A small group of largely overlooked American scholars linked the two great English legal historians, Henry Maine and Frederic Maitland. Ancient Law, published by Maine in 1861, and The History of English Law Before the Time of Edward I, published by Frederick Pollock and Maitland in 1895 and written primarily by Maitland,Footnote 1 are probably the two most important books about legal history ever written in the English language. In Ancient Law, Maine generated provocative conclusions about legal evolution based largely on works by previous scholars on the history of Roman law. For Henry Adams, who initiated the professional study of legal history in the United States, Maine was both an inspiration and a foil. Better known for his subsequent multi-volume works of American history and especially for his great books, The Education of Henry Adams and Mont Saint Michel and Chartres, Adams was appointed to the history faculty of Harvard College in 1870 as part of the effort by its new president, Charles W. Eliot, to transform Harvard from a traditional teaching college to a major research university. Adams praised Ancient Law and placed Maine at the same level of intellectual importance as Darwin and Spencer.Footnote 2 Yet Maine's “brilliant hypotheses”, Adams declared, remained “hazardous guesses” unsupported by facts.Footnote 3
In his teaching and scholarship, Adams tested Maine's “brilliant hypotheses” by examining the facts of English legal history, which Maine had not addressed in Ancient Law. Dismissing as amateurish prior work in England on the history of English law, Adams endorsed and directed his students to German “scientific” methods of research in original sources and to German scholars, such as Rudolph Sohm and Heinrich Brunner, who used these methods while studying the history of Teutonic law. In their Essays in Anglo-Saxon Law, published in 1876, Adams and his students relied on primary sources to test, and often to question, many of Maine's generalizations.
In Ancient Law, Maine claimed that the primitive family was patriarchal and probably preceded the state.Footnote 4 He concluded that the transformation from primitive to progressive societies has uniformly “been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account”.Footnote 5 In his most famous expression of this transformation, Maine wrote that “the movement of the progressive societies has hitherto been a movement from Status to Contract”.Footnote 6
Adams and his students rejected these claims. They emphasised the individualism of early Teutonic societies, including Anglo-Saxon England. They claimed that in these societies the state was already supreme over the family and consisted of individuals democratically associated as equals. Unlike the patriarchal Roman family, they added, in the Teutonic family the wife and children had rights against the father, and property was held by individuals rather than by the family as an entity. More dramatically, Adams claimed that Teutonic law not only differed fundamentally from Roman law, but preceded it. Whereas Maine generalised from Roman law to all “progressive” legal systems, Adams called Roman law a “perversion” of earlier Indo-European law.
For a variety of reasons, neither Adams nor his students pursued careers in legal history after the publication of their Essays. But other Americans did, most prominently Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer, who all lived in the Boston area and knew each other well. In publications from the 1870s through the end of the nineteenth century, these four scholars often portrayed themselves as extending the original research Adams and his students had begun on the history of English law. Whereas Adams and his students wrote about Anglo-Saxon law, they dealt primary with English law after the Norman Conquest. Bigelow and Thayer focused on the history of particular subjects, procedure for Bigelow and evidence for Thayer, whereas Holmes and Ames wrote about numerous issues in the history of the common law. They referred to Maine less frequently than had Adams and his students, but they often recognised or reflected his influence.
Maitland admired the American scholars whose work in English legal history preceded his own. S.F.C. Milsom, a respectful late twentieth-century critic of Maitland, has asserted that Maitland essentially created the field of legal history. According to Milsom, Maitland “had nothing to stand on. There was no legal history worthy of the name”.Footnote 7 More recently, J.H. Baker reiterated that Maitland “inaugurated the scholarly study of English legal history”.Footnote 8 Maitland himself had a different view. Like many of his contemporaries in England, he graciously recognised that American scholars had exceeded the English themselves in the study of English legal history. He generously praised and built upon their contributions in his own work, and he corresponded extensively with Ames, Thayer, and especially Bigelow. By contrast, Maitland frequently criticised Maine, often in terms that echoed Adams and his students.
I. Henry Adams and his Students
Writing to Maine in 1875, Henry Adams reported that “I have again this year taken a class through your Ancient Law, encouraging them to dispute, and overthrow if they could, every individual proposition in it”. Reassuring Maine “that I only wish I could ever do anything myself that was half as good”, Adams added that attacking Maine's opinions “amuses me, and won't hurt you”.Footnote 9 Apparently describing the same course in his autobiography, Adams wrote that it “began with the beginning, as far as the books showed a beginning in primitive man, and came down through the Salic Franks to the Norman English”.Footnote 10 Former students recalled that “they read and searched many times the whole collection of Anglo-Saxon laws, and ploughed through 25,000 pages of charters and capitularies in Medieval Latin”, in addition to reading primary and secondary sources in German.Footnote 11
Adams published a series of lengthy reviews of new books on legal history by various European scholars in the North American Review from 1872 through 1875. A previously neglected treasure for understanding transatlantic legal thought in the late nineteenth century, these reviews treated Maine extensively in the context of comparing German and English scholarship. Stressing that history is a science, Adams repeatedly criticised the English for not emulating the scientific history practiced in Germany. “A scientific training”, he wrote, “is as necessary to the historian as to the mathematician, and it is the misfortune of England that she has never yet had a scientific historical school”.Footnote 12 Particularly embarrassing for the English, Adams emphasised, German historical science had produced “a mass, one might even say a library, of German books, all of which bear more or less directly on the history of England, and none or few of which have ever been utilized for the explanation of that history” by the English themselves.Footnote 13 Indeed, little of this outstanding German scholarship had even been translated into English.Footnote 14 Adams recognised that German historical scholarship was “undeniably hard reading, even for specialists”. Yet he warned that without mastering this scholarship any historian of early English law and society “will throw his labor away”.Footnote 15
Adams attributed the weakness of English scholarship to the common-law tradition in England, which he characterised as insular and practical, sceptical of theory, and based on historical fictions. He maintained that the historical fictions of the common law, which he did not specify, impaired the development of scientific legal history in England as much as the religious assumptions of monks distorted the history they wrote during the Middle Ages. While conceding that the English common law might be superior to German law as a legal system, Adams stressed that the English common-law tradition was an enormous disaster for the study of legal history.Footnote 16
Thanks in large part to Maine, Adams was hopeful that this deplorable situation was changing in England. Maine's great contribution, Adams wrote, was developing the idea of “a science of comparative archaic jurisprudence”. Maine conceived this science and sketched its outlines, combining extensive knowledge and a fascinating imagination with a delightful style.Footnote 17 Adams also defended Maine from critics of his frequent speculations, declaring that Maine himself recognised that they were provisional. Maine, he wrote, “is too brilliant to be dogmatic”.Footnote 18
Despite this praise, Adams included extensive criticisms of Maine in his reviews. He wrote that “without denying the beauty or ingenuity or even the probable truth of Sir Henry's theories, it may be safely said that there is hardly a theory advanced by him which does not require that two or three volumes should be written by way of a preliminary clearing of the ground before it will be possible to arrive at an approximate decision of the point in question”.Footnote 19 Regarding Maine's provocative theory of successive stages of legal development, Adams emphasised that legal science had not uncovered the most basic evidence, in great contrast to the philologists admired by Maine, who had actually reconstructed the stages of archaic Indo-European language.Footnote 20 He yearned for a scholar who would translate, arrange by subject, and provide an index for the oldest Indo-European codes.Footnote 21 Beyond criticizing Maine's unsupported theories, Adams challenged some of his most important conclusions.
German scholars, Adams emphasised, had demonstrated what English scholars resisted. The Germans had convincingly proved that the laws of archaic German society, rather than Roman law or “William the Conqueror's brain”, were the source of the English common law and of its constitutional system.Footnote 22 Maintaining that Germanic law was both different from and older than Roman law, he vigorously rejected the common assumption that Roman law was the typical legal system. He observed that even Maine, who brilliantly advocated the study of comparative jurisprudence and at least illustrated some of his conclusions by reference to Hindu law, shared this erroneous assumption. Maine treated Roman law as “the pure, typical, legal history, to be illustrated rather than to be used for illustration, to be studied as an end rather than to be used as a subject for classification”.Footnote 23 Adams argued, by contrast, that Roman law and family structure were not typical of archaic law and the archaic family.Footnote 24 He emphasised the extent to which archaic German law and family structure differed substantially from their Roman counterparts. The absolute power of the Roman paterfamilias did not exist in Germany, where a son had unlimited rights to acquire and own property, a daughter was not excluded from her family when she married, a wife could easily obtain a divorce to protect herself against her husband's authority, and kinship was determined through the mother's as well as the father's side of the family.Footnote 25
Adams took obvious delight in citing recent work by Maine, who in Ancient Law had famously treated Roman law as original Indo-European law, to support his own contrary argument for Germany. Maine's lecture on the “Early History of the Property of Married Women”, he asserted, demonstrated that the property rights of married women in ancient Hindu law much more closely resembled the liberality of ancient German law than the harsh Roman law.Footnote 26 Adams, who used the terms Indo-European and Aryan interchangeably,Footnote 27 maintained that Roman law modified and even “perverted” the original Aryan law exhibited in both India and Germany. The scholar of English law, Adams concluded, should extend the study of its history back to its German sources.Footnote 28
Throughout his reviews, Adams expressed fascination with the concept of stages of social and legal evolution. Just as Maine had highlighted the history of Roman law as reflecting the movement from a primitive to a progressive legal system, Adams proclaimed a similar process had occurred in England.Footnote 29 Yet Adams was sceptical about the “mania” for theories that assumed all societies passed through fixed stages of development. Evidence that one society passed through a particular stage, he maintained, did not provide grounds for concluding that all societies did. Adams was confident that stages of Aryan law would eventually be discovered through the scientific investigation of comparative law that Maine advocated but had barely begun himself. He doubted, however, that this discovery would lead to a broader science of social and legal development.Footnote 30 Pursuing his interest in stages of evolution, Adams corresponded with Lewis Morgan, an American lawyer who invoked his research on the Indian tribes of his native New York to dispute Maine's theory of patriarchal authority in the primitive family.Footnote 31 Based on the findings of German scholars, Adams specifically challenged Maine's claim that all societies passed through stages in which the family and the tribe predominated. The earliest forms of German law revealed that German society was not tribal and that the state was supreme over the family.Footnote 32
The publication of Essays in Anglo-Saxon Law in 1876, the year before Adams left Harvard for Washington, DC, was the culmination of Adams's career as a teacher and scholar. In 1874, Adams proposed a graduate seminar in Anglo-Saxon law for Ph.D candidates. Approved by President Eliot, this seminar inaugurated graduate study in history at Harvard.Footnote 33Essays in Anglo-Saxon Law, whose publication Adams financed,Footnote 34 included an introductory essay by Adams and the doctoral dissertations of the three students in the seminar, which earned the first Ph.Ds in the History Department.Footnote 35 Adams wrote on “The Anglo-Saxon Courts of Law”, Henry Cabot Lodge on “The Anglo-Saxon Land Law”, Ernest Young on “The Anglo-Saxon Family Law”, and J. Laurence Laughlin on “The Anglo-Saxon Civil Procedure”. Adams dedicated the book to President Eliot, calling it the “fruit of his administration”.Footnote 36
Working collaboratively with his students throughout the editorial process, Adams met them at his house to review drafts, suggested changes, and revised their work.Footnote 37 He expressed great pride in the result to his English friend, Charles Milnes Gaskell.Footnote 38 Adams was confident that the essays exceeded the standards of previous English scholarship. He told Gaskell he had “contradicted every English author, high and low”,Footnote 39 and was “curious to learn whether your universities think they can do better. If so”, he teased, “they have hitherto hidden their powers very carefully”.Footnote 40
Though each essay dealt with technical topics specific to its subject, some important general themes pervaded the collection. Not surprisingly, these general themes often reflected points Adams had made in his previous correspondence and book reviews. The essays particularly stressed the Germanic origins of Anglo-Saxon law in England, and thus the relevance of archaic German law to understanding the history of English law. Many of them differentiated this Germanic law from Roman law and stressed that the archaic German family did not resemble the Roman patriarchal family whose structure Maine assumed had been a universal stage of social development. They portrayed the Norman Conquest as a major intrusion into the history of English law, changing it in many ways, but not ultimately eradicating continuous threads of Germanic influence. Though relying much more heavily on the methods and conclusions of prior German than of English scholarship, the essays self-confidently criticised German as well as English scholars on many points. They announced a new school of American legal history. In his important book published in 1999, The Making of English Law: King Alfred to the Twelfth Century, Patrick Wormald called these essays “serious, though now rarely cited, studies”, and praised the one by Adams as “lastingly important”.Footnote 41
The essays by Adams and Lodge indirectly challenged Maine, while Young, whose focus on the family most overlapped with Maine's theories, criticised him directly. Relying on German scholarship, Adams opened his essay by declaring “the fundamental historical principle, that the entire Germanic family, in its earliest known stage of development, placed the administration of law, as it placed the political administration, in the hands of popular assemblies composed of the free, able-bodied members of the commonwealth”. This principle, he emphasised, enabled the historian to trace “the slender thread of political and legal thought”, which, “through two thousand years of vicissitudes and dangers”, including the “confusion of feudalism”, extended from “the wide plains of northern Germany”, where the “State and the law may well have originated”, to the present. The “slender thread of political and legal thought” highlighted by Adams “embraced every free man, rich or poor, and in theory at least allowed equal rights to all”.Footnote 42
Immediately after announcing his central theme, Adams dismissed the relevance of Maine's theories of development from the patriarchal family to the state, though he did not cite Maine himself. He observed that scholars remained ignorant of societies antedating the Indo-European family, but did have sufficient information to reach meaningful conclusions about early Germanic society. The evidence of early German laws indicated a society of small families without a patriarchal chief, whose able-bodied male members united in a council as equal individuals rather than as families. The council elected civil and military officers, protected property, and arbitrated disputes, proving the supremacy of the state. The council did not, however, control the private affairs of families, decided according to family custom.Footnote 43
Lodge's essay, “The Anglo-Saxon Land Law”, reiterated in the context of a different subject many of the themes Adams stressed in his treatment of the courts of law. Lodge, like Adams, emphasised the distinctiveness of Germanic law and its continuity in Anglo-Saxon England until disrupted but not destroyed by the Norman Conquest. An early passage captured Lodge's most general conclusions. Referring to Anglo-Saxon England, Lodge maintained that its racial purity and physical isolation “gave a scientific development to the pure Germanic law hardly to be found elsewhere”. He boldly connected the pure Germanic law of the Anglo-Saxons to the modern common law of England. “Strong enough to resist the power of the church in its infancy, stronger still to resist the shock of Norman invasion, crushed then, but not destroyed, by foreign influences, the great principles of Anglo-Saxon law, ever changing and assimilating, have survived in the noblest work of the race, – the English common law”.Footnote 44
The purpose of his essay, Lodge wrote, was to identify the key principles of Anglo-Saxon land law, classify them, and trace their growth or decay. Without referring to Maine, Lodge conceded that the family in prehistoric times might have functioned more as a legal entity than as an aggregation of individuals.Footnote 45 Yet by historic times, even well before the introduction of written laws and charters, the family, as an entity, no longer held land. Rather, individuals held family land, either as the head of a household or in a purely individual capacity.Footnote 46
Young's essay, “The Anglo-Saxon Family Law”, like the prior essays of Adams and Lodge, stressed the Germanic origins of Anglo-Saxon law. While differentiating the German from the Roman family, Young devoted much more space than Adams or Lodge to criticising Maine's theory of the patriarchal Roman family as the archetype of a primitive Aryan family. He emphasised instead that the Germanic law of the household best illustrated a primitive Aryan institution.Footnote 47 Young did not challenge Maine's treatment of the Roman family. He agreed that in Roman law kinship was based on descent through males from a common ancestor, and that the power of the father in the Roman family was virtually absolute. Young parted from Maine in vigorously insisting that the German family differed from the Roman in radical ways.Footnote 48 For Young, nothing was more certain in Germanic law than that the maternal kin played a crucial role in the family.Footnote 49 Even after marriage, the wife remained in her kinship group, which protected her against the abuse of her husband's power. The children belonged to the kinship groups of both parents, enabling the maternal kin to intervene against the father on their behalf as well.Footnote 50 In the German family, moreover, sons became independent of their fathers at an early age, illustrating that it was not patriarchal.Footnote 51
Reiterating the absence of patriarchal power in Anglo-Saxon England, Young also disagreed with Maine's assertion, in his most recent book, Early History of Institutions, that private property in English as well as Roman land law derived from the ownership of a patriarchal chief. As had Lodge, Young maintained that in Anglo-Saxon England the individual was more important than the family. Even in prehistoric times, when the children and grandchildren of a deceased man often lived together without a division of property, there was no patriarchal system. Rather, all adult members of the group had equal rights.Footnote 52 “It is not the subjugation of all descendents to the will of an ascendant, but the voluntary association of the near kindred; and the control exercised by the family council in such a group as little resembles the despotic power of a patriarchal chief … as the free democratic constitution of primitive Germany resembled the highly aristocratic constitution of early Rome”.Footnote 53 To support his argument that the patriarchal Roman family was not typical, Young noted the research on the American Indian family by Lewis Morgan, who maintained that the American Indians, like the early Germans, had a democratic rather than a patriarchal family structure.Footnote 54
The Essays in Anglo-Saxon Law were widely and favorably reviewed in the United States and in England, where they were published in an English edition.Footnote 55 Graciously responding to Adams, who had sent him a copy, Maine himself acknowledged that he should have treated German family law more extensively in Ancient Law and praised Adams's own essay. He observed that Adams was fortunate in having “a considerable advantage over us at Oxford”, students who could read German. “I am gratified by the attention which your students seem to have given to my books”, Maine added, “and even when they differ from me, I have no reason to complain”. Yet Maine, somewhat defensively, reiterated his views about the prevalence of the patriarchal family in all early legal systems, and criticised Young for unconvincingly differentiating the German from the Roman family.Footnote 56
Neither Adams nor his students continued their research into English legal history. Frustrated with the narrowness of academic life, in 1877 Adams moved to Washington, DC, “the only place in America where society amuses me, or where life offers variety”.Footnote 57 Thanks to intervention by Adams, Lodge was appointed to teach American history at Harvard, but he was a very unpopular teacher and soon turned his attention to politics, in which he had a long and distinguished career as Senator from Massachusetts.Footnote 58 Young also taught a variety of courses in the Harvard history department, including Roman law, and continued his study of early legal institutions. He did not, however, complete any major additional work. He committed suicide in 1888, apparently after a long period of depression and mental illness.Footnote 59 Laughlin became an eminent political economist, at Harvard until 1888, and later at Cornell and the University of Chicago, where he was head of the department of political economy and remained on the faculty until his retirement in 1916.Footnote 60
II. The American Successors to Adams
Bigelow, Holmes, Ames, and Thayer continued the research by Americans into English legal history that Adams and his students had begun. Although these four scholars occasionally wrote about Anglo-Saxon law, they focused on the period after the Norman Conquest when, they indicated, Norman law largely superseded prior Anglo-Saxon law. They agreed with Adams and his students that the English common law derived mainly from Germanic sources, but they viewed those sources as primarily Norman rather than Anglo-Saxon. Bigelow observed, moreover, that in contrast to the “pure German law of the Anglo-Saxons”, the Germanic elements of Norman law had been considerably modified by contact with “the semi-Roman law and civilization of the South of France”.Footnote 61
A founding member of the Boston University Law School in 1872, Bigelow wrote on many subjects. He achieved international recognition with two works of legal history: Placita Anglo-Normannica, published in 1879, and History of Procedure in England from the Norman Conquest, 1066–1204, published in 1880. Placita Anglo-Normannica compiled all “known legal monuments” of the period between the Norman Conquest in 1066 and the beginning of the reign of Richard I in 1189,Footnote 62 preceded by a fifty-page introductory essay. Covering a period before law reports and legal treatises, Bigelow relied on a variety of printed records for his compilation. These records included chronicles, charters, and the Domesday Book, the survey of England undertaken by William the Conqueror in 1085–86, which Bigelow called “the most valuable monument of the Norman time”.Footnote 63History of Procedure in England also covered the Norman period, extending the ending date to 1204. Reversing the proportion of text to original material in Placita, History of Procedure in England constituted Bigelow's book-length analysis of the subject. The first part of the book focused on the courts, particularly the jurisdiction and procedure of the Ecclesiastical Court, the rise of the King's Court, and the corresponding decline of the ancient popular courts, including the county, hundred, and manorial courts. He also devoted a long section to the Exchequer,Footnote 64 pointing out that it became purely a fiscal court.Footnote 65 The second part of the book dealt with the rise of trial by recognition, the judicial duel, the decline or transformation of previous modes of trial, and the conduct of causes from the initial process to the final judgment. Claiming originality for his own work, Bigelow asserted that constitutional historians, while dealing with aspects of the subject, had ignored the “technical processes of law” on which he would focus. German scholarship, he acknowledged, had made enormous contributions to understanding Germanic procedure, but had not explored “the conduct of causes in England”.Footnote 66 Both books revealed Bigelow's familiarity with the Essays in Anglo-Saxon Law, and reviewers on both sides of the Atlantic admiringly described Bigelow as continuing the scholarship on English legal history the Essays initiated.Footnote 67
The inquisition, Bigelow maintained, was the most significant procedural feature of the Norman period.Footnote 68 Introduced from Normandy by William the Conqueror, the inquisition had a “direct lineage” to the modern jury. It developed through the writ of novel disseisin, dealing with disputes over property.Footnote 69 Though differing little in formal language from previous writs, the writ of novel disseisin importantly added a procedure, the summons that led to a jury trial.Footnote 70 The recognition was a “species of the inquisition”.Footnote 71 In an inquisition, the court itself served as the inquisitors, whereas the recognition was “a body of impartial men, summoned by an officer of the law, to speak the truth concerning the matter in dispute, of which body the officer was never a member. That body in the end was the modern jury”.Footnote 72 Bigelow conceded that the recognition developed from common Norman and English materials and may have been used for a short period in Normandy before being introduced in England. Yet he vigorously challenged the claim of the great German scholar, Heinrich Brunner, that the recognition had been transformed in Normandy from a matter of grace to a matter of right. Bigelow insisted instead that this transformation occurred more than sixty years after Henry II had become King of England, when Stephen Langton finally abolished the practice of selling justice through varying the fees charged for obtaining the recognition.Footnote 73 The key step from the recognition to the modern jury, Bigelow observed, was the developing view that it was inconsistent for the same person to be both a juror and a witness. Jurors became people unfamiliar with the facts, who were informed about them by the testimony of witnesses, who did know the facts.Footnote 74
Bigelow and Holmes were quite close when they were both beginning their careers as legal scholars in Boston during the 1870s. Holmes later recalled that he saw Bigelow frequently and was impressed “by his disinterested love of scholarship that led to his counter emigration eastward to get access to the material that he wanted. Without riches he accumulated a part of those materials and gave to the world his very valuable Placita Anglo–Normannica”.Footnote 75 Brooks Adams, Henry's brother, reminisced that he often saw Bigelow and Holmes working in the library of the old Boston courthouse in the early 1870s and suspected that they studied German law together.Footnote 76 In a letter to a friend about the articles he was publishing in the late 1870s, Holmes wrote that he was trying to demonstrate that English law was “Teutonic & not borrowed from Rome”,Footnote 77 the point stressed by Henry Adams and his students. Holmes favorably reviewed the Essays in Anglo-Saxon Law,Footnote 78 which he read twice and heavily annotated.Footnote 79 In December 1876, apparently in response to an inquiry from Holmes, Adams wrote Holmes a long letter describing his work in legal history.Footnote 80
Building on his articles of the 1870s, Holmes published The Common Law in 1881, just after Bigelow's two books appeared. The famous opening sentences demonstrate that Holmes tied his study of legal history to his ambitious attempt to reconceptualise the common law: “The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic: it has been experience”. History recounts the “experience” that has been the “life of the law”. Holmes reiterated his instrumental use of history a few sentences later, stressing that “I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further”.Footnote 81
Throughout The Common Law, Holmes justified his excursions into legal history by emphasizing its essential role in understanding current law. For example, Holmes carefully traced the derivation of the English common law of bailment from German law because the German doctrine had a major influence on current law.Footnote 82 Knowing the history of the action of debt, Holmes similarly observed, is essential to understanding modern contract law.Footnote 83 He summarised the procedural rules and categories during the reign of Edward III because they persisted into the present.Footnote 84 More generally, Holmes believed that the “true principle” underlying a legal rule “can only be arrived at after a careful analysis of what has been thought hitherto”.Footnote 85 Yet history can also disclose the sources of error in current law.Footnote 86
Keeping the promise of his introductory paragraphs, Holmes did not pursue history if it could not help explain current law. He did not discuss the duelFootnote 87 or warrantyFootnote 88 because they had no bearing on later contract law. And because the modern treatment of the heir derives its major characteristics from the early Norman period,Footnote 89 Holmes saw no need to explore earlier history to determine whether the English law identifying the heir with the ancestor was of German or Roman origin.Footnote 90
Above all, Holmes invoked historical examples from all areas of the common law to support his most fundamental thesis. Holmes set as his goal to prove that “while the terminology of morals is still retained, and while the law does still and always, in a certain sense, measure legal liability by moral standards, it nevertheless, by the very necessity of its nature, is continually transmuting those moral standards into external or objective ones, from which the actual guilt of the party concerned is wholly eliminated”.Footnote 91 Although The Common Law became the best known and probably the most admired book about law ever written by an American, scholars have criticised Holmes ever since its publication for manipulating historical evidence to support his analytic arguments and policy goals. Even scholars who have praised Holmes's ambition, learning, and legal analysis have frequently challenged the accuracy of his historical explanations.Footnote 92
In contrast to Holmes's manipulation of legal history, Ames and Thayer, like Adams and Bigelow, focused on uncovering the history of English law from primary sources. Pursuing his interest in legal history, Thayer spent 1882–83 in England, on leave from Harvard Law School, to research the history of the jury.Footnote 93 He published the results of his English research in a series of articles in the Harvard Law Review between 1889 and 1893. His major work, A Preliminary Treatise on Evidence at the Common Law, published in 1898, incorporated these articles and added substantial additional material. Thayer opened his book by observing that he had initially planned to write a practical treatise on the law of evidence. Yet he quickly realised that he could not satisfy his scholarly standards without carefully examining the early law of trials. His book, though over 500 pages, was “preliminary” because it dealt with these historical and other “auxiliary” topics rather than with the full law of evidence itself.Footnote 94 Echoing Holmes's assertion in The Common Law, “The life of the law has not been logic: it has been experience”, Thayer concluded that the “law of evidence is the creature of experience rather than logic”.Footnote 95
Thayer began his original research in the period of the first judicial records, dating from 1194, and Year Books, dating from 1292.Footnote 96 He built on and cited the previous scholarship on earlier periods, including Adams on the Anglo-Saxon period, and particularly Bigelow on the century following the Norman Conquest and Brunner on the earlier development of the jury in continental Europe.Footnote 97 In his focus on the jury, Thayer dealt in much greater detail with topics Bigelow had treated more briefly in his work on procedure, though Thayer acknowledged that much of his data derived from the material accumulated by Bigelow in Placita Anglo-Normannica.Footnote 98 Thayer agreed with Bigelow that the inquisition, introduced to England by the Normans and developed by the royal courts, superseded the older Anglo-Saxon law and was the source for the modern jury, in which the juror became differentiated from the witness. Noting the disagreement between Bigelow and Brunner about the origins of the recognition as a matter of right, Thayer supported Brunner's position that Henry II had begun to establish it as a right while he was still Duke of Normandy.Footnote 99 Not surprisingly, in a letter that otherwise called one of Thayer's articles “excellent in every way”, Bigelow complained that Thayer had let himself “swallow Brunner too readily”.Footnote 100
Underlining his own commitment to historical analysis, Thayer criticised previous scholars of evidence for their inattention to history even as he expressed his debts to legal historians such as Adams, Bigelow, and Brunner. He observed that Blackstone's explanation of trial by witnesses “shows little knowledge of its history”, which led him into anachronistic misinterpretations of case law.Footnote 101 More broadly, he called the writings by James Fitzjames Stephen, a leading English commentator on the law of evidence, “injured by the small consideration that he shows for the historical aspect of the matter”.Footnote 102 “One who would state the law of evidence truly”, Thayer emphasised, “must allow himself to grow intimately acquainted with the working of the jury system and its long history”.Footnote 103 Such familiarity makes clear “the many practical considerations which the jury system brought vividly home to the judges as they shaped our rules of evidence in the daily administration of it”.Footnote 104 Thayer dedicated himself to exploring these crucial historical considerations that Stephen ignored.
Of the four American scholars who made substantial contributions to scholarship on the history of English law, only Ames did not produce a major book. Diverted by teaching, preparing casebooks, and later by his duties as dean of Harvard Law School, he did not even write many articles. Yet the articles he did write attracted widespread attention and respect. They covered topics such as the history of assumpsit, the disseisin of chattels, and the origin of trusts. After his death, his articles on legal history and previously unpublished material derived from his course, “Points in Legal History”, initially offered in 1886–87 and twice repeated in subsequent years, were compiled into a book, Lectures in Legal History.Footnote 105 During the period Adams and Ames overlapped on the Harvard faculty in the 1870s, Adams took great interest in Ames's ongoing research.Footnote 106
Ames joined the consensus among the Americans that the common law had Germanic rather than Roman origins. He particularly stressed that there had been no counterpart in England to the substantial influence of Roman law in Germany and France. Just as Lodge had emphasised the purity of Germanic law in England, Ames maintained that “English law is more German than the law of Germany itself”. Ames identified Anglo-Saxon and Norman law as the two related sources of Germanic law in England. He pointed out that Norman law originated among the Franks and often called it Franco-Norman. Anglo-Saxon and Franco-Norman law, he added, exhibited many common characteristics derived from the Germanic roots they shared. Yet Ames, like Bigelow and Thayer, considered Franco-Norman law “vastly more important” than Anglo-Saxon law. To the extent they conflicted after the Norman Conquest, he stressed, the Franco-Norman law overwhelmingly prevailed, despite some notable exceptions. He, therefore, concluded that the origins of English law are best sought in Frankish law, whose earliest surviving examples are found in the law of the Salic Franks published around 475.Footnote 107
Bigelow, Holmes, Thayer, and Ames devoted much less attention to Maine than had Adams and his students. But Bigelow, Holmes, and Thayer, or others writing about them, noticed connections between their work and Maine's. An English review of Placita Anglo-Normannica observed in its first sentence that Maine's prior work had enlarged the potential audience for Bigelow in England.Footnote 108 Writing a generation after he published this book, Bigelow referred to the “historical school founded by Sir Henry S. Maine”, and observed that he had been an “interested witness, and to a considerable extent a follower myself of this school”.Footnote 109 While treating the English law of evidence as “the child of the jury”,Footnote 110 Thayer acknowledged that Maine had made this point thirty years before in a lecture discussing how the English might adapt their system of evidence in governing India.Footnote 111 The importance of royal power in the development of the jury, Thayer also observed, illustrated Maine's generalization that in early periods the king was the great reformer of the law.Footnote 112
The influence of Maine on Holmes is particularly intriguing. Holmes read Ancient Law in 1865–66 and reread it in 1868.Footnote 113 He also read Maine's books, Village Communities (1871) and Early History of Institutions (1875) in the 1870s.Footnote 114 During his trip to England in 1874, Holmes met and socialised with Maine. Holmes also sent Maine copies of his early legal writings, and Maine responded with brief but fulsome praise.Footnote 115 Throughout his edition of Kent's Commentaries, his first major scholarly work, Holmes cited Ancient Law and Village Communities.Footnote 116 In one note, he praised Maine's treatment of the origins of individual property as much more lucid and brilliant than the work of the German scholar, Nasse.Footnote 117
As early as 1872, James Fitzjames Stephen, after reading an article by Holmes, wrote him that “I am amused to find you so deep in the historical method, which my friend and neighbour Sir H. Maine invented to a certain extent in this country”.Footnote 118 A review of The Common Law in The Nation highlighted its similarities to Maine's earlier work, particularly in tracing the progress of legal systems from savagery to civilization and in using analogies from the customs of existing primitive societies to explain the past law of civilised societies. Holmes, the review accurately observed, applied Maine's approach to a different subject. Whereas Maine studied ancient Aryan law, Holmes focused on the history of the common law, which had previously been addressed primarily by German scholars.Footnote 119 Like Maine before him, Holmes also stressed that old legal forms survive even as their substance changes over time.Footnote 120 At least as striking as these thematic similarities, the organizational structure of The Common Law in many ways mirrors Maine's Ancient Law. Just as Maine included chapters on “testamentary succession”, “property”, “contract”, and “delict and crime”, Holmes, though in a different order, included chapters on “criminal law”, “torts”, “possession”, “contract”, and “successions”.Footnote 121
Yet when his English friend, Harold Laski, asked Holmes in 1922 where he “picked up the notion of the historical examination of the common law, and suggested that Maine might have been the source,Footnote 122 Holmes replied: “I don't think Maine had anything to do with it except to feed the philosophic passion” and quickly added, “I don't think of any special book that put me on the track”.Footnote 123 Commenting in 1888 on the “great loss” of Maine's death in a letter to Frederick Pollock, Holmes wrote that Maine “seems to have been impatient of investigation himself and I do not think will leave much mark on the actual structure of jurisprudence, although he helped many others do so”.Footnote 124 Perhaps Holmes was thinking of himself as one of many others Maine had helped.
English scholars widely noticed and praised the work of these Americans. Several remarked that the Americans had surpassed the English themselves in the study of English legal history. “It deserves our fullest recognition, however mortifying to our national vanity”, wrote an English reviewer of Bigelow's History of Procedure, “that America has challenged the title of German legal scholars to be the only thorough expositors in the present day of our more ancient law before anything of importance has been done in this direction in England itself”.Footnote 125 Reviewing The Common Law several months later, Pollock observed that he had previously “called attention to the danger in which English lawyers stand of being outrun by their American brethren in the scientific and historical criticism of English institutions and ideas”. Holmes's book, Pollock maintained, “adds considerably to the advantage gained on the American side in this friendly contest”.Footnote 126 Pollock's review of Thayer's Preliminary Treatise called it “indispensable”,Footnote 127 and an anonymous English review predicted that Thayer's “original” treatment “may possibly exert as great an influence on English legal thinking as ‘Holmes on the Common Law’”.Footnote 128 Congratulating Ames on his work about the history of assumpsit, Pollock wrote that he had got “at last to the bottom of that puzzle, or at any rate much nearer to it than anyone before”.Footnote 129 In a biographical sketch of Maitland written shortly after he died, H.A.L. Fisher, his brother-in-law and literary executor, commented that Maitland's groundbreaking Pleas of the Crown for the County of Gloucester, published in 1884, was the first major work on English legal antiquity written by an Englishman. “All the really important books”, Fisher wrote, “were foreign – Brunner's Schwurgerichte, Bigelow's Placita Anglo-Normannica and History of Procedure in England, the Harvard Essays on Anglo-Saxon Law, Holmes' brilliant volume on the Common Law”.Footnote 130
III. Maitland on the Americans
Maitland agreed with the English praise for the American scholars of English legal history. In the preface to The History of English Law, Pollock and Maitland listed Bigelow, Holmes, Ames, and Thayer among the eight scholars whose previous work they most admired and did not intend to duplicate by what they called “vain repetition”.Footnote 131 The frequent citation of these Americans throughout the book's two volumes made clear that this prefatory praise was substantive and not merely polite. Most impressively, in the section of their book dealing with pleading and proof, they told their readers that Thayer's articles are “so full and excellent that we shall make our own sketch very brief, and insist only on what seems to us to be the more vital or the more neglected parts of the story”.Footnote 132 This section cited Thayer extensivelyFootnote 133 both for specific details and for more general themes, such as the lack of an equivalent to the modern trialFootnote 134 and the radically different role of witnessesFootnote 135 in the twelfth century. The History of English Law cited Bigelow for evidence that Henry II had a significant role in the king's court,Footnote 136 to support the assertion that the use of the seal in contract law originated with the Frankish kings rather than ancient folk law,Footnote 137 as authority regarding both the substantiveFootnote 138 and proceduralFootnote 139 law of theft, and in discussing the allotment of proof between litigants.Footnote 140 While analyzing seisin in the chapter on ownership and possession, Maitland and Pollock politely noted that they could not “wholly agree” with Bigelow's conclusion that questions of possession could easily be transformed into proprietary questions.Footnote 141
The History of English Law similarly cited Holmes and Ames on a variety of issues. It invoked Holmes approvingly while observing that the relativity of ownership in late medieval land law persisted in current English law,Footnote 142 while pointing out that ancient law assigned liability to inanimate objects,Footnote 143 and while maintaining that much of the law of specific relief originated in the thirteenth century and was not introduced by chancellors in the later middle ages.Footnote 144 Maitland and Pollock relied on Holmes in their discussions of the law of bailmentFootnote 145 and the role of an executor,Footnote 146 but they qualified one of his conclusions about bailment,Footnote 147 and disagreed with some of his views about ownership,Footnote 148 assumpsit,Footnote 149 and the law of master and servant.Footnote 150 Based on Ames's empirical research, in their chapter on contract they agreed with his conclusion that before the seventeenth century plaintiffs could not use the action of covenant to recover a debt.Footnote 151 After noting in the same chapter that they disagreed with an “ingenious theory” of Holmes about the history of quid pro quo, they indicated their approval of an alternative analysis by Ames.Footnote 152 In their chapter on crime and tort, Maitland and Pollock relied on Ames to describe the slow and difficult extension of assumpsit to expand tort liability.Footnote 153 This chapter also cited Ames's article on the history of trover to support the claim that the crime of larceny involved an action against a possessor and, therefore, could not be committed by a possessor.Footnote 154 The chapter on ownership and possession noted two criticisms of previous “masterly articles” on the disseisin of chattels by Ames, their “learned author”.Footnote 155
Maitland was on close intellectual and personal terms with Ames, Thayer, and especially Bigelow, who visited Maitland several times in England. He exchanged extensive correspondence with them about shared interests in English legal history. In his preface to Bracton's Note Book, Maitland expressed his thanks to Bigelow and Thayer “for the encouragement given me by friendly letters from a land where Bracton is at least as well known and at best as highly honoured as he is in England”.Footnote 156 While commenting that much of the best work on the history of English law had been done outside of England, he mentioned the American contribution to the field, adding that he was “cosmopolitan enough to regret an arrangement of the universe which has placed our records in one hemisphere and those who would make the best use of them in another”.Footnote 157
Bigelow initiated his lengthy correspondence with Maitland in 1885, the year Maitland joined the Cambridge faculty after a disappointing career as a barrister in London. In response, Maitland wrote that Bigelow was “no stranger to me for your books are constantly in my hands and your name in my mouth”.Footnote 158 Over the remaining twenty years of Maitland's life, he and Bigelow corresponded regularly and at length. “I have lately had occasion to use your Placita Anglo-Normannica and your History of Procedure”, Maitland wrote Bigelow in 1887, “and see that when writing the Appendix for Pollock's Torts I ought to have referred to what you have said about the check put to the invention of writs by the Provisions of Oxford”.Footnote 159 Two years later, after Bigelow found a mistranslation in one of Maitland's books, Maitland thanked him “for exposing the blunder” and promised to correct it.Footnote 160 Maitland even praised Bigelow behind his back. Apparently referring to the same mistranslation, he wrote Thayer that a remark by Bigelow “will force me to an ‘erratum’. How wonderfully keen he is”.Footnote 161 Maitland wrote Bigelow that he had adopted his opinion about distress for rent arrearFootnote 162 and would make use of his valuable work in a note about the liability of townships.Footnote 163 Maitland found a letter from Bigelow about corporate liability so interesting that he read it during one of his lectures.Footnote 164
In a letter accompanying his gift of The History of English Law, Maitland wrote Bigelow about his “pleasant memories of hours spent over the Placita Anglo Normannica and of pleasant talks with its author. I hope that when looking at the book you will remember Downing and Horsepools”, Maitland's homes in England that Bigelow and his wife had visited.Footnote 165 After their first visit, Maitland wrote Bigelow “that to have had you and Mrs. Bigelow as my guests has been one of the greatest pleasures of my life”.Footnote 166 Their subsequent letters, and correspondence between their wives, are filled with intimate details of family life.Footnote 167 Bigelow wrote a lengthy favorable review of The History of English Law in the inaugural issue of the American Historical Review,Footnote 168 prompting Maitland to express his thanks.Footnote 169 In commenting on the book's “fresh, ready, almost conversational” style, Bigelow drew on his personal friendship with Maitland. “To one who knows Mr. Maitland”, he observed, “it is his living voice, or at least his epistolary pen”.Footnote 170
Maitland and Thayer also corresponded over many years. In 1887, Maitland sent a copy of his edition of Bracton's Note Book to Thayer. In response, Thayer praised the book, adding that he had just written a review of it for The Nation.Footnote 171 By examining original judicial records and making available authentic copies of previously unpublished cases in the King's courts during the reign of Henry III, Thayer stressed in his review, Bracton's Note Book enabled the comparison of Bracton's statements in his great treatise with the cases on which he had relied.Footnote 172 Based on his extensive notes on the history of the German law of evidence, including many notebooks on Brunner's books,Footnote 173 and on the course about this subject he taught at Harvard in the mid-1880s,Footnote 174 Thayer was in an excellent position to conclude that Maitland's work would both inform and be illuminated by German scholarship on ancient Germanic law. By providing a link between this older law and the English Year Books, Thayer concluded, Bracton's Note Book would enable modern scholars to understand the Year Books better than the lawyers who originally read them.Footnote 175
Maitland soon became a candidate for a vacant professorship of English law at Cambridge and asked Thayer for permission to identify him as the author of the review in The Nation,Footnote 176 obviously believing that Thayer's name would impress the English. When Maitland received the professorship, he thanked Thayer for having helped him.Footnote 177 Maitland subsequently asked Thayer to help him place an article in the Harvard Law Review, even though he recognised that it may be overly antiquarian.Footnote 178 The following fall, the Harvard Law Review published Maitland's three-part article, “The History of the Register of Original Writs”.Footnote 179
Maitland had enormous respect for Ames as well. When Maitland saw the list of articles to be published in a three volume set entitled Select Essays in Anglo-American Legal History, a friend reported, he looked it over carefully and called Ames's the best of them all.Footnote 180 At Thayer's suggestion, Ames wrote notes on his reactions to Bracton's Note Book, which Thayer forwarded to Maitland.Footnote 181 Maitland responded to Ames, expressing gratitude for his just criticisms and attempting to clear up possible misunderstandings.Footnote 182 Describing his pleasure in receiving Maitland's response, Ames continued their discussion, thanking Maitland for clearing up his misimpression that Maitland accepted some of Holmes's erroneous theories.Footnote 183 Soon afterwards, Maitland wrote that he had just read with great interest Ames's valuable and decisive article on assumpsit.Footnote 184 Maitland and Ames also had a lengthy correspondence about the meaning of disseisin of chattels, filled with deep learning and expressions of mutual respect.Footnote 185 Months before he died, Maitland wrote a letter to Fisher that referred admiringly to an article by Ames on the statute of uses.Footnote 186
IV. The Demise of Historical Legal Scholarship
In an 1895 article on “The Teaching of English Law at Universities”, Thayer emphasised the difficult historical task facing legal scholars. English law had a long history. Much of the older material remained unprinted and written in the foreign languages of Latin for the oldest legal records and of Anglo-French for the first two hundred years of legal reporting in the Year Books. Further complicating historical research, the Year Books were poorly edited and often inaccurate.Footnote 187 Thayer also urged the comparative study of other legal systems in order to understand Anglo-American law.Footnote 188 He called the two great nineteenth-century English works of legal history, Ancient Law and The History of English Law, “helps and guides” for future research, “not substitutes for it”.Footnote 189 Thayer predicted that this future historical research would take two generations, even as he complimented the “brave beginning already made” that “is already yielding the handsomest fruits”.Footnote 190
Thayer's article, however, came toward the end, not the beginning, of a period of major scholarship on the history of English law. The substantial original work in English in this field, which began with Adams and his students, culminated in Maitland's scholarship. Contrary to the hopes of these American and English scholars, institutional and financial support for legal history did not materialise in either country. More significantly, the historical study of law, particularly the search for the evolution of legal doctrine that dominated the research of scholars from Maine through Maitland, lost its intellectual appeal in both countries. In law, as in many other fields, interest in social science, tied to social reconstruction, superseded historical analysis.Footnote 191
This transformation is best revealed through the enormously important but insufficiently studied early scholarship of Roscoe Pound in the United States during the decade before World War I. Pound himself wrote extensively about the history of legal thought. The nineteenth century, he wrote, “in law as in everything else is the ‘century of history’”.Footnote 192 Yet Pound advocated what he called “sociological jurisprudence” as an alternative to the outmoded and socially destructive individualism of prior jurisprudential schools, including the historical school. He described sociological jurisprudence as an amalgam of anti-formalist German legal thought, especially as formulated by Jhering, American philosophical pragmatism, and the emerging social sciences. Using what seemed to be an evolutionary model of historical analysis to deny the continuing importance of history itself, Pound claimed that legal history at the turn of the twentieth century had value mainly as “preparatory work”Footnote 193 for sociological jurisprudence. Pound was confident that sociological jurisprudence, through empirical research into social conditions, would enable law to serve the collective public interest. His effective promotion of sociological jurisprudence helped free his successors from the historical analysis of law that remained a key component of his own thought.
