JAMES CAMPBELL Stubbs, Maitland, and Constitutional History in BENEDIKT STUCHTEY AND PETER WENDE (eds.), British and German Historiography 1750-1950. Traditions, Perceptions and Transfers (Oxford: Oxford University Press, 2000) pp. 99-122 ISBN: 978 0 19 920235 5 The following PDF is published under a Creative Commons CC BY-NC-ND licence. Anyone may freely read, download, distribute, and make the work available to the public in printed or electronic form provided that appropriate credit is given. However, no commercial use is allowed and the work may not be altered or transformed, or serve as the basis for a derivative work. The publication rights for this volume have formally reverted from Oxford University Press to the German Historical Institute London. All reasonable effort has been made to contact any further copyright holders in this volume. Any objections to this material being published online under open access should be addressed to the German Historical Institute London. DOI: 6 Stubbs, Maitland, and Constitutional History JAMES CAMPBELL In the nineteenth century historical study played a role which it had never played before. Consciousness of historic pasts, discovered or contrived, was intrinsic to nationalisms, creative or destructive. The era of nationalisms was also that in which university education of secular élites was new in scale and significance. Consideration of nineteenth-century academic history therefore has some special interest. The two great men with whom this essay is concerned dominated the study of English medieval history. William Stubbs was a founding father. Very many students of medieval England can trace their intellectual descent from him. He and his works were very important in the establishment of medieval history as a subject for study in British universities. His younger contemporary Frederic William Maitland was the outstanding historian of English law, and his work commanded, and still commands, the greatest admiration, not only for its learning but also for the lucidity of its bril- liance. Both scholars owed much to German scholarship. Their debt was part of an Anglo-German intellectual rela- tionship in which the study and understanding of history, not least of constitutional history, mattered a lot. The ways in which Stubbs and Maitland differed in their approaches to constitutional history are indices not only to generational change but also to contrasting intellectual traditions. Stubbs (1829-1901) 1 produced all his major historical 1 W. Stubbs, The Constitutional History ofEngland in its Origin and Development, 3 vols. (Oxford, 1874-8). The final edn. was the 6th (1897). Reference is commonly made to the 'Library Edition' of 1880, and all references below are to this edn. Full bibliographies of his published works are in W. A. Shaw, A Bibliography of the 100 JAMES CAMPBELL works before the age of 59, when he became a bishop. The major contribution from his years as Regius Professor at Oxford (1866-84) was his Constitutional History of England in its Origin and Development (1873-8). Maitland2 was born in 1850 and died at the age of 56. The brilliant flow of his books began in 1884 and reached a climax in 1895-8, when he published three works of fundamental and lasting impor- tance. Among these was History of English Law before the Time of Edward I, central to the theme of the present essay.3 Also most germane is A Constitutional History of England, which is the text oflectures given at Cambridge in 1887 and 1888, not intended for publication, but published posthumously.4 What is, or was, meant by the term 'constitutional history'? The Oxford English Dictionary is misleading in quot- ing no instance of its use before 1841. Maitland was right in suggesting that the term may have been coined by Henry Hallam when he used it in the title of his The Constitutional History ofEngland from the Accession of Henry VII to the Death of George II, published in 1827. Maitland commented that since Hallam there had been a 'steady tendency ... to widen the scope of the term in one direction, to narrow it in another' .5 What he meant is that it was widened in the sense of making Histmical Works ofDr. Creighton . .. , Dr. Stubbs . .. Dr. S. R. Gardiner and • .. Lord Acton (London, 1903), 15-23, and Letters <!f William Stubbs, Bishoj1 of Oxford, ed. W. H. Hutton (London, 1904). For works on him, R C. Richardson, The Study of History: A Bibliographical Guide (Manchester, 1988) and J. Campbell, 'William Stubbs', in H. Damico and .J.B. Zavadil (eds.), Medieval Scholarship: Biographical Studies on the Formation of a Discipline, i (New York, 1995), 77-88. J. Vernon, 'Narrating the Constitution: The Discourse of "the Real" and the Fantasies of Nineteenth-Century Constitutional History', in id. (ed.), Re-reading the Constitution: New Narratives in the Political History of England's Long Nineteenth Century (Cambridge, 1996) provides a post-modernist account of Stubbs and of Maitland. 2 A. L. Smith, Frederic William Maitland: Two Lectures and a Bibliogra/1hy ( Oxford, 1908) provides a bibliography. For later works on him see Richardson, The Study of History, C. M. S. Fifoot, Frede,ir William Maitland: A Life (Cambridge, Mass., 1971), R. Brentano, 'Frederick William Maitland', in Damico and Zavadil (eds.), Medieval Scholarship, i. 131-52, and]. Hudson (ed.), The History ofEnglish Law: Centenary Essays on 'Pollock and Maitland' (British Academy, Oxford, 1996). His most important arti- cles etc. are collected in The Collected Papers of F. W. Maitland, ed. H. A. L. Fisher, 3 vols. (Cambridge, 19u). 3 F. W. Maitland, The History of English Law before the Time of Edward/, 2 vols. (Cambridge, 1896; 2nd edn. 1898). 4 F. W. Maitland, The Constitutional History of England, ed. H. A. L. Fisher (Cambridge, 1908). 5 Ibid. 536-7. Stubbs, Maitland, and Constitutional History 101 it an increasingly comprehensive account of institutions; but, on the other hand, narrowed by excluding from it any detailed account of the conflicts which had made the consti- tution. Hallam's own introduction indicates another poten- tial ambiguity in the term. He said: 'The title which I have adopted appears to exclude all matters not referable to the state of government, or what is loosely denominated the constitution.'6 Later, explaining his intention to deal with the established church, he said that this certainly has to do with 'the history of our constitution in the large sense of the word'. 7 He may have had in mind here constitution in the sense in which one might have spoken of an individual's constitution, meaning general make-up, determinative char- acter. In this context 'constitutional history' could have a content and weight exceeding that of legal and institutional history. This potential duality in constitutional history contributed largely to its double intellectual significance in Victorian and earlier twentieth-century England. By 1900 modern history had become a subject of commanding importance in British universities. Thus at Oxford it had by the decade 1900 to 1909 become the most popular subject, taken by 23.4 per cent of undergraduates; and as late as 1948 the relevant figure was 26.6 per cent.8 As history became a predominant subject in university education towards the end of the nineteenth century, constitutional history was treated as its backbone. When the Oxford History School was founded enormous emphasis was laid upon the absolute necessity of its including a large element of constitutional history. This was regarded as giving 'a strength and dignity to the School which it might otherwise lack' .9 The reasons for 6 Hallam, Constitutional History, i, p. v. (The 5th edn., 1846, has been used for this essay). 7 Ibid., p. vi. 8 M. C. Curthoys, 'The Examination System', in M. G. Brock and M. C. Curthoys (eds.), The History of the University o_l Oxford, vi: Nineteenth Century Oxford, pt. 1 (Oxford, 1997), 372;]. B. Morrell, 'The Non-Medical Sciences', in Brian Harrison (ed.), The History of the University of Oxford, viii: The Twentieth Century (Oxford, 1994), 142. 9 P. R. H. Slee, Learning and a Liberal Education: The Study o_f Modern History in the Universities of Oxford, Cambridge and Manchester 1800-1914 (Manchester, 1986), 86-93. (The undergraduate study of modern (i.e. post-ancient) history at Oxford begins with the foundation of the School of History and Law in 1852. The inde- pendent School of Modern History was founded in 1870.) 102 JAMES CAMPBELL this stress were significantly pedagogical. The subject was valued because it required the mastery of complicated data; it was protective against dissolution into mere loose discourse; and it had morally instructive force in providing training in judgement, honest judgement. Yet looked at more widely, constitutional history could be the subject or theme which focused, almost melded, many of the principal intellectual movements of the age. Undergraduate educa- tion in the later nineteenth century was seen much more in a context of social purpose and of moral improvement than is nowadays the case. Particularly in Oxford and Cambridge constitutional history was at the heart of a syllabus and a system consciously directed towards the mental and moral improvement of an élite.10 In both regards the central figure was Stubbs. The Constitutional History became the textbook of all textbooks. J. R. Tanner, writing at Cambridge in rgor, said, referring to a somewhat earlier period, that 'to read the first volume of Stubbs was necessary to salvation; to read the second was greatly to be desired; the third was reserved for the ambi- tious student who sought to accumulate merit by unnatural austerities-but between them they covered the whole ground'. 11 When G. M. Trevelyan was a schoolboy at Harrow (the earliest 'History specialist' there), he wrote out a full analysis of all three volumes of Stubbs as a counterbalance to 'brighter authors'.