Frederic William Maitland

“ Real and fiscal hides.
Supposing for a moment that we bring home this equation to the Anglo-Saxon financiers, there would still remain the question how far it truthfully represented agrarian facts. To that question no precise answer can be given: the truth lies somewhere between two extremes. We must not for one instant believe that England was so neat a chess-board as a rude fiscal theory paints, where every pawn stands on its square, every ‘family’ in the centre of 120 acre-strips of 4 by 40 perches. The barbarian, for all his materialism, is an idealist. ”

“ Blackstone's work was the firstfruits of a professorship of law; in the presence of that book every professor of law will always feel very small, but there it stands the imperishable monument of what may be done by obliging a lawyer to teach law. But in the second place let us take one of Blackstone's greatest exploits, his statement of our land-law and of its history. Every one now-a-days can pick holes in 'the feudal system' and some great writers can hardly mention it without loss of temper. ”

“ We see swarms of men who are free men but who are subject, they and their land, to various modes and degrees of seignorial power. The modes are many, the degrees are gentle. Personal, tenurial, justiciary threads are woven into a web that bewilders us. Here we see the work of commendation, there the work of the land-loan, and there again what comes of grants of sake and soke. We see the formation of manors taking place under our eyes, and as yet the process is by no means perfect. In village after village there is nothing that our economic historians would consent to call a manor. ”

“ We might know the law of Edward's time in very minute detail; the more we know the less ready shall we be to say that there is anything unknowable. The practical limit set to our knowledge is not set by any lack of evidence, it is the limit of our leisure, our strength, our studiousness, our curiosity. Seven hundred years of judicial records, six hundred years of law reports; think how long a time seven centuries would be in the history of Roman Law. ”

“ Are we to think of a persona ficta, or of a patron saint, or of the Bride of Christ, or of that vast corporation aggregate the congregatio omnium fidelium, or of Christ's vicar at Rome, or of Christ's poor throughout the world; or shall we say that walls are capable of retaining possession? Mystical theories break down : persons who can never be in the wrong are useless in a court of law. Much might be and much was written about these matters, and we may observe that the extreme theory which places the ownership of all church property in the pope was taught by at least one English canonist. ”

“ Faith may be changed; works are much what they were, especially the works of the magnates. The blood-feud is no less a blood-feud because one family calls itself Catholic and another calls itself Protestant. The "band" is no less a "band" because it is styled a "Covenant" and makes free with holy names. A King shall be kidnapped, and a King shall be murdered, as of old:—it is the custom of the country. What is new is that farsighted men all Europe over, not only at London and at Paris, but at Rome and at Geneva, should take interest in these barbarous deeds, this customary turmoil. ”

“ Of the great man who when that science exists will be honoured as its prophet, and its herald, of the great man whom we have lost, may I say this?—His wonderful modesty, his dislike of all that looked like parade or pedantry, the fascination of his beautiful style are apt to conceal the width and depth of his reading. He was much more than learned, but then he was learned, very learned in law of all sorts and kinds. ”

“ It cannot even hold its glebe tenaciously enough to prevent the freehold falling into abeyance whenever a parson dies.
When we turn from this mere ghost of a fiction to a true corporation, a corporation aggregate, surely the main phenomenon that requires explanation, that sets us talking of personality and, it may be, of fictitious personality, is this, that we can conceive and do conceive that legal transactions, or acts in the law, can take place and do often take place between the corporation of the one part and some or all of the corporators of the other part. ”

“ If we render vicecomes by sheriff we are making our sheriff too little of a vicomte. When comes is before us we have to choose between giving Britanny an earl, giving Chester a count, or offending some of our comites by invidious distinctions. Time will show what these words shall mean. Some will perish in the struggle for existence; others have long and adventurous careers before them. ”

“ This was the time when Roman law was [8] driving German law out of Germany or forcing it to conceal itself in humble forms and obscure corners [12] . If this was the age of the Renaissance and the age of the Reformation, it was also the age of the ‘Reception.’ I need not say that this Reception—the reception of Roman law—plays a large part in modern versions of German history, and by no means only in such as are written by lawyers. ”

“ We must add that it is a superiority over free men and over men who have titles that can be the subject of law-suits in the county court. And now we must ask, What profit does the nation get out of this superiority? Shall we say that the tributum, the vectigal paid to the king is to be regarded as rent paid to the nation, that the opera regia, the victus, the pastus, are services rendered by the tenant to the people, or shall we say that the folk’s right over this land is proved by its serving as the fund whereon the king can draw when he desires to save his soul? ”

“ I make no doubt that it is easier for a Frenchman or a German to study medieval law than it is for an Englishman; he has not before his mind the fear that he is saying what is not 'practically sound', that he may seem to be unsettling the law or usurping the functions of a judge. There are many good reasons for wishing that some parts of our law, notably our land-law, were thoroughly purged of their archaisms; of these reasons it is needless to say anything; but I am sure that the study of legal history would not suffer thereby. ”

“ The one would trace the English manor back to the Roman villa, would think of the soil of England as being tilled from the first mainly by men who, when they were not mere slaves, were coloni ascript to the land. The other would postulate the existence of a large number of free men who with their own labour tilled their own soil, of men who might fairly be called free ‘peasant proprietors’ since they were far from rich and had few slaves or servants, and yet who were no mere peasants since they habitually bore arms in the national host. ”

“ Our neighbours on the continent are not so fortunate as we are. True that for some very early ages they have fuller memorials than we can show; but already in the eleventh century Domesday Book stands out in its unique grandeur, and when our rolls of the King's Court begin in Richard's day, when our manorial rolls begin in Henry III.'s or John's, and our Year Books in Edward I.'s, then we become the nation whose law may be intimately known. ”

“ In England we are within a measurable distance of the statement that the only persons known to our law are men and certain organized groups of men which are known as corporations aggregate. Could we make that statement, then we might discuss the question whether the organized group of men has not a will of its own-a real, not a fictitious, will of its own-which is really distinct from the several wills of its members. As it is, however, the corporation sole stops, or seems to stop, the way. It prejudices us in favour of the Fiction Theory. ”

“ The freeholder of the thirteenth century is much more like the subject of a modern state than was the free man of the Confessor’s day who could place himself and his land under the power and warranty of whatever lord he chose. Lordship in becoming landlordship begins to lose its most dangerous element; it is ceasing to be a religion, it is becoming a ‘real’ right, a matter for private law. Again, we may guess, if we please, that but for the Norman Conquest the mass of the English peasantry would never have fallen so low as fall it did. ”

“ I would not for one moment speak slightingly of the memorials of an earlier time, only I would lay stress on the fact that before the end of the twelfth century our law is becoming very clear and well attested. When another century has gone by and we are in Edward I.'s reign the materials for legal history, materials of the most authoritative and authentic kind, are already an overwhelming mass; perhaps no one man will ever read them all. ”

“ In legal logic the lord’s liability for the geld that is apportioned on the land occupied by his villeins may be rather an effect than a cause. A lawyer might argue that the lord must pay because the occupier is his villanus, not that the occupier is a villanus because the lord pays. And yet, as we may often see in legal history, there will be action and reaction between cause and effect. The geld is no trifle. Levied at that rate of six shillings on the hide at which King William has just now levied it, it is a momentous force capable of depressing and displacing whole classes of men. ”

“ The lawyer must be orthodox otherwise he is no lawyer; an orthodox history seems to me a contradiction in terms. If this truth is hidden from us by current phrases about 'historical methods of legal study', that is another reason why the history of our law is unwritten. If we try to make history the handmaid of dogma she will soon cease to be history. ”

“ Then it is the very land itself that he gives, the land of so many manses, ‘with all the appurtenances, fields, pastures, woods, marshes.’ It is no mere right over the land that he gives, but the very soil itself. ”

“ But we can say this, that a thorough training in modern law is almost indispensable for any one who wishes to do good work on legal history. In whatever form the historian of law may give his results to the world—and the prejudice against beginning at the end is strong if unreasonable—he will often have to work from the modern to the ancient, from the clear to the vague, from the known to the unknown. ”

“ No one supposes that a Roman landowner whose hands were free allowed the soil of his villa to be parcelled out in accordance with this wasteful, cumbrous, barbarous plan. So his hands must not be free; the soil of which he becomes the owner must already be plotted out in strips, and these strips must be so tightly bound up into manses, that he scruples to overturn an existing arrangement, and contents himself with appropriating a few of the manses for his own use and compelling the occupants of the others to labour for him and pay him rents. ”

“ Only a few of the men who choose that profession succeed in it: the qualities which make a man a great lawyer are rare and the space on the wool-sack is strictly limited. The Cambridge law student should be prepared for either fortune. The day may come when in the bitterness, of his soul he will confess that he is not going to succeed, when he is weary of waiting for that solicitor who never comes, when the prolonged and costly education seems thrown away. ”

“ If we could define the liber homo, sochemannus, villanus, cotarius, servus, we should have solved some of the great legal problems of Domesday Book, for by the way we should have had to define two other difficult terms, namely manerium and soca. It would then remain that we should say something of the higher strata of society, of earls and sheriffs, of barons, knights, thegns and their tenures, of such terms as alodium and feudum, of the general theory of landownership or landholdership. We will begin with the lowest order of men, with the servi, and thence work our way upwards. ”

“ In those boroughs that are fully described we seldom, if ever, find that all the burgesses have the same landlord. Of course there is a sense in which, according to the view of the Domesday surveyors and of all later lawyers, every inch of borough land is held of one landlord, namely, the king; but in that sense every inch of England has the same landlord. The fact that we would bring into relief is this, that normally the burgesses of the borough do not hold their burgages immediately of one and the same lord; they are not ‘peers of a tenure’ ”

“ And of course it is fair to say that in our days a grant of private justice would be an extremely different thing from a grant of freedom from fiscal dues. But what, we must ask, does this freedom from fiscal dues really mean when it is granted by an Anglo-Saxon land-book? When the monks or canons obtain a charter freeing this territory from all tributum and census, from all pastiones and so forth, is it intended that the occupiers of the soil shall have the benefit of this grant? Not so. The religious have been stipulating for themselves and not for their men. ”