The Study of English National History by Sir Francis Palgrave: The Original Use of the National Records in an Imaginative Historical Narrative

I. Introduction

This article aims to show how the study of medieval English history, in particular its legal institutions, was remodeled, recomposed and represented by Sir Francis Palgrave in an imaginative and constructive historical narrative, through the pioneering use of the national records. It demonstrates that, beyond the obvious attributes of an equivocally gothic style, the significance of Palgrave’s work lies in its innovative combination of technique and method. It considers, initially by way of narrative: Palgrave’s early life and career; his initial antiquarian contributions to the Quarterly Review and the Edinburgh Review; his early work in the public records from 1822 until 1835; his first major historical works, the History of the Anglo-Saxons (1831) and The Rise and Progress of the English Commonwealth (1832); Palgrave’s 1838 appointment as the first Deputy Keeper of the reconstituted and reorganized Record Office, and his work in professionalizing that organization; and his principal historical work, The History of Normandy and of England (the earlier volumes were published in 1851 and 1857 respectively, although the last two were not published until after Palgrave’s death, which occurred in 1861).

The argument of the article then proceeds to focus on the significance of Palgrave’s work in terms of his methods and theories, and how Palgrave’s interpretation of early English legal history was a vivid and innovative example of drawing conclusions from the analysis of the development of legal principles – specifically, in Palgrave’s work, those relating to the influences of the demographic, legal and institutional vestiges of the Roman empire on English law. Palgrave asserted that monarchical authority based on these (Roman) precepts underlined the development of the Germanic kingdoms. He also maintained that in England it was, perhaps paradoxically, the legal institutions of the Germanic communities which prevented imperial traditions and customs from leading to despotism; and so established the beginnings of more advanced constitutional relationships. His interpretation, it is argued, exemplified inventiveness and insightfulness of theory, matched by scrupulous and methodical deployment of the archival evidence to which Palgrave had unprecedented access. In Palgrave we will see the model of the imperial idea of “authority” at its acme, before it was eclipsed by the ideas of the Germanist school, led by John Mitchell Kemble and advanced by F.W. Maitland and many others, and also how that historiographical trend nourished what became the increasingly orthodox Common Law convention of legal history. However, it is also argued that the ways in which Palgrave and those who followed him, such as Kemble and Freeman (and ultimately Stubbs and Maitland), differed in their approaches to writing the history of the nation are indices, not only to generational change but also to quite divergent intellectual traditions. As a result, the implications of Palgrave’s work have long been underrated, so in conclusion it is the purpose of this article to re-evaluate and to some degree correct that effacement.

II. Palgrave’s Early Career ¹ and Work in Public Records

Palgrave was born in London in July of 1788, of Jewish extraction the son of Meyer Cohen, a stockbroker, and his wife Rachel Levien Cohen. He was educated at home by Dr Montucci, from whom he learned (amongst other things) to speak Italian. A precocious child, at the age of eight Francis published the translation into French (from Latin) the ‘‘Battle of the Frogs and Mice’’ attributed to Homer. His father was financially ruined by the outbreak of the war with France and Francis, the eldest son, became responsible for supporting his parents. He was articled as a clerk to the London firm of solicitors Loggin and Smith (of Basinghall Street) in 1803, and he remained there after the expiration of his articles until 1822, ultimately rising to the position of managing clerk. In that year he took chambers in the King’s Bench Walk, Temple. In 1827 he was called to the bar at the Middle Temple, and for several years thereafter he principally engaged in pedigree cases before the House of Lords.

He had, while carrying on the work of a solicitor, been interested in literary and antiquarian studies, and in around 1814, Francis Cohen began contributing to the Quarterly Review and the Edinburgh Review. These contributions, totaling some thirty-seven individual items and published over a period spanning more than thirty years, predominantly took the form of brief but well researched observations and commentaries on a broad range of historical and antiquarian topics. ² In 1818, he edited a collection of Anglo-Norman Chansons. By the early 1820s he had achieved some degree of repute, if not celebrity, as a literary antiquary and he was acquainted with Sir Walter Scott who esteemed his work.

He made the acquaintance of the banker Dawson Turner and his daughter Elizabeth in 1819, and in 1821 when he was admitted to the Fellowship of the Royal Society one of his sponsors was Dawson Turner. He converted to Anglican Christianity before his marriage to Elizabeth Turner on October 13, 1823. At about the time of his marriage Cohen also changed his surname by royal licence to ‘‘Palgrave,’’ his wife’s mother’s maiden name. It is unknown if either the religious conversion or the name change were stipulations for the marriage; Dawson Turner, however, paid for the costs of the name change, and also assigned £3,000 to the newlyweds. ³ In any event, Palgrave’s assimilation followed the Georgian period pattern whereby the upper strata of Anglo-Jewry lost their Jewish identity, often through inter-marriage and conversion, and took on the attributes of Englishness. It was not until 1845 that Jews were declared eligible for the important municipal offices; and in 1858, after a long debate, the first Jewish MP was seated in Parliament. ⁴

Prior to the statutory establishment of the Public Record Office in 1838, and Palgrave’s attainment of the post of Deputy Keeper, he had been very active in records management and publication under the Commissioners on the Public Records. In 1822, he came forward with a plan for the publication of the records, which met with the approval of the Record Commission; and, from 1827 (in which year he was called to the bar) to 1837, he edited for it a series of volumes. In this capacity his own (edited) works included:

The entire corpus of the publications of the (“old”) Commissioners edited by Palgrave encompassed many other items, and in 1837 an audit of these publications (and an account of receipts and expenditures) was published. ⁶

Lest it be thought that such work was erudite (but removed from the realism of events), Palgrave’s exertions at this time had, at a crucial juncture, real political impact. On October 25, 1830, Palgrave wrote an open letter entitled “The legal right of the dormant parliamentary boroughs”, ⁷ addressed to MPs in the lead up to the “Reform Act” of 1832. The letter argued, cogently and with cited and quoted reference to the earliest legal and historical records, that forty-six parliamentary constituencies considered to be dormant, could not be expediently ignored for the purposes of an opportune reconstitution of the House of Commons. The timing of Palgrave’s letter placed it at the height of the crisis of parliamentary reform – a crisis ultimately resolved by the 1831 general election which saw a landslide win by supporters of electoral reform, which was the major election issue. Palgrave’s 1830 letter detailed the necessity for electoral reform to be achieved by proper (legal) process, and was clearly a reaction to the debacle following the collapse of the Duke of Wellington’s ministry and the preparations leading to the introduction of the doomed “First” Reform Bill in early 1831 by the new (Whig) administration under Earl Grey. Thanks for this helpful intervention were soon forthcoming: Palgrave was knighted in 1832, on August 31, ⁸ presumably upon recommendation by a grateful Earl Grey. As a follow-up, in 1833, Palgrave published ‘‘Corporate Reform’’ ⁹ on the principles to be adopted in the contemporary reform of (government) corporations. Palgrave argued that there needed to be certain principles for establishing new municipal corporations, principles which would give members respectability and should not be identical with the ‘‘qualifications required for parliamentary suffrage’’ because of the abuses under old corporations due to closeness between corporations and parliamentary suffrage. Palgrave asserted that the power in being a member of the corporation must not be a requisite in establishing new municipalities. ¹⁰ Further, on the same topic and adhering to his position and arguments of 1833, in 1835 Palgrave wrote a ‘‘Protest’’ (that is, a dissenting report) to the House of Commons’ Inquiry into Municipal Corporations in England & Wales. ¹¹ In the meantime, and again possibly by way of reward, Palgrave was appointed as the Keeper of the Records at the Chapter House in 1834 at the substantial salary of £1,000 per annum.

III. Initial Major Historical Works

All the while, Palgrave remained engaged with his more academic researches. In 1831, Palgrave published a History of England: the Anglo-Saxon Period (the first volume of a History of England) in The Family Library. It was an unsophisticated work, in intellectual terms, written in a vivacious and popular style, and addressed to a wide audience possibly including (as Palgrave indicated in the Preface) children. ¹² More important, however, are the almost surreptitious methodological comments which can be gleaned from this otherwise apparently innocuous text. Immediately following his explanation about audience, Palgrave set out a very unambiguous historiographical statement about the influence of Rome:

… I may, perhaps, be allowed to add my opinion, that there is no possible mode of exhibiting the states of Western Christendom in their true aspect, unless we consider them arising out of the dominion of the Caesars.

Yet Palgrave immediately tempered this comment by referring to ‘‘the distinct and separate political existence of the different Anglo-Saxon states’’ and ‘‘the federative spirit of our ancient constitution.’’ ¹³ We see in this, plainly, that Palgrave’s Romanism was not unalloyed, but receptive to (indigenous) modification. Also significant, at a point about mid-way through History of England: the Anglo-Saxon Period, Palgrave makes a lengthier and equally salient historiographical comment which is also worthy of replication. ¹⁴ The comment makes a clear statement of Palgrave’s allegiance to a world of scholarship which was dependent upon an orderly and stratified society, strongly evocative of the nineteenth-century medievalist worldview. These statements go, respectively, to the very questions of style and method which describe Palgrave’s imaginative and constructive historical narrative.

In the following year, 1832, he published The Rise and Progress of the English Commonwealth, covering the same period. As promised, the work is lengthy and detailed and it can be considered to be Palgrave’s first major historical oeuvre per se. In two bulky volumes, extending over more than 1,100 pages, its full title – The Rise and Progress of the English Commonwealth. Anglo-Saxon Period; containing the Anglo-Saxon Policy, and the Institutions arising out of Laws and Usages which prevailed before the Conquest – thoroughly described the compass of the work. Quite early on, in the first volume, Palgrave went to some length to describe a theory of the English race, specifically the relative Romano-Celtic and Anglo-Saxon population ratios, which he saw as a critical factor in his history of laws and institutions. His hypothesis was that the overwhelming majority of the English were racially Romano-Celtic and that the Anglo-Saxon invasion was not a volk-invasion but rather it was an elite conquest (in much the same sense as was the latter, and conventionally understood, Norman Conquest). ¹⁵ Although such a theory was controversial, and thought to be incorrect both in 1832 ¹⁶ and up until quite recently, it now appears that modern DNA evidence might, possibly, support this theory. ¹⁷ Palgrave’s developed theory of laws, institutions and government, in this extensive work, springs from this theory and can be expressed (at the risk of simplification) thus: the kingdoms formed by the successor nations, including England, out of the Roman Empire, were connected with it not only by the adoption of many institutions, but by a conscious and acknowledged derivation of authority. ¹⁸ Palgrave emphasized that monarchical authority based on these imperial rules underscored the development of the barbaric kingdoms. But he also claimed that in England it was those very legal institutions, of the Germanic communities, which prevented imperial traditions and customs from leading to absolutism. This interpretation exemplified imagination of the theory, matched by scrupulous and methodical use of the archival evidence to which Palgrave had unprecedented access from his work for the Record Commission, and to which the second volume of The Rise and Progress of the English Commonwealth was entirely devoted.

In 1837, Palgrave maintained his endeavors with the publication of Truth and Fictions of the Middle Ages: the Merchant and the Friar. Departing from established belief in nineteenth-century Britain, which had developed since the seventeenth century, that God’s existence was demonstrable through living organisms’ ability to adapt to their surroundings, Palgrave highlighted the conflict between natural theologians’ contention that there was minimum suffering in the natural organisms’ adaptation to the environment and the idea that man’s fall had brought pain and evil into the world. He introduced these arguments into his Truths and Fictions of the Middle Ages: The Merchant and the Friar. Palgrave argued this position based upon passages of the Bible ignored by natural theologians. Bowler maintains, plausibly, that this line of reasoning was radical at that time, especially as Palgrave had by this point in his career, made it into ‘‘respectable circles’’ who supported the study of natural theology. But possibly his non-Christian background, as well as his interest in medieval history, meant that he was able to identify the biblical inconsistencies of natural theology. ¹⁹ The relevant section of Truths and Fictions of the Middle Ages: The Merchant and the Friar is the sixth chapter entitled ‘‘Knowledge’’ where Palgrave creates an imaginary conversation between Marco Polo and Roger Bacon. ²⁰ The extent to which Palgrave’s work is based on that of Bacon’s is difficult to assess, although he must have had access to the Opus Majus which appeared in 1750. Palgrave would also very likely have been aware of Malthus’ approach to population, but Palgrave’s argument seems to emanate from his own opinions which may have stemmed from study of the medieval documents at his disposal, and an appreciation of the Old Testament. Although interesting, Bowler is correct to note that there is no evidence that Palgrave’s arguments had any impact, as natural theologians remained unaware their position was possibly inconsistent with the parts of the Bible Palgrave relied upon.

Around this time Palgrave was also an active correspondent with the Royal Society of London, as a member since 1821, on matters of even more empirical scientific interest, demonstrating how his access to the documents enabled the conduct of research and publication. On January 15, 1835, he contributed a short piece to the Society entitled “An Account of the Eruption of Mount Etna in the year 1536, from an original cotemporary document”. The item reports that:

Amongst various shreds and fragments of the correspondence from Italy during the period that Henry VIII was negotiating with the Italian princes, is a document of a very different nature from the rest, being an extract from a letter written by the Barone di Burgis, dated at Palermo, 10th of April 1536, and giving an account of the then recent eruption of Mount Etna. ²¹

In the same way, in 1840, he wrote ‘‘An account of the Shooting Stars of 1095 and 1243’’ which was received on February 19, and read on March 5, 1840. Palgrave provided citations from several chronicles of the Middle Ages, describing the remarkable appearance of shooting stars which occurred on April 4, 1095, on the testimony of independent witnesses both in France and England. One of these witnesses describes them as ‘‘falling like a shower of rain from heaven upon the earth’’ and in another case, a bystander, having noted the spot where the meteorite fell, ‘‘cast water upon it, which was raised in steam, with a great noise of boiling.’’ Palgrave reported that the Chronicle of Rheims described the appearance as if all the stars in heaven were driven, like dust, before the wind. ²² Palgrave also researched and provided the basic statistical information about sixteenth-century local demographics, taken from historical records at his disposal, to Hallam who presented the same (with observations) to the Statistical Society of London in January 1836. ²³ These contributions were not indiscriminate, rather they formed part of a project in which Palgrave saw himself as an important facilitator: at around this time (1840–1841) Palgrave became a founding Council-member of the Historical Society of Science whose express object was to render materials for the history of the sciences accessible by the publication or reprinting of historical manuscripts. ²⁴ Palgrave’s interest in the application of statistical analysis was further demonstrated in his publication of Life and Works of Sismondi in September 1843. ²⁵

IV. 1838 – Deputy Keeper of the Reconstituted and Reorganized Record Office

Palgrave’s works for the (sixth) Record Commission, which was established in 1800 and renewed five times between 1800 and 1837, made him an important asset in the nation’s historical and archival enterprise: as the editor of those collections which we have already noticed and as the Keeper of the Records at the Chapter House (at Westminster) since 1834. The operations of the Record Commission itself, however, had become a cause for concern during the 1830s. There were criticisms of overspending and maladministration. Possibly (as something in the way of collateral damage) Palgrave became involved in an argument with Thomas Duffus Hardy, who was one of the chief critics of the Secretary to the Commission Charles Purton Cooper. It appears that sometime in 1832 Palgrave visited the Tower, where Hardy was employed as an editor in the Record Office there, and a physical fight ensued leaving Palgrave with two black eyes. ²⁶ Ultimately, in 1836, the Record Commission was investigated by a Parliamentary Committee resulting in a report covering more than seven hundred pages. ²⁷ Its main recommendation was that the public records be brought together into one location and administered by one authority. This recommendation formed the basis of the Act of 1838, which installed the Master of the Rolls as the chief executive of the nation’s records and empowered him to appoint a Deputy Keeper to take charge of operations. Lord Langdale MR had intended to make Thomas Duffus Hardy the Deputy Keeper, but under ministerial pressure he was prevailed upon to appoint Palgrave, which he did in December 1838. Palgrave was senior to Hardy in years, and was also (by then) a scholar of wide repute. There was also a question, perhaps not irrelevant to the considerations of who should be appointed, of Palgrave’s handsome salary of 1,000 pounds per annum from the Chapter House which, if he were not appointed, would have to be compensated for. Hardy was made one of the four senior Assistant Keepers. ²⁸

The post of Deputy Keeper, held by Palgrave during the remainder of his life, entailed exacting duties: yet the issuing of a series of twenty-two annual reports is evidence of the gravity and energy which Palgrave applied in his execution of the role. Palgrave also played a leading role in the professionalization of records management at the Record Office, the details of which have been explained by Cantwell and Levine. ²⁹ One issue which evidently gave rise to concern for Palgrave was the high incidence of sickness absence amongst Record Office staff. In 1859 eight junior clerks out of twenty-one, and one messenger, were obliged to obtain leaves of absence, varying from three to six months, on account of ill health. Three of these clerks died within a very few years after their appointments. It appears that for five years the average number of absence on working days, on account of illness, amongst these twenty-one junior clerks, was three hundred and sixty; on which Palgrave remarked in a report to the Statistical Society of London:

In no private establishment, eg. bank or solicitor’s office, would “clerks be permitted to absent themselves habitually as frequently’’ as they do in this department; an individual so absenting himself would be simply told ‘‘that his state of health incapacitated him for the employment.” ³⁰

Another aspect of Palgrave’s duties as Deputy Keeper involved, where possible, the acquisition of records for the collection. Whether this involved purchasing of documents is not known, but we have some evidence to suggest that compulsory acquisition was Palgrave’s preferred method of getting hold of the documents he believed to be the rightful property of the Office and some insight into why he regarded this to be the proper course of action. There is a detailed account of one such attempt, where Palgrave sought to use the courts to wrest custody of a document from its possessor. In 1842, first by way of request in a letter, then by more official correspondence from the desk of Lord Langdale MR (Palgrave’s official superior), and ultimately at law in the Court of Common Pleas, Palgrave attempted to obtain a Roll on Vellum, said to be the Filazer’s Roll (of the Court of Common Pleas of John Pitt, Filazer to the Court 23d Elizabeth) from Mr Thomas Rodd, a bookseller. ³¹ The suit was ultimately abandoned by counsel Sir Thomas Wilde (appearing for the Attorney-General), leaving Mr Rodd with significant costs which the Treasury refused to recompense. ³² We are left with an impression of Palgrave’s determined approach to his role – one where even though the cost of purchase of the document (one pound, four shillings) was so much smaller than the cost of its (ultimately failed) compulsory acquisition, the precedent of paying for documents which were considered to already be the property of the public office was not one which Palgrave was prepared to be permitted to be established.

Palgrave’s scholarly activities, by contrast, while no doubt constrained by the extensive duties of his new office, were noticeably still wide-ranging. In addition to his own historical writing, he was available to the scholarly community in a wider sense too. For example, in about 1839 or 1840 Palgrave was consulted by Richard Ward who wrote and published with the Norfolk Archaeological Society a short account of a Letter of Privy Seal, dated January 14, 1611, whereby King James I, required of Robert Ward, of Walcote, Esq. the loan of twenty pounds. The recipient of this request was the ancestor of Richard Ward, the document being retained in the Ward family’s records. The account of Richard Ward details the extraordinary financing arrangements resorted to by James I, using the document (which was transcribed in full) to exemplify the practice adopted. Palgrave is recorded by Ward as remarking on such Privy Seal documents that ‘‘it may be regarded as a curious exemplification of the mode thus adopted for raising money without the consent of Parliament.’’ ‘‘The instruments,’’ he went on to say, ‘‘of which this is one, were printed, and, the blanks being filled up, were presented to the parties who were expected to contribute.’’ ³³ In what exact capacity Palgrave provided this advice to Ward (and whether, for instance, he charged a personal fee for the opinion rendered) cannot be known; but what is worthy of note is his estimation of the document in its technical detail and its contextual usage, and the fact that Palgrave made himself accessible for consultation by amateur historians in this way. ³⁴

V. Palgrave’s Chief Work: The History of Normandy and of England

The History of Normandy and of England, published in four volumes, constitutes Palgrave’s magnum opus in terms of historical writing. The first two volumes appeared in 1851 and 1857 respectively, and the last two were not published until after his death, which occurred in 1861. The major theme of the work is the continuities of English history, not just from the Anglo-Saxon period into the post-Conquest period, but also the deeper, longer, threads of connections and consistencies in society, culture, civilization and the law stretching back to Rome. Whether through the mechanics of feudalism, or the viscosity of the Canon law, Palgrave’s great project recalls the extent to which Roman influences were sustained across the landscape of Europe over many centuries. It is, most interestingly, a counterbalance to the story of the origins, lineages, uniqueness and independence of the Common Law as expressed by Coke, Hale and Blackstone.

The work is not, it has to be said, easy reading. In these volumes Palgrave’s literary style, modes of expression and language, have been criticized – even by contemporaries – as being impenetrable, wandering and indulgent. ³⁵ Although such a literary style certainly seems, from the perspective of the early twenty-first century, to be extravagant to the point of digressive, eccentric and even abstruse, it is important that Palgrave’s written technique is properly contextualized. From an understanding that, as part of a much more extensive medieval revival movement throughout the nineteenth century, sometimes nowadays (imprecisely) represented as virtually synonymous with “gothic”, Palgrave’s prose is situated by, inter alia, its use of language. Without (at this stage at least) endeavoring to recover the full extent to which Palgrave’s works are to be understood as essentially pieces of “medievalism”, and focusing simply on the stylistic issue, we can undoubtedly notice the timeliness of his expression and idiom as distinctive and exceptional. ³⁶ It would seem from the reviews from the Edinburgh Review and the North American Review, nonetheless, Palgrave’s turn of phrase was even a little too enriched and rebarbative for his contemporary audience.

Can we, on the strength of this evidence, typify Palgrave as a “medievalist”, as a way of comprehending the man and his writings? His linguistic style, as we have noticed, certainly points us in that direction. But in spite of this, the medievalist label is too supple and broad to really be of too much evaluative or even descriptive utility. Although Chandler demonstrates that Palgrave (in his essay “Fine Arts In Florence” ³⁷ ) “anticipated” Ruskin ³⁸ on the defining medievalist question of architecture, there is manifestly more to Palgrave’s historical writing than the creative or imaginative ordering of interpretation: it is clearly more than merely Ruskinesque “reading”. It involved the sober (archival) recovery of facts, and this was a requirement about which Palgrave was certainly only too conscious. ³⁹ Similarly, some religious subjects in art were in themselves repugnant to his determined scrutiny: although Palgrave wrote “We most fully and cordially agree, that by the absence of religious feeling, art has lost its truest support”, ⁴⁰ he was unconvinced when – in his own words – a sedate Berlin student told him that a certain Fra Anglico had been achieved only through the power of the Holy Ghost. Palgrave was conversant with Florentine art, but there were limits to his appreciation – and so on subject matter like the Coronation of the Virgin while he observed that it was impossible to look at them ‘‘without pain and sorrow,’’ ⁴¹ Levey suggests that Palgrave might have been thinking of the Botticelli Coronation in the Accademia at Florence, a picture which, nearly twenty years later, was to be appreciated by Burne-Jones with greater devotion than Palgrave could muster. ⁴²

To the extent that nineteenth-century medievalism, as a whole, was inherently dependent on historical writings, of course, this intimate but powerful correlation between facts, interpretation and style must be seen as a symbiotic relationship. It might therefore, and at least for the time being, be appropriate to characterize Palgrave as medievalist on the question of literary style, so long as this caveat is acknowledged: that on the question of method the term “medievalist” does not adequately explain the experiential practice of Palgrave the historian and archivist. Palgrave’s “medievalism” was rooted in empirical archival discovery, as exemplified by his published interests in folklore; not as dreamy atavism, but as an archaeology of superstition. ⁴³

VI. The Significance of Palgrave’s Work – His Methods and Theories; and the Alternative (and Ultimately Prevailing) School of Thought – the Germanists

Beyond questions of stylistic technique, the significance of Palgrave’s work lies in its innovative combination of theory and practice: Palgrave’s unique handling of early English history was the first endeavor, on an extensive scale, to draw general conclusions from a study of the development of legal principles from the source documents. There are two elements here: firstly, the thematic tension between center and periphery, between Empire and nation; secondly, the stylistic representation of history and narrative in a creative synthesis.

During the nineteenth century, with the emergence of constitutional theory and legal history, certain ideas about legal and constitutional systems in Britain based upon the racial composition of the nation(s) were developed and deployed. Put simply: the existence of an ancient Germanic constitution, carried by Anglo-Saxon invaders and planted on British soil, was held to have ensured the development of a free and independent nation which, over time, became the ideal-type of modern democratic governance. This ideal-type was to be contrasted, on the one hand from the authoritarian centralization of Roman-derived continentalism, and on the other hand from undirected and uncivilized Celticism of the wild and wet fringes. The work of Freeman, leading to that of Stubbs and Maitland, and so many others, can all be counted here amongst the developers of the literature informing the evolving historiographical norm of the Common Law tradition. ⁴⁴

Palgrave’s developed theory of laws, institutions and government sprang from his theory of race, and it can be expressed (again, at the risk of simplification) thus: the kingdoms formed by the successor nations, including England, out of the Roman Empire, were connected with it not only by the adoption of many institutions, but by a conscious and acknowledged derivation of authority. ⁴⁵ As we have noted, correspondingly and possibly even ambivalently, Palgrave equally emphasized that monarchical authority based on these imperial rules underscored the advancement of the barbaric kingdoms; and he claimed that in England it was those very legal institutions, of the Germanic communities, which prevented imperial traditions and customs from leading to absolutism. Underlying this critical and bivalent relationship was, for Palgrave, a racial grundnorm which situated a romanized Celtic Britain as the factual foundation of meaning and import. In the introductory sections of The History of Normandy and of England we can identify this reality, as expressed by Palgrave:

The Romans had been gradually approximating to the Barbarians … Long had this political commixture of races existed … They educated Goth and Celt and Teuton for the Imperial throne … The fair-haired Germans of the Rhine traced their ancestry to the banks of the Scamauder and the fugitives of Troy. Our Cymric tribes, as is familiarly known, asserted like origin … history is not distinguishable from genealogies … and in Britain the same principles spread over from the Gauls. Our Anglo-Saxons hastened into the communion of the Empire … ⁴⁶

Palgrave’s concentration on the centrality of the imperial concept, strengthened by this racial grundnorm, is then reemphasized nowhere in clearer terms than in the ensuing sections of The History of Normandy and of England, where he summarizes his thesis of Roman and racial continuity across the space of six pages:

Strange that Historians should have encouraged each other in the error that the Empire, extinguished, as they say, in Augustulus, was now restored – Restored! never had it been suspended, either in principle, maxims, or feelings. The shattered, pillaged, dilapidated Empire was still one state, one community … the Imperial principles of government, the doctrines, sentiments, jurisprudence and policy of Rome, became still more intimately kneaded into the Teutonism of the Western Commonwealth … Roman legislation, leaving undisturbed in the provinces all ancient customs of occupation and cultivation of land, readily entered into combination with Teutonic usages … We read the history of Anglo-Norman England in Cisalpine Gaul … The jurisprudence of Rome had been respected, and partially adopted by the Barbarians, even before they established themselves within the Empire. In many provinces the authority of the Roman law was never intermitted. As time advanced, the civil law gained even more rapidly upon the Teutonic legal forms, legal customs, legal principles. ⁴⁷

As Pocock has noted, tantalizingly, Palgrave “began developing a new dialectic between Roman and Germanic components of history”. ⁴⁸ The legal historical conventions of the Common Law, as ostensibly revealed by the Coke-Hale-Blackstone rectilinear historiographical descent, on the other hand, emphasized a narrative of the Common Law’s unique growth and status. It was a pedigree which, by the early nineteenth century had gained a primary intellectual position, but not one which had yet so dominated the historico-legal epistemological environment as to deprive alternative theories and approaches some space for development. Against the sere conventionality of this Common Law orthodoxy; of belief in an “ancient constitution” in the distant (Anglo-Saxon) past and the subsequent unbroken continuity of limited monarchy, parliament and the rule of the common law throughout England’s history; there also stood competing schools of historical jurisprudence, including the historical school of Friedrich Carl von Savigny maintaining that law was the product of Volksgeist, ⁴⁹ and (conversely) the anti-historical positivist school led by Jeremy Bentham and John Austin. ⁵⁰ Although Bentham was somewhat older, all of these scholars were Palgrave’s immediate contemporaries, and all offered possible alternatives to the ancient constitution of Common Law legend.

Palgrave’s accentuation of the importance of the imperial idea, as an underlying spirit which powered the growth of the Germanic kingdoms and which in England nurtured the beginnings of developed constitutional forms, represented another kind of legal history – one which was original, and this imperial thesis was set by Palgrave, consciously, into a developed and understood relationship between what we now describe as “history” and “historical fiction”. The early nineteenth-century growth of antiquarian and historical interest in the Conquest roughly coincided with a growth of fiction set in Saxon and Norman England. Like historians, novelists made use of translated chronicles and legal documents, which were reproduced by antiquarian societies, the Records Commissions and the Records Office. A number of fictional works of the pre-Norman or early-Norman era appeared – not just those by Sir Walter Scott such as Ivanhoe, but also others such as Charles Macfarlane’s Camp of Refuge, and Bulwer’s Harold. It is hard to say which of the two forms of historical narrative, the novel or ‘‘standard’’ history, influenced or molded the other. In a sense it does not matter, because the ‘‘medieval’’ novel reconstructed the lives of ordinary people in ways which institutional histories did not: they reached behind the events, or the structures of the law, to the imagined reality of a people at a personal and social level. For Palgrave these elements could, and did, coalesce into understanding and representing national character and race as unifying forces in history and the process of legal and institutional maturity. ⁵¹

As we have also noticed, Palgrave’s interest in science, in particular the compilation and analysis of statistical data, evidences his empirical, innovative approach and characteristically “whiggish” concern for a model of progress. ⁵² That approach extended, significantly, to matters of interpretation and explanation in history and the law. In the eighteenth century the term “evolution” had been sometimes applied to a sequence of events in time, without reference to the concept of the unfolding of a pre-existing structure or design. In the nineteenth century, this practice was developed, in particular to include the “evolution” of political or social organizations. A good example of this occurs in the work of Palgrave: ‘‘Our constitutional form of government has been produced by evolution. As the organs were needed, so did they arise.’’ Palgrave used the term “evolution” as a way of describing an historical process or sequence, although not necessarily in a determined or teleological sense. ⁵³

These attributes exemplify the distinctive qualities of Palgrave’s legal history: not only in his broad view about the compelling inspiration of the Roman imperial idea (before it was pushed back by the accomplishments of the Germanist school) as an archetype of continuity and progress; but also in his method and practice as an archivist. Where does, however, this position Palgrave in relation to Whig historiography at a theoretical or intellectual level? Can we say that he prefigured the work by others over the following century? What was his “position” on “race” and the Conquest, for example, as an iconic date of national significance? It is submitted that his emphasis on the importance of the imperial idea and its racial context authentically represented a kind of history which was both imaginative and unprecedented. ⁵⁴ As we have already noticed, Palgrave described a theory of the English race, specifically the relative Romano-Celtic and Anglo-Saxon population ratios, which he saw as a critical factor in his history of laws and institutions. His hypothesis was that the majority of the English were racially Romano-Celtic and that the Anglo-Saxon invasion was not a volk-invasion but an elite conquest. ⁵⁵ This premise sets Palgrave, foreshadowing Freeman ⁵⁶ (and ultimately Powicke, ⁵⁷ and so many others), and in the almost dynastic sense prefigured by Levine, as the innovative and prototypical English proponent of continuity over disruption, of organic national progress over historical cataclysm. ⁵⁸

However, simply because the debt which was owed by Freeman to Palgrave can be recognized, in establishing the framework for the continuity theory of English history to be fashioned into advanced histories, it is important to not fall into the very kind of anachronism and teleology for which Whig history is often criticized. Leaving aside Palgrave’s practical role in the parliamentary reform crisis of the early 1830s, is it justifiable for us to characterize Palgrave, synchronously, as a Whig, in any other terms? ⁵⁹ Is there any other evidence available which might situate him in such an intellectual context? Certainly his journal publications in both the Quarterly Review and the Edinburgh Review, as the juxtaposed organs of either side of politics, do not essentially situate him in either Whig or Tory circles. It is reasonable to argue, nonetheless, that the substance of at least two articles, tellingly published in the Quarterly Review (oxymoronically the more conservatively oriented of the two journals) indicates to us a conspicuously whiggish intellectual bent. Palgrave wrote two scathing critiques of Hume for the Quarterly Review expressing the belief that Hume could not throw his mind back to the past. In “Anglo-Saxon History” ⁶⁰ Palgrave criticized Hume, with uncharacteristic froideur, for having an ‘‘aerial perspective,’’ and failing to appreciate the infusion of religion throughout the medieval period by lumping subtly distinct periods through the medieval era into one conglomeration due to what Miles terms (Hume’s) ‘‘religious antipathy.’’ ⁶¹ In “Hume and His Influence on History” ⁶² Palgrave again censured Hume, finding Hume the historian superficial and lazy. According to Palgrave, Hume did not do sufficient empirical research and failed to track down original sources being too comfortable with secondary sources. As a result, in Miles’ estimation, Hume ‘‘could never remove himself out of the eighteenth-century.’’ ⁶³ Further, in “Hume’s Influence” ⁶⁴ Palgrave asserted that one had to appreciate the religious conviction of the great historical figures to understand their motivations and that Hume deliberately obscured this obvious fact in his work, diminishing the role of religion in history and, more particularly, royal political authority. ⁶⁵ In this light, it is argued, we see further evidence of the particular paradigm for the research and exposition of legal and national history which Palgrave endeavored to establish.

Palgrave’s model – the original use of the national records within an imaginative historical narrative was not, however, to endure. Beginning with the work of John Mitchell Kemble (1807–March 26, 1857) Palgrave’s ecumenical and nuanced approach was gradually replaced by a more focused emphasis on Germanic lineages and a contrapuntal effacing of the Romano-Celtic inheritance. ⁶⁶ The accentuation of Kemble’s studies was directed towards the Anglo-Saxon period through the influence of one of the famous brothers Grimm, Jacob, under whom he studied at Göttingen in 1831. Kemble’s comprehensive knowledge of the Teutonic languages and his critical proficiencies were shown in his translation of the Anglo-Saxon poem of Beowulf (1833–1837). For our purposes, however, Kemble’s Codex diplomaticus aevi Saxonici (London 1839–1848), and his History of the Saxons in England (1849; new ed. 1876), ⁶⁷ set out a new direction, one which was squarely oriented towards a Germanic pedigree in British history, culture and historiography. As detailed by Dewey:

The building-blocks of Kemble’s Saxon society were the village communities; the basic units in a hierarchic political federation. Existing families threw out fresh households within the community; existing villages threw out fresh villages within the waste; and the process was repeated until the family became a tribe, and the tribe a kingdom.

Dewey acknowledges, however, that this representation was idealized rather than empirical and that, for example, Kemble’s handling of the village economy was vague. ⁶⁸ Nevertheless Kemble established a pattern which was assumed and amplified by others over the course of the latter part of the nineteenth century. Its chief proponent, and it is not too extravagant to say even polemicist, was A.E. Freeman (August 2, 1823–March 16, 1892), the famous English historian, and Liberal politician. He held the position of Regius Professor of Modern History at Oxford. He published 239 distinct works, perhaps the best known being History of the Norman Conquest (published 1867–1876). Freeman’s racial essentialism was, by contrast, much more developed, specific and all-embracing. As ‘‘an ardent Teutonist’’ Freeman can be seen as having cultivated his antipathy toward the non-Aryan, and even towards non-Germanic Aryans such as the Celts; and we can agree with Parker in his overall assessment of Freeman that:

His academic and political honours symbolized the extent of his Aryan world, which stretched from ‘‘New England’’ … to Russia and the Balkans. Every major piece of history he wrote was informed by, or influential upon, his developing theory of race. ⁶⁹

It is in this context that Freeman’s assessment of Palgrave’s contributions to history need to be appreciated. If we accept Parker’s (uncorroborated) assertion that Freeman is the author of the Edinburgh Review’s review of ‘‘The History of Normandy and England by Sir Francis Palgrave,’’ ⁷⁰ then where Freeman indicts Palgrave for a lack of understanding about the importance of the role of race in determining national history we should be wary of the potential for visceral anti-Semitic rodomontade. Nevertheless, in Blaas’ adroit treatment of the ideas and conflicts within Victorian historiography, Continuity and Anachronism, this tension is specifically considered. Recognizing Palgrave’s originality, as well as his oleaginous style of writing which Blaas describes as “over-lengthy and bombastic”, Blaas notes that by the latter years of the nineteenth century “Palgrave’s vision went almost unnoticed.” ⁷¹ Furthermore, Blaas details what is portrayed as a conscious (on Palgrave’s behalf) eschewing of contemporary political relevance and utility – a critical factor in the ostensible effacement of the Palgrave paradigm – as compared with the determined political involvement of Freeman. ⁷²

Certainly in the second half of the nineteenth century, and extending into the early years of the twentieth, two remarkable dons dominated the scholarship of English medieval history. As Campbell explains, William Stubbs and his younger contemporary Frederic William Maitland were, respectively, the establisher of medieval history as a subject for study in British universities, and the extraordinary historian of English law. Both professors owed much to German historiography, and their commitment was part of an Anglo-German intellectual affiliation in the study and appreciation of history. Although this relationship was wrecked by the First World War, and the underpinning theory (insofar as it related to and depended upon the Teutonic origins of representative government) was debunked by Beard in 1932, ⁷³ the legacy and tradition of Anglo-Germanism – with its origins in Grimm and Kemble, settled by Stubbs and Maitland and upheld by disciples such as Tanner, Powell, Tait, Tout, Powicke, Trevelyan and Milsom – remained strong enough to organize much of the intellectual paradigm of constitutional history and associated historico-legal discourse throughout the twentieth century. ⁷⁴ Lobban’s 2012 survey of this historiography of the Common Law, although differing on the position of Freeman vis-à-vis “Germanic method”, nonetheless corroborates this solid genealogy of English legal history since the late nineteenth century. ⁷⁵

The connection which English historians of the Germanist school had with Palgrave’s works became, under these conditions, complex and sometimes equivocal. By way of simple example, in 1896 Stephens cited Palgrave as the origin of the erroneous hypothesis contending that the establishment of juries could be traced back to Anglo-Saxon times (albeit that in criminal trials it was unheard of until it was established by William I). ⁷⁶ Stephens did not cite one or any of Palgrave’s works, at any particular point; so the effect produced (while not ad hominem) is that of a type of argument based on misrepresentation or at least gross oversimplification of Palgrave’s position. Similarly, in 1914, Mills cited Palgrave (without reference to any specific utterance) as authority for the inherently Teutonic nature of the constitutions of the British Empire. ⁷⁷ More importantly however, along with Blaas, it is important to acknowledge that Palgrave’s influence on the larger figures of Stubbs, Freeman and Maitland needs to be characterized as more intricate and nuanced – as Blaas demonstrates with exegetic deftness – but ultimately as recessive. ⁷⁸ The assessment of Burrow, on the other hand, although certainly balanced on Palgrave’s inherent strengths and weaknesses, is somewhat less subtle than that of Blaas on the question of Palgrave’s place in this historiographical lineage. While it is apposite for Burrow to make this final comparison in his A Liberal Descent:

Palgrave … was precisely the same combination of historical mystic and antiquarian pedant as Freeman himself … In both there is a devotion to the past so intense as to amount to a reluctance to recognise it as irrevocably past. ⁷⁹

Burrow’s initial estimation of Palgrave’s “important though scrappy work” ⁸⁰ in the opening section of his treatment of “Die Germanische Rechtsgeschichte” sets the scene for portraying Palgrave’s contributions as “loosely connected”. ⁸¹ Despite acknowledging Stubbs’ debt to Palgrave in the more balanced approach to the roman:german dichotomy, ⁸² and Freeman’s debt to Palgrave on the theme of continuity, ⁸³ Burrow concludes, perhaps just a little iniquitously, that Palgrave “presented the Whig doctrine of continuity in its blandest and most optimistic form.” ⁸⁴

VII. Conclusion

The focus of this article has been on the importance of Sir Francis Palgrave’s written works, especially in terms of his developed methods and theories; and how Palgrave’s interpretation of early English legal history was in its time a dramatic and ground-breaking example of drawing conclusions from the analysis of the development of legal principles. Palgrave’s works of history, particularly those relating to the influences of the national, legal and institutional traces of the Roman empire on English law, it has been argued, exemplified imagination and insightfulness of theory, complemented by rigorous and methodical utilization of the archival evidence to which Palgrave had exceptional access. Palgrave’s archetype of the imperial idea of “authority” within a national milieu, before it was overshadowed by the ideas of the Germanist school and the associated Common Law historiographical tradition, contrasted in its approaches to writing the history of the nation’s laws and institutions from that tradition which followed. As a result, it is hoped that the purpose of this article: to re-evaluate and to a degree correct the underestimation (consequent upon the effacement of Palgrave’s works by the weight of a divergent, although clearly not rectilinear, intellectual convention) has been at least partially achieved.

OPEN IN VIEWER

Table 1.

Palgrave’s contributions to the Edinburgh Review and the Quarterly Review 1814–1845.

Quarterly Review

Edinburgh Review

Brand’s Popular Antiquities (July 1814) Paradise of Coquettes (October 1814) Dunlop’s History of Fiction (July 1815) Miss Porden’s “Veils” (January 1817) Ancient and Modern Greenland (May 1818) Antiquities of Nursery Literature (January 1819) Popular Mythology of the Middle Ages (March 1820) Normandy – Architecture of the Middle Ages (April 1821) Astrology and Alchemy (October 1821) Application and Intent of the Various Styles of Architecture (January 1822) Origin of Equitable Jurisdiction (June 1825) Anglo-Saxon History (June 1826) Records and Registrations (January 1829) The Fine Arts in Florence (June 1840) Election Committees and Registration of Electors (March 1843) Mediaeval Kalendars – Saints’ Days (March 1843) Queens of France and Royal Favourites (March 1843) Victor Hugo’s Letters on the Rhine (March 1843) Life and Works of Sismondi (September 1843) Hume and his Influence on History (March 1844) The Conquest and the Conqueror (October 1844) Convocation (March 1845) Gally Knight, and Bunsen on Ecclesiastical Architecture (March 1845)

Herbert’s Helga (June 1815) Ancient German and Northern Poetry (February 1816) Goethe’s Life of Himself (June 1816) French Invasion of the Tyrol (September 1816) Turkish Account of Wars with Russia (December 1816) Goethe’s Memoirs (March 1817) Travels in Caucasus and Georgia (August 1817) Millin, Voyage en Italie (November 1817) The States of Wirtemberg (February 1818) Gothic Laws of Spain (December 1818) Ancient Laws and Constitution of the Frisons (July 1819) Ancient Laws of the Scandinavians (August 1820) Courts of the Ancient English Common Law (February 1822) Mr Gally Knight’s Architectural Tours (April 1839)