By amazing industry and a most rigid economy of time Maitland had combined with his professional duties and with the publication of several volumes of unprinted matter the composition of an elaborate treatise upon medieval law. The History of English Law up to the time of Edward I appeared in 1895. The work had been planned in conjunction with Maitland's old friend, Sir Frederick Pollock, was revised in common with him and issued under their joint names; but as Sir Frederick explained in a note appended to the Preface "by far the greater share of the execution" both in respect of the writing and the research belonged to Maitland. The book at once took rank as a classic. In range and quality of knowledge it invited comparison with the monumental achievement of Stubbs; and though it was necessarily of a highly technical character, the style was so easy and lucid that persons previously unversed in the technicalities of medieval, or indeed of modern, law, were able to read it with enjoyment.
The greater portion of the book deals advisedly with a comparatively limited period,—the age which lies between 1154 and 1272. "It is a luminous age throwing light on both past and future. It is an age of good books, the time of Glanvill and Richard FitzNeal, of Bracton and Matthew Paris, an age whose wealth of cartularies, manorial surveys and plea-rolls has of recent years been in part, though only in part, laid open before us in print. Its law is more easily studied than the law of a later time, when no lawyer wrote a treatise, and when the judicial records had grown to so unwieldy a bulk that we can hardly hope that much will ever be known about them. The Year Books—more especially in their present disgraceful plight—- must be very dark to us if we cannot go behind them and learn something about the growth of those 'forms of action' which the fourteenth century inherited as the framework of its law. And if the age of Glanvill and Bracton throws light forward, it throws light backward also. Our one hope of interpreting the Leges Henrici, that almost unique memorial of the really feudal stage of legal history, our one hope of coercing Domesday Book to deliver up its hoarded secrets, our one hope of making an Anglo-Saxon land-book mean something definite, seems to lie in an effort to understand the law of the Angevin time as though we ourselves lived in it."
Perhaps the most distinct impression which the reader derives from the study of Maitland's work in the History is that he "seemed to understand the law of the Angevin time as though he himself lived in it." We feel that, if he had been going circuit with Walter Raleigh or William Pateshull, his learned brethren would have had little or nothing to tell him which he did not already know. The case law of the twelfth and thirteenth centuries—so far as it has survived in plea-rolls or chronicles or legal collections—was part of the familiar furniture of his mind. He knew it all and enjoyed it all in every one of its facets human and lawyerly. And with this he combined a remarkable capacity for appreciating the general tone and colour of legal thinking in that remote age. If the thinking was fluid and indistinct, Maitland would not attempt to make it clearer or more consistent than it really was. The vagueness would be analysed and measured. The opaque thought would be exhibited in its fluctuating and conflicting subconscious elements. We are always being reminded of that wise saying in the Fellowship Dissertation, that English political philosophy has suffered by overmuch simplicity.
A mind so exact and disinterested and endowed with so rare a capacity for divesting itself of the intellectual accretions of its own age was naturally full of dissolvents for ambitious theories. Maitland expressed in his Inaugural lecture his high respect for the genius and learning of Henry Maine, and nothing which was then written would have been afterwards retracted. Yet the close study of English medieval law had brought him to the conclusion that some of the generalisations to which Maine seemed disposed to assign a general validity, at least for the Indo-Germanic races, received no adequate support from the English evidence. In a brilliant discussion of the antiquities of inheritance he argues that in the present state of the evidence it would be rash to accept "family ownership," or in other words a strong form of birth-right, as an institution which once prevailed among the English in England. Maine, operating chiefly with Roman law but also drawing upon Teutonic, Slavonic and even Indian evidence, had argued that the primitive unit of society was an agnatic patriarchal group and that the ownership of land was vested in a family or clan constructed on strict agnatic principles and governed by the paterfamilias. Maitland submits the conception of common ownership to analysis. Common ownership implies corporate ownership, and the idea of a corporation is modern, not primitive. Co-ownership indeed there was, but co-ownership spells individualism. If there is a law which declares how shares should be distributed among the members of the group upon partition, then there is a law which assigns ideal shares in the unpartitioned land. There was no proof that anything which ought to be called family-ownership existed among the Anglo-Saxons; there was no proof of the patriarchal gens, of the agnatic group. On the contrary there was a grave difficulty in accepting the patriarchal family as the primitive unit of English society, for the earliest rules about Anglo-Saxon inheritance and the Anglo-Saxon blood-feud exhibit the fact that "the persons who must bear the feud and who may share the weregild are partly related through the father and partly through the mother." Birth-rights indeed there were, but birth-rights do not imply agnation or corporate ownership. In some cases they may even be the consequence of intestate succession. Submitted to concrete tests of this character the evidence for the strict agnatic land-owning group in England became in Maitland's eyes very ghostly[23]. "In Agnation," wrote Maine, "is to be sought the explanation of that extraordinary rule of English law which prohibited brothers of the half-blood from succeeding to one another's lands." Maitland's solution of "this extraordinary rule" is very different and highly characteristic of his concrete, practical turn of mind. In his opinion it is "neither a very ancient nor a very deep-seated phenomenon." He points out that the problem of dealing with the half-blood must always be difficult, and the solution is always likely to be capricious. "The lawyers of the thirteenth and fourteenth centuries had no definite solution, and we strongly suspect that the rule that was ultimately established had its origin in a few precedents...." "Our rule was one eminently favourable to the King; it gave him escheats; we are not sure that any profounder explanation of it would be true."
In Maitland's hands a treatise upon antiquarian law became something greater than an antiquarian treatise. It became a contribution to the general history of human society. Even the most superficial reader must be struck by the number of foreign books quoted in the footnotes and by the way in which analogues and contrasts from French and German law are brought in to illustrate the course of our legal history. English law became insular; pursued a course of its own. We avoided torture; we escaped the secret and inquisitorial procedure of the continent; we developed the jury; primogeniture became the general rule among us in case of intestacy; the retrait lignager of the French customs did not become established in our land-law. But just for this reason it was the more necessary to understand the main stream of continental development. Many a rule which, if considered from a purely insular standpoint, might seem part of the natural order, would assume its true character of a deviation from the normal, if viewed in the larger context of European law; many features of our law apparently arbitrary would in that larger context receive explanation. Maitland takes care to know that which was known to Glanvill and Bracton; but he does not for that reason neglect Brunner or Gierke, Esmein or Viollet. A piece of continental evidence suggested by the history of the Inquisition points to the reason why in England alone the public trial of primitive Teutonic civilisation survived through the Middle Ages. It survived because the Inquisition was never introduced into this country, and England had no Inquisition because at the critical period it was singularly unfertile in heresy.
"It has generally been apprehended," writes Reeves in the Preface to the First Edition of the History of English Law (1783), "that much light might be thrown on our statutes by the civil history of the times in which they were made; but it will be found on enquiry that these expectations are rarely satisfied." It would be difficult to find in a single sentence a more complete measure of the gulf which separates Pollock and Maitland's History of English Law from the book which it supplanted. Reeves wrote in an unhistorical age and with imperfect materials. "Let us think," wrote Maitland, "what Reeves had at his disposal, what we have at our disposal. He had the Statute Book, the Year Books in a bad and clumsy edition, the old text-books in bad and clumsy editions. He made no use of Domesday Book; he had not the Placitorum Abbreviatio nor Palgrave's Rotuli Curiæ Regis; he had no Parliament rolls, Pipe, Patent, Close, Fine, Hundred Rolls, no proceedings of the King's Council, no early Chancery proceedings, not a cartulary, not a manorial extent nor a manorial roll; he had not Nichol's Britton, nor Pike's nor Harwood's Year Books, nor Stubbs' Select Charters, nor Bigelow's Placita Anglo-Normannica; he had no collection of Anglo-Saxon land-books, only a very faulty collection of Anglo-Saxon dooms, while the early history of law in Normandy was utter darkness." And in addition to this he did not believe that the general history of a people could throw illumination upon its law. It is a sufficient commentary upon such a view to read Maitland's opening paragraph upon the Norman Conquest.
The state of English law in the twelfth century cannot be explained unless we look beyond the strict legal sphere. Explanations which seemed adequate even to the great Stubbs—the action of race upon race, the fusion of law with law, the analogy of a river formed by two streams, of a chemical compound formed of two elements—do not satisfy Maitland. The process was far more complex. It was affected by influences which had nothing whatever to do with the law of Normandy or with the law of England before the Conquest, by the rebellion of the Norman feudatories, by the characters of certain great men, by the strong political centralization, even by so accidental a fact as that the Conqueror had three sons instead of one. Economic, political, personal forces must all be reckoned up in the account.
While the pages of the History were passing through the press, two other works had been planned and were already partially accomplished. In his edition of the Note Book Maitland had proclaimed the necessity for a new edition of Bracton, an edition based not upon inferior manuscripts but upon the best manuscripts, and accompanied by an adequate critical apparatus. Such a task would demand many years of painful toil and Maitland had more pressing calls upon his energies. Nevertheless he regarded it as important to arrive at a definite conclusion with regard to one fundamental question respecting his favourite author. What was the precise extent and character of Bracton's indebtedness to Roman Law? Sir Henry Maine in his famous lectures upon Ancient Law, published in 1860, went so far as to assert that Bracton "put off on his countrymen as a compendium of pure English law a treatise of which the entire form and two thirds of the contents was directly borrowed from the Corpus Juris." But the amount of matter which Bracton directly borrowed from the Corpus Juris was comparatively insignificant, "not a thirteenth part of the book"; the Devonshire justice went for his Roman law not to the original springs but to a famous Italian doctor. Dr Carl Guterbock established the fact that large portions of Bracton's De Legibus were derived from the works of Azo, a Bolognese Jurist who flourished at the end of the twelfth and at the beginning of the thirteenth century, and whose fame endured throughout the Middle Ages. But what was the precise measure of Bracton's obligation to "the master of all the masters of the laws"? It was Maitland's opinion that the debt might easily be overstated. In order that the matter might be thoroughly cleared up he planned a volume for the Selden Society which should exhibit in parallel columns the text of the Bolognese Summa and the corresponding portions of Bracton. From this he drew three conclusions, that Bracton's obligations to Roman Jurisprudence were small in extent, that Bracton was an indifferent Romanist, and thirdly that Bracton only borrowed from Roman law when he had no English cases to cite. Bracton was, in fact, a thorough Englishman. Like everyone else in the Middle Ages he regarded Roman law as a source of authority to which recourse should be had when the stock of home-bred law ran out, but it was improbable that he had ever received a University training in the Leges and it is certain that he was far more comfortable with his English writs and his English plea-rolls than with the elegant refinements of the Code or the Digest.
"Bracton and Azo" did more than define the "Romanesque" quality of the great treatise; it was a brilliant contribution to the scholarly edition of the future. The best manuscript (Bodl. Digby 222) was minutely described, four others carefully collated, and fifteen in all examined. One of the features of the Digby manuscript, which, though not a perfect copy of the autograph, appeared to Maitland on many grounds to be the best approach to the autograph to which research had attained, was the presence of a large mass of additional matter written in the margins. Now these marginalia were not glosses but additions to the text and additions possessing a peculiar value from the fact that they came from Bracton himself. "If the annotator was not Bracton he had just Bracton's interests and just Bracton's style." In later manuscripts some or all of this supplementary matter is received into the text but "too often at inappropriate places." Accordingly the future editor of the Treatise will be obliged to pay special heed to these "addiciones"; and, to smooth a path which will be none too easy, Maitland made a list of more than a hundred and fifty passages in the printed text of 1869 which in the Digby manuscript stand in the margin. Such labour occupying but a few pages of Appendix looks but a small thing on paper, and is too technical to interest the general reader: but scholars will measure the devotion which it implies; and the future edition of the De Legibus will be based on the results of Maitland's unsparing toil among the Bracton manuscripts in London and Oxford, Cheltenham and Eton.