From Maine to Maitland via America
David M. Rabban
University of Texas School of Law
Cambridge Law Journal, Vol. 68, No. 2, pp. 410-435, July 2009
U of Texas Law, Public Law Research Paper No. 160
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, 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. Adams praised Ancient Law and placed Maine at the same level of intellectual importance as Darwin and Spencer. Yet Maine’s “brilliant hypotheses,” Adams declared, remained “hazardous guesses” unsupported by facts.
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. Over the next two decades, other American scholars undertook research in later periods of English legal history, most prominently Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer.
Leading late twentieth-century English scholars, such as S.F.C. Milsom and J.H. Baker, have asserted that Maitland essentially created the field of English legal history. Maitland himself had a different view. Like many of his contemporaries in England, he graciously recognized 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 criticized Maine, often in terms that echoed Adams and his students.
Number of Pages in PDF File: 27Accepted Paper Series
Date posted: September 12, 2009
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