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 IMAGE PROCESSING FOR CINEMA

K14348_FM.indd 1 12/20/13 11:42 AM

 Chapman & Hall/CRC
Mathematical and Computational
Imaging Sciences

Series Editors
Chandrajit Bajaj Guillermo Sapiro
Center for Computational Visualization Department of Electrical
The University of Texas at Austin and Computer Engineering
Duke University

Aims and Scope

This series aims to capture new developments and summarize what is
known over the whole spectrum of mathematical and computational imaging
sciences. It seeks to encourage the integration of mathematical, statistical and
computational methods in image acquisition and processing by publishing a
broad range of textbooks, reference works and handbooks. The titles included
in the series are meant to appeal to students, researchers and professionals
in the mathematical, statistical and computational sciences, application areas,
as well as interdisciplinary researchers involved in the field. The inclusion of
concrete examples and applications, and programming code and examples, is
highly encouraged.

Published Titles
Image Processing for Cinema
by Marcelo Bertalmío
Statistical and Computational Methods in Brain Image Analysis
by Moo K. Chung
Rough Fuzzy Image Analysis: Foundations and Methodologies
by Sankar K. Pal and James F. Peters
Theoretical Foundations of Digital Imaging Using MATLAB®
by Leonid P. Yaroslavsky

Proposals for the series should be submitted to the series editors above or directly to:
CRC Press, Taylor & Francis Group
3 Park Square, Milton Park, Abingdon, OX14 4RN, UK

K14348_FM.indd 2 12/20/13 11:42 AM

 Chapman & Hall/CRC
Mathematical and Computational Imaging Sciences

IMAGE PROCESSING FOR CINEMA

MARCELO BERTALMÍO
Universitat Pompeu Fabra
Barcelona, Spain

K14348_FM.indd 3 12/20/13 11:42 AM

CRC Press
Taylor & Francis Group
6000 Broken Sound Parkway NW, Suite 300
Boca Raton, FL 33487-2742
© 2014 by Taylor & Francis Group, LLC
CRC Press is an imprint of Taylor & Francis Group, an Informa business

No claim to original U.S. Government works

Version Date: 20131118

International Standard Book Number-13: 978-1-4398-9928-1 (eBook - PDF)

This book contains information obtained from authentic and highly regarded sources. Reasonable
efforts have been made to publish reliable data and information, but the author and publisher cannot
assume responsibility for the validity of all materials or the consequences of their use. The authors and
publishers have attempted to trace the copyright holders of all material reproduced in this publication
and apologize to copyright holders if permission to publish in this form has not been obtained. If any
copyright material has not been acknowledged please write and let us know so we may rectify in any
future reprint.

Except as permitted under U.S. Copyright Law, no part of this book may be reprinted, reproduced,
transmitted, or utilized in any form by any electronic, mechanical, or other means, now known or
hereafter invented, including photocopying, microfilming, and recording, or in any information stor-
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For permission to photocopy or use material electronically from this work, please access www.copy-
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Rosewood Drive, Danvers, MA 01923, 978-750-8400. CCC is a not-for-profit organization that pro-
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Trademark Notice: Product or corporate names may be trademarks or registered trademarks, and are
used only for identification and explanation without intent to infringe.
Visit the Taylor & Francis Web site at
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and the CRC Press Web site at
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 Para Lucas y Vera,
y Guillermo y Gregory,
y papá y Serrana.
Siempre presente, Vicent.

v
This page intentionally left blank
Acknowledgments

The original illustrations in this book are by killer friends and knock-out artists
Javier Baliosian, Federico Lecumberry and Jorge Visca. They also helped me
with the book cover, along with Rafael Grompone. The rest of the figures are
reproduced with the permission of their authors, to whom I’m very grateful.
A heartfelt “Thank you” to all the researchers I’ve had the pleasure of col-
laborating with over the years: Gregory Randall, Guillermo Sapiro, Coloma
Ballester, Stan Osher, Li Tien Cheng, Andrea Bertozzi, Alicia Fernández,
Shantanu Rane, Luminita Vese, Joan Verdera, Oliver Sander, Pere Fort,
Daniel Sánchez-Crespo, Kedar Patwardhan, Juan Cardelino, Gloria Haro,
Edoardo Provenzi, Alessandro Rizzi, Álvaro Pardo, Luis Garrido, Adrián Mar-
ques, Aurélie Bugeau, Sira Ferradans, Rodrigo Palma-Amestoy, Jack Cowan,
Stacey Levine, Thomas Batard, Javier Vazquez-Corral, David Kane, Syed
Waqas Zamir and Praveen Cyriac.
Special thanks to: Sunil Nair, Sarah Gelson, Michele Dimont and everyone
at Taylor & Francis, and Aurelio Ruiz.
Very special thanks to Jay Cassidy, Pierre Jasmin and Stan Osher.
Finally, I want to acknowledge the support of the European Research
Council through the Starting Grant ref. 306337, of ICREA through their
ICREA Acadèmia Award, and of the Spanish government through the grants
TIN2012-38112 and TIN2011-1594-E.

Always present: Andrés Solé and Vicent Caselles.

vii
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Preface

This book is intended primarily for advanced undergraduate and graduate

students in applied mathematics, image processing, computer science and re-
lated fields, as well as for researchers from academia and professionals from
the movie industry. It can be used as a textbook for a graduate course, for an
advanced undergraduate course, or for summer school. My intention has been
that it can serve as a self-contained handbook and a detailed overview of the
relevant image processing techniques that are used in practice in cinema. It
covers a wide range of topics showing how image processing has become ubiq-
uitous in movie-making, from shooting to exhibition. It does not deal with
visual effects or computer-generated images, but rather with all the ways in
which image processing algorithms are used to enhance, restore, adapt or con-
vert moving images, their purpose being to make the images look as good as
possible while exploiting all the capabilities of cameras, projectors and dis-
plays.
Image processing is by definition an applied discipline, but very few of the
image processing algorithms intended for application in the cinema industry
are ever actually used. There probably are many reasons for this, but in my
view the most important ones are that we, the researchers, are often not aware
of the impossibly high quality standards of cinema, and also we don’t have
a clear picture of what the needs of the industry are, what problems they’d
really like to solve versus what we think they’d like to solve.
Movie professionals, on the other hand, are very much aware of what their
needs are, they are very eager to learn and try new techniques that may help
them and they want to understand what is it they are applying. But very often
the technical or scientific information they want is spread over many texts, or
buried under many layers of math or unrelated exposition.
Surprisingly, then, this is the first comprehensive book on image processing
for cinema, and I’ve written it because I sincerely think that having all this
information together can be beneficial both for researchers and for movie
industry professionals.
Current digital cinema cameras match or even surpass film cameras in color
capabilities, dynamic range and resolution, and several of the largest camera
makers have ceased production of film cameras. On the exhibition side, film is
forecasted to be gone from American movie theaters by 2015. And while many
mainstream and blockbuster movies are still being shot on film, they are all
digitized for postproduction. For all these reasons this book equates “cinema”

ix
x

with “digital cinema,” considers only digital cameras and digital movies, and
does not deal with image processing algorithms for problems that are inherent
to film, like the restoration of film scratches or color fading.
The book is structured in three parts. The first one covers some funda-
mentals on optics and color. The second part explains how cameras work and
details all the image processing algorithms that are applied in-camera. The
last part is devoted to image processing algorithms that are applied off-line in
order to solve a wide range of problems, presenting state-of-the-art methods
with special emphasis on the techniques that are actually used in practice.
The mathematical presentation of all methods will concentrate on their pur-
pose and idea, leaving formal proofs and derivations for the interested reader
in the cited references.
Finally: I’ve written this book in the way I like to read (technical) books.
I hope you enjoy it.

Marcelo Bertalmı́o
Barcelona, July 2013
Contents

I Lights 1
1 Light and color 3
1.1 Light as color stimulus . . . . . . . . . . . . . . . . . . . . . 3
1.2 Matching colors . . . . . . . . . . . . . . . . . . . . . . . . . 7
1.3 The first standard color spaces . . . . . . . . . . . . . . . . . 12
1.3.1 Chromaticity diagrams . . . . . . . . . . . . . . . . . . 13
1.4 Perceptual color spaces . . . . . . . . . . . . . . . . . . . . . 18
1.4.1 Color constancy and the von Kries coefficient law . . . 18
1.4.2 Perceptually uniform color spaces . . . . . . . . . . . . 20
1.4.3 Limitations of CIELUV and CIELAB . . . . . . . . . 23
1.5 Color appearance . . . . . . . . . . . . . . . . . . . . . . . . 24

2 Optics 27
2.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.2 Ray diagrams . . . . . . . . . . . . . . . . . . . . . . . . . . 27
2.3 Reflection and refraction . . . . . . . . . . . . . . . . . . . . 28
2.4 Lenses . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
2.4.1 Refraction at a spherical surface . . . . . . . . . . . . 30
2.4.2 The lens-maker’s equation . . . . . . . . . . . . . . . . 33
2.4.3 Magnification . . . . . . . . . . . . . . . . . . . . . . . 34
2.4.4 Lens behavior . . . . . . . . . . . . . . . . . . . . . . . 35
2.5 Optical aberrations . . . . . . . . . . . . . . . . . . . . . . . 36
2.6 Basic terms in photography . . . . . . . . . . . . . . . . . . . 42
2.6.1 f-number . . . . . . . . . . . . . . . . . . . . . . . . . 44
2.6.2 Depth of field . . . . . . . . . . . . . . . . . . . . . . . 47
2.6.3 Prime vs. zoom lenses . . . . . . . . . . . . . . . . . . 50
2.6.4 Modulation transfer function . . . . . . . . . . . . . . 52

II Camera 55
3 Camera 57
3.1 Image processing pipeline . . . . . . . . . . . . . . . . . . . . 57
3.2 Image sensors . . . . . . . . . . . . . . . . . . . . . . . . . . 58
3.2.1 Pixel classes . . . . . . . . . . . . . . . . . . . . . . . . 58
3.2.2 Sensor classes . . . . . . . . . . . . . . . . . . . . . . . 60

xi
xii

3.2.3 Interlaced vs. progressive scanning . . . . . . . . . . . 61

3.2.4 CCD types . . . . . . . . . . . . . . . . . . . . . . . . 62
3.2.5 CMOS types . . . . . . . . . . . . . . . . . . . . . . . 63
3.2.6 Noise in image sensors . . . . . . . . . . . . . . . . . . 64
3.2.7 Capturing colors . . . . . . . . . . . . . . . . . . . . . 65
3.3 Exposure control . . . . . . . . . . . . . . . . . . . . . . . . . 67
3.3.1 Exposure metering . . . . . . . . . . . . . . . . . . . . 68
3.3.2 Control mechanisms . . . . . . . . . . . . . . . . . . . 68
3.3.3 Extension of dynamic range . . . . . . . . . . . . . . . 69
3.4 Focus control . . . . . . . . . . . . . . . . . . . . . . . . . . . 69
3.5 White balance . . . . . . . . . . . . . . . . . . . . . . . . . . 70
3.6 Color transformation . . . . . . . . . . . . . . . . . . . . . . 75
3.6.1 The colorimetric matrix . . . . . . . . . . . . . . . . . 75
3.6.2 A note on color stabilization . . . . . . . . . . . . . . 78
3.6.3 Encoding the color values . . . . . . . . . . . . . . . . 80
3.7 Gamma correction and quantization . . . . . . . . . . . . . . 85
3.7.1 The need for gamma correction . . . . . . . . . . . . . 85
3.7.2 Transfer function and quantization . . . . . . . . . . . 89
3.7.3 Color correction pipeline . . . . . . . . . . . . . . . . . 90
3.8 Edge enhancement . . . . . . . . . . . . . . . . . . . . . . . . 91
3.9 Output formats . . . . . . . . . . . . . . . . . . . . . . . . . 93
3.9.1 Compression . . . . . . . . . . . . . . . . . . . . . . . 94
3.9.2 Recording in RAW . . . . . . . . . . . . . . . . . . . . 95
3.10 Additional image processing . . . . . . . . . . . . . . . . . . 96
3.10.1 Lens spatial distortion correction . . . . . . . . . . . . 96
3.10.2 Lens shading correction . . . . . . . . . . . . . . . . . 96
3.11 The order of the stages of the image processing pipeline . . . 97

III Action 99
4 Compression 101
4.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 101
4.2 How is compression possible? . . . . . . . . . . . . . . . . . . 101
4.2.1 Measuring image quality . . . . . . . . . . . . . . . . . 103
4.3 Image compression with JPEG . . . . . . . . . . . . . . . . . 104
4.3.1 Discrete cosine transform . . . . . . . . . . . . . . . . 106
4.3.2 Run-length and entropy coding . . . . . . . . . . . . . 107
4.3.3 Reconstruction and regulation of the amount of com-
pression . . . . . . . . . . . . . . . . . . . . . . . . . . 108
4.4 Image compression with JPEG2000 . . . . . . . . . . . . . . 109
4.5 Video compression with MPEG-1, MPEG-2, MPEG-4 AVC
(H.264) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 110
4.6 In-camera compression . . . . . . . . . . . . . . . . . . . . . 113
 xiii

5 Denoising 115
5.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 115
5.2 Classic denoising ideas . . . . . . . . . . . . . . . . . . . . . 116
5.2.1 Modification of transform coefficients . . . . . . . . . . 116
5.2.2 Averaging image values . . . . . . . . . . . . . . . . . 116
5.3 Non-local approaches . . . . . . . . . . . . . . . . . . . . . . 117
5.4 An example of a non-local movie denoising algorithm . . . . 118
5.4.1 Experiments . . . . . . . . . . . . . . . . . . . . . . . 120
5.5 New trends and optimal denoising . . . . . . . . . . . . . . . 122
5.6 Denoising an image by denoising its curvature image . . . . 125
5.6.1 Image noise vs. curvature noise . . . . . . . . . . . . . 126
5.6.2 Comparing the noise power in I and in its curvature
image κ(I) . . . . . . . . . . . . . . . . . . . . . . . . 129
5.6.2.1 PSNR along image contours . . . . . . . . . 129
5.6.2.2 Correction for contours separating flat regions 134
5.6.2.3 PSNR along contours: numerical experiments 134
5.6.2.4 PSNR in homogeneous regions . . . . . . . . 135
5.6.3 Proposed algorithm . . . . . . . . . . . . . . . . . . . 136
5.6.3.1 The model . . . . . . . . . . . . . . . . . . . 136
5.6.4 Experiments . . . . . . . . . . . . . . . . . . . . . . . 137

6 Demosaicking and deinterlacing 141

6.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 141
6.2 Demosaicking . . . . . . . . . . . . . . . . . . . . . . . . . . 143
6.3 Deinterlacing . . . . . . . . . . . . . . . . . . . . . . . . . . . 148

7 White balance 151

7.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
7.2 Human color constancy . . . . . . . . . . . . . . . . . . . . . 152
7.2.1 The unsolved problem of color perception . . . . . . . 152
7.2.2 Current challenges in human color constancy . . . . . 156
7.3 Computational color constancy under uniform illumination . 157
7.4 Retinex and related methods . . . . . . . . . . . . . . . . . . 164
7.4.1 The Retinex theory and the Retinex algorithm . . . . 165
7.4.2 Judd’s critique of Land’s work . . . . . . . . . . . . . 167
7.4.3 ACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
7.4.4 “Perceptual color correction through variational tech-
niques” . . . . . . . . . . . . . . . . . . . . . . . . . . 169
7.4.5 Kernel-based Retinex and the connections between
Retinex, ACE and neural models . . . . . . . . . . . . 170
7.5 Cinema and colors at night . . . . . . . . . . . . . . . . . . . 171
xiv

8 Image stabilization 175

8.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
8.2 Rolling shutter compensation . . . . . . . . . . . . . . . . . . 176
8.3 Compensation of camera motion . . . . . . . . . . . . . . . . 178
8.3.1 2D stabilization methods . . . . . . . . . . . . . . . . 179
8.3.2 3D stabilization methods . . . . . . . . . . . . . . . . 182
8.3.3 Eliminating motion blur . . . . . . . . . . . . . . . . . 184

9 Zoom-in and slow motion 187

9.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
9.2 Zoom-in . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187
9.3 Slow-motion generation . . . . . . . . . . . . . . . . . . . . . 190

10 Transforming the color gamut 193

10.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 193
10.2 Color gamuts . . . . . . . . . . . . . . . . . . . . . . . . . . . 194
10.3 Gamut reduction . . . . . . . . . . . . . . . . . . . . . . . . . 195
10.4 Gamut extension . . . . . . . . . . . . . . . . . . . . . . . . . 197
10.5 Validating a gamut mapping algorithm . . . . . . . . . . . . 199
10.6 An example of a spatial gamut reduction algorithm . . . . . 200
10.6.1 Image energy functional . . . . . . . . . . . . . . . . . 200
10.6.2 Gamut mapping framework . . . . . . . . . . . . . . . 202
10.6.3 Experiments . . . . . . . . . . . . . . . . . . . . . . . 204
10.6.3.1 Qualitative results . . . . . . . . . . . . . . . 205
10.6.3.2 Objective quality assessment . . . . . . . . . 206
10.7 Final remarks . . . . . . . . . . . . . . . . . . . . . . . . . . 207

11 High dynamic range video and tone mapping 209

11.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 209
11.2 High dynamic range imaging . . . . . . . . . . . . . . . . . . 212
11.3 Tone mapping . . . . . . . . . . . . . . . . . . . . . . . . . . 213
11.4 Optimization of TM operators . . . . . . . . . . . . . . . . . 216
11.4.1 Minimization of the distance between images . . . . . 216
11.4.1.1 Image quality metrics as non-local operators 216
11.4.1.2 Minimization of the distance: continuous for-
mulation . . . . . . . . . . . . . . . . . . . . 217
11.4.1.3 Minimization of the distance: discrete formu-
lation . . . . . . . . . . . . . . . . . . . . . . 218
11.4.1.4 Pixel-wise intensity increments . . . . . . . . 218
11.4.1.5 Expression of the discrete gradient . . . . . . 219
11.4.2 Metric minimization for TMO optimization . . . . . . 219
11.4.2.1 Dynamic range independent metrics (DRIM) 220
11.4.2.2 Preprocessing . . . . . . . . . . . . . . . . . . 221
11.4.2.3 Experiments . . . . . . . . . . . . . . . . . . 221
11.5 Final remarks . . . . . . . . . . . . . . . . . . . . . . . . . . 224
 xv

12 Stereoscopic 3D cinema 227

12.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 227
12.2 Depth perception . . . . . . . . . . . . . . . . . . . . . . . . 229
12.2.1 Monocular depth cues . . . . . . . . . . . . . . . . . . 229
12.2.2 Binocular depth cues . . . . . . . . . . . . . . . . . . . 230
12.2.3 Integrating depth cues . . . . . . . . . . . . . . . . . . 231
12.3 Making S3D cinema . . . . . . . . . . . . . . . . . . . . . . . 232
12.3.1 3D animation . . . . . . . . . . . . . . . . . . . . . . . 233
12.3.2 2D-to-3D conversion . . . . . . . . . . . . . . . . . . . 233
12.3.3 Stereoscopic shooting . . . . . . . . . . . . . . . . . . 234
12.4 Parallax and convergence . . . . . . . . . . . . . . . . . . . . 235
12.5 Camera baseline and focal length . . . . . . . . . . . . . . . 239
12.6 Estimating the depth map . . . . . . . . . . . . . . . . . . . 241
12.7 Changing the baseline/synthesizing a new view . . . . . . . . 241
12.8 Changing the focus and the depth of field . . . . . . . . . . . 243
12.9 Factors of visual discomfort . . . . . . . . . . . . . . . . . . . 244

13 Color matching for stereoscopic cinema 247

13.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 247
13.2 Related work . . . . . . . . . . . . . . . . . . . . . . . . . . . 248
13.3 The algorithm . . . . . . . . . . . . . . . . . . . . . . . . . . 248
13.4 Morphing the target image . . . . . . . . . . . . . . . . . . . 249
13.5 Aligning the histograms . . . . . . . . . . . . . . . . . . . . . 250
13.6 Propagating the colors to unmatched pixels . . . . . . . . . . 251
13.7 Examples and comparisons . . . . . . . . . . . . . . . . . . . 251

14 Inpainting 255
14.1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . 255
14.2 Video inpainting for specific problems . . . . . . . . . . . . . 257
14.3 Video inpainting in a general setting . . . . . . . . . . . . . . 258
14.4 Video inpainting for stereoscopic 3D cinema . . . . . . . . . 262
14.4.1 Stereoscopic inpainting . . . . . . . . . . . . . . . . . . 262
14.4.2 Inpainting occlusions in stereo views . . . . . . . . . . 264
14.5 Final remarks . . . . . . . . . . . . . . . . . . . . . . . . . . 265

Bibliography 267

Index 297
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Part I

Lights

1
This page intentionally left blank
Chapter 1
Light and color

1.1 Light as color stimulus

We live immersed in electromagnetic fields, surrounded by radiation of
natural origin or produced by artifacts made by humans. This radiation has
a dual behavior of wave and particle, where the particles can be considered
as packets of electromagnetic waves. Waves are characterized by their wave-
length, the distance between two consecutive peaks. Of all the radiation that
continuously reaches our eyes, we are only able to see (i.e. our retina pho-
toreceptors are only sensitive to) electromagnetic radiation with wavelengths
within the range of 380nm to 740nm (a nm or nanometer is one-billionth of
a meter). We are not able to see radiation outside this band, such us ultra-
violet radiation (wavelength of 10nm to 400nm) or FM radio (wavelengths
near 1m). Therefore, light is defined as radiation with wavelengths within the
visible spectrum of 380nm to 740nm. Figure 1.1 shows the full spectrum of ra-
diation with a detail of the visible light spectrum. The sun emits full-spectrum
radiation, including gamma rays and ultraviolet and infrared “light,” which
of course have an effect on our bodies even if we are not able to see them.

FIGURE 1.1: Electromagnetic spectrum and visible light.

The frequency of a wave is its number of cycles per second; all electromag-

3
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became the favourite undergraduate orator of his time. "You insist
that we must keep the Mosaic Law," he argued in his maiden
speech, "but under it a man who gathered sticks on the Sabbath
was stoned to death. Now I have picked up sticks on Sundays. Will
you in your consistency stone me?" On another occasion he
delighted the House by observing that at the Reformation the
English State put an end to its Roman bride but married its deceased
wife's sister. The shape of his opinions was frankly radical and
fashioned by a vehement enthusiasm for free thinking and plain
speaking. "There are two things," he remarked, "which we have
learnt by costly experience that the Law cannot control—Religious
Belief and the Rate of Interest." Compulsory attendance at College
Chapel, Church Establishment, the closing of the Cambridge Union
on Sunday mornings aroused his opposition and furnished the theme
of well-remembered speeches. "O Sir," he once exclaimed to the
President with outstretched hands, "I would I were a vested
nuisance! Then I should be sure of being protected by the whole
British Public."
There is a pleasant story contributed by Professor Kenny—to whom
this portion of the narrative is greatly indebted—of a debate upon a
motion that certain annotations upon the annual report of the
Union's proceedings should be cancelled in the interests of "the
literary credit of the Society." The notes were ungrammatical,
ludicrous, unauthorised. They had been composed during the Long
Vacation by the Society's senior servant in the name of the absent
Secretary. There was nothing to be said for them save that it was
hard that a good old man should be humiliated for an excess of
official zeal. Maitland was Secretary at the time and chivalrously
undertook the defence of his subordinate. It was the eve of the Fifth
of November; the name of the mover was James. Such an historical
coincidence was not lost upon the ingenious mind of the Secretary.
"Tomorrow," he observed, boldly carrying the war into the enemy's
country, "is the Feast of the Blessed Saint Guy. Appropriately enough
the House appears to be under search this evening for indications of
a new plot. Enter King James the Third, surrounded by his minions,
with a loud flourish of his own trumpet. He produces the dark
lantern of his intellect and discovers—not a conspirator, but a mare's
nest." And when, at last, by successive strokes of humour Maitland
had won over the sympathies of the House, he proceeded to venture
upon the merits of his defence. "We are attacked," he said, "for bad
grammar. A great crime, no doubt, in some men's eyes. For at times
I have met men to whom words were everything, and whose
everything was words; men undistinguished by any other capacity,
and unknown outside this House, but reigning here in self-
satisfaction, lords of the realm of Tautology."

FOOTNOTES:
[1] "The Cambridge Apostles," by W. D. Christie. Macmillan's
Magazine, Nov. 1864.
[2] A Biographical Notice by Mrs Reynell (privately printed).
[3] Cambridge University Reporter, Dec. 17, 1904.
[4] A punning squib, very spirited and amusing, entitled "A
solemn Mystery," and contributed to The Adventurer, June 4,
1869, seems to have been Maitland's first appearance in print.
[5] Cambridge University Reporter, Dec. 7, 1900.
[6] There were four candidates for the Fellowship: W.
Cunningham, Arthur Lyttelton, F. W. Maitland, and James Ward,
every one of them distinguished in after life. With so strong a
competition the College might have done well to elect more
Fellows than one in Moral and Mental Science.
[7] Such for instance as:—
"The love of simplicity has done vast harm to English Political
Philosophy."
"No history of the British Constitution would be complete which
did not point out how much its growth has been affected by ideas
derived from Aristotle."
"The idea of a social compact did not become really active till it
was allied with the doctrine that all men are equal."
"In Hume we see the first beginnings of a scientific use of
History."
 II.
The failure to obtain a fellowship broke off any design which may
have been entertained of an academic career, and Maitland,
following the family example, returned to London to try his fortune
at the bar. Men of high academic achievement sometimes fail in the
practical professions, by reason of a certain abstract habit of mind or
from an engrained unsociability of temperament. Neither of these
disadvantages affected Maitland. A combined training in philosophy
and law had given him just that capacity for deriving principles from
the facts of experience, and of using the facts of experience as the
touchstone of principles, which is essential to the adroit and
intelligent use of legal science; and for all his learning and zeal there
was nothing harsh and unsocial about him. On the other hand he
was completely deficient in the moral alloy which appears to be an
essential element in the fabric of most successful careers. He was
entirely destitute of the arts of "push" or advertisement, and so
disinterested and self-effacing that a world which is accustomed to
take men at their own valuation was not likely to seize his measure.
Maitland entered at Lincoln's Inn in 1872 and was called to the bar
in 1876, reading first with Mr Upton and afterwards with Mr B. B.
Rogers, the brilliant translator and editor of Aristophanes. "I had
only one vacancy," writes Mr Rogers, "in my pupil room and that was
about to be filled by a very distinguished young Cambridge scholar.
But he was anxious—stipulated I think—that I should also take his
friend Maitland. I did not much like doing so, for I considered four
pupils as many as I could properly take, and I knew nothing of
Maitland and supposed that he would prove the crude and awkward
person that a new pupil usually is, however capable he may be, and
however distinguished he may become in later life. However, I
agreed to take him as a fifth pupil, and he had not been with me a
week before I found that I had in my chambers such a lawyer as I
had never met before. I have forgotten, if I ever knew, where and
how he acquired his mastery of law; he certainly did not acquire it in
my chambers: he was a consummate lawyer when he entered them.
Every opinion that he gave was a complete legal essay, starting from
first principles, showing how the question agreed with one, and
disagreed with another, series of decisions and finally coming to a
conclusion with the clearest grasp of legal points and the utmost
lucidity of expression. I may add (and though this is a small point it
is of importance in a barrister's chambers) that it was given in a
handwriting which it was always a pleasure to read. He must have
left me in 1877, and towards the end of 1879, my health being in a
somewhat precarious state, and my medical advisers insisting on my
lessening the strain of my work, I at once asked Maitland to come in
and superintend my business. He gave up his own chambers and
took a seat in mine (the chambers in 3 Stone Buildings where I then
was are I think the largest in the Inn), superintended the whole of
my business, managed my pupils, saw my clients and in case of
necessity held my briefs in Court. I doubt if he would have
succeeded as a barrister; all the time that I knew him he was the
most retiring and diffident man I ever knew; not the least shy or
awkward; his manners were always easy and self-possessed; but he
was the last man to put himself forward in any way. But his opinions,
had he suddenly been made a judge, would have been an honour to
the Bench. One of them may still be read in Re Cope Law Rep. 16
Ch. D. 49. There a long and learned argument filling nearly two
pages of the Report is put into the mouth of Chitty Q.C. and myself,
not one word of which was ever spoken by either of us. It was an
opinion of Maitland's on the case laid before us which I gave to
Chitty to assist him in his argument.... I cannot close this long
though hastily written letter without expressing my personal esteem
for the man. Wholly without conceit or affectation, simple, generous
and courteous to everybody, he was the pleasantest companion that
anybody could ever wish for: and I think that the three years he
spent in my chambers were the most delightful three years I ever
spent at the bar."
Working partly for Mr Rogers and partly for Mr Bradley Dyne,
Maitland saw a good deal of conveyancing business and in after
years was wont to lay stress upon the value of this part of his
education. Conveyancing is a fine art, full of delicate technicalities,
and Maitland used to say that there could be no better introduction
to the study of ancient diplomata than a few years spent in the
chambers of a busy conveyancer. Here every document was made to
yield up its secret; every word and phrase was important, and the
habit of balancing the precise practical consequences of seemingly
indifferent and conventional formulæ became engrained in the mind.
Paleography might teach men to read documents, diplomatics to
date them and to test their authenticity; but the full significance of
an ancient deed might easily escape the most exact paleographer
and the most accomplished diplomatist, for the want of that finished
sense for legal technicality which is the natural fruit of a
conveyancing practice.[8]
Business of this type, however, does not provide opportunities for
forensic oratory and Maitland's voice was rarely heard in Court[9].
But meanwhile he was rapidly exploring the vast province of legal
science, mastering the Statute Books, reading Frenchmen, Germans
and Americans, and occasionally contributing articles upon
philosophical and legal topics to the Press.
To the deepest and most serious minds the literature of knowledge is
also the literature of power. Maitland's outlook and ideal were at the
period of intellectual virility greatly affected by two books, Savigny's
Geschichte des Römischen Rechts and Stubbs' Constitutional History.
The English book he found in a London Club and "read it because it
was interesting," falling perhaps, as he afterwards suggested, for
that very reason "more completely under its domination than those
who have passed through schools of history are likely to fall." Of the
German he used to say that Savigny first opened his eyes as to the
way in which law should be regarded.
 Justinian's Pandects only make precise
What simply sparkled in men's eyes before,
Twitched in their brow or quivered in their lip,
Waited the speech that called but would not come[10].

Law was a product of human life, the expression of human needs,

the declaration of the social will; and so a rational view of law would
be won only from some height whence it would be possible to
survey the great historic prospect which stretches from the Twelve
Tables and the Leges Barbarorum to the German Civil Code and the
judgments reported in the morning newspaper. Readers of Bracton's
Note Book will remember Maitland's description of Azo as "the
Savigny of the thirteenth century," as a principal source from which
our greatest medieval jurist obtained a rational conception of the
domain of law. Savigny did not write the same kind of book as Azo.
He worked in a different medium and on a larger canvas but with
analogous effects. He made the principles of legal development
intelligible by exhibiting them in the vast framework of medieval
Latin and Teutonic civilization and as part of the organic growth of
the Western nations. Maitland's early enthusiasm for the German
master took a characteristic form: he began a translation of the
history.
The translation of Savigny was neither completed nor published.
Maitland's first contribution to legal literature was an anonymous
article which appeared in the Westminster Review in 1879. This was
not primarily an historical disquisition though it displayed a width of
historical knowledge surprising in so young a man, but a bold,
eloquent, and humorous plea for a sweeping change in the English
law of Real Property. "Let all Property be personal property. Abolish
the heir at law." This alteration in the law of inheritance would lead
to great simplification and would remove much ambiguity, injustice
and cost. Nothing short of this would do anything worth doing. A
few little changes had been made in the past, "for accidents will
happen in the best regulated museums," but it was no use
recommending timid subsidiary changes while the central anomaly,
the source of all complexity and confusion, was permitted to
continue. "It is not unlikely," remarked the author with grave irony,
"that we are behind an age whose chief ambition is to be behind
itself."
The article exhibits a quality of mind which is worth attention.
Maitland never allowed his clear strong common sense to be
influenced by that vague emotion which the conventional
imagination of half-informed people readily draws from antiquity. He
loved the past but never defended an institution because it was old.
He saw antiquity too vividly for that. And so despite the ever
increasing span of his knowledge he retained to the end the alert
temper of a reformer, ready to consider every change upon its
merits, and impelled by a natural proclivity of mind to desire a state
of society in some important respects very different from that which
he found existing. At the same time he is far too subtle a reasoner to
acquiesce in the doctrinaire logic of Natural Rights or in some
expositions of social philosophy which pretended to refinements
superior to those provided by empirical utilitarianism. Two early
articles contributed to the pages of Mind on Mr Herbert Spencer's
Theory of Society contain a modest but very sufficient exposure of
the shortcomings of that popular philosopher's a priori reasoning in
politics.
With these serious pursuits there was mingled a great deal of
pleasant recreation. Holidays were spent in adventurous walking and
climbing in the Tyrol, in Switzerland, and among the rolling fir-clad
hills of the Black Forest, for Maitland as a young man was a swift
and enduring walker, with the true mountaineer's contempt for high
roads and level places. We hear of boating expeditions on the
Thames, of visits to burlesques and pantomimes, of amusing legal
squibs and parodies poured out to order without any appearance of
effort. From childhood upwards music had played a large part in
Maitland's life and now that the shadow of the Tripos was removed
he was able to gratify his musical taste to the full. In 1873 he spent
some time alone in Munich, listening to opera night after night and
then travelled to Bonn that he might join his sisters at the Schumann
Commemoration. Those were the days when the star of Richard
Wagner was fast rising above the horizon and though he was not
prepared to burn all his incense at one shrine, Maitland was a good
Wagnerian. In London musical taste was experiencing a revival, the
origin of which dated back, perhaps, to the starting of the Saturday
Concerts at the Crystal Palace by August Manns in 1855. The musical
world made pilgrimages to the Crystal Palace to listen to the
orchestral compositions of Schubert and Schumann or to the St
James' Hall popular concerts, founded in 1859, to enjoy the best
chamber music of the greatest composers. New developments
followed, the first series of the Richter Concerts in 1876 and the first
performance of Wagner's Ring in 1882. Maitland with his friend
Cyprian Williams regularly attended concert and opera. Without
claiming to be an expert he had a good knowledge of music and a
deep delight in it. One of his chief Cambridge friends, Edmund
Gurney, best known perhaps as one of the principal founders of the
Society for Psychical Research, wrote a valuable book on The Power
of Sound and interested Maitland in the philosophy of their favourite
art. "I walked once with E. Gurney in the Tyrol," Maitland wrote long
afterwards, "What moods he had! On a good day it was a joy to
hear him laugh!" Gurney died prematurely in 1888 and the
increasing stress of work came more and more between Maitland
and the concert room; but problems of sound continued to exercise
a certain fascination over his mind and his last paper contributed to
the Eranos Club at Cambridge on May 8, 1906, and entitled with
characteristic directness "Do Birds Sing?" was a speculation as to the
conditions under which articulate sound passes into music.
That by the natural workings of his enthusiastic genius Maitland
would have been drawn to history whatever might have been the
outward circumstances of his career, is as certain as anything can be
in the realm of psychological conjecture. Men of the ordinary fibre
are confronted by alternatives which are all the more real and
painful by reason of their essential indifference. This career is open
to them or that career, and they can adapt themselves with equal
comfort to either. But the man of genius follows his star. His life
acquires a unity of purpose which stands out in contrast to the
confused and blurred strivings of lesser men. Other things he might
do, other tastes he might gratify; but there is one thing that he can
do supremely well, one taste which becomes a passion, which
swallows up all other impulses, and for which he is prepared to
sacrifice money and health and the pleasures of society and many
other things which are prized among men.
When Maitland stood for the Trinity Fellowship he was already aware
that success at the bar would mean the surrender of the reading
which had "become very dear" to him, and yet his ambition desired
success of one kind or another. The varied humours of his profession
pleased him; he loved the law and all its ways; yet it is difficult to
believe that the routine of a prosperous equity business would ever
have satisfied so comprehensive and enquiring a mind. The young
barrister had a soul for something beyond drafts; he lectured on
political economy and political philosophy in manufacturing towns
and in London[11], wrote for the Pall Mall Gazette, then a liberal
evening paper under the direction of Mr John Morley; but more and
more he was drawn to feel the fascination and importance of legal
history. Two friends helped to determine his course. Mr, now Sir
Frederick, Pollock had preceded Maitland by six years at Eton and
Trinity and was also a member of Lincoln's Inn. Coming of a famous
legal family, and himself already rising to distinction as a scientific
lawyer, Mr Pollock appreciated both the value of English legal history
and the neglect into which it had been allowed to fall. He sought out
Maitland and a friendship was formed between the two men which
lasted in unbroken intimacy and frequent intellectual communion to
the end. An historical note on the classification of the Forms of
Personal Action, contributed to his friend's book on the Law of Torts,
was the first overt evidence of the alliance.
The other friend was a Russian. Professor Paul Vinogradoff, of
Moscow, who had received his historical education in Mommsen's
Seminar in Berlin, happened in 1884 to be paying a visit in England.
The Russian scholar, his superb instinct for history fortified by the
advantages of a system of training such as no British University
could offer, had, in a brief visit to London, learnt something about
the resources of our Public Record Office which was hidden from the
Inns of Court and from the lecture rooms of Oxford and Cambridge.
On January 20, Maitland and Vinogradoff chanced to meet upon one
of Leslie Stephen's Sunday tramps, concerning which there will be
some words hereafter, and at once discovered a communion of
tastes. The two men found that they were working side by side and
brushing one another in their researches. Correspondence followed
of a learned kind; then on Sunday, May 11, there was a decisive
meeting at Oxford. The day was fine and the two scholars strolled
into the Parks, and lying full length on the grass took up the thread
of their historical discourse. Maitland has spoken to me of that
Sunday talk; how from the lips of a foreigner he first received a full
consciousness of that matchless collection of documents for the legal
and social history of the middle ages, which England had
continuously preserved and consistently neglected, of an unbroken
stream of authentic testimony flowing for seven hundred years, of
tons of plea-rolls from which it would be possible to restore an
image of long-vanished life with a degree of fidelity which could
never be won from chronicles and professed histories. His vivid mind
was instantly made up: on the following day he returned to London,
drove to the Record Office, and being a Gloucestershire man and the
inheritor of some pleasant acres in that fruitful shire asked for the
earliest plea-roll of the County of Gloucester. He was supplied with a
roll for the year 1221, and without any formal training in
paleography proceeded to puzzle it out and to transcribe it.
The Pleas of the Crown for the County of Gloucester which appeared
in 1884 with a dedication to Paul Vinogradoff is a slim and outwardly
insignificant volume; but it marks an epoch in the history of history.
"What is here transcribed," observes the editor, "is so much of the
record of the Gloucestershire eyre of 1221 as relates to pleas of the
Crown. Perhaps it may be welcome, not only to some students of
English law, but also (if such a distinction be maintainable) to some
students of English history. It is a picture, or rather, since little
imaginative art went to its making, a photograph of English life as it
was early in the thirteenth century, and a photograph taken from a
point of view at which chroniclers too seldom place themselves.
What is there visible in the foreground is crime, and crime of a
vulgar kind—murder and rape and robbery. This would be worth
seeing even were there no more to be seen, for crime is a fact of
which history must take note; but the political life of England is in a
near background. We have here, as it were, a section of the body
politic which shows just those most vital parts, of which, because
they were deep-seated, the soul politic was hardly conscious, the
system of local government and police, the organization of county,
hundred, and township."
It was the publication of a new and fundamental type of authority
accomplished with affectionate and exquisite diligence by a scholar
who had a keen eye for the large issues as well as for the minutiæ
of the text. And it came at a timely moment. Sir James Fitzjames
Stephen's History of Criminal Law had recently appeared and
Maitland has written of it in terms of genuine admiration; but
remarkable as those volumes undoubtedly were, miraculous even, if
regard be paid to the competing claims upon the author's powers,
they did not pretend to extend the boundaries of medieval
knowledge. The task of making discoveries in the field of English
legal antiquity, of utilizing the material which had been brought to
light by the Record Commission appeared to have devolved upon
Germans and Americans. All the really important books were foreign
—Brunner's Schwurgerichte, Bigelow's Placita Anglo-Normannica and
History of Procedure in England, the Harvard Essays on Anglo-Saxon
Law, Holmes' brilliant volume on the Common Law. Of one great
name indeed England could boast. Sir Henry Maine's luminous and
comprehensive genius had drawn from the evidence of early law a
number of brilliant and fascinating conclusions respecting the life
and development of primitive society, and had applied an intellectual
impulse which made itself felt in every branch of serious historical
enquiry. But the very seductions of Maine's method, the breadth of
treatment, the all-prevailing atmosphere of nimble speculation, the
copious use of analogy and comparison, the finish and elasticity of
the style were likely to lead to ambitious and ill-founded imitations.
It is so pleasant to build theories; so painful to discover facts.
Maitland was strong enough to resist the temptation to premature
theorizing about the beginnings of human society. As an
undergraduate he had seen that simplicity had been the great
enemy of English Political Philosophy; and as a mature student he
came to discover how confused and indistinct were the thoughts of
our forefathers, and how complex their social arrangements. What
those thoughts and arrangements were he determined to discover,
by exploring the sources published and unpublished for English legal
history. He knew exactly what required to be done, and gallantly
faced long hours of unremunerative drudgery in the sure and
exultant faith that the end was worth the labour. "Everything which
he touched turned to gold." He took up task after task, never
resting, never hasting, and each task was done in the right way and
in the right order. The study of English legal history was
revolutionised by his toil.
Before the fateful meeting with Vinogradoff at Oxford, Maitland had
made friends with Leslie Stephen. In 1880 he joined "the goodly
company, fellowship or brotherhood of the Sunday tramps," which
had been founded in the previous year by Stephen, George Crome
Robertson, the Editor of Mind, and Frederick Pollock. "The original
members of the Society about ten in number were for the most part
addicted to philosophy, but there was no examination, test, oath or
subscription, and in course of time most professions and most
interests were represented." The rule of the Club was "to walk every
other Sunday for about eight months in the year," and so long as
Maitland lived in London he was a faithful member of that strenuous
company. A certain wet Sunday lived in his memory and, though he
did not know it, lived also in the memory of Leslie Stephen. "I was
the only tramp who had obeyed the writ of summons, which took
the form of a postcard. When the guide (we had no 'president,'
certainly no chairman, only so to speak, a 'preambulator') and his
one follower arrived at Harrow station, the weather was so bad that
there was nothing for it but to walk back to London in drenching
rain; but that day, faithful alone among the faithless found, I learnt
something of Stephen, and now I bless the downpour which kept
less virtuous men indoors." That wet Sunday made Maitland a
welcome guest at the Stephen's house; and it brought other
happiness in its train. In 1886 Maitland was married in the village
church of Brockenhurst, Hants, to Florence Henrietta, eldest
daughter of Mr Herbert Fisher, some time Vice Warden of the
Stannaries, and niece of Mrs Leslie Stephen. Two daughters, the
elder born in 1887, and the younger in 1889, were the offspring of
the marriage.

FOOTNOTES:
[8] For a good instance of Maitland's trained insight see
Domesday Book and Beyond, p. 232.
[9] Maitland once conducted an argument before Jessel, M. R. Re
Morton v. Hallett (Feb. & May, 1880, Ch. 15, D. 143).
[10] Browning, Ring and the Book. See Maitland, Bracton's Note
Book, vol. 1.
[11] An account of Maitland's "valuable" lectures "On the Cause
of High and Low Wages," given to an average class of some
twenty workmen in the Artizan's Institute, Upper St Martin's Lane,
in 1874, and "followed by a very useful discussion in which the
students asked and Mr Maitland answered many knotty
questions" may be read in H. Solly, These Eighty Years, vol. II. p.
440.
 III.
Meanwhile Maitland had been recalled from London to his old
University. The reading which had been "very dear to him" when he
took the first plunge into London work, had become dearer in
proportion as the opportunities for indulging in it became more
restricted. He was earning an income at the bar which, though not
large, was adequate to his needs, but a barrister's income is uncertain
and Maitland may have felt that while he had no assured prospect of
improving his position at the bar, the life of a successful barrister, if
ever success were to come to him, would entail an intellectual sacrifice
which he was not prepared to face. Accordingly in 1883 he offered
himself for a Readership in English Law in the University of Oxford, but
without success. A distinguished Oxford man happened to be in the
field and the choice of the electors fell, not unnaturally, upon the
home-bred scholar. But meanwhile a movement was on foot in the
University of Cambridge to found a Readership in English Law. In a
Report upon the needs of the University issued in June, 1883, the
General Board of Studies had included in an appendix a statement
from the Board of Legal Studies urging that two additional teachers in
English Law should be established as assistants to the Downing
Professor. Nothing however was done and the execution of the project
might have been indefinitely postponed but for the generosity of
Professor Henry Sidgwick, who offered to pay £300 a year from his
own stipend for four years if a Readership could be established.
Sidgwick's action was clearly dictated by a general view of the
educational needs of the University, but he had never lost sight of his
old pupil and no doubt realised that Maitland was available and that he
was not unlikely to be elected. The Senate accepted the generous
offer, the Readership was established, and on November 24, 1884,
Maitland was elected to be Reader of English Law in the University of
Cambridge. In the Lent term of 1885 he gave his first course of
lectures on the English Law of Contracts.
Cambridge offered opportunities for study such as Maitland had not yet
enjoyed. A little volume on Justice and Police, contributed to the
English Citizen series and designed to interest the general reading
public, came out in 1885, and affords good evidence of Maitland's firm
grasp of the Statute book and of his easy command of historical
perspective. But this book, excellent as it is, did not represent the
deeper and more original side of Maitland's activity any more than an
admirable series of lectures upon Constitutional History which were
greatly appreciated by undergraduate audiences but never published in
his lifetime. The Reader in English Law was by no means satisfied with
providing excellent lectures covering the whole field of English
Constitutional history, though he had much that was fresh and true to
say about the Statutes of the eighteenth century and about the degree
to which the theories of Blackstone were applicable to modern
conditions, and though he drew a picture for his undergraduate
audience which in some important respects was closer to fact than
Walter Bagehot's famous sketch of the English Constitution published
while Maitland was an Eton boy. Text book and Lectures were but
interludes in the main operations of the campaign against the
unconquered fastnesses of medieval law. First came a remarkable
series of articles contributed to the Law Quarterly Review upon the
medieval doctrine of seisin which Maitland's sure insight had discerned
to be the central feature in the land law of the Norman and Angevin
period: and then in 1887 Bracton's Note Book.
"Twice in the history of England has an Englishman had the motive,
the courage, the power to write a great readable reasonable book
about English Law as a whole." The task which William Blackstone
achieved in the middle of the eighteenth century, Henry de Bratton, a
judge of the King's Court, accomplished in the reign of Henry III. His
elaborate but uncompleted treatise De Legibus et Consuetudinibus
Angliæ, composed in the period which lies between the legal reforms
of Henry II. and the great outburst of Edwardian legislation, while the
Common law of England was still plastic and baronage and people
were claiming from the King a stricter observance of the great Charter,
is naturally the most important single authority for our medieval legal
history. Though influenced by the categories and scientific spirit of
Roman Law, Henry de Bratton was essentially English, essentially
practical. His book was based upon the case law of his own age—Et
sciendum est quod materia est facta et casus qui quotidie emergunt et
eveniunt in regno Angliæ—and especially upon the plea-rolls of two
contemporary judges, Walter Raleigh and William Pateshull. An edition
in six volumes executed for the Rolls Series by Sir Travers Twiss had
been completed in 1883, the year before Maitland paid his first visit to
the Record Office and discovered the plea-rolls of the County of
Gloucester; but the text was faulty and far from creditable to English
scholarship.
On July 19, 1884, Professor Vinogradoff, "who in a few weeks" wrote
Maitland, "learned, as it seems to me, more about Bracton's text than
any Englishman has known since Selden died," published a letter in the
Athenæum drawing attention to a manuscript in the British Museum,
which contained "a careful and copious collection of cases" for the first
twenty-four years of Henry III., a collection valuable in any case, since
many of the rolls from which it was copied have long since been lost,
but deriving an additional and peculiar importance from the probability
that it was compiled for Bracton's use, annotated by his own hand and
employed as the groundwork of his treatise. Yet, even if the
connection with Bracton could not be established, a manuscript
containing no fewer than two thousand cases from the period between
1217 and 1240 was too precious a discovery to be neglected. Here was
a mass of first-hand material, valuable alike for the genealogist, the
lawyer, the student of social history:—glimpses of archaic usage, of
local custom, evidence of the spread of primogeniture, important
decisions affecting the status of the free man who held villein lands,
records of villein service, vivid little fragments of family story, some of
it tragic, some of it squalid, as well as passages of general historical
interest, entries concerning "the partition and therefore the destruction
of the Palatinate of Chester" or the reversal of the outlawing of Hubert
de Burgh the great justiciar who at one time "held the kingdom of
England in his hand."
The Note Book was edited by Maitland in three substantial volumes
and with the lavish care of an enthusiast. An elaborate argument, all
the more cogent because it is not overstrained, raised Vinogradoff's
hypothesis to the level of practical certainty. "The treatise is absolutely
unique; the Note Book so far as we know is unique; these two unique
books seem to have been put together within a very few years of each
other, while yet the Statute of Merton was nova gracia; Bracton's
choice of authorities is peculiar, distinctive; the compiler of the Note
Book made a very similar choice; he had, for instance, just six
consecutive rolls of pleas coram rege; Bracton had just the same six;
two-fifths of Bracton's five hundred cases are in this book; every tenth
case in this book is cited by Bracton; some of Bracton's most out of the
way arguments are found in the margin of this book ... the same
phrases appear in the same contexts.... Corbyn's case, Ralph Arundell's
case are 'noted up' in the Note Book; they are 'noted up' also in the
Digby MS of the treatise; with hardly an exception all the cases thus
'noted up' seem plainly to belong to Bracton's county.... Lastly we find
a strangely intimate agreement in error; the history of the ordinance
about special bastardy and the 'Nolumus' of Merton is confused and
perverted in the two books. Must we not say then that, until evidence
be produced on the other side, Bracton is entitled to a judgment, a
possessory judgment?" The penultimate argument in the pleading was
characteristic of Maitland's ingenuity and also of a favourite pastime.
He describes an imaginary walking tour through Devon and Cornwall
and points out that ten cases noted up in the margin of the Note Book
refer to persons and places which must have been well known to
Bracton. "Many questions are solved by walking. Beati omnes qui
ambulant."
The appearance of the Note Book showed that Cambridge possessed a
scholar who could edit a big medieval text with as sure a touch as
Stubbs, and the book received a warm welcome from those who were
entitled to judge of its merits. It had been a costly book to prepare and
it was brought out at Maitland's own charges. In the introduction he
took occasion to point out that in other countries important national
records were apt to be published by national enterprise; and that in
England the wealth of unpublished records was exceptional. "We have
been embarrassed by our riches, our untold riches. The nation put its
hand to the work and turned back faint-hearted. Foreigners print their
records; we, it must be supposed, have too many records to be worth
printing; so there they lie, these invaluable materials for the history of
the English people, unread, unknown, almost untouched save by the
makers of pedigrees." As an advertisement of these unknown
treasures no more fortunate selection could have been made than this
manuscript note book which could with so high a degree of probability
be associated with the famous name of Bracton. But Maitland was not
content with urging that the publication of our unknown legal records
should not be left to depend upon the chance enthusiasm of isolated
scholars; he demanded, as things necessary to the progress of his
subject, a sound text of Bracton's treatise and a history of English Law
from the thirteenth century.
In 1888 there was by reason of the death of Dr Birkbeck a vacancy in
the Downing Chair of the Laws of England. Maitland stood and was
elected. His Inaugural Lecture delivered in the Arts School on 13th
October, 1888, was entitled, "Why the History of Law is not written."
The reason was not a lack of material; on the contrary England
possessed a series of records which "for continuity, catholicity, minute
detail and authoritative value has—I believe that we may safely say it
—no equal, no rival in the world," nor yet the difficulty of treating the
material, for owing to the early centralization of justice, English history
possessed a wonderful unity. Rather it was "the traditional isolation of
English Law from every other study" and the fact that practising
lawyers are required to know a little medieval law not as it was in the
middle ages, but as interpreted by modern courts to suit modern facts.
"A mixture of legal dogma and legal history is in general an
unsatisfactory compound. I do not say that there are not judgments
and text books which have achieved the difficult task of combining the
results of deep historical research with luminous and accurate
exposition of existing law—neither confounding the dogma nor
perverting the history; but the task is difficult. The lawyer must be
orthodox otherwise he is no lawyer; an orthodox history seems to me
a contradiction in terms. If this truth is hidden from us by current
phrases about 'historical methods of legal study,' that is another reason
why the history of our law is unwritten. If we try to make history the
handmaid of dogma she will soon cease to be history."
Maitland concluded with an appeal for workers in an untilled field, but
with characteristic veracity held out no illusory hopes. "Perhaps," he
wrote, "our imaginary student is not he that should come, not the
great man for the great book. To be frank with him this is probable;
great historians are at least as rare as great lawyers. But short of the
very greatest work, there is good work to be done of many sorts and
kinds, large provinces to be reclaimed from the waste, to be settled
and cultivated for the use of man. Let him at least know that within a
quarter of a mile of the chambers in which he sits lies the most
glorious store of material for legal history that has ever been collected
in one place and it is free to all like the air and the sunlight. At least he
can copy, at least he can arrange, digest, make serviceable. Not a very
splendid occupation and we cannot promise him much money or much
fame.... He may find his reward in the work itself: one cannot promise
him even that; but the work ought to be done and the great man
when he comes may fling a footnote of gratitude to those who have
smoothed his way, who have saved his eyes and his time."
stock or marketable securities which undoubtedly are not the
same things as the land and trade marks.'
Now it may occur to you that in their anxiety to avoid a
confusion of the persons our courts fall into the opposite of
error and divide the substance. But that is not so. The old
things still exist and are owned, though new things
'transferable in the books of the company' have come into
being. Also it seems possible that we may easily over-estimate
the creative powers of lawyers and courts and legislators. Let
us remember that these new things will be things for the man
of business, things for the Stock Exchange. And in passing let
us ask ourselves whether if these 'things' are not unreal, the
personality of the company must needs be fictitious?
Fragment of a Lecture
As yet Maitland had not conceived himself as the author of that
"History of English Law from the thirteenth century," the need for
which he proclaimed to his Cambridge audience. A less extensive
scheme had framed itself in his mind "some thoughts about a plan of
campaign for the History of the Manor." The thoughts were
communicated to Frederick Pollock and were not unfruitful, for they
grew up seven years later into that massive History of English Law
which is perhaps Maitland's most enduring title to fame; but of his
learned projects in this seed-time and of some other concerns, grave
and gay, a few scraps of correspondence may here most fittingly be
adduced in evidence.

To Paul Vinogradoff.
6, New Square,
Lincoln's Inn.
28 April, 1884.
I am indeed glad that you are working at Bracton and settling the
relation between the MSS. I wish that you would stay here and teach
us something about our old books. Pollock is looking forward to your
paper and I am diligently reading Bracton in order that I may
understand it. I have written for Pollock a paper about seisin and had
occasion to deal with a bit of Bracton which, as printed, is utter
rubbish. I therefore looked at some of the MSS and found that the
blunder was an old one. I shall not have occasion to say any more
than that there are manuscripts which make good sense of the
passage—but I have made a note[12] about the matter which I send to
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