and the Renaissance, and his contribution to the Cambridge Modern History. Chief Baron Hale-the earliest historian of our Common law-once said: "That the law will admit of no rival nothing to go even with it." And so Maitland found. As his health declined and it become clear that his days were numbered, he devoted all his great powers to the history of English law. "Knowing the thing which he could do best, and judging that it was worthy of a life, he stripped himself of all superfluous tastes and inclinations that his whole time and strength might be dedicated to the work. Even music had to give way.1

He would have made a great judge. The logical clearness of his mind, his powers of lucid exposition, his powers of focussing the results of an argument into a pointed epigram, remind us of some of the judgments of Lord Macnaghten. But as he himself said in 1888, in his inaugural lecture as Downing Professor of the Laws of England: "Great historians are at least as rare as great lawyers." That he was the greatest historian of our law that had yet appeared in all the centuries of its growth, is an obvious truism. That he was one of the greatest of all our English historians would probably not be disputed by many, and will become more and more apparent in the succeeding years. What, then, were the qualities of the mind of the man of whom these things can be said?

The historical is sometimes contrasted with the analytic temperament-the mind which desires to know how a given phenomenon has originated, with the mind which desires to explain the principles underlying the actual existing phenomenon. But in truth the great historian must have something of the analytic faculty, and he who would analyse must have the help of history if he would fully understand the thing to be analysed. Thus the historian. 1 Fisher, 178.

who wishes to trace the origin of some old rule of law or legal institution, must know something of its shape and content at the present day. If he does not know these things, he will not know what are the victorious elements which he must disengage from the tangle of conflicting forces and tendencies which he will observe in the far-off days when the rule of law or legal institution was born. To tell the tale of rules which never survived, of tendencies which were never realised, of institutions which failed, is mere antiquarianism. Effective legal history is the history of rules and tendencies and institutions which have survived because they were the fittest. But that necessarily involves a knowledge of what has survived. It necessarily involves a certain amount of reasoning from the established modern rule or institution to its unknown origin. Maitland, because he was a trained lawyer, was well fitted to pursue this line of reasoning with triumphant success. His Domesday Book and Beyond, and his introduction to the Select Pleas in Manorial Courts are two out of many examples. After reading these books we feel that we have arrived at some conclusion-perhaps a negative conclusion, but still a conclusion. There are books, and learned books too, in which the author or authors seem to have been researching, so to speak, at large. Facts are carefully grouped, statistics are carefully compiled, theories are suggested, and carefully weighed. But at the end we are left much where we started. To the obscurity of the original authorities the obscurity of a careful and elaborate commentary has been added.

It is exactly this sort of obscurity that a trained lawyer will avoid. If he has ever drawn pleadings he will have got into the habit of formulating an issue. And this habit, if he ever comes to write legal history, will be invaluable. There is a rule of law to be explained. We know that it had in its mature form certain characteristics. We see in the

indefinite past certain causes which might produce them. We see other causes which would have given the rule a different turn. There is a clear issue-why did the one set of causes prevail over the other set? In answering that question we explain the rule in such a way that we see its connection with phenomena of social, political, or economic history, and restore the life that once existed behind the technical form. Thus technical forms are made to yield an instructive commentary upon the evolution of the social, political, and economic ideas which gave them birth. Legal history ceases to be merely the tale of the evolution of technical rules, and becomes a living history of the evolution of the nation's ideas upon all those matters which it considers to be of sufficient importance to be settled by the State. It is largely because Maitland treated legal history in this way that he made it a subject of such absorbing interest. He taught a lesson to succeeding historians of our law which can never be forgotten. What Coke said of Littleton we can say of him-"By this excellent work he faithfully taught all professors of the law in succeeding ages."

This power of formulating clearly the various problems which arise in the course of tracing the history of any given legal rule or institution, enables an historian to know exactly what is the information he requires; and this knowledge is all important in a country where the wealth of unpublished original authority is overwhelming. It enables him to recognise the decisive authorities when he sees them. It enables him to emphasise the parts of those authorities which really count. Maitland was a great discoverer because he knew what to look for, and could recognise it when he found it. It was this faculty which made him the real founder of the Selden Society. He was a "Literary Director" in the very largest sense of which those words are capable. He set an example to his successors to that office. All of us who have at heart

the cause of English legal history, hope and expect that the following of that example will establish a tradition.

But this method, though essential to the clear statement of the evolution of many points of legal doctrine, is sometimes dangerous. In the first place, because it involves the reading of history backwards, it is possible that we may read into the period which we are reaching in our backward career the ideas of the period which we are leaving. Some of Maitland's attempts to break up the primitive communities of the earliest period of our history into individual atoms, are based upon an analysis of the ideas of the thirteenth rather than of the tenth century. In the second place it may lead us to start with a theory, and, having so started, to attach an undue importance to those parts of our authorities which support it; and this is a very subtle form of error, because it is possible to fall into it quite unconsciously. It is perhaps arguable that Maitland, in his Rede lectures on English law and the Renaissance, exaggerated the danger of the Common law. That its supremacy was in danger I think he proves -but hardly that its existence was seriously imperilled. Again it might be said that, though all that he says in his book on Bracton and Azo as to Bracton's ignorance of large parts of Roman law is fully proved, too little account is taken of Bracton's use of other parts of Roman law-notably the law as to dominium and possessio-to which there existed more abundant parallels in the already ascertained rules of English law. But these are all very disputable points. What is not disputable is the freedom of Maitland's work from such errors. "Forewarned is forearmed." He was fully aware of these dangers as his paper on the Survival of Archaic Communities1 shows. All teachers of early law and early institutions should put that paper into the hands of their students, because it affords one or two striking object lessons of some of the

1 Collected Papers, II, 313–365.

dangers incident to the use of this very necessary expedient, of arguing from what is known at a later date to what may be expected to have existed at an earlier date.

The skill with which Maitland avoided the dangers of this method of inquiry is, I think, mainly due to three. very striking characteristics of his mind. In the first place, none but the very best evidence would ever satisfy him. It was this characteristic which led him to turn from the task of continuing the history of English law to the task of making a critical edition of the earlier Year Books. Such an edition was in his eyes a necessary preliminary to the continuation of the history. It was this characteristic which led him to make, as a preliminary condition of fully understanding these Year Books, so learned a grammar of the French talked in the law Courts in the fourteenth century, that M. Paul Meyer recommended it as a text-book to students of mediæval French. In the second place, he had what we may call a concrete mind. It is easy when writing of the history of legal theory to state a doctrine and its evolution in general terms, citing perhaps a sentence or two which seems to illustrate the general statement. But will the statement bear the test of application to a concrete case? If it will not, it is clearly wrong or obscure. The most superficial study of Maitland's books shows that he always applied this test to his statements. In a letter which he wrote to me he said :-"People can't understand old law unless you give a few concrete illustrations: at least I can't." In the third place, he is always alive to the human aspect of history. It is very easy when dealing with theories, and doctrines and institutions, to forget that they were made and used, and developed and abused, by men of like passions with ourselves. Maitland never forgot this. He can extract human traits from a plea roll, and in his hands Year Books become human documents. He even invested his discussion on the Hide with some human