Front Page Titles (by Subject) THE LAWS OF THE ANGLO-SAXONS 1 - The Collected Papers of Frederic William Maitland, vol. 3
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THE LAWS OF THE ANGLO-SAXONS 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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THE LAWS OF THE ANGLO-SAXONS1
Though Dr Liebermann has still something in store for us in the way of notes, index, glossary, and the like, the time has already come when we may rejoice in the possession of a really good edition of the oldest English laws, an edition which will bear comparison with the very best work that has hitherto been done upon any historical materials of a similar kind. That this task should have been performed by a German scholar at the instance of a German academy, and with the support of a German trust fund, may not be what we in England should have liked best, but must not detract from the warmth of our welcome and our praise. If Englishmen cannot or will not do these things, they can at least rejoice that others can and will.
The German occupation of a considerable tract of English history has been a gradual process. The sphere of influence becomes a protectorate, and the protectorate becomes sovereignty. The shore is surveyed and settled; and now with colour of right far-reaching claims can be made over an auriferous hinterland. How and why all this happened it would be long to tell, but a small part of the story should be remembered.
Few words will be sufficient to recall to our minds the nature and extent of the territory which, so we fear, is slipping from our grasp. Any one who, at the present day, desired to study, even in outline, the first six centuries of English history—those centuries which intervene between the withdrawal of the legions and the coming of the Normans—would find himself compelled, whether he liked it or not, diligently to peruse a certain small body of laws. We cannot, indeed, say that, were it not for these monuments of ancient jurisprudence, the only tale that he would have to tell would be of battles between “kites and crows.” Certain great men—an Alfred, for instance, or a Dunstan—might be seen and portrayed, though without a background. There would still be something to be learnt about heathenry and Christianity, about religious doctrines and ecclesiastical organisation, about poetry and prose, about arts and crafts. One of those old-fashioned chapters or appendixes touching “the manners and customs of the people” might be rewritten with truer insight and apter illustrations. But if from the sum total of what we know about our forefathers we subtracted what has been directly or indirectly taught us by legal documents, the residue, it must be confessed, would be both incoherent and precarious. Not only could we make no attempt to see the nation as an organised and growing whole, but our great men, our Alfred and our Dunstan, would be far more shadowy than they are. Nay, even our battles would have little good fighting in them, and our very “kites and crows” would be phantasmal. Moreover, if we owe to these laws a certain sum of assured knowledge, we owe to them also—and this is hardly less valuable—a certain sum of assured ignorance. When they do not satisfy they at all events stimulate a rational curiosity; and where they do not give us intelligible answers they prompt us to ask intelligent questions—questions which go deep down into the pith and marrow of our national history, but questions that would never have occurred to us if we had nothing to read but chronicles and the lives of saints.
We have spoken of a small body of laws, and small it certainly is. Without translation and apparatus it might be handsomely printed in a hundred and fifty octavo pages. We fancy that in the days of flamboyant draftsmanship a single Act of Parliament sometimes contained more words than have come to us from all the law-givers that lived in England before the Norman Conquest. We have, it will be remembered, a little priceless matter from our first Christian king, from Æthelberht of Kent. To use round figures, we may say that it comes from the year 600. We have a little from his successors upon the Kentish throne; we have more from the West Saxon Ine (circ. 700), which, however, has passed through the hands of Alfred (circ. 900); and we have a considerable amount from Alfred himself. Then legislation becomes commoner. The tenth century and the first years of the eleventh are illustrated by laws of Edward, Æthelstan, Edmund, Edgar, and Æthelred; and the series ends with the respectably lengthy and luminous code of Cnut the Dane. Besides this, we have a few short statements of legal or customary rules coming to us, not from law-givers, but from presumably learned men—little formularies and so forth, which were transcribed along with the laws and have been slowly disengaged from them by the skill of recent editors.
Such was the territory which was to be explored and cultivated by modern science; and such was the territory which, as some of our neighbours saw, was lying derelict and inviting annexation. Exploration, it is true, was no easy task, especially because—unlike the parallel laws of the continental nations, Goths and Lombards, Franks and Saxons—these old “dooms,” as they call themselves, were written, not in Latin, but in the vernacular, or, in other words, in a language which, for a long time past, has been far less intelligible than Latin to the great mass of fairly educated mankind. Just for this reason, however, these English dooms might claim a prerogative right. Up to a certain point Latin, and even the worst Latin of a dark age, may be generally intelligible; but, as many investigators have of late had occasion to remark, the thoughts of barbarous Teutons were sadly contorted in the process of latinisation. Many a passage, for example, in the code of the Salian Franks, the famous Lex Salica, would by this time be far less obscure than it will ever be had it been transmitted to us, not in Latin, but in Frankish words. In this respect, therefore, our English dooms have a singular, a unique, value. It was a value which could but slowly be turned to account, but it became an effective asset as the old English language was gradually reconstructed; and nowadays, in the eyes of every serious student of early medieval history, the Anglo-Saxon laws appear, not merely as good but as supremely good material.
But to speak at greater length of the extent and fertility of the ground that we have lost or are losing would be needless. The control of the Anglo-Saxon laws, which henceforward we shall have to know as “Die Gesetze der Angelsachsen,” implies a protectorate, to say the least, over some six centuries of English history. Nor is that all, for, as will be remarked below, the people who taught us the word “hinterland” have taught us also how a hinterland should be treated. But in order to understand what they have done we must go back a little way.
In the middle of the sixteenth century the Anglo-Saxon laws began, if we may so say, to awake from a long sleep. That there had been such things had never been quite forgotten, for a well-known chronicle contained large extracts from one of those Latin translations that were made soon after the Norman Conquest. But, diligent as our lawyers had been in their hunt for ancient documents—and the amount of old manuscript that Anthony FitzHerbert had perused and digested may well astonish us—a limit was set to their investigations. As far back as the boundary of legal memory, as far back as Glanvill, they could pursue their researches not only with interest, but with professional profit. What lay on the other side of that line seemed to belong to another world, and had no points of contact with their practical work. As to an original Anglo-Saxon text, they could hardly have understood one word of it. The fact that their own technical language was not even English but debased French tended to widen a gulf which in any case would have been wide enough.
As Dr Liebermann rightly remarks, the Anglo-Saxon renaissance began in another quarter. We might call it a by-product of the Reformation. So soon as the quarrel with Rome became acute, “divers sundry old authentick histories and chronicles” were being explored by important people; and a charter in which an English king appeared as a “Basileus” was passing from hand to hand and exciting comment. A little later, and it seemed possible that, expressed in an unknown tongue and a barely legible script, there lay title-deeds of a national church—title-deeds which told not only of independence, but of purity. And, as a set-off to the dismal tale of pillaged libraries, we may remember that the tools had at length come to those who would use them—the rescued manuscripts to the hands of those who would be at pains to read them. Pains were required. The casting of a fount of type that would imitate the Old English characters shows us how outlandish to Elizabethan Englishmen was the speech of their forefathers. For the service performed in the cause of history by Matthew Parker, John Joscelyn, and Laurence Nowell we must always be grateful; nor should Bale and Foxe be forgotten, though it was no purely scientific spirit that guided them in their enterprises. It was reserved, however, for Nowell’s pupil, that sound lawyer William Lambard, to publish an edition of the Anglo-Saxon laws; and we now have Dr Liebermann’s authority for saying that he did his work wonderfully well. That in every five lines or thereabouts of his Latin version he should be guilty of a mistake which his successors can call gross, is only what was to be expected. He was a pioneer in an unknown land.
The first half of the seventeenth century may be regarded as the heroic age of English legal scholarship. Great questions were opening, and on all sides an appeal was being made to ancient law and ancient history. It is true that, as regards very old times, little that was of real value came from the imperious dogmatist who dominated the jurisprudence of his time. When he was on unfamiliar ground Sir Edward Coke was, of all mankind, the most credulous. There was no fable, no forgery, that he would not endorse; and a good many medieval legends and medieval lies passed into currency with his name upon their backs. But in Selden and Spelman England produced two explorers of whom she might well be proud. We are glad to say that in Dr Liebermann’s sketch of the work that was done by his predecessors Sir Henry Spelman comes by his rights; and we think it worthy of observation that it was what we nowadays call the comparative method which enabled these illustrious Englishmen to put new life into English history. It has been said with some truth that the man who “introduced the feudal system into England” was not William the Conqueror, but Henry Spelman; and if, as is usual in such cases, similarities were seen before dissimilarities, still to have begun the comparison was a great achievement; for very true it is that England will never be known to those who will know nothing else. There are many other names that deserve remembrance—the names of diligent antiquaries. Marvellously diligent they were. Contending with difficulties and discomforts which their luxurious successors can but faintly imagine, they copied and collated and edited. Prynne, for example, munching his crust of bread as with burning zeal he deciphered decaying documents in the filth and stench of the White Tower, is an heroic figure. If we have done little else to help Dr Liebermann, we may at least hope that “Englands edle Gastfreundschaft” (we are glad to see the phrase) has enabled him to do his work in pleasant surroundings.
In his judgment the editions of the Anglo-Saxon laws which were published by Abraham Wheelock in 1644 and by David Wilkins in 1721 owe their merits more to others than to their editors, who marched rather behind than in front of the linguistic science of their times. That the man whose edition held the field for a century and upwards was of Prussian descent, and that his real name was not Wilkins but Wilke, might be represented as a forecast shadow of future events; but there is little or nothing to show that this industrious professor and archdeacon brought to his task any equipment of foreign learning. Meanwhile linguistic science had been advancing; and, if in this quarter the help of a De Laet and a Dujon had been useful, George Hickes, the nonjuring bishop, had surely shown that at this point England could as yet hold her own.
But general interest in the old laws was failing. They had disappointed reasonable expectations. It is plain enough, for example, that Blackstone does not know what to make of them. And what is one to make of laws which leave it somewhat doubtful whether our Saxon forefathers were possessed of our glorious constitution, with trial by jury and “habeas corpus,” and all other bulwarks, palladia, checks, balances, commodities, easements, and appurtenances? Unfortunately the forgeries and the fables, the legends and the lies, were much more to the point than those meagre, enigmatical, and altogether “Gothic” sentences which defied the resources of gentlemanly scholarship.
The study of the old texts never died out altogether. We might tell of good deeds, but they were done, for the more part, in the antiquary’s fashion, and seldom by men of great power. Then in the nineteenth century came the critical moment. Would Englishmen see and understand what was happening in Germany? Would they appreciate and emulate the work of Savigny and Grimm? In particular, would they set themselves to investigate the growth of law and institutions with scientific accuracy and scientific zeal, and, inspirited by big thoughts, hold no labour too laborious, no text too obscure, no detail insignificant until all should be known? It can hardly be said that they rose to the occasion. We had our swallows, and beautiful birds they were; but there was spring in Germany. We had our guerrilleros; they were valiant and resourceful; but in Germany an army was being organised. Grimm’s pupil, Kemble, was in the field, fighting a brave battle for the study of the Old English language and the Old English laws. The great Palgrave was in the field; surely a great commander if an army had been forthcoming. But our English forces, if forces they might be called, were irregulars. Discipline was not their strong point, as the chequered tale of the Record Commissions amply shows. Chequered indeed were the books in which public money was invested; the scandalously bad elbowed the admirably good.
The official edition of the Ancient Laws and Institutes of England, which was published in 1840, fell midway between the two extremes. Dr Liebermann, who is scrupulously fair to his forerunners, goes no farther than truth compels when he says that the book did not meet just expectations. The proof came soon. In 1858 Reinhold Schmid, a professor of law at Bern, without being able to visit England, and consequently without seeing the manuscripts, published a much better edition. A very good book it was, and those who now are laying it aside must feel that they are parting from an old and trusty friend. From that moment the English official edition was superseded. There the matter rested, so far as England was concerned. That the failure should be officially recognised and a new edition put in hand was not to be expected—such confessions of failure are made in Germany; but no Englishman came forward to meet the German challenge, though it must have been sufficiently plain that an edition made by one who had not seen the manuscripts could not be final. The next edition was to be made by Felix Liebermann, at the instance of the Bavarian Academy, at the cost of the Savigny Trust; it was to be beautifully printed at Halle; it was to be dedicated to Konrad von Maurer, or to his memory.
Konrad Maurer—the “von” came afterwards—was one of our conquerors. He was the son of that George Ludwig von Maurer who explored village communities, gave Greece a criminal code, was a prominent statesman in the Bavaria of Lola Montez, died in 1872, and lives for Englishmen in the pages of Sir Henry Maine. Early in the fifties of the last century Konrad reviewed Kemble’s book in a series of papers which, though not always to be found even in the best of English libraries, marks a dividing line between two periods. In his hand the study of Anglo-Saxon law passed into a more scientific stage, because it became part of a much larger whole, “die Germanische Rechtsgeschichte.” Already in 1845 he had won his doctor’s degree by a piece of sober comparative jurisprudence, a study of the growth of the noble class among the Teutons; and the Teutonic inhabitants of England had received a full share of his attention. Then, while still a young man, he wrote those memorable papers about Anglo-Saxon law, and he gave the rest of a long life to the subjugation of the Scandinavian north. In 1902, after encouraging and helping Dr Liebermann to the last, he died full of years and honours. None of the honours were English; but he must have known that he had left his mark very deep in the current version of the oldest English history. And so to “Konrad von Maurer, dem Altmeister der Germanischen Rechtsgeschichte,” this edition of our old laws is dedicated.
There is another of Dr Liebermann’s dedications to which it is pleasant to turn. One of the tracts in which he has been giving to the world the result of his researches bears on its forefront these words, “Dem Andenken an William Stubbs, den Meister der Erforschung und Darstellung Englischer Geschichte im Mittelalter.” Every one of these words is well weighed and well deserved. The grand figure of William Stubbs seems to be destined to become grander and more solitary as the years roll by. Now the extent to which, in his reconstruction of the age before the Conquest, Dr Stubbs adopted the theories of German pioneers might easily be exaggerated; and exaggeration we have seen. He was a sturdily independent and conservative Englishman, not easy to lead, not easy to persuade, and wholly free from the vanity that parades what is new and what is foreign. Still it is unquestionable that he had learned much from Waitz and Schmid and Maurer; and his willingness to look for good books beyond the four seas was an essential trait in his greatness. Also it was natural that the German influence should be most perceptible in the most purely legal part of his work. Englishmen were beginning to think of talking about “comparative jurisprudence” while Germans had been steadily making it. That prematurely ambitious theories, “evolved from the depths of the inner consciousness,” had seen the light in Germany no one would deny. But their short reign was over, and sanity, modesty, and caution were in the order of the day. If we must name one example of the sort of work to which we refer, let it be Wilda’s Strafrecht der Germanen; and let the date upon its title-page, 1842, be noted. Was it, then, unnatural that Dr Stubbs should look abroad? How much remained to be done before the Anglo-Saxon laws and the law-books of the Norman age would be a well-mapped country he was fully aware. How he welcomed Dr Liebermann to England, Dr Liebermann has told; and we wish that we could repeat the terms in which the Bishop of Oxford explained to the University of Cambridge how well this German visitor deserved his honorary degree; we have warrant for saying that they were warm and forcible.
Whether the study of the Old English language, and the family of languages to which it belongs, flourished in England of the nineteenth century with all desirable prosperity is a question about which we offer no decided opinion, though we fancy that here also the tale that has to be told is rather of rare swallows than of genial spring. The main deficiency, so it seems to us, did not lie in this quarter. The laws, on the interpretation of which the whole historical scheme depends, were left severely alone, while Bede and the Chronicle and the homilies attracted editors, and Asser was supremely fortunate in the hands of Mr Stevenson. But where schools of law do not flourish the history of law will not be adequately studied, and the consequence will be that the march of the whole historical army, and especially of those new regiments, economic and social history, will be seriously retarded. Whether we like it or not, the fact remains that, before we can get at the social or economic kernel of ancient times, we must often peel off a legal husk that requires careful manipulation. It will not be supposed that we are bringing any general accusation against such law schools as we have had. Of late years there has been a very marked improvement in our text-books of current law—in the “dogmatic” of law, as a German would say—and it is directly traceable to a few men who have believed that law can be taught. We freely admit that this is far more important work than that of training editors for barbarous codes. Nor do we in any way regret the gallant efforts that have been made to keep a few Englishmen interested in the classical law of Rome. All things considered, this may have been the best available preventive against that fatal disease of contented insularity which so easily besets us. Still the Victorian age came and went without Englishmen having written a tithe of the legal and institutional history that might reasonably have been expected of them. We have not forgotten Sir Henry Maine. Who could forget the world-wide horizon, the penetrating glance, the easy grace, the pointed phrase? But, to blurt out an unfashionable truth, there were qualities in his work, or in his presentment of his work, which would have served to better purpose in a land of laborious pedantry than where men are readily persuaded that hard labour is disagreeable and that the signs of hard labour are disgusting. That old fable needs revision. Perhaps the Frenchman is a little reluctant to do more than “cultivate his garden”—a well-arranged garden it is nowadays; it is the German who seeks the wilderness, while the Englishman remains at the fireside or elegantly strolls down “the high priori road.”
When once it was apparent that our own old laws would only become eloquent when they were placed among their kinsfolk, the question was whether Englishmen would master foreign law, or whether foreigners would master English law. That question was soon closed; or rather we pay ourselves too high a compliment if we suppose that it ever was open. Extravagance could go no farther than to expect that an Englishman would devote his life to an edition of—we will not say of the Sachsenspiegel or the Grágás or the Siete Partidas —but of those Norman custumals which are almost English. It is all very well to be modest, to believe that foreigners know their own business, to believe that M. Tardif or M. Viollet knows more of Normandy than you will ever learn; but in these days of international science we must be invaders or invaded, and if we will not dump we must not complain of dumping; no tariff can protect us. There came a Russian scholar to teach us, among many other interesting things, that all that we had been saying about the folk-land was untrue. We bowed our heads in meek submission, and not one English lance was broken in defence of orthodoxy. Happily Oxford’s “edle Gastfreundschaft”—to her great honour be it said—saved the situation, and made a professor of Dr Vinogradoff.
The sureness of Dr Liebermann’s tread in a province that Englishmen have almost abandoned gives occasion for one other remark. The province to which we refer is the history of ecclesiastical law. Now it is unquestionable that in Victorian England a vast part of the best work that was done for medieval history was done by clerks in holy orders. It would be far too little to say that in this, as in many other quarters, the Church of England fully maintained her reputation as a learned Church. What is more, it was the clergyman that taught the lawyer about the Middle Ages, not the lawyer that taught the clergyman. Nevertheless it must be confessed that a field which lies (if we may so say) within view from the vicarage window is not being tilled very zealously or in conformity with the methods of modern science. To be concrete, we might ask whether Stubbs’s edition of the English Councils is always to remain a fragment. We might ask how it came about that an extraordinarily interesting tract written by a canon of York concerning the relation between Church and State was carried off as lawful prize for the Monumenta Germaniae from under the guns of the Cambridge divines. We might ask whether Boehmer’s indictment of Lanfranc as one of the most unscrupulous of forgers is to be answered, or whether the fair fame of an archbishop of Canterbury is to have no defender. We might ask why a young German student of divinity should have a chance of writing so good and so new a book as Boehmer’s Church and State in England and Normandy. We should have thought that the whole story of papal encroachments—a story that might be told not in vague outline but realistically out of countless edited and unedited documents—would have been singularly attractive to some of our learned clerks, for there is much in it on which Anglicans might dwell with pride. The fault is not theirs. They have had none to guide them among legal snares and to tell them of the revolutionary work that has been accomplished in Germany and Italy and France. Where law schools do not flourish ecclesiastical history may be good as far as it goes, but it will never go to the end.
When we turn from our own modest output to the tons of books concerning legal history which Germany produced in the nineteenth century, it is right to remember that during a great part of that period our neighbours were being spurred forward by an incitement to study such as we have never felt and they are not likely to feel again. When the famous “historical school” began its career, the legal condition of Germany was deplored by all those for whom Germany was more than a name. How could this miserable state of affairs be remedied? To what causes was it due? Whence would deliverance come? From a closer study of those Roman texts which constituted such “common law” as Germany possessed? from the disinterment of old Germanic principles? from the observation of neighbouring and less unfortunate nations? We do not detract from the scientific value of the best work that was done if we remember that the motive force was not mere curiosity. When once the impulse had been given, men would labour in regions far remote from the practical life of their own time with no hope of any reward except a few new grains of truth. Still the impulse, a patriotic, a national, and we might even call it a utilitarian impulse, was requisite. And now we see the result of it all. This people of pedants and dreamers, of antiquaries and metaphysicians, after discussing the history of every legal term and every legal idea, has made for itself what is out and away the best code that the world has yet seen.
It is currently said that this interdependence of historical research and practical endeavour is now being illustrated in another way. It is said that legal history is losing its interest; that young Germans will study nothing but the Bürgerliches Gesetzbuch; that famous teachers have now no time for anything else; that even Roman law is being deserted. A warning issued by Bekker, Brunner, Mitteis, and Mommsen is, we should suppose, likely to receive attention in the proper quarter. If not, the world will be the poorer and Germany will not be the richer, except perhaps in the wealth that perishes. One title to honour will have been forfeited, and neither success in arms nor success in commerce will wholly fill the vacant place. Dr Liebermann’s book, however, speaks of no decadence, but of the great age when men reconstructed the praetor’s edict and discovered the origin of trial by jury and tracked the false Isidore to his lair. And, since we have mentioned German wealth and German honour, we will allow ourselves two remarks, one of which may deserve consideration in some English, and the other in some German circles. We believe that the man who put fourteen years of the hardest drudgery into an edition of the Anglo-Saxon laws had, as some Englishmen would reckon, no valid reason for living “laborious days,” but “scorned delights,” which he might have tasted to the full. We believe also that this man, whom we in England can regard as a good representative of what is best in Germany, is one whom what is worst in Germany, the blatant sham science of her Philistines, would ban as “ungermanisch.” Well, there are fools everywhere; but we in England are not going to dispute the Englishry of our great Sir Francis Palgrave.
On the present occasion we will say but little of what has been done for the Anglo-Saxon laws, properly so called for, as already said, some notes are yet to come. But already we have a translation of a very excellent kind—a translation from which even those who have but a slight acquaintance with the Old English tongue may gather both what a laconic legislator has said, and also what he has meant to an editor skilled in the early history of Teutonic law. We shall run no risk in saying that by this new version all older versions are superseded. As to the text, we do not like to speak of finality, but have great difficulty in imagining what more could have been done. In particular, students of language will, so we think, be hard to please if Dr Liebermann has not given them material enough. Rejecting less exhaustive methods, he has printed in parallel columns the texts that are given by all the leading manuscripts. We open the book; we see alongside each other three different English texts of the laws of Cnut and three different Latin versions of the same, while the new German translation fills the bottom of the page. It looks like the full score of an opera, and some time must be spent before we can master the manifold typographical devices which have been invented to save time and space. At first sight the editor seems to have a rooted objection to printing six consecutive words without a change of type; and the natural man sighs for the simplicity of a pianoforte arrangement. But unquestionably all this elaborate technique, which must have taxed to their uttermost the resources of a great printing house, will be highly valued by philologists. Want of imagination has been a common fault in editors. A little difference in spelling, for example, seems to you too trivial for notice. A few years go by; science strides forward; you can be accused of jumbling two dialects together; and then your work must be done over again. Never, it is rightly said, is a long day; but we fancy that a long day will pass before Dr Liebermann is charged with insufficiently minding his p’s and q’s. It would be admitted on all hands nowadays that the oldest monuments of the English language deserve as much care as an English, or any other, editor would ungrudgingly spend upon the most worthless scrap of classical Greek; but we fear that we have been slow to take this truth to heart. A characteristic example occurs on Dr Liebermann’s first page. There is a word, now partly illegible, in the only medieval manuscript that gives the very earliest of all the laws. The English editor can only tell us of a guess. It struck Dr Liebermann that what cannot be read now could perhaps be read in the sixteenth century by one of those antiquarian worthies who sometimes copied the more accurately because they hardly aspired to understand what they were copying. And so a very “secondary source,” Francis Tate’s transcript of a manuscript that is still in our hands, solves the difficulty. Why did not we think of it?
But we shall be on yet surer ground if we turn to the law-books of the Norman time, for during the last twelve years or thereabouts Dr Liebermann has been slowly telling his tale about them in various pamphlets, and we hardly know where to lay our hands upon better specimens of modern research. It is true that his pamphlets are not always easy reading. In his desire for compression he becomes algebraic. We very much wish that he would now be persuaded to step, as it were, between his severer self and an ignorant, but not unteachable, British public. After all this fatiguing research a little “high vulgarisation,” as the French call it, would be a pleasant kind of relaxation. Many scattered remarks show that he has a good eye for men and movements as well as for laws and language. He might teach us much of parties and policies, of efforts and ideals, much even that Freeman did not teach and could not; for, with reverence be it said, Freeman’s healthy contempt for lawyers did not always improve the quality of his work when “past politics” were to be discovered in legal documents.
We have spoken of a hinterland. It is curious that these law-books of the Norman age should naturally present themselves as a hinterland, as a region into which we can penetrate only by passing through the laws of a yet older time, or as a mass of matter whose destined place is the appendix. Yet that is the traditional, and it still seems the right place. What is under examination refuses to look like a prologue; it is an epilogue. These books—“book” is rather too grand a name for some of them—are the product of a very strange, and perhaps we might say a unique, state of affairs. The conquering Frenchmen have no written laws, or none to speak of, and they have no law-books of their own. The conquered Englishmen have a considerable mass of written laws ending with the code of Cnut. The official theory tells of unbroken continuity. William has inherited the crown from his cousin, and, upon the whole, is well satisfied with the rights that the old English laws will give him. And yet, despite official theory, the whole law is being rapidly changed, until at length the theoretic crust falls in and a new formation is displayed in Glanvill’s orderly treatise. The honest books of this confused and confusing time try their best—a very bad best it often is—to reconcile theory and fact; and then people who are not scrupulously honest begin to tinker and to tamper, to forge and to fudge in the interest of classes and professions and programmes. A wild hinterland it has been, full of gins and snares, peopled by uncouth monsters, “anthropophagi and men whose heads do grow beneath their shoulders.” Roads were slowly made into it. No admiration for “the last German book” must induce us to forget how much good road-making was done by Selden and Spelman, by Twysden and Somner, by Allen and Palgrave, by Schmid and Stubbs. Still it is the simple truth that the credit of having surveyed the whole territory, of having classified its grotesque fauna, of having reduced the savage inhabitants to order, falls to Dr Liebermann. There are warnings in legible German now over most of the pitfalls, and even where the hill is dangerous to cyclists. The chimera can no longer prey upon the reasonably cautious traveller, and will soon be harnessed to the historian’s plough. And let it be remembered that this hinterland is auriferous. A stage in the history of law and thought and manners which is represented in England by these obscure texts is represented elsewhere by an obscurer silence. The English twilight between moon and sun, between the laws of Cnut and Glanvill’s treatise, is not very brilliant; but there is dark night in other lands.
One of the most interesting of the strange people, the anthropophagi, whom Dr Liebermann has interviewed is the latest of them, a Londoner of John’s day, so it seems, who forges in the interest of a political and municipal programme. In some respects it was a by no means irrational programme, though the manner in which he sought to forward it was singularly unscrupulous. An imperialist he was with a witness. In his view the King of England was by rights lord or emperor not only of Wales and Scotland, but also of “all the adjacent islands with their appurtenances,” a very extensive region floating in a haze of mysterious geography. Round his cave were human bones in plenty. Some of his products had, indeed, long been known as the lies that they were—not fables, but lies told with intent to deceive. But here for the first time his offences are brought home to him. The indictment is long, and it comprises, among its many counts, a crime of the first order, the concoction of that famous letter which Pope Eleutherus did not write to Lucius, King of Britain. For some time past this letter, which used to play a part in Anglo-Roman controversy, has been stigmatised as forger’s work, though Dr Liebermann is able to say, to our surprise, that so late as 1892 it was seriously cited. But who was the forger? A singularly convincing argument enables us now to hold with some certainty that he was the man who interpolated his civic and imperialistic conceits into the laws of Alfred and Ine, and that the scene of his nefarious operations was not remote from the Guildhall of London. It is pleasant to remember that an article in the Quarterly Review delivered mankind from the tyranny of the false Ingulf1 . To see the pseudo-Eleutherus writhing under Dr Liebermann’s cross-examination would have delighted Sir Francis Palgrave.
But by far the most important of these men of the twilight is the most puzzling of them all. He is the man who schemes a comprehensive law-book which Dr Liebermann, with fairly good warrant, calls the Quadripartitus. He is also the man who, having but little English, painfully translates into some sort of Latin the Anglo-Saxon laws, returning again and again to his task as his knowledge increases. He is also the man who composes the treatise that we know as the Leges Henrici. A most puzzling person he is, even when Dr Liebermann has written a life of him. That life is of necessity a series of inferences. Some of them we may dispute; but the biographer always allows us to see precisely what he is doing. If from time to time he seems to be acuter than a man should be, recalling those dear Red Indians of our youth and the Sherlock Holmes of to-day, he always tells us what is the basis of ascertained fact upon which he proposes to build. If, for example, we are told that this man is not of English race, that he is not a monk, that he is a cleric, that he has served the Archbishop of York, that he has the run of a considerable library, that he is a justice of the King’s Court, we know the premises from which these conclusions are deduced. Dr Liebermann is not one of those who, in the name of a false art, pull down the scaffolding when the house is built—one of the worst crimes against history that the historian can commit. We can climb if we please, and form our own opinions as to the strength of the structure, for all is visible. For our own part we have struggled long against one of Dr Liebermann’s conclusions, namely, that this queer being, striving to make himself understood, is not only professionally engaged in the work of the law but sits among King Henry’s justices. But the evidence that is brought to bear upon this point is not easily resistible; and Dr Liebermann helps us in many ways to understand the legal, political, social environment in which a royal justice, who was also a churchman with some unusual erudition, could aim so high and fall so low: could be so ambitious, so learned, so industrious, and yet so incapable of arranging his materials or explaining his thoughts.
Keen criticism of literary style is one of the tools in Dr Liebermann’s workshop. It is a highly useful weapon when anonymous products are to be dated or a forger is to be confronted with his handiwork, and yet we fancy that it will be almost news to many Englishmen that this weapon can be used not only—no one would doubt that—where literary style is reasonably good, but also, and with even greater effect, where style is abominably bad. As a relic of the old belief “that all the Middle Ages lived at the same time,” there remains, we will not say a belief, but a disposition to think that all “low” Latin is equally low. Really, however, the style of these Leges Henrici is as distinctive as style could be: marvellously different from the glib Latinity of Lanfranc and his scholars. It is a highly distinctive compound of the worst sort of windy rhetoric and the mere dog-Latin of a man who is thinking in French about Anglo-Saxon technicalities. There is a repellent preface to one of his works. We fear that an English editor would have thought that he had done enough for the sorry stuff when he had complained of its turgidity. Not so Dr Liebermann. The miserable man is not allowed to finish his first sentence before the detective has found a clue. “Did you say nullis aduersitatum liuoribus obatrescit? Pardon me, but that is a Firmicianism. You have come under the influence of the astrologer, Julius Firmicus Maternus; and that is another link between you and Archbishop Gerard, who, to the scandal of all right-thinking Christians, died—at least, so the High Church people said—with this necromancer’s book under his pillow.” But it will be easier for Englishmen to recover any ground that they may have lost in this literary quarter than to appear once more as the best interpreters of ancient English law. Those who, like Dr Brunner, have seen it, not in taciturn isolation, but in the converse of the family circle, have been Dr Liebermann’s guides and must for a long while be ours.
One pressing task remains. We have lost the Anglo-Saxon laws. Can we retain the Anglo-Saxon charters, those numerous “land-books” which must be re-edited if the first period of English history is ever to be well understood? Kemble was a great man, but, even according to the standard of his own time, he was not a very good editor of legal documents; and now, owing to the progress that has been made by various studies, linguistic, legal, and diplomatic, the standard has been raised by many degrees. That it is not unattainable by Englishmen, Professor Napier and Mr Stevenson have fully proved by their masterly treatment of a few lucky charters which had escaped less expert hands. Dr Liebermann salutes their work as the beginning of a new era. At this point we have a great advantage. All else may go; but those very acres that the old kings “booked” lie where they always lay, and the identification of places and the perambulation of boundaries is a highly necessary part of the work that awaits the coming editor. Moreover, at the hither end of the charters stands Domesday Book; and that book is not the riddle that it was when Mr Round began his brilliant researches. We have a long start, a favourable handicap, but, to continue the metaphor, the odds are against us. It may be that Berlin will emulate the enterprise of Munich, that the “Savigny-Stiftung” will make yet another grant in aid of British indigence, and that the England that the Normans conquered will be not less thoroughly conquered a second time.
Quarterly Review, July 1904.
Quarterly Review No. 67 (June 1826).