From Maine to Maitland via America

[Here’s the latest post from David Rabban on Law’s History.]

In my last post about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I discussed the importance of Henry Adams as the first major professional legal historian in the United States.  Underlining the "transatlantic" theme of my book, this post emphasizes that Adams, followed by a small group of other American legal scholars who wrote about the history of English law during the last three decades of the nineteenth century, constituted a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland.

During his short career teaching history at Harvard from 1870 to 1877, Adams relied on German scholarship on the history of early Germanic law and on primary sources of Anglo-Saxon law to assert the Germanic origins of the English common law.  He drew on his findings to challenge many of the generalizations about stages of legal evolution that Maine derived from the history of Roman law in his hugely influential book, Ancient Law, published in 1861.  Maine claimed that the primitive family was patriarchal and probably preceded the state.  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."  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."

Adams and his students rejected these claims.  They emphasized the individualism of early Germanic societies, including Anglo-Saxon England.  They asserted 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 Germanic 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 maintained that Germanic law not only differed fundamentally from Roman law, but preceded it.  Whereas Maine generalized 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 in Anglo-Saxon Law in 1876.   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.  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.  They, therefore, directed their research into the history of English law after the Norman Conquest, debating among themselves and with leading German scholars, particularly Heinrich Brunner, about the extent to which Norman antecedents, especially of the modern jury, developed independently in England.

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 shared the view, elaborated most explicitly in an article by Thayer entitled "The Teaching of English Law at Universities," that historical research into the entire development of current law is a prerequisite to understanding and, ultimately, to restating it.  They referred to Maine less frequently than had Adams and his students, but they often recognized his influence in turning their attention to the historical study of law.  English legal scholars, in turn, widely noticed and praised the work of these Americans, often observing that they had surpassed the English themselves in the study of English legal history, "however mortifying to our national vanity," as an English reviewer commented while praising Bigelow's major book, History of Procedure in England from the Norman Conquest, 1066-1204 (1880).

Maitland agreed with the English praise for the American scholars of English legal history.  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."  More recently, J.H. Baker reiterated that Maitland "inaugurated the scholarly study of English legal history."  Maitland himself had a different view.  In the preface to his great book, The History of English Law Before the Time of Edward I, published in 1895, Maitland listed Bigelow, Holmes, Ames, and Thayer among the eight scholars whose previous work he most admired and did not intend to duplicate by what he called "vain repetition."  The frequent citation of these Americans throughout the book's two volumes made clear that this prefatory praise was substantive and not merely polite.  Maitland corresponded extensively with Ames, Thayer, and especially Bigelow, who visited Maitland several times in England and became an extremely close personal friend.  By contrast, Maitland frequently criticized Maine, often in terms that echoed Adams and his students.  In addition to relying on the previous work of the Americans he cited, Maitland shared many of their historiographical views.  Because so many subsequent scholars have viewed Maitland as distinctively interested in legal history as a window into social and economic history, it is particularly striking that he himself, like the American scholars who preceded him, emphasized his primary focus on the internal evolution of legal doctrine, precisely the attribute his successors condemned in others.

[The series continues here.]