The Online Library of Liberty A Project Of Liberty Fund, Inc. Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 [1911] The Online Library Of Liberty This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit, educational foundation established in 1960 to encourage study of the ideal of a society of free and responsible individuals. 2010 was the 50th anniversary year of the founding of Liberty Fund. It is part of the Online Library of Liberty web site http://oll.libertyfund.org, which was established in 2004 in order to further the educational goals of Liberty Fund, Inc. To find out more about the author or title, to use the site's powerful search engine, to see other titles in other formats (HTML, facsimile PDF), or to make use of the hundreds of essays, educational aids, and study guides, please visit the OLL web site. 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Author: Frederic William Maitland : Herbert Albert Laurens Fisher About This Title: Vol. 3 of a three volume collection of the shorter works of the great English legal historian, including many essays on aspects of medieval law and some biographical essays. PLL v6.0 (generated September, 2011) 2 http://oll.libertyfund.org/title/873 Online Library of Liberty: The Collected Papers of Frederic William Maitland, vol. 3 About Liberty Fund: Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals. Copyright Information: The text is in the public domain. Fair Use Statement: This material is put online to further the educational goals of Liberty Fund, Inc. Unless otherwise stated in the Copyright Information section above, this material may be used freely for educational and academic purposes. It may not be used in any way for profit. PLL v6.0 (generated September, 2011) 3 http://oll.libertyfund.org/title/873 Online Library of Liberty: The Collected Papers of Frederic William Maitland, vol. 3 Table Of Contents The Tribal System In Wales 1 The Murder of Henry Clement 1 Two Chartularies of the Priory of St Peter At Bath 1 The History of Marriage, Jewish and Christian 1 The Origin of the Borough 1 A Song On the Death of Simon De Montfort 1 Wyclif On English and Roman Law 1 “execrabilis” In the Common Pleas 1 Canon Law 1 Records of the Honourable Society of Lincoln’s Inn 1 Magistri Vacarii Summa De Matrimonio 1 Land-holding In Mediaeval Towns 1 An Unpublished “revocatio” of Henry Ii 1 Canon Mac Coll’s New Convocation 1 Canon Law In England 1 Elizabethan Gleanings 1 The Corporation Sole 1 The Crown As Corporation 1 The Unincorporate Body 1 The Body Politic 1 Moral Personality and Legal Personality 1 Trust and Corporation 1 The Teaching of History 1 Law At the Universities 1 A Survey of the Century 1 Lincolnshire Court Rolls and Yorkshire Inquisitions 1 The Laws of the Anglo-saxons 1 The Making of the German Civil Code 1 State Trials of the Reign of Edward I 1 William Stubbs, Bishop of Oxford 1 Lord Acton 1 Sir Leslie Stephen 1 Henry Sidgwick 1 Mary Bateson 1 PLL v6.0 (generated September, 2011) 4 http://oll.libertyfund.org/title/873 Online Library of Liberty: The Collected Papers of Frederic William Maitland, vol. 3 [Back to Table of Contents] THE TRIBAL SYSTEM IN WALES1 It is probable that by this time all who take a serious interest in those problems of remote economic history, which are the theme of Mr Seebohm’s study, will have read this book2 . It is certain that if they have read they have admired it, and have fallen once more under that charm which has made The English Village Community one of the classical books of our time. Therefore there is here and now no need to expend many words of general praise. The earlier part of this new volume and the precious appendixes that it contains seem to me to be beyond praise. By the earlier part I mean the part which fills the first pages. This explanation may be necessary, for Mr Seebohm still works “from the known to the unknown,” so that in his hands the last becomes first and the first last. Perhaps, however, we should say that he works rather from the knowable than from the known. Of the Wales of the thirteenth and fourteenth centuries very little has been known hitherto by the generality of Englishmen and Welshmen. A great deal now is knowable in these delightful pages, a great deal that is well attested by accurate and authentic documents that are here printed in full and are elucidated by an ingenious commentary. One part of that charm of which I have spoken consists in the author’s strong desire to see things in the concrete, and to make his readers see them in the same fashion, and we can now see in the concrete certain bits of Welsh life as that life was lived in the thirteenth century. Beyond this lies the unknown. Must we say the unknowable? Mr Seebohm will not expect from us a ready answer to that question. He would very properly despise us if, in an off-hand way, we declared that he had solved the many problems of ancient Welsh history. What he has given us on the present occasion is but, as the first words of his preface tell us, “the first part of an essay.” “It is confined to an attempt to understand the structure of tribal society in Wales. The methods of tribal society in Wales and the extension of the inquiry to other tribal systems are left to form the subject of another volume.” Now in the exposition of any social system we may well give one chapter, or one book, to structure and another to functions; this is a convenient arrangement. But when we are actually engaged in the task of reconstruction or are examining the results of another man’s reconstructive labours, we cannot thus separate the two topics. The proof of the model is in the working. We cannot tell whether or no the organs of the hypothetically restored beast have been correctly shaped until we know what purposes they are going to serve. Therefore, Mr Seebohm would have little but contempt for a critic who at this moment broke forth into indiscriminate laudation. His procedure indeed may have been intended to obtain from some of his readers a statement of those difficulties that they would like to see dissolved so that he may have an opportunity of dissolving them in his next volume. In this spirit of suggestion I offer a few remarks. Until the day comes (whether it ever will or ever can come I do not know) when those who are skilled in Celtic philology will have sorted that miscellaneous mass which we know as the Ancient Laws of Wales, the materials which will be at the service of investigators will be of an extremely dangerous and unsatisfactory kind. I am not hinting at forgery; the forgery of codes of law would be an uncommon event. I am PLL v6.0 (generated September, 2011) 5 http://oll.libertyfund.org/title/873 Online Library of Liberty: The Collected Papers of Frederic William Maitland, vol. 3 referring to what is a very common and, at a certain stage of society, an unavoidably common process, namely, the accretion and fusion in the hands of lawyers of rules and institutions which had their origin in widely remote periods. At any given moment the law of a nation contains things new and old. In 1819 the law of England comprised a mass of rules touching trial by battle; it also comprised a mass of rules about negotiable instruments. There is no fear of our saying that the judicial combat and the bill of exchange are institutions which belong to one and the same age. We know the caput mortuum when we come upon it in modern times. We have continuous records and a continuous tradition. But do we know the caput mortuum when we come upon it in ancient times? Some Welsh lawyer has collected things new and old. Possibly he was bound to copy down some rules that were well-nigh but not quite obsolete when he copied them. In 1819 an English lawyer who wished to make a complete statement of English law would have been bound to speak of trial by battle as of one of the methods by which lawsuits could be decided. We know well from our own history how apt were the lawyers of past ages to fuse the old with the new, to borrow rules from the most various sources, without telling us whether those rules were practicable or impracticable, living or dead, imported novelties or obsolescent survivals of a forgotten age.