[VI.]
Among the operations which belong to that wonderful period of activity which culminated in the History of English Law, two remain to be singled out, the first an enquiry of great delicacy and of crucial importance for the history of legal procedure, the second lying somewhat outside the ordinary sphere of Maitland's investigations but of great moment to the student of parliamentary institutions. We allude to the articles upon the "Register of Original Writs" contributed to the Harvard Law Review in 1889 and to the Memoranda de Parliamento edited for the Rolls Series in 1893.
The Register of the wryttes orygynall and judiciall was first printed by William Rastell in 1531. "In its final form when it gets into print it is an organic book.... To ask for its date would be like asking for the date of one of our great cathedrals. In age after age bishop after bishop has left his mark upon the church; in age after age chancellor after chancellor has left his mark upon the Register.... To ask for the date of the Register is like asking for the date of English law." Yet this vast and important repertory had never been made the subject of critical examination. No one had examined the principles upon which the printed book was constructed; no one had gone behind the printed book to the manuscripts; no one had traced the life history of the organism, had fixed the chronological sequence of the successive styles in the cathedral. Yet until such critical work had been accomplished the history of the extension of royal justice and of the growth of English legal procedure could not be written in detail. Maitland's treatment of the problem is one of the most beautiful specimens of his workmanship.
He first discovers the principles of classification in the printed book; then turning to the manuscripts—and there are at least nineteen in the Cambridge University Library, over all of which he has cast his eye,—reports that no two manuscripts are alike, but that "gradually by comparing many manuscripts we may be able to form some notion of the order in which and the times at which the various writs became recognised members of the Corpus Brevium." Tests are then laid down by which the age of a Register may be determined, and finally we have "a few remarks about the early history of the Register" which are entirely original and of high importance. The two earliest manuscripts are examined, the MS Register of 1227 in the British Museum with its fifty-six writs, the MS Cambridge Register belonging likewise to the early part of Henry III's reign with its fifty-eight writs; and means are thus supplied for measuring the growth of law during the important period—the period of the Great Charter—which had elapsed between Glanvill's treatise and the third decade of the thirteenth century. Then we are guided through the later and more voluminous manuscripts. We are introduced to a Register with one hundred and twenty-one writs from the middle of the thirteenth century, to an Edwardian Register which contains four hundred and seventy-one writs; we see the writ of trespass taking a permanent place in the Corpus Brevium under Edward II, we trace activity under Edward III and Richard II and then a slackening. By the turn of the fourteenth century the "great cathedral" is practically complete and the Register has assumed a form not substantially different from that which was printed in the reign of Henry VIII.
Maitland's contribution to parliamentary history consisted in the editing of the Parliament Roll for 1305. Of the vivid and picturesque interest of the petitions printed in that volume much might be written, for nowhere else can we gain so full and comprehensive a notion of the miscellaneous transactions and aspirations which came under the purview of a Parliament in the very early stages of its existence. But apart from this the volume is important as furnishing a closer and more accurate view of the evolution of parliament than had previously been obtainable. All readers of Stubbs' Constitutional History are familiar with "the model Parliament of 1295." We are accustomed to think of that date as marking an epoch at which government by a Parliament of Three Estates is definitely secured, and as, in a certain sense, the close of the formative period of parliamentary institutions. It is true that Parliament is not yet divided into Lords and Commons, and that procedure by Bill is in the distant future. Still we have been wont to regard a Parliament as being throughout the fourteenth century a definite well-recognised institution, distinct from the King's Council and implying the presence of representatives from shire and borough. Maitland's preface to the Memoranda de Parliamento showed that such an impression should be modified. Ten years after the Model Parliament practice and nomenclature were still fluid. There was no distinction between Parliament and Council; the word Parliamentum is never found in the nominative; any solemn session of the Kings Council might be termed a Parliament. The business too, transacted at these great inquests, was for the most part administrative and judicial, conducted through the examination and endorsement of petitions. At the beginning of the fourteenth century, despite the exploits of the English Justinian, we were still far from a legislature composed of the Three Estates.
Meanwhile, in a profusion of articles, Maitland was correcting old mistakes and throwing out pregnant suggestions in many departments of legal theory. The principal ideas which are to be found not only in his work upon the History of Law but in his subsequent speculations on Corporateness and Communalism were already in his mind during the early days of work at Downing. In his lectures on Constitutional History, delivered in 1888, he gave a description of English medieval land-tenure which substantially corresponds to the more complete exposition of the History in 1895, and had already hit upon that comparison between the course of feudal land-law in England and Germany, which runs, a brilliant shaft of illumination, through his whole treatment of the subject. In Bracton's explanation that the rector of a parish church is debarred from a writ of right his keen eye had detected, as early as 1891, "the nascent law about corporations aggregate and corporations sole."
He had already begun to apply dissolvent legal tests to "our easy talk of village communities." The English village, he remarked in 1892, "owns no land, and, according to our common law, it is incapable of owning land. It never definitely attained to a juristic personality." The village community of the picturesque easy-going antiquarian, who, fascinated by Maine's beautiful generalisations, was ready to find traces of archaic communism in every quarter, only reminded him of the remark in Scott's Antiquary "Pretorian here Pretorian there I mind the bigging o't." In two weighty articles contributed to the Law Quarterly Review in 1893 upon the subject of Archaic Communities, Maitland pricked some antiquarian bubbles with delicious dexterity and threw out a suggestion that the formula of development should be "neither from communalism to individualism" nor yet "from individualism to communalism" but from "the vague to the definite." In common with Hegel he believed that the world process consisted in the development of the spirit of reason becoming more and more articulate with every fresh discrimination of the intellect.