treatise as we have it did not come from one hand; several 'redactors' (whose existence Maitland had tentatively allowed for) had been at work on it and the text handed down to us was produced after the accession of Edward I in 1272 (Bracton died in 1268). Thorne has also shown it to be much more likely that the original work of collecting and collating was not done by the Henry of tradition but either by his master and teacher, William Ralegh, or by Ralegh's own revered mentor, Martin of Pateshull: a splendid trinity of leading judges in direct personal descent. The Note-Book, as Thorne shows, bears a far more distant relation to the contents of 'Bracton' than Maitland supposed, and the famous marginal notes on the plea rolls belong to many hands and possibly several centuries. Furthermore, and perhaps most to the detriment of the story as told by Maitland, Thorne has proved that those common-law judges knew the Roman Code very well, and that such order and system as they could manage to provide for the law of their own country derived from Rome. As for the law of England revealed in the treatise, it has turned out to lack system, to be often internally contradictory, and so to fall well short of the excellence discerned by Maitland. Some of that inadequacy, however, may well have been introduced by those later redactors who seem to have managed to muddle their predecessors' acquaintance with the Roman law as much as they introduced confusion into the law of England.

Now Thorne, who for some years after he published these formidable findings used to wear a button in his coat that read 'Bracton Lives', would be distressed if it were thought that he had in some way dethroned Maitland. On the contrary, his admiration for his predecessor remains undimmed, and he is more conscious than anyone of the care Maitland took to qualify his judgments when he knew he stood on shaky ground. Nevertheless, this recent history of Bracton's book amounts to more than ordinary revision in the course of advancing research. It is a major upheaval. We still await what may become of it all, but it looks to me as though much of the beautiful clarity of 'Pollock and Maitland', the apparent perfection of logic and sense upon which the iron grip of the work has rested, may well shatter as the lesson is absorbed that this supposedly comprehensive statement of English law 'in the age of Bracton' is instead a complex mixture of sense and doubts, a cumulated and only partially digested corpus strung along the only available lines of order, namely those confounded forms of action. Maitland had to use the printed form of Bracton produced in 1569 and reprinted with defects in 1640; he knew very well how inadequate this was and several times called for a new edition. Considering what he had to work with, his achievement remains astounding. That is not in question: what must now be asked is whether the product resulting from such handicaps can really, a hundred years after its appearance, still dominate all studies of English law in the middle ages.

This question is raised in its starkest form by the latest scholar to take his axe to the forest oak. Van Caenegem, Sayles, Thorne all remained and remain devotees of Maitland, even though they have found him wanting in some very important ways. Our last critic, however, though he too remains respectful and is liable to emphasize the temerity of his heretical views, has found real chinks in Maitland's armour. This is S. F. C. Milsom, who very appropriately practises legal history from a chair in Maitland's own university and like Maitland began his career as a lawyer. The matters at issue turn upon highly technical points of the law and its record, and Milsom does not make things easier by an allusive and elliptical style, but they reach right down into our view of medieval society. The essence of his revisionist attack lies in his allegation that Maitland failed to give proper weight to the social structure of a feudal or seigneurial world: he overestimated the governing control of the king's courts and undervalued the independence of the local lords' courts. As Maitland saw it, Henry II's legislation (if that is what it was) replaced feudalism by centralized government when he offered better and swifter justice to complainants disturbed in their rights of possession by, as it were, interlopers; he identified seisin—the thing complainants sought to protect or recover—as equal to possession vested in them by grant or inheritance. In his world there were two contestants at law—he who claimed the land and he who sat on it—fighting out the rights of it before a relatively impartial court; unable to get what they held to be their just rights they took advantage of the king's offer in what Maitland called the possessory assizes (especially the assizes of novel disseisin and of mort d'ancestor) to help them to a solution of their problems. The picture Maitland drew of that world had a beautiful coherence and consistency, but it was the world as it emerged in his thirteenth-century sources read backwards and extended into the very different age that went before.

Milsom, on the other hand, argues for what he calls a three-dimensional world in which claimant, tenant (he who happens to hold at the relevant point in time) and lord are all involved in every such dispute, a world in which seisin is not a quality settled in the occupier of the land but an action of the lord's who invests another with seisin and thus at his pleasure makes him the rightful occupier for the time being. Originally seisin was not equal to the concept of possession in the Roman law, as Maitland maintained (and as in due course it became), but the definition of a relationship created by the lord when he admits another to hold land of him. The assizes are not 'possessory', a term that Maitland invented for them, and are not primarily intended to transfer actions to the king's court; they are means for restoring the proper course of the tenant's rights by urging the lord to do justice and not to abuse his power. When the king's writ instructed the sheriff to see to it that a dispute was settled by the lord it meant precisely that; the ancillary sanction—if the lord refuses have the parties before the king's justices—was originally a warning of what might happen, not the primary purpose of the action. Only as both tenant and lord began to see advantages in using the king's court did these assizes become regular means of starting litigation at the centre. Disseisin did not, in the twelfth century, imply forcible dispossession by another: Milsom rightly emphasizes that if this had been so, life at the time would have been impossibly violent and uncertain, seeing how often the assize issued. The traditional picture presupposes a degree of lawlessness not otherwise apparent in the record, as dispossessors again and again entered upon another's land and forced him to recover at law what was his own. Rather, disseisin represents the failure of the lord to bestow seisin where by the custom of his own court it should go; the claimant is not trying to recover lands taken from him but asks that what by binding custom should be his should not be conferred upon another. His right of seisin is defined in the relationship between vassal and lord and signified in a piece of land: that is the way the age thinks of the matter. But if the lord breaks the rules—for instance, by passing over an heir and granting seisin to another—the offended party is unlikely to find a remedy in the local court and seeks an order from the king, telling the lord to do the right thing. Milsom, of course, works this out in great detail and for all the so-called possessory assizes.

In the end, the two pictures differ in emphasis rather than essentials, but the difference is nonetheless great. As Milsom sees it, Maitland antedated the settled and sophisticated state of the law by a hundred years at least, whereas in his view the feudal relationships predominated down to the end of the twelfth century over the king's rule, with lords reigning in their lands and the royal courts at most offering adhoc assistance to an aggrieved party against his lord. Out of that assistance grew certainties of possession enforced by the king's courts, but this happy state was not achieved until the powerful realities of the feudal chain of command had been polished away through the increasing interference from above and the work of generations of lawyers who systematized a centralized structure out of the confused and particularized interaction in which what the lords said counted and kings were confined to urging those powerful men to behave by the rules. The difference between Maitland and Milsom may be illustrated by their views concerning the law of inheritance. Maitland regarded it as effectively settled by the middle of the twelfth century: a tenant could use the king's court to compel his lord to grant seisin to a man who claimed by right of his ancestor's seisin. The lord has thus lost all control over who should hold of him once he had made the original grant to a man who came to have heirs. According to Milsom, this was the end product of a long process during which the lord claimed and exercised his right to place seisin where he saw fit, applying accepted rules but himself deciding what in a given case those rules meant, and making a decision against which there could be no present or future appeal. It was this long process that Maitland drastically foreshortened, thereby giving us quite the wrong view of that earlier and genuinely feudal society. Maitland's splendid quip that the feudal system was introduced into England by Sir Henry Spelman (a seventeenth-century historian) and flourished best in the eighteenth century is a perfectly sound rebuff to those who treat the English kingdom as 'feudal' down to the Tudor age—as many then did, and Marxists still do. But it 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.

To sum up: as Milsom says, when Edward I came to the throne 'the world was as Maitland saw it', but he was mistaken in thinking that its notions and commonplaces had remained unchanged for 200 years. Needless to say, we can again find signs that Maitland was not unaware of this: he once admitted that when placing himself in the last quarter of the thirteenth century he was 'dealing with institutions that are already decadent. The feudal scheme of public law has seen its best or worst days.' However, it is really misleading to identify 'the feudal scheme' with any law that can properly be called public (lords' law and king's law were both private and particular to cases as they arose), and also he backdated its decay markedly too far and thus endowed Henry II with an anachronistic attitude to the duties, functions and potential of a king.

I have dwelt at length on what might appear to be a very esoteric dispute because Milsom seems to me to have put his finger on some real weaknesses in Maitland's historical method. No attempt has yet been made to assess this new interpretation, and for all I know Milsom may not in the end prevail: though I must say that he makes excellent sense to one who is historian without any training in the law. His account incorporates the fact of continuous change in ways that Maitland's fails to do, which means that it fits the experience of the historian but not of the lawyer. Maitland, of course, was a historian too and knew all about change through time, but as we shall see he could unconsciously fall victim at times to his lawyer's training.

Enough has in any case been said to show that Maitland's towering achievement differs from the Bible: his works are not law or revelation. We can be quite sure that of all the people involved he would have been the first to insist on this fact. The thought that he might have brought the history of the law to a standstill by the authority of his writings would have horrified him, and we shall have occasion to point to his influence as the sower of seeds rather than the builder of permanent structures. What he did build, of course, was monumental enough to last a very long time, and his gift for seeing difficulties and weaknesses in his own arguments (another of the true historian's gifts that he possessed) assisted in his monolithic survival. No one more frequently hinted at qualifications and possibilities which, pressed by time, he could not pursue further. Monoliths, excellent objects for worship, are of little use to the study of history. It is therefore important to realize that much work has been done since his time, that the history of England and its law does not now stand where it stood on the day that F. W. Maitland was alive and dead, and that he was quite correct in thinking himself not perfect. What matters next is to identify the sources of his imperfections, such as they were, because understanding them adds further to the lessons which Maitland taught to historians.

Much of the revision done since Maitland's day simply represents the progress of research, commonly under inspirations received from him. New sources are opened up, old ones studied afresh; new theories open vistas, old ones return to make sure that the road leads through real country, not the fantasies of the dogmatizers; all historical understanding grows out of debates and dialectics which ensure that no question can ever be thought of as finally settled, while every question so handled comes by devious routes ever close to some effective truth. Many of the detailed corrections and revisions applied to Maitland's edifices in the last hundred years are of this mundane and respectable kind. It has also become plain that even he, master as he was of accurate speed, at times worked too fast. He read enormously and remembered tenaciously, and he had an exceptional gift for associating disparate and scattered detail in an all-embracing mind, but no one can see everything. His fundamental error over Bracton owed much to the fact that he had seen only some of the extant manuscripts: since putting this matter right called for several people's labours over seventy years, the shortcoming is no blame to him and worth mentioning only as a warning to those—some still survive—who will not believe that he could ever have failed to know everything relevant to his work. As Maitland kept telling people, the Public Record Office holds mountains of stuff which need to be worked through before anything resembling certainty can be achieved; what remains so impressive are both his awareness of the unexplored ranges and the amount he managed to do with the parts of them that he had himself been able to explore.

This is not, however, the whole story. Why did he stop the history of English law round about 1300? One reason seems to have been his quite genuine desire to get the book done before Pollock could insist on contributing any more to it, a reason which Milsom fairly enough calls bizarre. If one man, even a giant, had to be able to manage that, the timespan needed limiting. There was also the fact, of which he showed himself very well aware, that from the beginning of the fourteenth century the state of the sources alters drastically; with the arrival of the Year Books and the proliferation of plea rolls the writing of legal history assumes a very different dimension, quite unmanageable by one man. Look at the long row of Selden Society volumes—ninety-seven by now and nearly all attendant upon the times that followed the age of Bracton! Much of the history of English law in the later middle ages is written there.

However, Maitland who usually avoided dubious and sweeping statements twice spoke in terms which ring an alarm bell: this should not be ignored. Perhaps the most shocking thing (shocking to the historian) he ever wrote was the explanation of his interest in the land law of Henry III's day: that interest 'will lie in this, that it is capable of becoming the land law of the England, the America, the Australia of the twentieth century'. Quite obviously that was not what drove him to wrestle with seisin, tenure and all the rest: so why did he say it? And in another place he defended as 'sound and truthful' the legal tradition that English law after Edward I had been of an unbroken continuity, so much so that what applied under Edward III was still in effect alive in his own day. He acknowledged that his conviction was 'not all true' but allowed 'it to be in the main … truthful'. It is a little ironic that in that very passage Maitland should speak of 'the besetting sin…of antedating the emergence of modern ideas', since now it appears that he himself antedated the emergence of old ideas. Even before the destruction of the inherited system in the second half of the nineteenth century, any conviction that little or nothing had changed since 1300 was entirely untrue, but it was what later lawyers salvaged from Sir Edward Coke's faith in an immemorial law and what they preserved by the manner in which they approached their sources and wrote their history. As Milsom says, 'You look on centuries of material generated on the premise that nothing much must be seen to have changed, and write a book saying that nothing much changed.' Maitland usually knew better: he understood the need to look at the past with no thought for its future. But that was not the way lawyers thought, nor the way that most historians of Maitland's day thought who wished to trace 'developments' to their contemporary condition. Maitland, who helped to teach us the error of those ways, stood at the beginning of an era: he worked out principles for others to learn from. No wonder that on occasion he fell victim to the predominant climate surrounding him. Thus, his concentration on the thirteenth century was assisted by a conviction that in that age the law that he knew received its classic formation and the foundations which remained for centuries. That is to say that despite himself he was capable of falling into the teleological error.

The damaging consequences of those rare slips received support from two other facets of his method. We have noted his practice of starting from one central source—from Bracton, from Domesday, from Lyndwood—and we have also had occasion to notice that this practice in part derives from the lawyer's training which accustoms a man to finding a major authority surrounded by commentaries and glosses. Much of Maitland's work answers to that description. The practice works in law because the great lawyer automatically constructs comprehensive answers out of the raw materials so offered, and Milsom, with reason, has pointed out the effect of such proceedings upon Maitland whose exceptional clarity of mind constructed exceptionally coherent and convincing 'pictures' (synthesizing schemes). But the structural principle thus obtained is imposed upon, not extracted from, the confusions of the real world: 'That,' as Milsom puts it, 'is how the law works, and largely how it changes. The change is in the premises from which a matter is approached'—and by himself changing the premises he proceeds to change the picture. However, this is not how history works or changes: the historian may well come to alter the existing picture by questioning its premises, but he should not replace one set of premises by another until he has searched the record with as much freedom from organizing systems as he can manage—the more the very much better. Though Maitland did a great deal of precisely that, at times, in order to present his findings, he had recourse to the lawyer's method, and it could get him into trouble.

Because Maitland knew so much his premises often worked and his pictures withstood the pressure of later research, though how much that endurance owed to the lucidity and concreteness with which they were described is something that only the future will show, now that Maitland is at last ceasing to be the god whose word must never be questioned. It is, however, already apparent that one of his preferred ways of working contributed to the risk of teleological error which like all of us he ran at all times and avoided more commonly than most of us. He believed that dark ages can be illuminated by working backwards from a position upon which light has dawned. This was expressly what he meant to do in Domesday Book and Beyond, where 'beyond' means 'before', but he followed much the same precept when he approached the history of the law since the Conquest to 1278 by taking his stand with the outcome and tracking back to the origins. He did marvels with that method, and only the expansion of the archives has rendered it supererogatory in most cases, but it is one with a teleological thread built in. The past must be led up to a known present, and in the journey one encounters very grave dangers that the known present may get unhistorically projected backwards. In addition, such parts of the past as did not make it into the known present are liable to get discarded. Maitland's demonstrable errors—well, for the present highly doubtful expositions—concerning seisin, the role of the crown, the disappearance of seigneurial justice, the prehistory of the established writ system, all owe more than a little to this backward-working technique. Of course, Maitland knew that the historian should work forward without thinking about the outcome, but he rightly thought that there are problems in history where the state of the evidence prohibits such proper methods; he knew his risks but did not always see when he had failed to avoid them. Milsom is probably right in his allegation that even Maitland, who kept emphasizing the fact that unchanging terms keep on changing the contents of their meaning, had difficulties on occasion, when faced with terms like tenure or inheritance, in realizing how much the overtones of the thirteenth century had already changed what those identical words had meant a hundred years earlier.

Lastly, Maitland's sources—virtually all of them products of the king's government—together with some convictions and preoccupations of his own day could induce him to overestimate the power, initiative and ingenuity of the realm's central bodies—to predate centralized kingship and unifying principles. Centralized kingship and unifying principles form one of the main threads of English law and English history: no wonder that this lawyer-historian was perhaps a little too ready to see them at work a little too early or too successfully. I speak as a non-lawyer historian who in his time has been overimpressed by the work of a centralizing monarchy. It is, I think, becoming clear that neither Henry II nor his agents were so consciously engaged in providing a royal law in supersession of diversified customs as Maitland tended to suppose. Of course, once again he was the first to express doubts. Writing to an American colleague in 1889, he could not help thinking 'that the law of the King's courts is only a part of the law, and that the lawyers in those courts, having to do only with the remedies there given get into a way of speaking about "property" which really is misleading'. It could be charged that when the History of English Law came out six years later too little of this true insight appeared in it.

Criticizing Maitland is a dangerous game: so often one finds that he has been there first, and he wrote so much that it is far too easy to miss something. No wonder that the worshippers have had their own way for so long. Yet it is necessary to point out that even he could err quite dramatically at times because his method, the source of such learned success, had its weaknesses. In his day few people analysed even their own historical methods beyond such obvious needs as the study of original documents properly understood, the elimination of forgeries, correct dating of the undated. Maitland, it would seem instinctively (being that sort of scholar), did most things right and always remained uncertain about much that he wrote about: he knew that the search for total knowledge, total certainty, meant only total silence. The intermediate answer is what needs to be offered, and he did not expect his intermediate answers to sit unchallenged for so long. Nevertheless, reliance on a single source with the rest gathered predictably around it, together with a predilection for a clarity far beyond the powers of those who in the circumstances of their own day made the law of which he spoke, could at times produce errors not explicable solely by an inevitable inability to read everything or singlehandedly in a brief lifetime to do the work of dozens in a century. Even Maitland erred—and only of Maitland among all English historians through the ages is it even necessary to record the fact.