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-The Project Gutenberg eBook, Frederick William Maitland, by H. A. L.
-(Herbert Albert Laurens) Fisher
-
-
-This eBook is for the use of anyone anywhere in the United States and most
-other parts of the world at no cost and with almost no restrictions 
-whatsoever.  You may copy it, give it away or re-use it under the terms of
-the Project Gutenberg License included with this eBook or online at 
-www.gutenberg.org.  If you are not located in the United States, you'll have
-to check the laws of the country where you are located before using this ebook.
-
-
-
-
-Title: Frederick William Maitland
-       Downing Professor of the Laws of England; A Biographical Sketch
-
-
-Author: H. A. L. (Herbert Albert Laurens) Fisher
-
-
-
-Release Date: October 3, 2015  [eBook #50124]
-
-Language: English
-
-Character set encoding: UTF-8
-
-
-***START OF THE PROJECT GUTENBERG EBOOK FREDERICK WILLIAM MAITLAND***
-
-
-E-text prepared by Richard Tonsing, Clarity, and the Online Distributed
-Proofreading Team (http://www.pgdp.net) from page images generously made
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-
-Transcriber's note:
-
-      Text enclosed by underscores is in italics (_italics_).
-
-      Text enclosed by equal signs is in bold face (=bold=).
-
-      Signatures are enclosed by tilde characters (~Signature~).
-
-
-
-
-
-FREDERICK WILLIAM MAITLAND
-
-A Biographical Sketch
-
-
-Cambridge University Press
-London: FETTER LANE, E.C.
-C. F. Clay, Manager
-
-[Illustration]
-
-Edinburgh: 100, Princes Street
-Berlin: A. Asher and Co.
-Leipzig: F. A. Brockhaus
-New York: G. P. Putnam's Sons
-Bombay and Calcutta: Macmillan and Co., Ltd.
-_All rights reserved_
-
-[Illustration: Photogravure by Annan & Sons Glasgow]
-
-[Illustration:                                  ~Yours very truly
-                                                       F. W. Maitland~]
-
-
-
-
-
-FREDERICK WILLIAM MAITLAND
-
-Downing Professor of the Laws of England
-
-A Biographical Sketch
-
-by
-
-H. A. L. FISHER
-
-
-
-
-
-
-
-Cambridge:
-at the University Press
-1910
-
-Cambridge:
-Printed by John Clay, M.A.
-At the University Press
-
-
-
-
-PREFATORY NOTE
-
-
-Whatever merit this Memoir may possess it owes to Maitland and to the
-circle of those who cherish his memory. My own disabilities will be
-made plain to the reader, but, lest he entertain false expectations,
-let me explain at the outset that I was educated neither at Eton, nor
-at Cambridge, nor at Lincoln's Inn, that I am no lawyer, and that I
-have never received a formal education in the law. Finally, I did
-not make Maitland's acquaintance till he was in his thirty-seventh
-year. These are grave shortcomings, and if I do not rehearse the long
-roll of benefactors who have helped me to repair them, let it not be
-imputed to a failure in gratitude. I cannot, however, forbear from
-mentioning five names. Before these sheets went to Press they were
-read by Mrs Maitland, by Mrs Reynell, by Dr Henry Jackson, by Dr A. W.
-Verrall and by Professor Vinogradoff. To their intimate knowledge and
-weighty counsels I owe a deliverance from many errors. Dr Jackson has
-generously laid upon himself the additional burden of helping me to see
-the volume through the Press.
-
-                                                         H. A. L. FISHER.
-
-  _May 1910._
-
-
-
-
-FREDERIC WILLIAM MAITLAND
-
-
-
-
-I.
-
-
-The life of a great scholar may be filled with activity as intense
-and continuous as that demanded by any other calling, and yet is in
-the nature of things uneventful. Or rather it is a story which tells
-itself not in outward details of perils endured, places visited,
-appointments held, but in the revelation of the scholar's mind given
-in his work. Of such revelation there is no stint in the case of
-Frederic William Maitland. Within his brief span of life he crowded
-a mass of intellectual achievements which, if regard be had to its
-quality as well as to its volume, has hardly, if ever, been equalled
-in the history of English learning. And yet though a long array of
-volumes stands upon the Library shelves to give witness to Maitland's
-work, and not only to the work, but to the modest, brilliant and human
-spirit which shines through it all and makes it so different from the
-achievement of many learned men, some few words may be fitly said here
-as to his life and as to the place which he held and holds in our
-learning.
-
-He was born on the 28th of May, 1850, at 53 Guilford Street, London,
-the only son of John Gorham Maitland and Emma Daniell. Father and
-mother both came of good intellectual lineage. John Gorham Maitland
-was the son of Samuel Roffey Maitland, the vigorous, learned and
-unconventional historian whose volume on the Dark Ages, published in
-1844, dissipated a good deal of uncritical Protestant tradition. Emma
-Daniell was the daughter of John Frederic Daniell, a distinguished
-physicist, who became a Fellow of the Royal Society at the age of
-twenty-three, invented the hygrometer and published, as Professor of
-Chemistry at King's College, a well-known _Introduction to Chemical
-Philosophy_.
-
-Such ancestry, at once historical and scientific, may explain some of
-Maitland's tastes and aptitudes. Indeed the words in which Dr Jessop
-has summarised the work of Samuel Maitland might be applied with equal
-propriety to the grandson. "Animated by a rare desire after simple
-truth, generously candid and free from all pretence or pedantry, he
-wrote in a style which was peculiarly sparkling, lucid and attractive."
-The secret of this stimulating and suggestive quality lay in the fact
-that Samuel Maitland was a man of independent mind who took nothing
-for granted and investigated things for himself. In 1891 his grandson
-wrote the following words to his eldest sister, who asked whether
-their grandfather's works would live. "Judging him merely as I should
-judge any other literary man I think him great. It seems to me that
-he did what was wanted just at the moment when it was wanted and so
-has a distinct place in the history of history in England. The _Facts
-and Documents_ (illustrative of the History, Documents and Rites
-of the Ancient Albigenses and Waldenses) is the book that I admire
-most. Of course it is a book for the few, but then those few will be
-just the next generation of historians. It is a book which 'renders
-impossible' a whole class of existing books. I don't mean physically
-impossible--men will go on writing books of that class--but henceforth
-they will not be mistaken for great historians. One has still to
-do for legal history something of the work which S. R. M. did for
-ecclesiastical history--to teach men e.g. that some statement about
-the thirteenth century does not become the truer because it has been
-constantly repeated, that 'a chain of testimony' is never stronger than
-its first link. It is the 'method' that I admire in S. R. M. more even
-than the style or the matter--the application to remote events of those
-canons of evidence which we should all use about affairs of the present
-day, e.g. of the rule which excludes hearsay."
-
-Cambridge and the bar were familiar traditions. Samuel Maitland was
-a member of Trinity College, Cambridge, who, having been called to
-the bar, abandoned the professional pursuit of the law for historical
-research. He took orders, became Librarian at Lambeth, and ultimately
-retired to Gloucester to read and to write. John Gorham, seventh
-wrangler, third classic, Chancellor's medallist, crowned a brilliant
-undergraduate career by a Fellowship in his father's college and was
-then called to the bar, but finding little practice drifted away
-into the Civil Service, becoming first, examiner, and afterwards,
-in succession to his friend James Spedding, secretary to the Civil
-Service Commission, which last office he held till his death in 1863,
-at the age of forty-five. That he could write with point and vigour is
-made clear by a pamphlet upon the Property and Income Tax, published
-in 1853, but the work of the Civil Service Commission must have left
-little leisure for writing, and early death cut short the career of
-a man whose high gifts were as remarkable to his friends as was the
-modesty with which he veiled them from the world[1]. Frederic William,
-too, passed from Cambridge to the law and then away to work more
-congenial to his rare and original powers.
-
-Of direct parental influence Maitland can have known little. His
-mother died in 1851 when he was a baby, and twelve years afterwards,
-six months before a Brighton preparatory school was exchanged for
-Eton, he and his two sisters were left fatherless and the sole charge
-of the family devolved upon Miss Daniell the aunt, who stood in a
-mother's place. Dr Maitland, the historian, lived on till 1866 and his
-home in Gloucester, still called Maitland House, was from time to
-time enlivened by the visits of grandchildren. The fair landscape of
-Gloucestershire--the wooded slopes of the Cotswolds, the rich pastures
-of the Severn Valley with the silver thread of river widening into a
-broad band as it nears the Bristol Channel, the magical outline of
-the Malvern Hills, the blaze of the nocturnal forges in the Forest of
-Dean, were familiar to Maitland's boyhood. Gloucestershire was his
-county, well-known and well-loved. The beautiful old manor-house of
-Brookthorpe, one of those small grey-stone manor-houses which are the
-special pride of Gloucestershire, stood upon the lands which had come
-into the possession of the family through the marriage of Alexander
-Maitland with Caroline Busby in 1785. Round it in the parishes of
-Brookthorpe and Harescombe lay "Squire Maitland's" lands--a thriving
-cheese-making district until Canada began to filch away the favour of
-its Welsh customers.
-
-Maitland was at Eton from 1863 to 1869, but failed to become prominent
-either in work or play. "He played football, was for a while a
-volunteer, rowed so much that he 'spoilt his style,' spent Sunday
-afternoons in running to St George's chapel to hear the anthem, and
-more than once began the holidays by walking home to Kensington[2]."
-Long afterwards when the question of compulsory Greek was being hotly
-debated in the Senate House at Cambridge he spoke with deep feeling of
-a "boy at school not more than forty years ago who was taught Greek for
-eight years and never learnt it ... who reserved the greater part of
-his gratitude for a certain German governess ... who if he never learnt
-Greek, did learn one thing, namely, to hate Greek and its alphabet and
-its accents and its accidence and its syntax and its prosody, and all
-its appurtenances; to long for the day when he would be allowed to
-learn something else; to vow that if ever he got rid of that accursed
-thing never, never again would he open a Greek book or write a Greek
-word[3]." We imagine a shy, awkward delicate boy bursting into jets
-of wittiness at the least provocation, caring for things which other
-boys did not care for, misliking the classics, especially Greek, but
-"brought out by Chaucer" as his tutor Mr E. D. Stone reports, and
-discovering some taste for mathematics and a passionate interest in
-music. One contemporary remembers his "jolly, curiously-lined face";
-another writes that he was regarded as "a thoroughly good fellow,"
-but his striking originality of mind was perhaps only realised by one
-schoolfellow, Gerald Balfour, who was the sharer of many a Sunday
-walk and both at Eton and Cambridge bound to Maitland by close ties
-of friendship. To the masters Maitland presented none of the obvious
-points of interest. Even William Johnson, that learned and catholic
-scholar who made so many happy discoveries, failed to discover
-Maitland. The boy was not a Hellenist and his deficiencies in Greek and
-Latin prosody put him outside the intellectual pale. He was whimsical,
-full of eccentric interests, of puns and paradox and original humour.
-His closest school friend thought that he would possibly develop into
-"a kind of philosophic Charles Lamb[4]."
-
-In the autumn of 1869 Maitland went up to Trinity College, Cambridge,
-as a Commoner. The learned Samuel Roffey had been a musician both in
-theory and practice, and the taste for music descended through the
-son to the grandson. The first year of Maitland's undergraduate life
-was given over to music, mathematics and athletics; but his earliest
-distinctions were gained not in the most but in the least intellectual
-of these pursuits. Though he can never have looked otherwise than
-fragile, he had outgrown his early delicacy and become an active lad
-with considerable powers of endurance. He won the Freshman's mile
-in four minutes forty-seven seconds, excellent time as records went
-then, and obtained his "blue" as a three-miler in the Inter-University
-Sports. The two mile walking race, the quarter, and the mile, fell to
-him at various times in the Third Trinity Sports. Nor were his athletic
-activities confined to the running path. His friend Mr Cyprian Williams
-remembers his last appearance as a racing oarsman; how on the final
-day of the Lent races of 1872 the Third Trinity second boat after a
-successful week made a crowning bump, how in the moment of the victory
-the crew were tipped over into the cold and dirty waters of the Cam,
-and how in the evening the boat dined in Maitland's lodgings over
-Palmer's boot-shop and kept up its festivity well into the morning.
-
-Long before this--at the beginning of his second year at
-Cambridge--Maitland found his way into Henry Sidgwick's lecture-room
-and made a discovery which shall be told in his own words. "It is
-now thirty years ago that some chance--I think it was the idle whim
-of an idle undergraduate--took me to Sidgwick's lecture-room, there
-to find teaching the like of which had never come in my way before.
-There is very much else to be said of Sidgwick; some part of it has
-been beautifully said this afternoon; but I should like to add this:
-I believe that he was a supremely great teacher. In the first place
-I remember the admirable patience which could never be out-worn
-by stupidity, and which nothing but pretentiousness could disturb.
-Then there was the sympathetic and kindly endeavour to overcome our
-shyness, to make us talk, and to make us think. Then there was that
-marked dislike for any mere reproduction of his own opinions which
-made it impossible for Sidgwick to be in the bad sense the founder
-of a school. I sometimes think that the one and only prejudice that
-Sidgwick had was a prejudice against his own results. All this was
-far more impressive and far more inspiriting to us than any dogmatism
-could have been. Then the freest and boldest thinking was set forth in
-words which seemed to carry candour and sobriety and circumspection to
-their furthest limit. It has been said already this afternoon, but I
-will say it again: I believe that no more truthful man than Sidgwick
-ever lived. I am speaking of a rare intellectual virtue. However
-small the class might be, Sidgwick always gave us his very best; not
-what might be good enough for undergraduates, or what might serve for
-temporary purposes, but the complex truth just as he saw it, with all
-those reservations and qualifications, exceptions and distinctions
-which suggested themselves to a mind that was indeed marvellously
-subtle but was showing us its wonderful power simply because, even in
-a lecture room, it could be content with nothing less than the maximum
-of attainable and communicable truth. Then, as the terms went by, we
-came to think of lecture time as the best time we had in Cambridge;
-and some of us, looking back now, can say that it was in a very true
-sense the best time that we have had in our lives. We turned away to
-other studies and pursuits, but the memories of Sidgwick's lectures
-lived on. The matter of the lectures, the theories and the arguments,
-might be forgotten; but the method remained, the spirit remained, as an
-ideal--an unattainable ideal, perhaps, but a model of perfect work. I
-know that in this matter I can speak for others; but just one word in
-my own case. For ten years and more I hardly saw Sidgwick. To meet him
-was a rare event, a rare delight. But there he always was: the critic
-and judge of any work that I might be doing: a master, who, however
-forbearing he might be towards others, always exacted from himself
-the utmost truthfulness of which word and thought are capable. Well,
-I think it no bad thing that young men should go away from Cambridge
-with such a master as that in their minds, even though in a given case
-little may come of the teaching ... I can say no more. Perhaps I have
-already tried to say too much. We who were, we who are, Sidgwick's
-pupils, need no memorial of him. We cannot forget. Only in some way
-or another we would bear some poor testimony of our gratitude and our
-admiration, our reverence and our love[5]."
-
-Such teaching was precisely calculated to ripen Maitland's unsuspected
-powers. The pupil was as modest, as exact, as truth-loving as the
-master, and possessed a quick turn for witty casuistry which was
-quite individual though not dissimilar to Sidgwick's own gift in the
-same direction. Under Sidgwick's influence Maitland's intellect
-deepened and widened. The piano was ejected from the college room;
-the University running path knew him no more; mathematics were
-abandoned for philosophy with such good result that a scholarship was
-gained at Trinity, and that in the Moral and Mental Science Tripos
-of 1872 Maitland came out at the head of the First Class, bracketed
-with his friend W. Cunningham, who has since won high distinction in
-the field of economic history. But the chief prize of undergraduate
-ambition, a Fellowship at Trinity, was denied him. Maitland competed,
-and was beaten in the competition by James Ward, now one of the most
-distinguished of living psychologists. Examiners make fewer mistakes
-than is commonly supposed, and on this occasion Henry Sidgwick and
-Thomas Fowler reached their decision not without hesitation. While
-admitting Maitland's literary brilliance and facility they discovered
-in his successful rival a deeper interest in the problems of philosophy
-and therefore a superior claim to a Fellowship in Moral and Mental
-Science[6].
-
-Maitland's Fellowship dissertation entitled "A Historical Sketch
-of Liberty and Equality as Ideals of English Political Philosophy
-from the time of Hobbes to the time of Coleridge" is, despite some
-defects of proportion, a remarkable performance for so young a man.
-Not only does it cover a wide range of reading, especially in the
-English moralists, but it is distinguished by two characteristic
-qualities--independence of judgment and a scrupulous estimate of the
-canons of proof. The scholar of Trinity says many good things[7], but
-says nothing at random. Even when it would have been tempting to sally
-forth with a flourish of affirmation, he prefers to stand within the
-zone of caution. "I am inclined to think," he writes, "(though there
-is great risk of such speculations being wrong) that Hobbes was led
-to exaggerate his account of man's naturally unsocial character by
-a desire to bring the state of nature into discredit." One cannot
-dogmatise about the motives of the dead; our dogmas are but plausible
-hypotheses, and so complex is human nature, so inexhaustible is life's
-casuistry that the likeliest conjecture may fail of the mark. "There is
-a great risk of such speculation being wrong." Touches like this reveal
-the fact that the disciple of Sidgwick had learnt his master's lesson.
-
-The scholarship at Trinity, carrying with it a place at the scholar's
-table, brought Maitland into communion with the ablest men in the
-College. It often happens that a youth who has attracted little
-attention at school by reason of his failure to satisfy the limited
-conventions of schoolboy excellence, springs into sudden prominence at
-the University. His conversation attracts notice; his friends discover
-that he has original opinions, or some peculiar charm of bearing, or
-that his gifts of mind or character are out of the common. So it was
-with Maitland. He soon achieved a reputation not only as a witty and
-brilliant talker, but as a charming companion and as the most original
-public speaker of his time. He was elected to be a member of the
-Apostles, a small society which for many university generations has
-been a bond between clever young Cambridge men and has brought them
-into friendly relations with their seniors: and by the suffrages of
-a larger and less select electorate he rose to be Secretary and then
-President of the Union Society.
-
-Maitland's speeches at the Union printed themselves upon the minds of
-his audience as being very effective for their immediate purpose and
-yet quite unlike the speeches of ordinary vote-winners. His artifice
-was all his own. Others were more eloquent, more prompt in the cut
-and thrust of debate, but in the power of condensing an argument
-into a surprising phrase or epigram he stood alone. After his first
-successful appearance as the advocate of the opening of National
-Collections of Science and Art on Sunday afternoons he 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."
-
-[Illustration: 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]
-
-[Illustration: 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 you thinking it just possible
-that you may care to see it, as it goes some little way (a very little
-way) to show that certain MSS are closely related.
-
-I have to dine in Oxford on Saturday, 10th May, and shall be there on
-Sunday the 11th. I hope that you will be in Oxford on that day and that
-we shall meet.
-
-
-                         TO FREDERICK POLLOCK.
-
-                            (On a postcard.)
-
-  _Jan. 1881._
-
-Et Fredericus de Cantebrigia essoniavit se de malo lecti, et essoniator
-dixit quod habuit languorem. Set quia essonium non jacet in breui de
-trampagio consideratum est quod summoneatur et quod sit in misericordia
-pro falso essonio suo. Postea uenit et defendit omnem defaltam et
-sursisam et dicit quod non debet ad hoc breve respondere quia non
-tenetur ire in trampagio nisi tantum quando dominus capitalis suus
-eat in persona sua propria nec vult nec debet ire cum ballivo vel
-preposito, et ipse et omnes antecessores sui semper a conquestu Anglie
-usque nunc habuerunt et habent talem libertatem, et de hoc ponit se
-super patriam, etc.
-
-Revera predictus F. seisitus fuit de uno frigore valde damnando.
-Judicium--Recuperet se ipsum.
-
-
-TO FREDERICK POLLOCK.
-
-  15, BROOKSIDE,
-        CAMBRIDGE.
-       _12 Nov. 1887._
-
-Very many thanks to you for a copy of your book on "Torts"--I am
-already deep in it and am reading it with delight. You will believe
-that coming from me this is not an empty phrase, for you will do me
-the justice of believing that I can find a good book of law very
-delightful. I hope that it may be as great a success as "Contracts"--I
-can hardly wish you better. I now see some prospect of getting the
-Law of Torts pretty well studied by the best of the undergraduates.
-For weeks I have been in horrible bondage to my lectures--Stephen's
-chapters about the Royal Prerogatives and so forth--I speak of the
-Stephen of the Commentaries--are a terrible struggle: when one is set
-to lecture on them three days a week one practically has to write a
-book on constitutional law against time.
-
-I cannot, alas, be at the Selden meeting on Monday, for I have
-undertaken to audit some accounts.
-
-    With many more thanks I rest
-    Sectator tuus set minus sufficiens.
-
-  F. W. MAITLAND.
-
-
-TO PAUL VINOGRADOFF.
-
-  15, BROOKSIDE,
-        CAMBRIDGE.
-      _12 June, 1887._
-
-"Cuius linguam ignorabant"--I feel now the full force of these words--I
-am in tenebris exterioribus, and there is stridor dencium; but I
-heartily congratulate you upon having finished your book[13], and thank
-you warmly for the copy of it that you sent me and for the kind words
-that you wrote upon the outside. Also I can just make out my name in
-the Preface and am very proud to see it there. Also I have read the
-footnotes and they are enough to show me that this is a great book,
-destined in course of time to turn the current of English and German
-learning.
-
-My book also is finished, but the printers are slow. I hope to send you
-a copy in the autumn. I have been able to add a few links to the chain
-of argument that you forged. My happiest discovery was about a note
-that you may remember, "Ermeiard et herede de Hokesham." I found (1)
-that the heir of Huxham was in ward to William of Punchardon, (2) that
-William's wife was Ermengard, (3) that Ermengard brought an action for
-her dower against Henry of Bratton. I have also had some success with
-Whitchurch, Gorges, Corner and Winscot.
-
-
-TO FREDERICK POLLOCK.
-
-  JUBILEE TEAPOT TOR,
-           HORRABRIDGE.
-           _26 July, 1887._
-
-Horrabridge seems to be as much our post town as any other place; but
-I have not fully fathomed our postal relations. The legend is that
-the old gentleman who squatted here--and if ever I saw an untitled
-squatment I see one now--held that the post was "a new found holiday"
-and charged the postman never to come near him--and the postman,
-holding this to be an acquittance for all time, refused and still
-refuses to visit Pu Tor, but leaves our letters somewhere, I know not
-where, whence they are fetched by Samuel the son of the house--which
-Samuel learned the first half of the alphabet in the school "to"
-Sumpford Spiney Church-town when as yet there was a school, but the
-school scattered and beyond N Samuel does not go--howbeit, there will
-be a school again some day if ever Mr Collier can catch A. J. Butler at
-the Education Office, which is hardly to be expected. But if I begin
-to tell the acts of the Putorians, I shall never cease, for they are a
-race with a history and a language and (it may be) a religion of their
-own. Villani de Tawystock fecerunt cariagium--but the ignorant beggars
-did not know Pu Tor cottage and it seemed that we should wander about
-all night. This is a right good spot and we are grateful to you for
-discovering it. We have a sitting-room and two bedrooms and we could
-find place for a visitor if his stomach were not high. Have you seen
-the new ordnance map of the moor? Mr Collier showed it me. _Pew_ Tor is
-the spelling that it adopts.
-
-
-TO FREDERICK POLLOCK.
-
-  15, BROOKSIDE,
-        CAMBRIDGE.
-      _7 April, 1888._
-
-I have returned from a brief incursion of Devonshire. Verrall and I
-made a descent upon Lynton which is still beautiful and at this time of
-the year un-betouristed. Bank Holiday was tolerable. I suppose that you
-spent it upon your freehold and are now returning to the law. You have
-got an excellent number of the _L. Q. R._[14] this quarter; really it
-ought to sell and if it doesn't the constitution of the universe wants
-reforming....
-
-If P objects to "ville" as a termination for names in America what does
-he say to "wick" as a termination for names in England? I have been
-puzzling over the use of "villa" in Kemble's _Codex_. It seems to be
-used now for a village or township and now for a single messuage, and
-thus seems similarly elastic. One never can be quite certain what is
-meant when a villa is conveyed.
-
-I have had some thoughts about a plan of campaign for the history of
-the manor. The graver question is whether the story should be told
-forwards or backwards. I am not at all certain whether it would not be
-well to begin by describing the situation as it was at the end of cent.
-XIII. and then to go back to earlier times. But we can talk of this
-when "possession" is off your mind. Remember that you have to stay here
-as an examiner. Meanwhile I hope to form a provisional scheme for your
-consideration.
-
-I have got hold of a German, one Inama Sternegg, who seems to be
-the modern authority as to the growth of the manorial system on the
-continent.
-
-
-                         TO FREDERICK POLLOCK.
-                            (On a postcard.)
-
-  _9 May, 1888._
-
-Predicti sokemanni habebunt remedium per tale breve de Monstraverunt.
-
-R tali duci salutem. Monstraverunt nobis N N homines de trampagio
-vestro quod exigis ab eis alia servicia et alias consuetudines quam
-facere debent et solent videlicet in operibus et ambulationibus, et
-ideo vobis precipimus quod predictis hominibus plenum rectum teneas
-in curia tua ne amplius inde clamorem audiamus, quod nisi feceris
-vicecomes noster faciat. Teste Meipso apud Cantebrigiam die Ascen. Dn̄i.
-
-
-TO PAUL VINOGRADOFF.
-
-  3, ALBANY TERRACE,
-          ST IVES,
-               CORNWALL.
-            _25 July, 1888._
-
-I ought before now to have sent you my address to meet the case of
-your having any MS to send me. I have been going over and over again
-in my mind many parts of the pleasant talk that we had at Cambridge
-during two of the most delightful days of my life. I hope that you were
-not weary of instructing me. Let me say that the more I think of your
-theory of folk land the better I like it. Of course it is a theory that
-must be tested and I know that you will test it thoroughly: but it
-seems to me a true inspiration, capable of explaining so very much, and
-I think that it will be for English readers one of the most striking
-things in your book. Should you care for notes on any of the following
-matters I can send them to you out of my Selden materials--(1) persons
-with surname of "le Freman" paying merchet, (2) free men refuse to
-serve on manorial jury, (3) the lord makes an exchange with the Communa
-Villanorum, (4) persons who pay merchet on an ancient demesne manor use
-the little writ of right.
-
-
-TO FREDERICK POLLOCK.
-
-  3, ALBANY TERRACE,
-              ST IVES,
-                   CORNWALL.
-                  _5 Aug. 1888._
-
-Many thanks for your telegram: it was kind of you to send so prompt
-a message[15]. I feel it a little absurd that I should be thanking
-you for the telegram and no more--but I must be decorous. However,
-let us put the case that in a public capacity you regret the result,
-still it is allowed me to think that in the capacity of friend you
-rejoice with me and of course I am very happy. I wonder whether you
-dined in Downing. I hope that my essoin was taken in good part; but
-really I thought that there would be an insolent confidence apparent
-in my journeying from St Ives to Cambridge in order to be present at
-a dinner. It might, I think, have been reasonably said that I did not
-come all that way to grace the triumph of another man.... Well, I
-am glad that I have ceased to regard you as my judge and can resume
-unrestrained conversation.
-
-
-TO FREDERICK POLLOCK.
-
-  3, ALBANY TERRACE,
-          ST IVES,
-               CORNWALL.
-              _6 Aug. 1888._
-
-Your letter from Downing tells me what I expected, namely, that the
-struggle was severe. I can very well understand that there was much
-to be said against me--some part of it at all events I have said to
-myself day by day for the last month. My own belief to the last moment
-was that some Q.C. who was losing health or practice would ask for
-the place and get it. As it is, I am reflecting that in spite of all
-complaints the bar at large must still be doing a pretty profitable
-trade, otherwise this post would not have gone begging.
-
-
-TO PAUL VINOGRADOFF.
-
-  22, HYDE PARK GATE, S.W.
-            _September, 1888._
-
-Has this occurred to you?--how extremely different the whole fate of
-English land law would have been if the King's court had not opened
-its doors to the under-vassals, to the lowest freeholders. But this
-was a startling interference with feudal justice and only compassed by
-degrees, in particular by remedies which in theory were but possessory
-etc. Now if the lower freehold tenants had not had the assizes, the
-line between them and the villein tenants would have been far less
-sharp. You hint at all this in chap. IV but might it not be worth a
-few more words--for there will be a tendency among your readers to
-say _of course_ freeholders had remedies in the King's courts while
-really there is no of course in the matter. The point that I should
-like emphasized--but perhaps you are coming to this--is that not having
-remedies in the King's own court is not equivalent to not having rights.
-
-       *       *       *       *       *
-
-  DOWNING.
-    _14 Oct. 1888._
-
-I have been picking up my strength and am doing a little work.
-Yesterday I got through my inaugural lecture; possibly I may print it
-and in that case I will ask you to accept a copy; but it was meant to
-be heard and not read and so I allowed myself some exaggerations.
-
-... I am now quite ready to see proofs of your book.... My Introduction
-for the manorial rolls is taking shape; it will deal only with the
-courts, their powers and procedure. You can I think trust me not to
-take an unfair advantage of our correspondence and your kindness--but
-if you had rather that I did not see the sheets of your book which deal
-with the courts, please say so. I hope to have got this Introduction
-written in a month or six weeks.
-
-
-TO HENRY SIDGWICK.
-
-  THE WEST LODGE,
-       DOWNING COLLEGE,
-         CAMBRIDGE.
-              _11 Dec. 1888._
-
-I have been reading your proof sheets[16] with great interest, and
-really as regards the parts which most concern me I have little to
-suggest. I think the chapter on law and morality particularly good.
-Were I writing the book I should in my present state of ignorance
-"hedge" a little about continental notions of law. Since I had some
-talk with you I have been reading several German law books, and my
-view of the duties of a German judge is all the more hazy. I find that
-a jurist, even when he is writing about elementary legal ideas, e.g.
-possession, will cite "Entscheidungen der oberste Gerichte von Celle,
-Darmstadt, Rostock etc.," _if he thinks them sound_--but how far he
-would think himself bound as judge by decisions which made against
-his theory I cannot tell. All seems rendered so vague by the notion
-of a heutige römische Recht. But I think that you have just hit off
-the English idea of a good judge--he does _justice_ when he sees an
-opportunity of doing it. I do not think that a man could be a judge
-of quite the highest order without a strong feeling for political
-morality. On p. 92, chap. XII. you might add if you could do so that
-our highest courts of appeal, House of Lords and Judicial Committee,
-hold themselves bound by their own decisions in earlier cases.
-
-As regards the existence of different laws in different parts of a
-country you might reckon among the advantages the gain in experience.
-I have no doubt that Scotch experience has improved English law and
-English experience Scotch law. Thus some use of an experimental method
-is made possible; e.g. take "Sunday closing" we can experiment on Wales
-and Cornwall. On the whole I have been surprised to find how little
-harm is done by the difference between Scotch and English law. I have
-read but very few cases that were caused by such differences.
-
-I admire the chapter on International Law and Morality; it is the
-best thing that I have read about the subject. In my view the great
-difficulty in obtaining a body of international rules deserving the
-name of law lies in the extreme fewness of the "persons" subject to
-that law and the infrequency and restricted range of the arguable
-questions which arise between them. The "code" of actually observed
-rules is thus all shreds and patches. In short, international law is so
-incoherent.
-
-
-TO PAUL VINOGRADOFF.
-
-  _20 Feb. 1889._
-
-You ask me about the Preface[17]--well I think it grand work, and
-on the whole I think it will attract readers because of its very
-strangeness; but you will let me say that it will seem strange to
-English readers, this attempt to connect the development of historical
-study with the course of politics; and it leads you into what will
-be thought paradoxes; e.g. it so happens that our leading "village
-communists" Stubbs and Maine are men of the most conservative type
-while Seebohm who is to mark conservative reaction is a thorough
-liberal. I am not speaking of votes at the polling booth but of radical
-and essential habits of mind. I think that you hardly allow enough for
-a queer twist of the English mind which would make me guess that the
-English believer in "free village communities" would very probably be a
-conservative--I don't mean a Tory or an aristocrat, but a conservative.
-On the other hand with us the man who has the most splendid hopes for
-the masses is very likely to see in the past nothing but the domination
-of the classes--of course this is no universal truth--but it comes in
-as a disturbing element.
-
-
-TO PAUL VINOGRADOFF.
-
-  THE WEST LODGE.
-     _12 March, 1889._
-
-Your long letter was very welcome. When I wrote I must have been in a
-bad temper and after I had written I wished to recall my letter. But
-now I no longer regret what has brought from you so pleasant an answer.
-Really I have no fear at all about the success of your book, if I had
-I would expatriate myself. But it stands thus:--Introductions are of
-"critical importance," by which I mean that they are of importance to
-critics, being often the only parts of a book which casual reviewers
-care to read. As a matter of prudence therefore I put into an
-Introduction a passage about the book which I mean critics to copy,
-and they catch the bait--it saves them trouble and mistakes. But your
-"philosophy of history," I mean philosophy of historiography, will not
-lend itself to such ready treatment and may give occasion to remarks as
-obvious and as foolish as mine were. But I hope for better things. All
-that you say about Stubbs and Seebohm and Maine is, I dare say, very
-true if you regard them as European, not merely English, phenomena and
-attribute to them a widespread significance--and doubtless it is very
-well that Englishmen should see this--still looking at England only and
-our insular ways of thinking I see Stubbs and Maine as two pillars of
-conservatism, while as to Seebohm I think that his book is as utterly
-devoid of political importance, as, shall I say Madox's _History of
-the Exchequer_? But you are cosmopolitan and I doubt not that you are
-right. You are putting things in a new light--that is all--if "the
-darkness comprehendeth it not," that is the darkness's fault.
-
-And now as to Essay I. I have nothing to withdraw or to qualify. I
-think it superb, by far the greatest thing done for English legal
-history. I am looking forward with the utmost anxiety to Essay II.
-
-
-TO PAUL VINOGRADOFF.
-
-  DOWNING.
-      _15 Nov. 1891._
-
-Even the title page has been passed for the press and I am now awaiting
-your book. I shall be proud when I paste into you the piece of paper
-that you sent me. I have felt it a great honour to correct your proof
-sheet and am almost as curious about what the critics will say as if
-the book were my own. I often think what an extraordinary piece of
-luck for me it was that you and I met upon a "Sunday tramp." That day
-determined the rest of my life. And now the Council of the University
-has offered me the honour of doctor "honoris causa." I was stunned by
-the offer for it is an unusual one and of course I must accept it. But
-for that Sunday tramp this would not have been. As to the reception
-of your book my own impression is that it will be very well received.
-Good criticism you can hardly expect, for very few people here will
-be able to judge of your work. But I think that you will be loudly
-praised. Perhaps you will become an idol like Maine--who can tell? I
-hardly wish you this fate, though you might like it for a fortnight. I
-was ill in September, but am better now and have been doing a good many
-things--preparing myself for some paragraphs about Canon law.
-
-FOOTNOTES:
-
-[12] The note shows a knowledge of 18 Bracton MSS.
-
-[13] The Russian edition of _Studies in Villeinage_.
-
-[14] _Law Quarterly Review._
-
-[15] Announcing Maitland's election to the Downing Chair.
-
-[16] Professor Sidgwick's _Elements of Politics_ was published in 1891.
-
-[17] Of the English edition of Vinogradoff's _Studies in Villainage_.
-
-
-
-
-IV.
-
-
-The year which brought Maitland to Downing witnessed the appearance
-of a new volume from his pen entitled _Select Pleas of the Crown
-1200-1255_. It was a handsome quarto, bound in dark blue cloth, and the
-first publication of a Society called after the name of John Selden.
-The Selden Society, planned in the autumn of 1886 and founded in the
-following year "to encourage the study and advance the knowledge of
-English law," was the creature of Maitland's enthusiasm, and of all his
-achievements stood nearest to his heart. Indeed, without disparagement
-to accomplished help-mates and contributors, it may be said that
-without Maitland's genius, learning and devotion the Selden Society
-would have been unthinkable. Eight of the twenty-one volumes issued by
-the Society during his lifetime came from his pen; a ninth was almost
-completed at his death. "Of the rest every sheet passed under his
-supervision either in manuscript or in proof, and often in both[18]."
-He set the standard, planned the programme, trained many of the
-contributors. It is difficult to recall an instance in the annals of
-English scholarship in which so large an undertaking has owed so much
-to the diligence and genius of a single man.
-
-Both in conception and execution it is a noble series of volumes.
-Maitland's interest in law was not bounded by a province, a period, or
-a country; and the thirteen good and lawful men who on November 24,
-1886, signed the letter from which the Selden Society sprang did not
-make their appeal to the Bar and Bench of England in the cause of any
-narrow or pedantic antiquarian curiosity. The Common law of England
-ruled two vast continents, and was the concern of Americans, Canadians,
-and Australians as well as of Englishmen and Irishmen. Its history
-had never been written; few of the materials for its exploration had
-been given to the world. There was no scientific grammar or glossary
-of the Anglo-French language; there was no accurate dictionary of law
-terms; a great province, that of Anglo-Saxon law, had fallen into the
-occupation of the Germans. A short account of some of the principal
-classes of Records which might be dealt with by the Society was
-appended to the first two volumes and exhibited a prospect of great
-breadth, richness and variety. The state of the Criminal law in early
-times might be shown from the Eyre rolls and Assize rolls. The records
-of the Court of the Exchequer and the Court of Chancery, the Privy
-Council Registers, the proceedings before the Star chamber, the Court
-of Requests and the Court of Augmentations would illustrate the history
-of royal justice in its different sides and in different ages, in
-the formative period of legal and parliamentary growth, in the dreary
-turmoil of Lancastrian anarchy, under the vigorous despotism of the
-Tudors and in the dust of the great conflict which led to the Civil
-War. Then there were the records of the Courts Christian, of the Courts
-of the Forest and the Manor, records illustrating the history of the
-Palatine jurisdictions, the franchises of the Lords Marchers of Wales,
-the Court of the Staple in London and Calais, the Court of Castle
-Chamber in Dublin. Borough customs would throw light on one quarter of
-history; records of the Stanneries of Devon and Cornwall upon another.
-The origins of mercantile and international law might be explored; and
-closer knowledge could be obtained of many important State trials by
-a systematic account of the contents of the _Baga de Secretis_. The
-Society held out the further hope of scientific contributions to the
-knowledge of the Anglo-Saxon law and Anglo-French language of the Year
-Books.
-
-In the selection of specimens from this copious material, Maitland
-displayed a felicitous strategy the aim of which was to exhibit,
-as rapidly as might be, the range and versatility of the Society's
-operations. A sequence of volumes illustrating any one department
-of law would fatigue attention, warn off subscribers and fail to
-make the desired impression on the general historical public. It was
-better to begin upon several different types of record than to work
-one vein without intermission; better for the cause of science, and a
-course more likely to bring forward good contributors as well as to
-stimulate public interest in the undertaking. With a general editor
-less perfectly equipped such a scheme might have been hazardous; but
-Maitland was master of the whole field and could be trusted not to
-fail in proportion and perspective. In swift succession the members of
-the Selden Society received volumes illustrating Pleas of the Crown,
-Pleas of Manorial Courts, Civil Pleas, manorial formularies, the Leet
-jurisdiction of Norwich, Admiralty Pleas; then an edition of the
-_Mirror of Justice_ followed by a volume on _Bracton and Azo_. Of these
-first eight volumes Maitland wrote four and contributed a brilliant
-introduction to a fifth--the edition of the _Mirror_, executed by his
-pupil and friend Mr W. J. Whittaker. It was an astonishing performance;
-even had the work been spread over twelve years of robust energy it
-would still have been astonishing. It was accomplished in half that
-time by a busy, delicate, University Professor who apart from statutory
-Professorial lectures was simultaneously engaged in writing the
-classical _History of English Law_.
-
-Much might be said by qualified persons as to the exquisite technique
-displayed in Maitland's contributions to the Selden Society. He spared
-no pains in the examination and collation of manuscripts, and although
-he modestly disdained expert paleographical knowledge, he need not,
-we imagine, fear comparison with the most accurate transcribers of
-medieval documents, or with those who have achieved a special renown
-for their studies in "diplomatic" or in the affiliation of manuscripts.
-He possessed other qualities which are not often combined with such a
-passion and gift for minute scholarship. In the first place he was
-exceedingly anxious to make his work practically useful and to ease
-the path for students whose tastes might lead them to attempt similar
-explorations. He takes the reader into his laboratory and exhibits
-the whole process of discovery, showing where the difficulties lie,
-pointing out hopeful lines of enquiry, and providing always a clear
-chart to the documents, published and unpublished, of his subject.
-Secondly he combined in an extraordinary measure the gift for
-hypothesis with the quality of patience. He did not aim at providing
-sensational or curious results;--"the editor," he writes in the
-introduction to the first Selden volume, "has not conceived it his
-duty to hunt for curiosities, the history of law is not a history of
-curiosities"--he wished for plain truth--to discover the course of
-medieval justice in all its natural and instructive monotony, in its
-common forms and in its everyday working garb. "It has been necessary,"
-he writes, referring to his selection of manorial pleas, "to print
-some matter which in itself is dull and monotonous; a book full of
-curiosities would be a very unfair representative of what went on in
-the local courts. We cannot form a true notion of them unless we know
-how they did their ordinary work, and this we cannot know until we
-have mastered their common forms." Such a scheme no doubt involves
-repetition, but there is at least one student of English history
-who, despite some acquaintance with histories and chronicles, never
-understood the everyday working of medieval life until he had the good
-fortune to dive into the publications of the Selden Society.
-
-A saying used to be attributed to E. A. Freeman to the effect that it
-is impossible to write history from manuscripts; and it is obvious that
-a man who uses manuscript authority to any great extent, especially if
-he imposes upon himself great labours of transcription, will run the
-risk of losing his perspective and will be inclined to attach undue
-importance to those parts of his evidence which have cost him most
-sacrifice to obtain. On the other hand it is clear that the editor
-of historical manuscripts will do his work much better if he is also
-an historian; and this is specially true if he is called upon to
-pick and choose out of a vast repository of unedited material those
-specimens which are most likely to promote the advance of scientific
-knowledge. Maitland brought to the task of editing legal records an
-exact and comprehensive knowledge of the various problems, each in its
-proper order of importance, towards the solution of which his material
-might be expected to contribute. Like a skilful advocate examining
-a string of reluctant witnesses he had in his mind a provisional
-scheme of the whole transaction to quicken and define his curiosity.
-"These rolls," he writes, "are taciturn, they do not easily yield up
-their testimony, but must be examined and cross-examined." It was a
-close, seductive, patient cross-examination, one in which a little
-matter would often suggest an important conclusion, as where it is
-shown that the rapid development of the Common law in the thirteenth
-century is mirrored on the surface of the plea-rolls, which become
-fuller, more regular and more mechanical as the century goes on. And
-this cross-examination being conducted with great subtlety, vividness
-and penetration resulted in substantial discoveries. Each volume
-contributed new thought as well as new facts. The preface to _Select
-Pleas of the Crown_ traced the gradual differentiation of the several
-branches of the Royal Court in the early part of the thirteenth century
-and embodied valuable conclusions "drawn from a superficial perusal
-of all the rolls of John's reign" as to the state of criminal justice
-and criminal procedure at that epoch. The Introduction to the _Select
-Pleas of Manorial Courts_ was even more important, giving as it did for
-the first time an account of the stages in the decline of the English
-private courts and supplying an analysis, subtler than any which had
-yet been attempted, of the legal connotation of the term "manerium"
-and of the composition of the manorial courts. One suggestion was
-startling in its originality. The orthodox theory, contained in the
-works of Coke, had laid it down that a Court Baron could not be
-held without at least two freeholders. Maitland came upon the whole
-to the conclusion--though he is careful to state countervailing
-arguments--that originally no distinction was made between the
-freeholders and customary tenants. Both classes attended the Manorial
-Court and both classes gave judgment. Distinctions, however, did come
-to be drawn, and this by reason of a force the operation of which had
-escaped the notice of enquirers who had not been trained to attend
-to legal phenomena--by the force of legal procedure. "New modes of
-procedure are emphasising distinctions which have heretofore been
-less felt. The freehold suitors can maintain their position[19], the
-customary suitors become mere presenters and jurymen with the lord's
-steward as their judge. Every extension of royal justice at the expense
-of feudal does some immediate harm to the villein. It is just because
-all other people can sue for their lands and their goods in the King's
-own Court that he seems so utterly defenceless against the lord: 'the
-custom of the manor' looks so like 'the will of the lord' just because
-the humblest freeholder has something much better than the custom of
-the manor to rely upon, for he has the assizes of our lord the King,
-the Statutes of King and Parliament."
-
-The third volume edited by Maitland for the Selden Society consisted
-of two parts--a collection of Precedences for use in seignorial and
-other local courts belonging to the thirteenth and early part of the
-fourteenth century, and Select Pleas from the Bishop of Ely's Court
-at Littleport. Here there was less matter for elaborate historical
-disquisition, for the main problem with regard to the first class
-of document was to settle the age of the manuscripts; but the brief
-introduction to the Littleport pleas contained an important suggestion
-with regard to the early history of the English law of Contract.
-Were not the local courts enforcing "formless" arguments long before
-the King's Court had developed the action of "assumpsit" for the
-enforcement of agreements not under seal? The reader is reminded that
-the King's Court never by any formal act or declaration took upon
-itself to enforce the whole law of the land, that only by degrees
-did its "catalogue of the forms of action become the one standard of
-English law." There was an action for defamation in the local courts
-long before the Kings Court had undertaken to punish the slanderer;
-and what was true of defamation might equally be true of "parol"
-agreements. The Bishop's Court at Littleport was certainly enforcing
-agreements and it was difficult to suppose that the villeins of
-Littleport put their contracts into writing. Here again a few slight
-indications had prompted a secure and far-reaching inference.
-
-In the _Institutes_ of the learned but uncritical Coke there are many
-tales drawn from a curious Anglo-French treatise entitled the _Mirror
-of Justices_, "a very ancient and learned treatise of the laws and
-usages of this kingdom," opined Sir Edward, "whereby the Common-wealth
-of our nation was governed about eleven hundred years past." For a long
-time the book was accepted at Coke's high valuation with no little
-injury to the sober study of legal antiquities. Then it was exposed as
-apocryphal by Sir Francis Palgrave. It could not be taken as evidence
-"concerning the early jurisprudence of Anglo-Saxon England." But could
-it be taken as evidence of anything at all? _Wahrheit und Dichtung_
-was Vinogradoff's verdict,--sediments of truth floating in a sea of
-absurdity. It was worth while at least to establish the text and to
-examine the credentials of a treatise which, like the pseudo-Ingulph,
-had done much harm to sound learning.
-
-One reassuring result was obtained from Mr Whittaker's critical enquiry
-into the manuscript. The _Mirror_ was never in the middle ages a
-popular or influential book. It existed in a single unique manuscript.
-Such authority as it obtained was conferred upon it by lawyers who
-lived some three hundred years after it was written, were "greedy
-of old tales and not too critical of the source from which they were
-derived." Still, in a book so full of concrete positive statement,
-so full of denunciation of practical abuses, there might for all its
-rubble of absurdity be a quarry for historians.
-
-In a brilliant piece of persiflage Maitland once and for all demolishes
-the author of the _Mirror_. He exposes his wilful lies, his unctuous
-piety, the perverse originality which amuses itself by playing havoc
-among technical terms, his absence of all lawyerly interest, his
-perplexing and fantastic inconsistencies. A most ingenious hypothesis
-is advanced to explain the source of this curious piece of apocryphal
-literature. "In order to discover the date of its composition we ask
-what statutes are, and what are not, noticed in it, and we are thus
-led to the years between 1285 and 1290. Then we see that its main and
-ever-recurring theme is a denunciation of 'false judges,' and we call
-to mind the shameful events of 1289. The truth was bad enough; no doubt
-it was made far worse by suspicions and rumours. Wherever English men
-met they were talking of 'false judges' and the punishment that awaited
-them. All confidence in the official oracles of the law had vanished.
-Any man's word about the law might be believed if he spoke in the tones
-of a prophet or apostle. Was not there an opening here for a fanciful
-young man ambitious of literary fame? Was not this an occasion for a
-squib, a skit, a topical medley, a 'variety entertainment,' blended
-of truth and falsehood, in which Bracton's staid jurisprudence should
-be mingled with freaks and crotchets and myths and marvels, and
-decorated with queer tags of out-of-the-way learning picked up in the
-consistories?" No doubt, as Maitland admitted, this was guess-work;
-the certainty was that no statement not elsewhere warranted could be
-accepted from the _Mirror_ unless we were prepared to believe "that an
-Englishman called Nolling was indicted for a sacrifice to Mahomet."
-
-FOOTNOTES:
-
-[18] "Frederick William Maitland," by B. F. L., _Solicitor's Journal_,
-Jan. 5, 1907. See also _The Year Books of Edward II_ (Selden Society),
-vol. iv., Preface.
-
-[19] I.e. as Domesmen.
-
-
-
-
-V.
-
-
-The Chair of the Laws of England carried with it a Fellowship and
-an official house at Downing. The College, standing apart from
-"the sights" of Cambridge and possessing neither antiquarian nor
-architectural interest, is probably neglected even by the most
-conscientious of our foreign visitors. Yet during Maitland's tenure
-of the Downing Chair distinguished jurists from many distant parts,
-from America, Germany, Austria, France, found their way "through the
-inconspicuous gateway opening off the main business street" into the
-spacious quadrangle, with its pleasant grove of lime and elm, and its
-two rows of late Georgian buildings fronting one another across the
-grass. One of these guests has recorded his impressions. "About the
-middle of the row on the western side Maitland had his house. His
-study was a plain square room, not entirely given up to law or history
-and not overcrowded with folios. Yet every book on the shelves had
-evidently been chosen; there was no useless pedantic lumber. One gained
-at once an impression of refined taste and sure critical judgment. The
-workshop mirrored the worker. The view from the study window was that
-of the open lawn and the monotonous row of houses opposite. But on the
-western side the house was set right into the thicket. Here every sort
-of English songster seemed to have its nest[20]."
-
-Maitland at least was well content. He loved Cambridge, every stone
-of it, and prized its friendships. There were Henry Sidgwick, his old
-master in philosophy; and A. W. Verrall, an exact equal in University
-standing, who had become intimate with him at Trinity, had shared his
-chambers at Lincoln's Inn but had abandoned the law for the Greek and
-Latin Classics; there were C. S. Kenny, a friend of undergraduate days,
-a Union orator and a criminal lawyer; and G. W. Prothero, who bore most
-of the weight of the historical teaching in the University; and Henry
-Jackson, who long afterwards succeeded Jebb in the Chair of Greek; and
-R. T. Wright, the Secretary to the University Press. For Dr Alex Hill,
-the Master of Downing, Maitland soon came to entertain feelings of
-affectionate admiration. Nor was his power of making friends limited to
-men of his own age. His directness of manner, his simplicity and humour
-at once secured him the confidence and respect of younger men, and he
-rapidly made his name as one of the most inspiring teachers in the
-University, giving to the student, in Mr Whittaker's eloquent words,
-"a sense of the importance, of the magnificence, of the splendour of
-the study in which he was engaged, so that it was impossible at any
-time thereafter for one of his pupils to regard the law merely as a
-means of livelihood[21]." His method of lecturing, like everything else
-he did, was quite individual. The lecture was carefully written and
-read in a slow distinct impressive voice to the audience, so slowly
-that it was possible to take very full notes, and yet with such a rare
-intensity of feeling in every word and intonation, with such quiet and
-unsuspected jets of humour, such electric flashes of vision, that the
-hearers were never weary, and one of them has reported that Maitland
-made you feel that the history of law in the twelfth century was the
-only thing in life worth living for. Stories, too, have reached the
-sister University of witty speeches made after dinner, as for instance
-on November 11, 1897, when fourteen of Her Majesty's judges were
-entertained in the Hall of Downing upon the occasion of the Lord Chief
-Justice receiving an honorary degree, and the speech of the evening was
-made by the Professor of the Laws of England. And there were other less
-august occasions. The members of a distinguished and occult society
-record a series of impromptu speculations as to the character of the
-company assembled round the table. Were they the Salvation Army? No,
-they were not musical. Were they the Board of Works? Were they the
-Saved of Faith?--and so on through a series of hypotheses each more
-grotesque and fantastic than the last and delivered in the clear grave
-tones which made Maitland's humour irresistible.
-
-Among the most welcome guests at Brookside in the days of the
-Readership and at the West Lodge in the early days of Maitland's tenure
-of the Downing Chair was J. K. Stephen, the brilliant author of
-_Lapsus Calami_. J. K. Stephen, son of Sir James and nephew of Leslie
-Stephen, most tender, witty, and vivacious of companions, was on every
-account dear to Maitland and his wife.
-
-In January, 1888, Stephen launched a weekly magazine called _The
-Reflector_. It was the year in which Maitland exchanged Brookside for
-Downing, the year of the first publication of the Selden Society,
-and finally the year of Mr Ritchie's County Council Act. Being
-invited to contribute a paper to the new periodical Maitland chose
-as his theme the impending revolution in English local government.
-The administrative functions of the Justices of the Peace were to be
-transferred to elective County Councils. In a charming essay full of
-ripe wisdom and pleasant wit Maitland bade farewell to the old order
-and expressed some of the misgivings which the inevitable change
-aroused in his mind. Master Shallow and Master Silence were to be
-stripped of half their functions and might come to the conclusion
-that the other half was not worth preserving. That which was "perhaps
-the most distinctively English part of all our institutions," the
-Commission of the Peace, was attacked in a vital part, not because the
-Justices had been corrupt or extravagant, but because the spirit of the
-age condemned them. "The average Justice of the Peace is a far more
-capable man than the average alderman, or the average guardian of the
-poor; consequently he requires much less official supervision. As a
-governor he is doomed; but there has been no accusation. He is cheap,
-he is pure, he is capable, but he is doomed; he is to be sacrificed
-to a theory, on the altar of the spirit of the age." Regrets, however,
-were vain. On the contrary, since the control of the central Government
-was already vested in the people, it was best that the people should
-gain political experience in local affairs, that the local authorities
-should be given a free hand to manage and to mismanage, and that care
-should be taken to invest them with such a degree of dignity and
-independence as should attract the best men into the public service.
-Maitland did not often express himself on public affairs; but he
-watched them closely and took no conclusions at second-hand.
-
-It is part of our English system to expect of our professors, however
-eminent they may be, that they should examine undergraduates, serve on
-boards, committees, syndicates, and take an active part in University
-and College affairs. Maitland did not seek to escape any duty which
-he might be expected to discharge. He examined five times in the Law
-Tripos, twice in the Historical Tripos and three times in the Moral
-Science Tripos. From November, 1886, to January, 1895, he served as
-secretary to the Law Board, and always took an active share in its
-work. He was a member of the Library Syndicate (helping to redraft
-its regulations), he served on the General Board of Studies, and in
-1894 was elected to the Council of the Senate. Nobody is so valuable
-on a committee as a good draftsman and Maitland's quick and exact
-draftsmanship caused his services to be highly esteemed by any board or
-syndicate of which he was a member. "He took," says Mr Wright, "little
-part in the discussions of these bodies unless he had something
-definite to say, but was always ready to state his views on being
-appealed to, and it is not necessary to say that they always carried
-great weight." The Dean of Westminster, who for some time sat next
-to him at the Council meetings, was impressed by the "sagacity and
-courage" of his judgments in the interpretation of statutes. "'I always
-stretch a statute,' he whispered to me once half humourously. He seemed
-to be making the law grow under his hands[22]."
-
-In the public debates of the Senate House he was rarely heard, but when
-he spoke there was a sensation. Academic oratory is generally above
-the average in tone and ability, but is seldom spirited or passionate,
-and often goes astray into subtleties and side issues. In the judgment
-of some members of his audience, Maitland's speaking was quite unlike
-any other oratory which was heard in Cambridge. The whole man seemed
-quick with fire. His animation was so intense that it hardly seemed
-to belong to a northern temperament, expressing itself with dramatic
-force in every line of his eloquent face, in every movement of hand and
-arm and in the rhythm of the body which swayed with the spoken word.
-The language of his speeches, which had been carefully thought out,
-was clear and weighty, full of pungent humour and unexpected turns,
-and stamped with the impress of a restrained but vehement idealism.
-The speech on Women's Degrees was a masterpiece after its kind and
-very little was heard of a proposal to establish a separate University
-for Women after Maitland had suggested that it should be called the
-"Bletchley Junction Academy"--"for at Bletchley you change either for
-Oxford or for Cambridge."
-
-The oration against compulsory Greek, though less cogent in substance,
-was hardly less striking in form.
-
-College business claimed and received no small part of the time which
-under the system of the continental Universities would have been
-devoted to the advancement of knowledge. "When," writes Dr Hill, "in
-1888 Maitland was elected Downing Professor of the Laws of England,
-the older members of the Society, knowing his attachment to Trinity,
-doubted whether he would feel himself naturalised in the smaller
-College. From the moment of his admission all misgivings vanished.
-With characteristic chivalry he assumed and almost over-acted his
-new _rôle_. His eager patriotism was a challenge to our own. He was
-prepared to out-do Downing men in his labours in all matters pertaining
-to the welfare of the College." If a Statute was to be interpreted,
-if title deeds were to be scheduled, if a voyage was to be made to
-the Record office in search of "feet of fines," Maitland was at hand
-willing and eager to interpret, to schedule, to investigate. "In all
-questions of interpretation," Dr Hill continues, "Maitland was standing
-counsel to the College as he was to the University." It so happened
-that when he joined Downing rents were rapidly falling and that the
-management of the estates entailed much care and thought. College
-meetings were very frequent and not a few of the special difficulties
-which arose, involved legal proceedings. Maitland, who for three years
-received no part of his salary as fellow, put himself unreservedly at
-the disposition of the College, and an academic society struggling to
-extricate itself from financial embarrassments could not have invoked
-a more valuable ally. Now he would help to draft a memorial to the
-Master of the Rolls; now a bill to be brought before Parliament. "His
-legal training and knowledge and his nicely balanced judgment were of
-inestimable use in the solution of the special problems with which the
-College had to deal." But it was not in legal matters only that he gave
-service without stint. "He was equally loyal in taking his share in all
-phases of administration and in doing all that in him lay to enrich the
-College life. He dined regularly in Hall and spent the evening in the
-combination room to the delight of his own guests and those introduced
-by other members of the Society." The Master of Downing might be
-painting the portrait of an ideal Fellow; those who know the College
-best will be the last to dispute its resemblance.
-
-In the summer of 1892 Maitland advertised a course of lectures upon
-"Some Principles of Equity," and from that date onward till 1906 a
-course upon equity--"Equity more especially Trusts" was the favourite
-title--figured in the yearly programme of the Downing Professor. At
-first the subject was packed into the Lent term; then the lectures grew
-and overflowed into the summer. "I put in some business," he would
-observe gaily, "the business" consisting of recent decisions of the
-Chancery division, for the lectures were revised year by year to keep
-pace with the march of knowledge and the requirements of the practical
-student. Of these discourses there is the less reason to speak, even
-if the present writer were entitled to be heard, seeing that they have
-now been given to the world, thanks to the labour of two distinguished
-and devoted pupils. Maitland explained to his audience the whole system
-of modern equity, and when a lawyer is unfolding the Administration
-of Assets or the doctrines of Conversion, Election and Specific
-Performance to qualified persons, the layman would do well to keep his
-peace. It is, however, a quality in Maitland that much as he enjoyed
-the technicalities of law, he was never content to be purely technical.
-The same gifts which shone out in his conversation, the genius for
-perspicuous and graphic description, the quick darting flight to the
-essential point, the fertile power of exhibiting a subject in new
-and original aspects were conspicuous in his handling of the least
-promising topics, and these lectures could never have been written by
-a man who was nothing more than a sound Chancery practitioner. What
-is equity and what is its relation to the common law? So simple and
-fundamental do these questions appear to be that one would imagine that
-the correct answer to them must have been given again and again. It is
-one of those numerous cases in which a truth which appears to be quite
-obvious as soon as it is pointed out has lain if not unperceived, at
-least imperfectly perceived, because the proper perspective depends
-upon an unusual combination of studies. Maitland, doubly equipped as
-an historian and a lawyer, found no difficulty in demonstrating two
-propositions which had never been clearly stated before, first that
-"equity without common law would have been a castle in the air and
-an impossibility," and second "that we ought to think of the relation
-between common law and equity not as that between two conflicting
-systems but as that between code and supplement, that between text
-and gloss." Such observations will soon savour of platitude. That
-equity was not a self-sufficient system, that it was hardly a system
-at all but rather "a collection of additional rules," that if the
-common law had been abolished equity must have disappeared also, for
-it presupposed a great body of common law, that normally the relation
-between equity and law has not been one of conflict, for the presence
-of two conflicting systems of law would have been destructive of all
-good government--such propositions only require to be stated to meet
-with acceptance. Yet it was left to Maitland to state them. The need
-for thus emphasising the essential unity of English law was due partly
-to the tendency of teachers to lay stress upon the cases in which
-there is a variance between the rules of common law and the rules of
-equity and partly to the fact that in the routine of his profession the
-practitioner would have his attention directed rather to such occasions
-of variance than to the necessary and intricate dependence of equity on
-common law. Perhaps there is no greater proof of originality than the
-discovery of truths, which have no surprising quality about them except
-the length of time during which they have gone unnoticed or obscured.
-
-FOOTNOTES:
-
-[20] _Political Science Quarterly_, vol. xxii., No. 2, p. 287.
-
-[21] _Cambridge University Reporter_, July 22, 1907, p. 1313.
-
-[22] _Cambridge University Reporter_, June 22, 1907, p. 1303.
-
-
-
-
-VI.
-
-
-Among the operations which belong to that wonderful period of activity
-which culminated in the _History of English Law_, two remain to be
-singled out, the first an enquiry of great delicacy and of crucial
-importance for the history of legal procedure, the second lying
-somewhat outside the ordinary sphere of Maitland's investigations but
-of great moment to the student of parliamentary institutions. We allude
-to the articles upon the "Register of Original Writs" contributed to
-the _Harvard Law Review_ in 1889 and to the _Memoranda de Parliamento_
-edited for the Rolls Series in 1893.
-
-The Register of the wryttes orygynall and judiciall was first printed
-by William Rastell in 1531. "In its final form when it gets into print
-it is an organic book.... To ask for its date would be like asking for
-the date of one of our great cathedrals. In age after age bishop after
-bishop has left his mark upon the church; in age after age chancellor
-after chancellor has left his mark upon the Register.... To ask for the
-date of the Register is like asking for the date of English law." Yet
-this vast and important repertory had never been made the subject of
-critical examination. No one had examined the principles upon which the
-printed book was constructed; no one had gone behind the printed book
-to the manuscripts; no one had traced the life history of the organism,
-had fixed the chronological sequence of the successive styles in the
-cathedral. Yet until such critical work had been accomplished the
-history of the extension of royal justice and of the growth of English
-legal procedure could not be written in detail. Maitland's treatment of
-the problem is one of the most beautiful specimens of his workmanship.
-
-He first discovers the principles of classification in the printed
-book; then turning to the manuscripts--and there are at least nineteen
-in the Cambridge University Library, over all of which he has cast his
-eye,--reports that no two manuscripts are alike, but that "gradually
-by comparing many manuscripts we may be able to form some notion of
-the order in which and the times at which the various writs became
-recognised members of the _Corpus Brevium_." Tests are then laid down
-by which the age of a Register may be determined, and finally we have
-"a few remarks about the early history of the Register" which are
-entirely original and of high importance. The two earliest manuscripts
-are examined, the MS Register of 1227 in the British Museum with its
-fifty-six writs, the MS Cambridge Register belonging likewise to the
-early part of Henry III's reign with its fifty-eight writs; and means
-are thus supplied for measuring the growth of law during the important
-period--the period of the Great Charter--which had elapsed between
-Glanvill's treatise and the third decade of the thirteenth century.
-Then we are guided through the later and more voluminous manuscripts.
-We are introduced to a Register with one hundred and twenty-one writs
-from the middle of the thirteenth century, to an Edwardian Register
-which contains four hundred and seventy-one writs; we see the writ
-of trespass taking a permanent place in the _Corpus Brevium_ under
-Edward II, we trace activity under Edward III and Richard II and
-then a slackening. By the turn of the fourteenth century the "great
-cathedral" is practically complete and the Register has assumed a form
-not substantially different from that which was printed in the reign of
-Henry VIII.
-
-Maitland's contribution to parliamentary history consisted in the
-editing of the _Parliament Roll_ for 1305. Of the vivid and picturesque
-interest of the petitions printed in that volume much might be written,
-for nowhere else can we gain so full and comprehensive a notion of
-the miscellaneous transactions and aspirations which came under the
-purview of a Parliament in the very early stages of its existence. But
-apart from this the volume is important as furnishing a closer and
-more accurate view of the evolution of parliament than had previously
-been obtainable. All readers of Stubbs' _Constitutional History_
-are familiar with "the model Parliament of 1295." We are accustomed
-to think of that date as marking an epoch at which government by a
-Parliament of Three Estates is definitely secured, and as, in a certain
-sense, the close of the formative period of parliamentary institutions.
-It is true that Parliament is not yet divided into Lords and Commons,
-and that procedure by Bill is in the distant future. Still we have been
-wont to regard a Parliament as being throughout the fourteenth century
-a definite well-recognised institution, distinct from the King's
-Council and implying the presence of representatives from shire and
-borough. Maitland's preface to the _Memoranda de Parliamento_ showed
-that such an impression should be modified. Ten years after the Model
-Parliament practice and nomenclature were still fluid. There was no
-distinction between Parliament and Council; the word _Parliamentum_ is
-never found in the nominative; any solemn session of the Kings Council
-might be termed a Parliament. The business too, transacted at these
-great inquests, was for the most part administrative and judicial,
-conducted through the examination and endorsement of petitions. At
-the beginning of the fourteenth century, despite the exploits of the
-English Justinian, we were still far from a legislature composed of the
-Three Estates.
-
-Meanwhile, in a profusion of articles, Maitland was correcting old
-mistakes and throwing out pregnant suggestions in many departments of
-legal theory. The principal ideas which are to be found not only in
-his work upon the _History of Law_ but in his subsequent speculations
-on Corporateness and Communalism were already in his mind during the
-early days of work at Downing. In his lectures on Constitutional
-History, delivered in 1888, he gave a description of English medieval
-land-tenure which substantially corresponds to the more complete
-exposition of the _History_ in 1895, and had already hit upon that
-comparison between the course of feudal land-law in England and
-Germany, which runs, a brilliant shaft of illumination, through his
-whole treatment of the subject. In Bracton's explanation that the
-rector of a parish church is debarred from a writ of right his keen eye
-had detected, as early as 1891, "the nascent law about corporations
-aggregate and corporations sole."
-
-He had already begun to apply dissolvent legal tests to "our easy talk
-of village communities." The English village, he remarked in 1892,
-"owns no land, and, according to our common law, it is incapable of
-owning land. It never definitely attained to a juristic personality."
-The village community of the picturesque easy-going antiquarian, who,
-fascinated by Maine's beautiful generalisations, was ready to find
-traces of archaic communism in every quarter, only reminded him of
-the remark in Scott's _Antiquary_ "Pretorian here Pretorian there I
-mind the bigging o't." In two weighty articles contributed to the _Law
-Quarterly Review_ in 1893 upon the subject of Archaic Communities,
-Maitland pricked some antiquarian bubbles with delicious dexterity
-and threw out a suggestion that the formula of development should be
-"neither from communalism to individualism" nor yet "from individualism
-to communalism" but from "the vague to the definite." In common with
-Hegel he believed that the world process consisted in the development
-of the spirit of reason becoming more and more articulate with every
-fresh discrimination of the intellect.
-
-By amazing industry and a most rigid economy of time Maitland had
-combined with his professional duties and with the publication of
-several volumes of unprinted matter the composition of an elaborate
-treatise upon medieval law. The _History of English Law up to the
-time of Edward I_ appeared in 1895. The work had been planned in
-conjunction with Maitland's old friend, Sir Frederick Pollock, was
-revised in common with him and issued under their joint names; but as
-Sir Frederick explained in a note appended to the Preface "by far the
-greater share of the execution" both in respect of the writing and
-the research belonged to Maitland. The book at once took rank as a
-classic. In range and quality of knowledge it invited comparison with
-the monumental achievement of Stubbs; and though it was necessarily
-of a highly technical character, the style was so easy and lucid that
-persons previously unversed in the technicalities of medieval, or
-indeed of modern, law, were able to read it with enjoyment.
-
-The greater portion of the book deals advisedly with a comparatively
-limited period,--the age which lies between 1154 and 1272. "It is a
-luminous age throwing light on both past and future. It is an age of
-good books, the time of Glanvill and Richard FitzNeal, of Bracton and
-Matthew Paris, an age whose wealth of cartularies, manorial surveys
-and plea-rolls has of recent years been in part, though only in part,
-laid open before us in print. Its law is more easily studied than the
-law of a later time, when no lawyer wrote a treatise, and when the
-judicial records had grown to so unwieldy a bulk that we can hardly
-hope that much will ever be known about them. The Year Books--more
-especially in their present disgraceful plight--- must be very dark to
-us if we cannot go behind them and learn something about the growth
-of those 'forms of action' which the fourteenth century inherited
-as the framework of its law. And if the age of Glanvill and Bracton
-throws light forward, it throws light backward also. Our one hope
-of interpreting the _Leges Henrici_, that almost unique memorial of
-the really feudal stage of legal history, our one hope of coercing
-Domesday Book to deliver up its hoarded secrets, our one hope of making
-an Anglo-Saxon land-book mean something definite, seems to lie in an
-effort to understand the law of the Angevin time as though we ourselves
-lived in it."
-
-Perhaps the most distinct impression which the reader derives from
-the study of Maitland's work in the _History_ is that he "seemed to
-understand the law of the Angevin time as though he himself lived in
-it." We feel that, if he had been going circuit with Walter Raleigh
-or William Pateshull, his learned brethren would have had little
-or nothing to tell him which he did not already know. The case law
-of the twelfth and thirteenth centuries--so far as it has survived
-in plea-rolls or chronicles or legal collections--was part of the
-familiar furniture of his mind. He knew it all and enjoyed it all in
-every one of its facets human and lawyerly. And with this he combined
-a remarkable capacity for appreciating the general tone and colour
-of legal thinking in that remote age. If the thinking was fluid and
-indistinct, Maitland would not attempt to make it clearer or more
-consistent than it really was. The vagueness would be analysed and
-measured. The opaque thought would be exhibited in its fluctuating and
-conflicting subconscious elements. We are always being reminded of that
-wise saying in the Fellowship Dissertation, that English political
-philosophy has suffered by overmuch simplicity.
-
-A mind so exact and disinterested and endowed with so rare a capacity
-for divesting itself of the intellectual accretions of its own age
-was naturally full of dissolvents for ambitious theories. Maitland
-expressed in his Inaugural lecture his high respect for the genius and
-learning of Henry Maine, and nothing which was then written would have
-been afterwards retracted. Yet the close study of English medieval law
-had brought him to the conclusion that some of the generalisations to
-which Maine seemed disposed to assign a general validity, at least for
-the Indo-Germanic races, received no adequate support from the English
-evidence. In a brilliant discussion of the antiquities of inheritance
-he argues that in the present state of the evidence it would be rash
-to accept "family ownership," or in other words a strong form of
-birth-right, as an institution which once prevailed among the English
-in England. Maine, operating chiefly with Roman law but also drawing
-upon Teutonic, Slavonic and even Indian evidence, had argued that the
-primitive unit of society was an agnatic patriarchal group and that the
-ownership of land was vested in a family or clan constructed on strict
-agnatic principles and governed by the paterfamilias. Maitland submits
-the conception of common ownership to analysis. Common ownership
-implies corporate ownership, and the idea of a corporation is modern,
-not primitive. Co-ownership indeed there was, but co-ownership spells
-individualism. If there is a law which declares how shares should be
-distributed among the members of the group upon partition, then there
-is a law which assigns ideal shares in the unpartitioned land. There
-was no proof that anything which ought to be called family-ownership
-existed among the Anglo-Saxons; there was no proof of the patriarchal
-_gens_, of the agnatic group. On the contrary there was a grave
-difficulty in accepting the patriarchal family as the primitive
-unit of English society, for the earliest rules about Anglo-Saxon
-inheritance and the Anglo-Saxon blood-feud exhibit the fact that "the
-persons who must bear the feud and who may share the weregild are
-partly related through the father and partly through the mother."
-Birth-rights indeed there were, but birth-rights do not imply agnation
-or corporate ownership. In some cases they may even be the consequence
-of intestate succession. Submitted to concrete tests of this character
-the evidence for the strict agnatic land-owning group in England became
-in Maitland's eyes very ghostly[23]. "In Agnation," wrote Maine, "is
-to be sought the explanation of that extraordinary rule of English law
-which prohibited brothers of the half-blood from succeeding to one
-another's lands." Maitland's solution of "this extraordinary rule" is
-very different and highly characteristic of his concrete, practical
-turn of mind. In his opinion it is "neither a very ancient nor a very
-deep-seated phenomenon." He points out that the problem of dealing
-with the half-blood must always be difficult, and the solution is
-always likely to be capricious. "The lawyers of the thirteenth and
-fourteenth centuries had no definite solution, and we strongly suspect
-that the rule that was ultimately established had its origin in a few
-precedents...." "Our rule was one eminently favourable to the King; it
-gave him escheats; we are not sure that any profounder explanation of
-it would be true."
-
-In Maitland's hands a treatise upon antiquarian law became something
-greater than an antiquarian treatise. It became a contribution to the
-general history of human society. Even the most superficial reader must
-be struck by the number of foreign books quoted in the footnotes and
-by the way in which analogues and contrasts from French and German law
-are brought in to illustrate the course of our legal history. English
-law became insular; pursued a course of its own. We avoided torture;
-we escaped the secret and inquisitorial procedure of the continent; we
-developed the jury; primogeniture became the general rule among us in
-case of intestacy; the _retrait lignager_ of the French customs did
-not become established in our land-law. But just for this reason it
-was the more necessary to understand the main stream of continental
-development. Many a rule which, if considered from a purely insular
-standpoint, might seem part of the natural order, would assume its
-true character of a deviation from the normal, if viewed in the larger
-context of European law; many features of our law apparently arbitrary
-would in that larger context receive explanation. Maitland takes care
-to know that which was known to Glanvill and Bracton; but he does not
-for that reason neglect Brunner or Gierke, Esmein or Viollet. A piece
-of continental evidence suggested by the history of the Inquisition
-points to the reason why in England alone the public trial of primitive
-Teutonic civilisation survived through the Middle Ages. It survived
-because the Inquisition was never introduced into this country, and
-England had no Inquisition because at the critical period it was
-singularly unfertile in heresy.
-
-"It has generally been apprehended," writes Reeves in the Preface to
-the First Edition of the _History of English Law_ (1783), "that much
-light might be thrown on our statutes by the civil history of the times
-in which they were made; but it will be found on enquiry that these
-expectations are rarely satisfied." It would be difficult to find in
-a single sentence a more complete measure of the gulf which separates
-Pollock and Maitland's _History of English Law_ from the book which
-it supplanted. Reeves wrote in an unhistorical age and with imperfect
-materials. "Let us think," wrote Maitland, "what Reeves had at his
-disposal, what we have at our disposal. He had the Statute Book, the
-Year Books in a bad and clumsy edition, the old text-books in bad
-and clumsy editions. He made no use of Domesday Book; he had not the
-_Placitorum Abbreviatio_ nor Palgrave's _Rotuli Curiæ Regis_; he had
-no Parliament rolls, Pipe, Patent, Close, Fine, Hundred Rolls, no
-proceedings of the King's Council, no early Chancery proceedings, not
-a cartulary, not a manorial extent nor a manorial roll; he had not
-Nichol's _Britton_, nor Pike's nor Harwood's _Year Books_, nor Stubbs'
-_Select Charters_, nor Bigelow's _Placita Anglo-Normannica_; he had no
-collection of Anglo-Saxon land-books, only a very faulty collection
-of Anglo-Saxon dooms, while the early history of law in Normandy was
-utter darkness." And in addition to this he did not believe that the
-general history of a people could throw illumination upon its law. It
-is a sufficient commentary upon such a view to read Maitland's opening
-paragraph upon the Norman Conquest.
-
-The state of English law in the twelfth century cannot be explained
-unless we look beyond the strict legal sphere. Explanations which
-seemed adequate even to the great Stubbs--the action of race upon
-race, the fusion of law with law, the analogy of a river formed by
-two streams, of a chemical compound formed of two elements--do not
-satisfy Maitland. The process was far more complex. It was affected by
-influences which had nothing whatever to do with the law of Normandy
-or with the law of England before the Conquest, by the rebellion of
-the Norman feudatories, by the characters of certain great men, by
-the strong political centralization, even by so accidental a fact as
-that the Conqueror had three sons instead of one. Economic, political,
-personal forces must all be reckoned up in the account.
-
-While the pages of the _History_ were passing through the press, two
-other works had been planned and were already partially accomplished.
-In his edition of the _Note Book_ Maitland had proclaimed the
-necessity for a new edition of Bracton, an edition based not upon
-inferior manuscripts but upon the best manuscripts, and accompanied
-by an adequate critical apparatus. Such a task would demand many
-years of painful toil and Maitland had more pressing calls upon his
-energies. Nevertheless he regarded it as important to arrive at a
-definite conclusion with regard to one fundamental question respecting
-his favourite author. What was the precise extent and character of
-Bracton's indebtedness to Roman Law? Sir Henry Maine in his famous
-lectures upon _Ancient Law_, published in 1860, went so far as to
-assert that Bracton "put off on his countrymen as a compendium of pure
-English law a treatise of which the entire form and two thirds of the
-contents was directly borrowed from the _Corpus Juris_." But the amount
-of matter which Bracton directly borrowed from the _Corpus Juris_ was
-comparatively insignificant, "not a thirteenth part of the book"; the
-Devonshire justice went for his Roman law not to the original springs
-but to a famous Italian doctor. Dr Carl Guterbock established the
-fact that large portions of Bracton's _De Legibus_ were derived from
-the works of Azo, a Bolognese Jurist who flourished at the end of the
-twelfth and at the beginning of the thirteenth century, and whose fame
-endured throughout the Middle Ages. But what was the precise measure of
-Bracton's obligation to "the master of all the masters of the laws"?
-It was Maitland's opinion that the debt might easily be overstated.
-In order that the matter might be thoroughly cleared up he planned a
-volume for the Selden Society which should exhibit in parallel columns
-the text of the Bolognese _Summa_ and the corresponding portions
-of Bracton. From this he drew three conclusions, that Bracton's
-obligations to Roman Jurisprudence were small in extent, that Bracton
-was an indifferent Romanist, and thirdly that Bracton only borrowed
-from Roman law when he had no English cases to cite. Bracton was, in
-fact, a thorough Englishman. Like everyone else in the Middle Ages he
-regarded Roman law as a source of authority to which recourse should
-be had when the stock of home-bred law ran out, but it was improbable
-that he had ever received a University training in the _Leges_ and it
-is certain that he was far more comfortable with his English writs and
-his English plea-rolls than with the elegant refinements of the Code or
-the Digest.
-
-"Bracton and Azo" did more than define the "Romanesque" quality of
-the great treatise; it was a brilliant contribution to the scholarly
-edition of the future. The best manuscript (_Bodl. Digby 222_) was
-minutely described, four others carefully collated, and fifteen in all
-examined. One of the features of the Digby manuscript, which, though
-not a perfect copy of the autograph, appeared to Maitland on many
-grounds to be the best approach to the autograph to which research had
-attained, was the presence of a large mass of additional matter written
-in the margins. Now these marginalia were not glosses but additions
-to the text and additions possessing a peculiar value from the fact
-that they came from Bracton himself. "If the annotator was not Bracton
-he had just Bracton's interests and just Bracton's style." In later
-manuscripts some or all of this supplementary matter is received into
-the text but "too often at inappropriate places." Accordingly the
-future editor of the Treatise will be obliged to pay special heed to
-these "addiciones"; and, to smooth a path which will be none too easy,
-Maitland made a list of more than a hundred and fifty passages in the
-printed text of 1869 which in the Digby manuscript stand in the margin.
-Such labour occupying but a few pages of Appendix looks but a small
-thing on paper, and is too technical to interest the general reader:
-but scholars will measure the devotion which it implies; and the future
-edition of the _De Legibus_ will be based on the results of Maitland's
-unsparing toil among the Bracton manuscripts in London and Oxford,
-Cheltenham and Eton.
-
-FOOTNOTES:
-
-[23] Maitland was probably drawn too far on the path of scepticism. See
-Vinogradoff, _Growth of the Manor_, pp. 135-40, and Brunner, _Deutsche
-Rechtsgeschichte_, 2nd ed., vol. 1., pp. 110 ff.
-
-
-
-
-VII.
-
-
-In the summer vacation of 1895 Maitland wrote as follows to his friend,
-Mr R. L. Poole, the editor of the _English Historical Review_:
-
-"I have been thinking of asking you to let me have a talk about
-Domesday. I have a great deal of stuff written. Some of it Round has
-forestalled, as I knew he would. At one time it was to have gone into
-the book that Pollock and I published. Then I did not wish to collide
-with Round and now I know that Vinogradoff is again at work, and there
-are many economic and social questions which I would rather leave to
-him. So I have not and shall not have enough that is new to make a
-book. On the other hand I have a few legal theories that I should like
-to put before the public in one form or another. What do you think?
-Would the _E. H. R._ bear a little Domesday--two or three articles?
-However I will stand out of Frederick Pollock's way if he has anything
-to say, so when you have ascertained his intentions will you tell me
-whether you would take some papers from me. I would begin with some
-talk about Round's work of which I think very highly. I hope that you
-will say first what you think; in no case shall I be disappointed."
-
-The publication of the _Domesday Inquest_ was begun in 1783 and
-completed in 1816 and in the whole range of English history there
-is no authority alike so crucial in importance and so difficult of
-interpretation. Of the value of this unique statistical record compiled
-from the returns of local jurors twenty years after the Norman Conquest
-there has never been any dispute. Long before the text was published
-it was the subject of antiquarian monographs and the established base
-of local histories and genealogical enquiries. Transcripts of parts of
-Domesday were scattered up and down the country in public and private
-collections, and its fame was spread by the testimony of John Selden,
-who pronounced that, so far as he knew, it was by several centuries
-the oldest official record extant in autograph in the whole Christian
-world. The enterprise of the Record Commission made the record
-accessible to the student, and a popular Introduction to Domesday,
-written by Sir Henry Ellis in 1833, provided a pleasant quarry for the
-general historian whose soul was not vexed by the fundamental problems
-of Anglo-Norman society and finance.
-
-But the survey was not understood. Even Freeman, who devoted to it a
-whole chapter in the fifth volume of the _Norman Conquest_, did not
-attack the central difficulties. He was a political historian, and
-appreciated the political interest of the record; but this is not the
-main interest. The survey owes its chief importance to the fact that
-it exhibits the social, economic and legal condition of the English
-people twenty years after the shock of the Norman Conquest.
-
-Light gradually broke in from the labours of the specialist, from Eyton
-and Hamilton and above all from Mr Horace Round, who, in two brilliant
-papers composed for the Domesday Commemoration of 1888, cleared up
-some of the crucial questions connected with Domesday measures and
-Domesday finance. But perhaps the most exciting contribution proceeded
-from a book which was neither the work of a professed specialist nor
-yet a Domesday monograph. Mr Seebohm's _English Village Community_
-appeared in 1876 and gave English readers for the first time a luminous
-account of that system of medieval husbandry which the enclosures of
-the eighteenth century did not entirely avail to obliterate[24]. Alike
-in its methods and conclusions the _English Village Community_ was an
-epoch-making book. Reversing the ordinary chronological procedure and
-arguing from comparatively recent periods, where evidence is abundant,
-past the cartularies and extents of the twelfth and thirteenth
-centuries, past Domesday to the twilight of the Saxon land-books and
-the darker regions beyond, Mr Seebohm arrived at the conclusion that
-the English village community was the outgrowth of the Roman vill and
-that whatever might have been the case in other regions of national
-life there was no breach in the continuity of agrarian history. A
-bold challenge was flung against the tradition accepted by a line
-of distinguished scholars from Kemble and Von Maurer to Freeman and
-Stubbs. The English village community was the offspring, not of a
-community of Teuton freemen, but of a system moulded by the Latin
-genius and rooted in slavery. The influence of Roman Britain was not
-so insignificant after all, nor was the completeness of the Teutonic
-Conquest so complete. In the most fundamental part of her economic and
-social texture England was indebted not to Germany but to Rome. The
-battle between the Germanists and the Romanists brought into clearer
-relief the importance of Domesday studies. Questions of Domesday
-nomenclature--the meaning for instance of the Domesday hide--acquired a
-new relevance, and might turn the scale in grave issues. A large hide
-of a hundred and twenty acres would naturally imply an early society
-of free peasant proprietors, a small hide of thirty acres might, on
-the contrary, be fitted into the Romanist hypothesis. Domesday was the
-key to the position. Properly interpreted, it would not only explain
-the influence of the Conquest, but throw light upon the Anglo-Saxon
-land-system and the obscure problem of agrarian origins. Mr Round's
-further contributions to the understanding of the Record, which were
-published in _Feudal England_ in 1895, were recognised as having a
-bearing upon the largest problems of English history.
-
-It was left to Sir Frederick Pollock to appraise Mr Round's work in
-the pages of the _English Historical Review_. Maitland's researches,
-which were pushed to a conclusion with astonishing rapidity, appeared
-in 1896 in a volume entitled _Domesday Book and Beyond--Three Essays
-in the Early History of England_. The first essay was called "Domesday
-Book," the second "England before the Conquest," the third "The Hide."
-The title was chosen to indicate the fact that Maitland had followed
-the retrogressive method from the known to the unknown which Mr Seebohm
-had pursued with such admirable effect. "Domesday Book appears to me
-not as the known but as the knowable. The Beyond is still very dark:
-but the way to it lies through the Norman record. The result is given
-to us; the problem is to find cause and process."
-
-Identity of method, however, did not imply identical conclusions. Eight
-years before Maitland had revised the sheets of a remarkable study
-of _Villainage in England_, by Paul Vinogradoff, the conclusions of
-which were decidedly adverse to the Romanist hypothesis of servile
-origins; but whereas Vinogradoff had confined himself to the analysis
-of agrarian conditions as revealed by the post-Domesday evidence,
-Maitland made his assault upon the mysterious fortress of the great
-survey itself. "That in some sort I have been endeavouring to answer
-Mr Seebohm, I cannot conceal from myself or from others. A hearty
-admiration of his _English Village Community_ is one main source of
-this book. That the task of disputing his conclusions might have fallen
-to stronger hands than mine I well know. I had hoped that by this
-time Professor Vinogradoff's _Villainage in England_ would have had a
-sequel. When that sequel comes (and may it come soon) my provisional
-answer can be forgotten."
-
-All scientific work is in a sense provisional, and _Domesday Book and
-Beyond_ contains some theories which we believe that Maitland would
-have subsequently revised. But whether it be regarded as a model of
-acute and substantial investigation, or weighed by the mass of its
-contributions to the permanent fabric of historical understanding
-and knowledge, it will assuredly rank among the classical monographs
-of historical science. Maitland did not profess to cover the whole
-field of economic and social development. He approached the history of
-the eleventh century mainly as a lawyer anxious to analyse the legal
-conceptions of that age, and fully conscious of the extreme difficulty
-and delicacy of his task. "The grown man," he remarks, "will find
-it easier to think the thoughts of the schoolboy than to think the
-thoughts of the baby. And yet the doctrine that our remote forefathers
-being simple folk had simple law dies hard. Too often we allow
-ourselves to suppose that, could we but get back to the beginning,
-we should find that all was intelligible and should then be able to
-watch the process whereby simple ideas were smothered under subtleties
-and technicalities. But it is not so. Simplicity is the outcome of
-technical subtlety; it is the goal not the starting-point. As we go
-backwards the familiar outlines become blurred; the ideas become
-fluid, and instead of the simple we find the indefinite.... We must
-not be in a hurry to get to the beginning of the long history of law.
-Very slowly we are making our way towards it. The history of law must
-be a history of ideas. It must represent not merely what people have
-done and said, but what men have thought in bygone ages. The task of
-reconstructing ancient ideas is hazardous and can only be accomplished
-little by little. In particular there lies a besetting danger for us in
-the barbarian's use of a language which is too good for his thought.
-Mistakes then are easy, and when committed they will be fatal and
-fundamental mistakes. If for example we introduce the _persona ficta_
-too soon, we shall be doing worse than if we armed Hengest and Horsa
-with machine guns or pictured the Venerable Bede correcting proofs
-for the press; we shall have built upon a crumbling foundation." The
-main argument of the book was directed against the view that the
-English manorial system was the outcome of the Roman villa. The English
-language, the names of our English villages, were sufficient to rebut
-the hypothesis that the bulk of the agricultural population was of
-Celtic blood descended from the slaves or _coloni_ of Roman times.
-Romanism would give no rational explanation of the state of things
-revealed by the Domesday survey in the northern and eastern counties.
-Nor would it explain seignorial justice. It was shown that at the time
-of the survey England was still incompletely manorialised, that the
-Domesday manors varied indefinitely in size and type, that some had
-freeholders, some not, that in some there were courts, in others none,
-and that no general proposition respecting either jurisdictional rights
-or agrarian continuity would apply to them universally. That the manors
-of Domesday were mainly tilled by villeins who in a certain sense were
-unfree, was doubtless true, but there was evidence to show that the
-position of the agricultural class had deteriorated during the period
-which elapsed between the Conquest and the survey, and many calamities
-natural or fiscal, a murrain, a hailstorm, a levy of Danegeld, a
-judicial fine, might be enumerated to account for a gradual decline in
-the status of the rural population during the Saxon age.
-
-Evidence from an entirely different quarter supported the main
-conclusion. Far back at the beginning of the eighth century Bede had
-spoken of the hide as the normal holding of the English householder.
-By a train of very subtle and elaborate calculations Maitland came
-to the conclusion that the hide of which Bede spoke and to which
-Domesday testifies contained 120 arable acres,--a tenement too large
-for any serf or semi-servile _colonus_ and therefore precluding the
-idea that the manorial system was dominant in England in very early
-Saxon times. How then did the system arise? Maitland advanced an
-ingenious hypothesis, admitting, "that nothing which could be called
-a strict proof could be offered"--that the word _manerium_ as used by
-the Domesday commissioners possessed a technical sense. Domesday was
-a fiscal inquest; the object of the commissioners was the collection
-of geld; geld is collected from persons who live in houses and the
-word _manerium_ means a house. For the fiscal purpose of these Norman
-officials _manerium_ meant "the house at which geld is charged." The
-lord, in other words, was made responsible to the state for the payment
-of geld from his demesne land and the land of his villeins, and was
-bound to take measures to see that the tax was paid by such freemen and
-socmen as might be attached to his manor. The theory was not of course
-intended to provide a solution for the main problem. It suggested an
-answer to the question "What is the technical meaning attached to the
-word _manerium_ in Domesday?" it revealed one of the possible forces
-which may have contributed to manorial dependence: but it did not
-explain or pretend to explain either the forces which made for the
-subjection of the peasantry to seignorial justice or the peculiar
-system of ownership and cultivation which was distinctive of the manor.
-
-The problem was no doubt mainly economic, but it possessed its legal
-aspect. A brilliant analysis of Anglo-Saxon _diplomata_, which could
-hardly have been accomplished save by a practised lawyer, revealed
-the fact that the Anglo-Saxon kings had been freely alienating public
-powers, fiscal and jurisdictional, to churches and private persons.
-The Saxon land-book does not transfer land, but superiorities over
-land. It may be true that the gift has all the appearance of being
-unconditional, "granted as a reward for past services, not as a
-condition for the performance of future services"; but the contrast
-between the deeds of the Saxon and Norman period is one rather of form
-than of substance. Every Saxon grant of "immunities" reserves the
-"trinoda necessitas," that fundamental military obligation which lay
-upon every freeman, and if that service was not performed the land
-was forfeit to the king. Then again land-loans were not uncommon, and
-land-loans and land-gifts shaded imperceptibly into one another. All
-the lineaments of the feudal land system are already visible in the
-later Anglo-Saxon period. The feudal formula of dependent tenure
-is known; the exercise of jurisdictional rights by private persons
-is a familiar fact; in places one could even see, "a four-storied
-feudal edifice." No large historical transformation is matter for
-unqualified regret. Feudalism was a necessary stage in the education
-and development of the barbarian world. "There are indeed historians
-who have not yet abandoned the habit of speaking of feudalism as though
-it were a disease of the body politic. Now the word feudalism is and
-always will be an inexact term, and, no doubt, at various times and
-places there emerge phenomena which may with great propriety be called
-feudal, and which come of evil and make for evil. But if we use the
-term, and often we do, in a very wide sense, then feudalism will appear
-to us as a natural and even a necessary stage in our history. If we
-use the term in this wide sense, then (the barbarian conquests being
-given to us as an unalterable fact) feudalism means civilisation,
-the separation of employment, a division of labour, the possibility
-of national defence, the possibility of art, science, literature and
-learned leisure; the cathedral, the scriptorium, the library are as
-truly the work of feudalism as is the baronial castle."
-
-One of the inevitable consequences of the process was a confusion
-in legal ideas. Distinctions which in the classical Roman law were
-clearly drawn became obliterated in the Middle Ages. Ownership and
-sovereignty, rents and taxes, public and private rights, became blended
-together in one large, hazy, undistinguished concept. Even the contrast
-between freedom and unfreedom which appears to the modern mind so
-elementary and so logical did not fit the intricate economic facts
-of the eleventh century. Of freedom there were many grades and many
-criteria. In one sense the villein was free, in another sense unfree,
-as a combination of forces fiscal, economic, penal were assimilating
-the rural population free and servile to the hybrid type. "Freedom is
-measured along several different scales. At one time it is to the power
-of alienation or withdrawal that attention is attracted, at another to
-the number and kind of services and 'customs' that the man must render
-to his lord." The closer the facts of Domesday were scrutinised the
-more impossible did it appear to arrive at exact definitions.
-
-Maitland's subtle powers of analysis were never shown to better
-advantage than in this attempt to rethink "the common thoughts of our
-forefathers, their common thoughts about common things." We doubt
-whether any historian had ever set himself down so seriously to
-get inside the medieval mind. The pompous phraseology in the early
-_diplomata_ does not deceive him, for he knows that the romanesque
-terms neither express the thoughts nor represent the facts of a
-barbarian age. Large phrases confidently used by modern historians,
-such as "property" or "joint liability," must be closely scrutinised
-before they can be applied to a remote age; property is a bundle of
-rights, and with every advance in economic progress, in material
-aspirations, in intellectual definition, rights and powers multiply,
-the conception of _dominium_ becomes more intensive, fuller of
-content and discriminations. There is no fixed immutable limit to
-the implications of such a concept. The Saxon chieftain learnt the
-extent of his powers in the process of alienating them to the Church,
-as some African chieftain tempted by gin and rifles may acquire a
-knowledge that land is not made for sheep alone, but may also yield
-gold and diamonds. But as the barbarian is vague, so also he is for
-all his materialism an idealist. "He sees things not as they are but
-as they might conveniently be. Every householder has a hide; every
-hide has 120 acres of arable; every hide is worth one pound a year;
-every householder has a team; every team is of eight oxen; every team
-is worth one pound. If all this be not so, then it ought to be so, and
-must be deemed to be so. Then by a Procrustean system he packs the
-complex and irregular facts into his scheme!" It is no light enterprise
-to understand the puzzled and inadequate thought which lies at the
-basis of our social history; Maitland believed that the reward was
-worthy of the effort.
-
-It appeared to Maitland that one of the obstacles to an exact
-understanding of the past was the general acceptance of the idea that a
-normal programme could be laid down for the human race. Even if there
-were sufficient evidence to show that each independent portion of the
-human race must move through a fated series of changes, it remained
-a fact that the rapidly progressive groups had not been independent.
-"Our Anglo-Saxon ancestors did not arrive at the alphabet or at the
-Nicene Creed by traversing a long series of 'stages'; they leapt to the
-one and to the other." And again the complexity and interdependence
-of human affairs render it impossible to hope for scientific laws
-which will formulate a sequence of stages in any one province of men's
-activity. Consequently it was unwise to fill up the blanks that
-occurred in the history of one nation by institutions and processes
-which had been observed in another quarter. Even if it were proved
-that the Roman _gens_ was a close agnatic group, and that the house
-community was the primitive unit of Roman society, we should not
-"force our reluctant forefathers through agnatic _gentes_ and house
-communities." In particular we were not entitled to assume without
-further enquiry that the early English village community owned land.
-
-Such criticisms, implying as they did that the Roman evidence had been
-accredited with a wider relevance than it did or could possess, were
-calculated to abate the more sanguine claims alike of comparative
-jurisprudence and of anthropology. In a subsequent paper contributed
-to the Eranus Club Maitland recurred to his central thesis, that
-the experience of the progressive nations was interdependent and
-unique, and incapable, for that very reason, of affording a basis for
-an inductive science of politics. It is among the many refreshing
-qualities of Maitland's work that while he is always close to his facts
-he is never out of the atmosphere of large and animating ideas.
-
-In the matter of early English land-holding Maitland put the
-individualist case with great cogency. While admitting co-operation
-he did not find decisive evidence of common ownership either in town
-or country. The village community was not a body that could declare
-the law of the tribe or nation. It had no court, no jurisdiction. If
-moots were held in it, these would be comparable rather to meetings
-of shareholders than to sessions of a tribunal. In short, the
-village landowners formed a group of men whose economic affairs were
-inextricably intermixed; but this was almost the only principle that
-made them a unit, unless and until the state began to use the township
-as its organ for the maintenance of the peace and the collection of
-the taxes. That is the reason why we read little of the township
-in our Anglo-Saxon dooms. Even in the German community there was a
-solid core of individualism! It is possible that Maitland overrated
-the "automatic" character of early agrarian life; that he argued too
-much from the silence of the dooms, that his principal tests were too
-predominantly legal; and that more may be said for the older theory
-than he was able at that time to discover in _Domesday Book and
-Beyond_. But the considerations which he submitted were substantial
-considerations, and in any picture which is drawn of the early state of
-land-holding in this country room will have to be made for a measure of
-individualism, if not equal to that which Maitland claimed, greater at
-least than the earlier theory had admitted.
-
-FOOTNOTES:
-
-[24] The leading characteristics of the system had been pointed out as
-early as 1821 by the Danish scholar, O. C. Olufsen, and received much
-further illustration from the labours of Georg Hanssen of Göttingen,
-whose papers [collected in 1880-4 under the title _Agrarhistorische
-Abhandlungen_] date back to 1835.
-
-
-
-
-VIII.
-
-
-In the course of his researches for the _History of English Law_
-Maitland had been drawn into the unfamiliar region of ecclesiastical
-jurisprudence, a department of knowledge once of the highest importance
-throughout Europe, but, save for one exception, fallen into complete
-desuetude at the English Universities ever since the study of the
-Canon Law was proscribed by Henry VIII. The exception was provided
-by William Stubbs. That great master of medieval history had from his
-Oxford Chair delivered and subsequently published two lectures upon the
-Canon Law in England. A stout patriot and a high Anglican, Stubbs was
-concerned to exhibit the continuity of the English Church before and
-after the Reformation; and both in his Oxford lectures and in a famous
-report drawn up for the Royal Commission on Ecclesiastical Courts he
-gave the weight of his authority to the opinion that the Canon Law of
-Rome, though held to be of great authority in England during the Middle
-Ages, was not recognised to be binding on the Courts Christian of this
-country. The verdict of so fine a scholar was eagerly welcomed by men
-of High Church opinions. If the Canon Law was not binding, then the
-Church of England was never in the full sense ultramontane, and the
-changes of the sixteenth century did not amount to revolution. Zealots
-went further still. There were those who, as Maitland wittily observed,
-seemed to believe that the Church of England was "Protestant before the
-Reformation and Catholic afterwards."
-
-In the quarrel between the Highs and Lows Maitland had no interest.
-Then, as always, he was a dissenter from all the Churches: but
-historical truth was precious to him, and in the course of the summer
-of 1895, while engaged in the preparation of a course of lectures upon
-the Canon Law, he became gradually aware that the received opinion
-could no longer stand. The agent of his conversion, if conversion it
-can be called, was the _Provinciale_ of William Lyndwood, a popular
-text-book written in 1430 by the principal official of the Archbishop
-of Canterbury, and representative of the accepted opinion in the
-century preceding the Protestant Reformation. The following letter to
-Mr R. L. Poole explains the genesis of a book which has permanently
-deflected the current of historical opinion.
-
-       *       *       *       *       *
-
-  HORSEPOOLS,
-          STROUD.
-   _15th August, 1895._
-
-I ought to have been writing lectures about the history of the Canon
-Law. Instead of so doing I have been led away into a lengthy discourse
-on Lyndwood. I have come to a result that seems to be heterodox, but
-I do not know exactly how heterodox it is and should be extremely
-grateful if you would give me your opinion upon a question which lies
-rather within your studies than within mine. It seems to me clear, that
-in Lyndwood's view the law laid down in the three great papal law-books
-is statute law for the English ecclesiastical courts and overrules
-all the provincial constitutions, and further that apart from the law
-contained in these books the Church of England has hardly any law--in
-short there is next to nothing that can be called _English_ Canon Law.
-I must wait until I am again in Cambridge to read what has been written
-about this matter in modern times, but any word of counsel that you can
-give me will be treasured. From a remark that you once made I inferred
-that in your opinion our Church historians have been too patriotic.
-I feel pretty sure of this after spending two months with Lyndwood,
-and if I find that my conclusions about the law of our ecclesiastical
-courts are at variance with the prevailing doctrine, may be I shall
-print what I have been writing, that is to say if either _L. Q. R._ or
-_E. H. R._, will let me trail my coat through its pages.
-
-       *       *       *       *       *
-
-_Roman Canon Law in the Church of England_ appeared in 1898. It was a
-collection of six essays, one of which--the delightful story of the
-Deacon who turned Jew for the love of a Jewess--had been published as
-far back as 1886. Of the rest the decisive part consisted of articles
-contributed to the _English Historical Review_ in 1896 and 1897. So
-far as a case can be demolished by argument, the case for the legal
-continuity of the Church in England was demolished by Maitland. He
-proved that the Popes' decretals were regarded as absolutely binding
-by our English canonists; that throughout Christendom the Pope was
-regarded as the Universal Ordinary or supreme source of Jurisdiction;
-that a considerable portion of the Canon Law was built out of English
-cases; that the provincial constitutions in England were of the
-nature of bye-laws and insignificant, while the libraries of our
-canonists were filled with foreign treatises; in fine, that the
-thirty-two Commissioners who set their names to the opinion that the
-ecclesiastical judges in England were not bound by the statutes which
-the Popes had decreed for all the faithful would have been condemned
-by any English ecclesiastical tribunal in the Middle Ages as guilty
-of heresy. No doubt portions of the Canon Law were not as a matter of
-fact enforced in England, but this was not because the Courts Christian
-rejected them, but because the Temporal power would not permit their
-enforcement.
-
-Royal prohibitions did not prove the existence of a national Canon Law.
-"To prove that we must see an ecclesiastical judge, whose hands are
-free and who has no 'prohibition' to fear, rejecting a decretal because
-it infringes the law of the English Church or because that Church has
-not received it." Whatever might be the view of a late age, no such
-testimony was forthcoming before the breach with Rome. Indeed the "one
-great work of our English canonist in the fifteenth century" showed
-that the position which had been attributed to the English Church in
-the Middle Ages was alien to its whole way of thought. In the age of
-the conciliar movement, when men of liberal temperament were urging
-that the Pope was subject to a general council, William Lyndwood
-evidenced nothing but "a conservative curialism."
-
-The book was necessarily controversial, but written with that complete
-absence of the polemical spirit which characterised all Maitland's
-work. "I hope and trust," he wrote to Mr Poole, September 12, 1898,
-"that you were not very serious when you said that the bishop was
-sore. I feel for him a respect so deep, that if you told me that the
-republication of my essays would make him more unhappy than a sane man
-is whenever people dissent from him, I should be in great doubt what to
-do. It is not too late to destroy all or some of the sheets. I hate to
-bark at the heels of a great man whom I admire, but tried hard to seem
-as well as to be respectful."
-
-An accident of friendship drew Maitland still further into the
-tormented sea of controversial church history. Lord Acton was appointed
-Regius Professor of Modern History at Cambridge in 1895, and, despite
-radical differences of creed and outlook, soon discovered in Maitland
-a spirit as ardent and disinterested as his own. Outwardly there was
-a great contrast between the two men, Maitland frail and delicate,
-his pale eager face a lamp of humour and curiosity, Acton massive,
-reserved, deliberate; but they understood one another, and soon came
-to share a common interest in a great literary enterprise. One day
-Acton propounded to Maitland the scheme for a great Cambridge history
-written upon the combined plan which was already familiar in France
-and Germany. It was to be a Universal History, a history of the whole
-world from the first beginnings to the present day, written by an army
-of specialists, and concentrating the latest results of special study.
-Maitland suggested that a more modest plan, a history of modern Europe
-since the Reformation, would prove to be more practical, and in this
-view Acton concurred.
-
-The _Cambridge Modern History_ covered a period which did not properly
-fall within Maitland's special range of study; but he was taken into
-counsel as to the general execution of the plan, and persuaded to
-contribute a chapter upon the Anglican Settlement and the Scottish
-Reformation. That Acton should have chosen Maitland for this particular
-piece of work may cause some surprise. The ground was intricate,
-sown with pitfalls and clouded with controversy, and Maitland had
-made no special study of the sixteenth century upon the political
-or religious side. On the other hand he could bring to the task a
-cool, dispassionate judgment, a fine power for appraising historical
-evidence, and a singular and exact felicity in the expression of
-delicate shades of certainty and doubt. That he stood outside the
-Churches might have been a disqualification, had devotional impulses
-been the staple consideration in the question, or if the banners of
-rival confessions were not already waving on the battle field; but
-the age of Elizabeth was theological rather than religious, and it
-was of the first importance to obtain the verdict of a thoroughly
-impartial mind upon a subject which could never be treated by a
-churchman without some suspicion of partisanship attaching to his
-results. Maitland accepted the task with misgivings, and discharged it
-with characteristic thoroughness. In an astonishingly short space of
-time his mind filled itself up with the reports of French and Spanish
-ambassadors, with the theological treatises and the political intrigues
-of sixteenth century Europe. A month or so after he had taken the
-plunge he was talking of Caraffa and Cecil as if he had known them all
-his life, and seemed to have gathered up the whole complicated web
-of European policy into his hands. He did not content himself with
-mastering and reproducing the voluminous literature of the subject;
-some pretty little discoveries, some "Elizabethan gleanings" were
-contributed to the _English Historical Review_, and gave evidence of
-refined investigations which did not stop at printed material. Results
-which might have furnished the theme for a substantial volume were
-packed into a chapter of forty pages. Critics complained of obscurity
-not of thought but of allusion; others, imperfectly versed in Tudor
-history, of a defective sympathy with religious emotion. The first
-charge is true; for Maitland was undoubtedly over-allusive, not from
-ostentation but from absorption and from a tendency common to learned
-and modest men to credit the general reader with more knowledge than he
-is likely to possess. To the second allegation it is some reply that
-Maitland was inclined to attribute the most decisive act in the period,
-Elizabeth's resolve to reject the Roman overtures, to religious rather
-than to political motives.
-
-With habitual modesty Maitland disclaimed the possession of the gift
-of narration. He would say that he could not tell a story; and the
-character of his historical work was not adapted to exercise the
-story-telling gift. But if his narrative has not the liquid flow of
-some accredited masters of the art, it is entirely devoid of some
-common defects. It is never indefinite, flabby or verbose, on the
-contrary it is full of pith and fire, proceeding by a series of brief
-vivid touches which take root in the memory and ripen there. It would
-be easy to select from the chapter upon the Scottish Reformation and
-the Anglican settlement a _florilegium_ of passages which, for keenness
-of insight and terseness of expression, could not easily be surpassed.
-It is a style which gives the impression not only of clairvoyance and
-watchfulness as to small details, transient motives and ephemeral
-phases of opinion, but also of a sense of the fundamental significance
-of things and of their relevance in the general march of progress.
-Every stroke is made to tell. In general nothing is so tedious as a
-history constructed upon severe philosophical principles. The argument
-swallows up the life; the characters become faint and evanescent; the
-colour put upon one event is shaded by the reflection of events which
-follow, and an oft repeated major premise leads through an appropriate
-selection of devitalised incidents to a familiar conclusion. Maitland's
-fragment of Reformation history is philosophical in the best sense.
-It is alive to the ultimate principles of belief and conduct which
-governed men and women in the years when the Thirty-Nine Articles
-were in the making; but it is also very vivid and concrete. The tale
-has been told more fully, more comfortably, with a greater display of
-picturesque circumstance, but never with more intellect, or with so
-exact an appreciation of the chronological order in which successive
-phases of belief and opinion revealed themselves. Instead of history
-ready-made Maitland gave us history in the making, antedating nothing
-and excluding with a care no less scrupulous than Gardiner's the
-world's knowledge of to-morrow from the world's knowledge of to-day.
-More than one fairy story dissolved at his touch, among others the
-tale of a Convocation summoned in 1559 to consent to the Act of
-Uniformity. The parent of the legend, an Anglican Canon, with a comical
-misapprehension of his antagonist's resources, ventured to measure
-swords with Maitland who had exposed his shortcomings in a Magazine.
-The encounter was amusing and decisive. It was also characteristic
-of some English peculiarities. We are a nation of bold amateurs. A
-German pastor who had been corrected by Savigny upon some points of
-history would hardly have returned to the charge without betraying some
-suspicion that his enterprise was unpromising if not forlorn.
-
-
-
-
-IX.
-
-
-Not the least brilliant passage in _Domesday Book and Beyond_ was
-a novel theory as to the origin and early history of the English
-Borough. The question of municipal origins had produced a library of
-controversial literature upon the Continent. One writer developed the
-town from the feudal domain, another from the "immunity," a third
-from the guild, a fourth from the market, a fifth from the free
-village, and there were combinations and permutations of these and
-other factors. Maitland was impressed by the arguments of Dr Keutgen
-of Jena, who found the origin and criterion of the German borough in
-its fortification. The idea transplanted into Maitland's mind became
-surprisingly fruitful. Scattered fragments of evidence seemed to
-confirm the surmise that in the English Midlands at least the county
-town was the county fortress, owing its origin to military necessity
-and supported by a variety of artificial arrangements. There was
-the evidence of language, for borough originally means a fortified
-house; the evidence of the map, for in many counties of England the
-county town is somewhere near the centre; the evidence of warlike
-stress, for the Danes were foemen even more terrible than those wild
-Hungarians against whom Henry the Fowler built his Saxon "burhs"; the
-evidence of Domesday Book, showing contrivances at once careful and
-varied for maintaining town walls and town garrisons; and here and
-there a gleam of light from older documents, from the Burghal Hidage
-of the tenth century, or from a charter of King Alfred. The argument,
-which was expounded with beautiful clearness and ingenuity, led on
-to the conclusion that the town court was the product of "tenural
-heterogeneity," for the garrison men holding of different lords would
-need a special court to decide their controversies. There was thus
-a greater degree of governmental artifice in the process than had
-hitherto been suspected. The borough was not merely a very prosperous
-village; it was a unit in a scheme of national defence; a fortified
-town maintained by a district for military purposes with "mural houses"
-and "knight guilds" and a miscellaneous garrison contributed by shire
-thegns. By degrees trade, commerce, agriculture, the interests of the
-market and the town fields would overpower the military characteristics
-of the county stronghold. But the scheme should not be pressed too far;
-"no general theory will tell the story of every or any particular town."
-
-In the autumn of 1897 Maitland gave the Ford Lectures in Oxford.
-The foundation was recent, and Maitland was chosen to succeed S. R.
-Gardiner, who had delivered the opening course in the previous year.
-Gardiner had lectured extempore on "Cromwell's Place in History";
-Maitland delivered a series of carefully written dissertations upon
-"Township and Borough," a subject as little likely, one would think, to
-hold together an audience in the Schools as any that could be imagined.
-The ordinary man is not interested in law, still less in medieval law,
-and less again in the metaphysics of medieval law; but a large and
-constant audience was interested in Maitland. His style of lecturing
-was distinctive and original--the voice deep, grave, expressive, the
-delivery dramatic, the substance compounded of subtle speculation and
-playful wit and recondite learning. The lectures which were learnt by
-heart were delivered with a verve and earnestness which impressed many
-a hearer who was entirely indifferent to the particular issues or to
-the whole region of learning to which they belonged. When and how did
-the Borough become a Corporation? Who owned the Town fields? In what
-sense was the medieval borough a land-owning community? What did King
-John mean when he granted the vill of Cambridge to the burgesses and
-their heirs? With Maitland's artful spells upon her Oxford felt that
-such questions as these might be very grave and not a little gay.
-
-
-
-
-X.
-
-
-The wonderful work which has here been imperfectly described was
-accomplished under a shadow. Maitland, who was never really a strong
-man, was, even before his marriage, not without warnings that he was
-overtaxing his physical resources. When he delivered his inaugural
-lecture he was already conscious that his days might be few. "I see
-again," writes one who was present, "the dim room, the grey light and
-the shadowy but inspired fragileness of the lecturer who was then
-fighting a very serious illness.... It was no ordinary lecture, rather
-a sort of sermon, grave and beautiful with its solemn call to work,
-even though that work might lie in humble and obscure fields. And the
-impression that was perhaps most immediately insistent, seeming to
-underlie each word and sentence, was that the speaker felt the hours
-of his own work to be already numbered and but few." In 1889, the year
-after his election to the Downing Chair, a doctor pronounced over him
-a sentence from which there is generally no successful appeal. "I very
-much want to see you again," he wrote to a friend, March 12, 1889,
-"and I don't know that I can wait for another year; this I say rather
-seriously and _only to you_; many things are telling me that I have not
-got unlimited time at my command and I have to take things very easily."
-
-Devoted nursing, great care in diet, and a resolute avoidance of many
-of the pleasant things of life enabled the work to proceed as buoyantly
-as ever. There were bouts of illness and pain, when the French novelist
-and especially the beloved and well-known Balzac had to be invoked,
-but there were also periods of revival and at one time an assurance
-that the alarming symptoms had disappeared. But in truth the malady
-was never dislodged. "Slowly it is doing for me; but quite slowly,"
-he wrote to a friend in 1899, "and it may cheer you to know that I
-have had ten happy and busy years under the ban." In the summer and
-autumn of that tenth year there was a sudden change for the worse and
-it became clear that Maitland could no longer winter in England. "If I
-have to sing a Nunc Dimittis," he wrote to Mr R. L. Poole, "it will run
-'Quia oculi mei viderunt originalem Actum de Uniformitate primi anni
-Reg. Eliz.' Few can say as much.... I think of a voyage to S. America
-as S. Africa looks too warm for a man of peace."
-
-From 1898 the Maitlands were compelled to fly south with the approach
-of winter. Their regular resort was Grand Canary but once, in 1904,
-this was exchanged for Madeira. Like all other habits idleness requires
-cultivation and Maitland had never been idle. Under a tropical sky and
-with an exquisite sense of relief from physical pain he worked his
-writing muscles as busily as ever. In the first exile he translated
-that part of Otto Gierke's _Deutsche Genossenschaftrecht_, which dealt
-with medieval political theory, and published it with a brilliant
-Introduction. Later he copied manuscripts of the Year Books lent to him
-by the wise generosity of the Cambridge University Library and collated
-or transcribed photographs of those manuscripts which it was impossible
-to export. The last two winters were divided between the Year Books
-and the composition of a biography of Leslie Stephen, and so far was
-exile from being a holiday that the fruit of each winter spent in the
-fortunate islands was never less than the substantial part of the
-volume. Some letters shall speak of the impressions and activities of
-these years.
-
-
-TO LESLIE STEPHEN.
-
-  HOTEL SANTA CATALINA,
-         LAS PALMAS,
-             GRAN CANARIA.
-                  _5 Nov. 1898._
-
-I am beginning Guy Fawkes's day by sitting in the verandah before
-breakfast to write letters for a homeward-bound mail. Certainly it is
-enjoyable here and I mean to get good out of a delightful climate.
-Also I mean to convert your half promise of a visit into a whole, and
-without going beyond the truth I can say that there is a good deal
-here that should please you. At first sight I was repelled by the arid
-desolation of the island. I suppose that I ought to have been prepared
-for grasslessness, but somehow or another I was not. But then the
-wilderness is broken by patches of wonderful green--the green of banana
-fields. Wherever a little water can be induced to flow in artificial
-channels there are all manner of beautiful things to be seen. I have
-picked a date and mustered enough Spanish to buy me a pair of shoes
-in the "city" of Las Palmas--a dirty city it is with strange smells;
-but we are well outside of it. Between Las Palmas and its port there
-is a little English colony. This hotel is so English that they give
-me my bill in _£ s. d._ and my change in British ha'pence which have
-seen better days. Indeed now I know where our coppers go to when they
-have become too bad for use at home. Also the "library" of this hotel
-seems a sort of hades to which the bad three-voller is sent after its
-decease. But the proposition that all the worst books collect there is
-(as you must be aware) not convertible into the proposition that only
-bad books come there, and I see a copy of a certain _Life of Henry
-Fawcett_ which you may have read. I laze away my time under verandahs
-and in gardens--but am not wholly inactive. Sometimes when it is cool I
-walk some miles and explore country that is well worth exploration. By
-the time you come I shall be ready for an ascent of our central range
-with you--it touches 6000 ft. I think, and by that time we shall be
-having cooler weather. Yesterday we were breathless: to-day is cloudy
-but would be September in England.
-
-It is breakfast time and the porridge is good.
-
-
-TO LESLIE STEPHEN.
-
-  Sᵗᵃ BRIGIDA,
-          MONTE,
-            G. CANARY.
-                   _9 Jan. 1899._
-
-I won't pretend but that I am disappointed by your decision, the
-more so because my hopes of your advent stood higher than Florence's
-and I had endeavoured to argue that your half-promise was a valuable
-security. However, I know that we are far from England, and that you
-are unwilling to leave your household for any long time. Also the two
-last boats that have come here suffered much in the Bay of Biscay and
-were very late. So I forgive, though I badly want someone to walk with.
-The time has come when I feel that walks are pleasant and do me good,
-but that I am very tired of the contents of my own head. But even a
-solitary tramp is better than a day in bed, and I am really grateful
-to this magnificent climate and to those who sent me here. To those
-who cannot speak Spanish, and I cannot and never shall, the remoter
-parts of this island are not very accessible. I sometimes find myself
-beset by a troop of boys who take a fiendish pleasure in dogging the
-steps of an Englishman who obviously is deaf, dumb and mad. Attempts to
-reason with them only lead to shouts of Penny! or Tilling!--I cannot
-even persuade them that Tilling is not an English word. Still at times
-they leave me in peace and then I can be happy until the next crowd
-assembles.
-
-
-TO LESLIE STEPHEN.
-
-  HOTEL Sᵗᵃ BRIGIDA,
-      MONTE,
-        GRAND CANARY.
-            _23 Jan. 1899._
-
-I fear from your last letter that you may take too seriously what
-I said in play. No, there was no promise, only a certain hope that
-you might come here, and Reason (with a capital) tells me that your
-decision is wise and that you must not give up to Canarios what was
-meant for your home and the _Utilitarians_. I am really glad to think
-that you are booking them, and at times I envy you. However I cannot
-say that I am unhappy in my idleness. When I despaired of you for
-a companion, I took to myself the soundest looking man in a hotel
-full of invalids, and gat me up into the hills to accomplish the
-expedition that I had reserved for you, and we succeeded in mastering
-not indeed the highest, but the most prominent mountain of the island,
-if a mountain may be no more than 6000 feet high. This raised me in
-my own conceit and certainly I had a very enjoyable time. I doubt
-whether in any of your good ascents you can have seen so gorgeously
-coloured a view as that which I beheld. A great part of the island lay
-below me; many of the rocks are bright orange and crimson and these
-are diversified by patches of brilliant green; the whole was framed
-in the blue of sky and sea. It was like a raised map that had been
-over-coloured.
-
-
-TO FREDERICK POLLOCK.
-
-  CASA PEÑATE,
-       MONTE.
-           _Dec. 4, 1899._
-
-Dated in Timelessness, but with you it may be some such day as Dec.
-4, and I fancy that cent. XIX may still be persisting. Dated also
-nominally at Hotel Quiney in Las Palmas where I preserve address for
-service, but de facto in the garden of a messuage or finca called or
-known by the name of Bateria in the pueblo of Sᵗᵃ Brigida--a fort-like
-structure which I hold as a monthly tenant--windows on four sides all
-with fine views--on ground floor lives major domo, a hard-worked
-peasant savouring of the soil--first and only other floor inhabited
-by me and mine, including our one servant, a Germano-Swiss treasure
-acquired as we left England--furniture a minimum and no more would
-be useful--small boy coatless comes to clean boots, run errands and
-the like, Pepé to wit--much bargaining at house door with women who
-bring victuals round and would rather have a chat than money. Madame's
-mastery of their jargon surprises me daily--I can rarely catch a word.
-One might fall into vegetarianism here, such is the choice of vegetals.
-
-Lies in the garden on a long chair mostly--has there written for
-_Encyclop. Brit._ article on Hist. Eng. Law--space assigned 8 only of
-their big pages: consequently tight packing of centuries: work of a
-bookless imagination--but dates were brought from England. Qu. whether
-editor will suffer the few lines given to J. Austin: they amount to
-j.a. = o°. Now turning to translate Gierke's chapt. on "Publicistic
-Doctrine of M.A.[25]"--O.G. has given consent--will make lectures
-(if I return) and possibly book--but what to do with "Publicistic"?
-Am reading Creighton's _Papacy_ and Gardiner's _History_--may be
-well-informed man some day. Harv. L. Rev. and King's Peace came
-pleasantly--Alphabet not yet presented to babes but reserved for
-approaching birthday when it will delight. Meanwhile parents profit by
-it and are very grateful.
-
-Influence of climate on epistolary style--a certain disjointedness.
-Can live here or rather can be content to vegetate. A tolerable course
-for the Lea Francis--some 5 miles long--lies not far away, but must
-shoulder her and climb a rocky path to reach it. No puncture yet. The
-alarums and the excursions of horrid war are but little heard here.
-Interesting talk last night at hotel with German Consul in Liberia much
-travelled in Africa--very unboerish but thinks we are in for a large
-affair--all good (says he) for (German) trade. Much that we buy here
-made in Germany,--they spread apace.
-
-
-TO FREDERICK POLLOCK.
-
-  CASA PEÑATE, MONTE,
-        LAS PALMAS.
-             _5 Jan. 1900._
-
-I have been wasting too many of my hours in bed--and such hours
-too--and have consequently written few letters. Somehow or another I
-was chilled in the course of my voyage: I think it was on board the
-little Spanish steamer that brought me here from Teneriffe: and after
-a few days, during which I improvidently cycled to Las Palmas and
-found that I had to trudge back, I collapsed. However that episode I
-hope is over, and certainly we are in luck this year. For three weeks
-the weather has been magnificent; no drop of rain has fallen and day
-after day the sun has shone. It is like the best English June and there
-is nothing that tells of midwinter except some leafless poplars and
-chestnuts. I brought out a minimum thermometer which has refused to
-register anything less than 54°.
-
-I have been devouring too rapidly my small store of books since I have
-been cut off from the writing which I projected. What I have seen of my
-two MSS of the Year Books of Edward II tells me that there is a solid
-piece of work to be done. One of these MSS is much fuller than the
-printed book. I cannot understand what demand there can have been for
-that printed book: it is so very unintelligible--mere nonsense much of
-it.
-
-The B.G.B. will have to wait--at least so I think at present--as I
-shall give all my working time to the Y.B.B.--but the volumes of
-_Materialien_ are very interesting--especially so much as consists of
-the debates in the Reichstag[26]. By far the keenest debate was about
-damage done by hares and pheasants: the sportsmen of the Right were
-very keen about this matter.
-
-... You will gather from this scrawl that I am recumbent in a
-garden--the fact is so and I won't deny it.
-
-
-TO LESLIE STEPHEN.
-
-  _22 Jan. 1900._
-
-I can well believe that England is a gloomy place just now. Even here
-where I see few papers and few English folk, except the family, this
-ghastly affair sits heavily upon me and is always coming between me
-and my book: at the moment Gardiners _History_: from which my thoughts
-flit off to England and the Transvaal. It don't make things better to
-doubt profoundly whether we have any business to be at war at all. I
-remember telling you at Warboys (what a good day that was!) that I
-deeply mistrusted Chamberlain. Since then I have been thinking worse
-and worse of him: I hope that I am in the wrong, but only hope.
-
-... Then I feel a beast for lazing here in the sunshine among the
-Spaniards who heartily enjoy all our misfortunes. And the worst of it
-is that lazing is obviously and visibly doing me good. Really and truly
-the temptation comes to me, when the sky is at its bluest, to resign my
-professorship, realise my small fortune and become a Canario for the
-days that remain. On the other hand three or four projects occasionally
-twitch my sleeve--connected with the Selden Society, which has behaved
-more than handsomely by me. But both sets of motives conspire to keep
-me lying in the sun and saying with the Apostles "Lord! it is good for
-us to be here."
-
-Well you don't laze. I congratulate you heartily on coming out at the
-other end of the _Utilitarians_. You would not give me the pleasure
-of proof sheets--I regret it, but shall have the whole book soon
-and enjoyable it will be. Especially I want to see what you say of
-Austin. Since I was here I wrote an article "Hist. Engl. Law" for the
-_Encyclop. Britan._ and risked about Austin a couple of sentences which
-are not in accordance with common repute--and now I feel a little
-frightened. I don't want to be unjust, but I cannot see exactly where
-the greatness comes in. So I am curious to know your judgment about
-this--and many other things. I should like a long talk with you in
-these prehistoric surroundings.
-
-
-TO FREDERICK POLLOCK.
-
-  CASA PEÑATE, MONTE,
-        LES PALMAS.
-              5/2/00.
-
-My opinions about the origin of this wretched war are not worth stating
-and are extremely distressing to one who holds them. It will be enough
-to tell you that this summer John Morley seemed to me the one English
-statesman who was keeping his head cool, and I have not read anything
-that has changed my mind. I fear that the whole affair will look bad
-in history. And the worst of it is that the cold fit will come with a
-vengeance.
-
-We have no good news yet. I hope for some this afternoon. Your letter
-came by Marseilles--to my surprise, for we rarely get a mail that way.
-Our last tidings are of speeches made by generals and these do not
-cheer me. Last night I had a talk with a man who knew the Transvaal and
-who fears that our volunteer marksmen will not hit much until they have
-had two months of South African atmosphere: the unaccustomed eye makes
-wildly incorrect estimates of distance.
-
-You speak of dragoons. "My period," a very short one 1558-63 is full
-of the "swart-rutter." The English government's one idea of carrying
-on a big war, if war there was to be, was that of hiring German
-"swart-rutters." They did much pistolling, and I suppose that you know,
-I don't, how big a machine was the pistol of those days. Well, the War
-Office temp. Mary (only there was not one) was open to criticism. Every
-ounce of powder that England had was imported from the Netherlands.
-This had to go on for a while under Elizabeth--there are amusing
-letters from English agents wherein "bales of cloth," and so on, have
-an esoteric meaning.
-
-A starved Canarian hound has attached itself to us--of the grey-hound
-type, and sundry small additions are made to the menagerie as occasion
-serves. A parrot died yesterday--had drunk too much water, so an
-expert says--was called José--his fellow Juan still screams. In the
-neighbouring hotel is another with atrocious German habits acquired
-from the head waiter--will drink himself drunk with beer and swear
-terribly. I hear rumours of an additional monkey whose name is to be
-Loango.
-
-I play schoolmaster--How they have turned the Latin grammar inside
-out!--and I miss my Rule of Three. In a Spanish Census paper I for
-once made myself "doctor iuris": Glasgow allows me to say "utriusque."
-I added to the population capable of reading and writing no less than
-five names--for our trilingual Switzer was to be included--and this
-will seriously affect Canarian statistics.
-
-But I like this illiterate folk.
-
-
-TO HENRY JACKSON.
-
-  CASA PEÑATE, MONTE,
-        LAS PALMAS.
-               _18 Feb. 1900._
-
-It is downright wickedly pleasant here. By here I do not mean in Las
-Palmas--which stinketh--but some seven miles out of it and some 1300
-feet above it, in a "finca" that we were lucky enough to hire: that
-is something between a farm house and a villa. The Spaniard of the
-middle class is a town-loving animal. He likes to have up country a
-house to which he can go for six weeks or so in the year and where he
-keeps a major domo (= bailiff) who supplies the town house with country
-produce. Such a finca we hired for £1 a week, and there we live very
-comfortably and very cheaply among vines and oranges and so forth.
-Life here would have been impossible if my wife had not acquired the
-Spanish, or rather the Canario, tongue with wonderful rapidity. I fancy
-that some of her language is strong; but if you want anything here you
-must shout.
-
-I am right glad to hear that it is no worse with you. But just you
-be careful about cold. I know it is the worst enemy that I have, and
-I suspect that you will find the same. I have often wondered how you
-contrived to live in "a thorough draught." The time comes when one
-cannot do it, and that time came to me early. In the sunshine I begin
-to make some flesh, the wind no longer whistles through my ribs and
-I have not had ache or pain these two months. (Interval during which
-the writer gets himself out of the aforesaid sunshine which to-day
-has an African quality.) I wish you could be here, but wonder whether
-you could be demoralized; some demoralization would do you good,
-but I cannot imagine you as lazy as I am. Still you might try. And
-really though I am lazy I have managed to do some things that I should
-not have done at home and hope to have something to offer the Press
-when I return. The subject of my meditations is the damnability of
-corporations. I rather think that they must be damned: the Chartered
-for example.
-
-News as you suppose comes here fitfully. Sometimes a telegram reaches
-Las Palmas, and occasionally it is not contradicted. But in the main we
-depend upon newspapers. I feel somewhat of a beast for being outside
-all this war trouble, more especially as I went abroad with a very low
-opinion of the Government's South African policy. That opinion I should
-like to change but I cannot. Your amateur strategist must be pretty
-intolerable. I have met a few people here who knew something of the
-Transvaal and they have none of them been cheerful. The puzzle to me
-"after the event" is why more was not known in Downing Street. I can't
-help fearing that when all comes out the whole affair will look very
-bad....
-
-It will be a very strange book that _History_ of ours[27]. I am
-extremely curious to see whether Acton will be able to maintain a
-decent amount of harmony among the chapters. Some chapters that I
-saw did not look much like parts of one and the same book. Before
-I went off I put my chapter into his lordship's hands. I never was
-more relieved than when I got rid of it. His lordship's lordship was
-considerate to an invalid and only excepted to a few new words that I
-had made, but I daresay he swore--if he ever swears--in private.... I
-never knew time run as it runs here. Soon I shall have to be thinking
-of my return with the mixedest feelings. I am going to give Cambridge a
-last chance. If it cannot keep me at about 9 stone, I shall "realise"
-such patrimony as I have and buy a finca. Then for the great treatise
-De Damnabilitate Universitatis.
-
-
-TO HENRY JACKSON.
-
-  CASA PEÑATE, MONTE,
-  LAS PALMAS.
-     _12th January, 1901._
-
-It was very good of you to give me a piece of your New Year's Eve and
-to tell me much that I wanted to know. For my part I am practising the
-art of writing while lying flat on my back and am flattering myself
-that I make some progress, though the management of a pipe complicates
-the matter. The result of lying abed is that I am getting through
-much too quickly the small store of books that I brought with me and
-am falling back on the resources of the one bookshop that the island
-contains. If this sort of thing goes on I shall be driven to Spanish
-translations of Zola. I have just finished Feuillet's _La Muerta_--but
-then I knew the French original. After what you say I must see
-whether Erckmann-Chatrian has been done into Spanish. In a list that I
-have before me I see Dickens down for "Dias penosos" and some Wilkie
-Collins--but apparently the novel-reading Spaniard lives for the most
-part on Frenchmen, especially Zola. I shall never talk Spanish. I
-believe that what is or used to be called a classical education makes
-many cowards: the dread of "howlers" keeps me silent when I ought to
-plunge regardless of consequences.
-
-I fancy that the comparison that you instituted between the life of
-the Roman and the life of the Spaniard as seen by me in these islands
-might be extended to a good many particulars. When, as happens for
-about eleven months in the year, you are not living at your finca,
-you occasionally pay it visits with a party of friends--male friends
-only--whom you entertain there. You eat a great deal and drink until
-you are merry--then late in the evening you drive back to town twanging
-a guitar, and, if you can, you sing inane verses made impromptu. Our
-landlord had one of these carouses the day before he handed over the
-house to us, and my wife's account of the state in which the house
-was when she entered and set some servants to scrub it is not for
-publication.... Is not this rather classical?
-
-
-TO FREDERICK POLLOCK.
-
-  CASA PEÑATE, MONTE.
-          _21 Jan. 1901._
-
-Also I wonder what has gone wrong with the mails--we might be at the
-other end of the earth, so slow is news to reach us. A rumour came
-up yesterday from the ciudad which makes me reflect that I don't
-know for certain whether you have a queen in England or a king. And
-I can't go and see how all this is, for if I leave my bed, I am soon
-sent back there again by this blameworthy neuralgia which threatens to
-become what Glanvill calls morbus reseantisae. Et sic iaceo discinctus
-discalciatus et sine braccis ut patuit militibus comitatus qui missi
-fuerunt ad me videndum et qui michi dederunt diem apud Turrim Lundoniae
-in quindena Pasche.
-
-So I make some progress through Spanish novels--or rather novels that
-have been translated into Spanish. At present I am in _Resurreccion_ by
-the Conde Leon Tolstoy--which is easy. I find Perez Galdos a little too
-hard for my recumbent position, and dictionaries are bad bed-fellows.
-I have been indolently making for subsequent use a sort of Year Book
-grammar. I have got a pretty complete être and avoir--and really I
-think that the lawyers had a fair command of all the tenses--I have
-seen some well sustained subjunctives.
-
-You spoke of Maine. Well, I always talk of him with reluctance, for on
-the few occasions on which I sought to verify his statements of fact I
-came to the conclusion that he trusted much to a memory that played
-him tricks and rarely looked back at a book that he had once read: e.g.
-his story about the position of the half-blood in the Law of Normandy
-seems to me a mere dream that is contradicted by every version of the
-custumal.
-
-By the way, when you discoursed of the term "comparative
-Jurisprudence," had you noticed that Austin used it? I was surprised by
-seeing it in his book the other day. Burgenses de Cantebrige dederunt
-michi libertatem burgi sui honoris causa quia edidi cartas suas.
-Gratificatus Sum.
-
-
-                            TO JOHN C. GRAY,
-
-            _Professor of Law in the University of Harvard_.
-
-  DOWNING COLLEGE, CAMBRIDGE.
-                _21 April, 1901._
-
-My best thanks for _Future Interests in Personal Property_, which has
-just come to my hands on my return from the Canaries. For a few days my
-interest in it must be future, but will be vested, indefeasible, real
-and not impersonal.
-
-                          Yours in perpetuity,
-
-  (Signed) F. W. MAITLAND.
-
-
-TO HENRY JACKSON.
-
-  5 LEON Y CASTILLO,
-       TELDE,
-          GRAN CANARIA.
-           _30 December, 1901._
-
-Here I am lying in the sun which shines as if it were June and not
-December. This year our "finca" is in the midst of a "pueblo." The
-front of our house faces a high street which is none too clean--but
-then you keep the front of your house so shut up that you see nothing
-of the street and at the back all is orange and coffee and banana and
-so forth. Telde is the centre of an important trade in tomatos--the
-whole village is employed in the work of packing them for the English
-market and sending them off to the shops in Las Palmas. Really it has
-become a very big industry in these last years and if English people
-gave up eating tomatos, hundreds of Canarios would be in a bad way. But
-there! You don't want to hear of foreign parts, and if we could meet
-our talk would be of Cambridge....
-
-I am told that I have been put back into the Press Syndicate. I do not
-refuse and shall be very glad if in any way I can further the interests
-of the big history. The first volume is with me and I enjoy it.
-
-
-TO LESLIE STEPHEN.
-
-  5, LEON Y CASTILLO,
-        TELDE,
-           LAS PALMAS,
-             GRAN CANARIA.
-                 _20 Jan. 1902._
-
-I was glad of your letter. I had been in a poor way and it cheered me.
-Now I am doing well and ride a bit on my cycle along one of the three
-roads of the island. I thought that you would like _Joh. Althusius_ if
-you could penetrate the shell[28]. I like all that man's books, and
-his history of things in general as seen from the point of view of a
-student of corporations is full of good stuff, besides being to all
-appearance appallingly learned. I rather fancy that Hobbes's political
-feat consisted in giving a new twist to some well worn theories of the
-juristic order and then inventing a psychology which would justify that
-twist. I shall be very much interested to hear what you have to say
-about the old gentleman. A many years ago I saw in the Museum a copy of
-the _Leviathan_ with a note telling how the wretched old atheist was
-buried head downwards or face downwards or something of the sort in a
-garden--a nice little legend in the making!
-
-Have you read _De Mirabilibus Pecci_? Stevenson the Anglo-Saxon
-scholar, who travelled outwards with me, told me that the first
-recorded appearance of the name of the Peak (something like Pecesus)
-shows that the great cavern was called after the Devil's hinder parts.
-Did Hobbes know that? What a thing it is to be a philologer!
-
-
-TO LESLIE STEPHEN.
-
-  5, LEON Y CASTILLO,
-        TELDE,
-            GRAN CANARIA.
-                  _30 Jan. 1902._
-
-Let me wish you a happy new year and then ask for a line in return. It
-doesn't follow in law or in fact that because I have nothing to say
-that you care to hear therefore you have nothing to say that I care to
-hear. Q.E.D.
-
-Why did you make my life miserable by suggesting that grammar does not
-allow me to wish you a happy new year and does not allow you to send
-me a letter? I consulted a professed grammarian who told me that "me"
-and "you" are good datives and "to" in such cases an unnecessary and
-historically unjustifiable preposition. Go on like this and you will
-end where the Spaniard is, and he loves "to" his parents, etc. When
-we still have to contend with relics of a subjunctive you need not be
-making more difficulties. I am led into these exceedingly uninteresting
-remarks by the nature of my only pursuit. I had a bad time on the
-voyage. Something went wrong with my works and since I have been here
-I have not had much choice between lying almost flat and suffering
-a good deal of pain. So I have been copying Year Books from the
-manuscripts that I brought from Cambridge and since the scribes did
-not finish their words and I have to supply the endings I have been
-compelled to take a serious interest in old French Grammar. However,
-things are improving. I had ten minutes on the cycle yesterday and hope
-soon to see a little of the country. We are in a village this year.
-It is the centre of the trade in tomatos. Boxes of tomatos with the
-Telde mark have been seen even in the Cambridge market place. As I lie
-here I am surrounded by oranges, coffee, bananas, etc., and we have
-even a true dragon tree. It is wonderfully beautiful. Florence and the
-children are exceedingly happy and I am beginning to doubt whether I
-shall get them back to Cambridge when the Spring comes. You would think
-that Florence had never talked anything but Spanish. Not that I would
-warrant its Castilian quality, but at any rate it is rapid and highly
-effectual.
-
-
-TO HENRY JACKSON.
-
-  5, LEON Y CASTILLO,
-        TELDE,
-            GRAN CANARIA.
-              _1st February, 1902._
-
-I am sorry indeed that the part of your letter to which I looked
-anxiously contained such bad news--and having said that I think that I
-won't say more--it is so useless.
-
-The Spaniard ends his letter with S.S.S.Q.B.S.M. and I understand this
-to mean su seguro servidor que besa sus manos--but he puts it in
-even when he writes to the papers and there is no thought of any real
-kissing in the case. I send you two little bits of English for (!)
-decipherment. They appear day by day and month by month in the _Diario
-de Las Palmas_ and I hope that they are intelligible to its non-English
-readers. The said newspaper is one of some half dozen daily rags
-published in our "ciudad"--I am surprised by their number. They seem
-largely to live upon ancient English papers--I mean papers which have
-taken a week to get here and have then been lying about in the hotels
-for another week or more. Hence queer snips from _Tit Bits_, etc.
-
-Which makes me think of Acton. (His professed admiration of _Tit Bits_
-has some basis in fact: at least I once entered a railway carriage and
-found him deep in said paper.) What a prodigious catechism he addressed
-to you! I should like to have seen your reply.... Many thanks for news
-of the _History_. I hope that all will go well now: I think that the
-team looks strong. I hear that I am to serve on the Press Syndicate:
-I doubt I shall do much good there--still I am quite willing to hear
-others talk and shall be interested in all that concerns the big book.
-
-These last weeks I have been doing splendidly and have got through
-a spell of copying which would never have been done had I stayed in
-England--as you say, life in Cambridge is an interruption. Buckland is
-a good companion and I think that we have taken our cycles where cycles
-have not been before--a crowd of ragged boys pursues--"chiquillos"
-convinced of our insanity.
-
-If you have good news to give, give it.
-
-
-TO JOHN C. GRAY.
-
-  DOWNING COLLEGE,
-      CAMBRIDGE.
-          _19 April, 1902._
-
-I returned yesterday from a winter spent in the Canaries where I am
-compelled to take refuge. Already I have read your article about gifts
-for non-charitable purposes and have been delighted by it. It puts an
-accent on what I think a matter of great historical importance--namely
-the extreme liberality of our law about charitable trusts. It seems
-to me that our people slid unconsciously from the enforcement of the
-rights of a c.q.t. to the establishment of trusts without a c.q.t.--the
-so-called charitable trusts: and I think that continental law shows
-that this was a step that would not and could not be taken by men whose
-heads were full of Roman Law. _Practically_ the private man who creates
-a charitable trust does something that is very like the creation of an
-artificial person, and does it without asking leave of the State.
-
-I only saw Thayer for a few hours, but I feel his death as the death of
-a friend. The loss must be deeply felt at Harvard.
-
-
-TO HENRY JACKSON.
-
-  DOWNING.
-     _6 July, 1902._
-
-You repay me my letter with usurious interest. However you are _sui
-juris_--or ought I to say _tui_?--and I doubt a court of equity would
-extend to you the protection which it bestows on improvident young
-gentlemen.
-
-No I had nothing to write of Acton. A few memorable talks on Sunday
-afternoons were all I had. To my great regret I did not hear the first
-of the Eranus papers.... What the literary Nachlass is like I cannot
-tell and am not likely to know. I saw the notes for an introductory
-chapter[29] confided to Figgis. They seemed to me to be quite useless
-in the hands of anyone save him who made them. They struck me as very
-sad: the notes of a man who could not bring to the birth the multitude
-of thoughts that were crowding in his mind.
-
-Have you seen Sidgwick's small book on philosophy? I think it in some
-respects the most Sidgwickian thing that is in print. I can hear most
-of it--some of it from the hearth-rug or at the Eranus.
-
-I think that the K.C.B. came to Stephen just at the right moment and
-that he is really pleased by it. About his condition I don't know the
-exact truth. The good thing is that there is little discomfort. He is
-writing Ford Lectures for Oxford, but says that he will not be able
-to deliver them. Have you seen in his _George Eliot_ the remark about
-Edmund Gurney? "I have always fancied--though without any evidence,
-that some touches in Deronda were drawn from one of her friends, Edmund
-Gurney a man of remarkable charm of character and as good-looking as
-Deronda" (p. 191). What think you?
-
-
-TO HENRY JACKSON.
-
-                                                _20 December, 1902._
-
-  MUY SEÑOR MIO
-
-  Deseo que pase Vd. bien las Pascuas y que tenga feliz año nuevo
-
-  Quedo de Vd. atento y Seguro
-
-  Servidor que besa su mano
-
-  F. W. MAITLAND.
-
-From an exercise on the use of the subjunctive. Beyond this point my
-Spanish will not carry me. Compulsory Greek, acting on a fine natural
-stupidity, deprived me early of all power of learning languages. I
-envy my children who chatter to the servants in what is good enough
-Canario, though I doubt it being Castilian. My voyage was abominable.
-I am driven into the second class. I like second class _men_ (not
-women): they are often very interesting people who have seen odd things
-and been in strange places--but a cabin close to the screw is bad
-and sleep was out of the question. Two lines of F. Myers (have I got
-them rightly) got into my head and set themselves to the accompanying
-noises:--"doubting if any recompense hereafter waits to atone the
-intolerable wrong?" But this was faithlessness--it is all atoned by a
-few hours of this glorious sunshine. Already I am regenerate and a new
-man.... Do you know Paul Bourget's _L'Étape_? It is not great but it
-served to kill some bad hours. And do you know Huysman? He looks to me
-like a debauchee who has turned himself into a ritualistic curate and
-is very sweet upon his highly artificial style. I am now tackling _Gil
-Blas_ in the classical Spanish translation which some say is better
-than the original.
-
-My house of call is Quiney's but I am up country at a place called
-Tafira.
-
-
-TO FREDERICK POLLOCK.
-
-  CASA VERDA,
-        TAFIRA.
-           _17 Jan. 1903._
-
-Your letter about Paris is to hand. Well I envy you. Yours are the joys
-that I should have liked if I had my choice--but I must not complain,
-for I am having a superlatively good time. I don't exactly know why it
-is but the sun makes all the difference to me--I live here and don't
-live in England. I am even beginning to boast of my powers as a hill
-rider: but if ever I come here again I shall bring a machine with a
-very low gear and a free wheel: that is what you want if you live half
-way up a road that rises pretty steadily for 21 kilometres to 2600
-feet. My friend Bennett who has vast experience recommends a gear of 50
-for such work.
-
-Meanwhile I push on with the Year Books. My first volume is done in
-the rough and a good piece is in print. Being away from books I become
-intrigued in small verbal problems. Am now observing the liberal use
-of the verb _lier_. In French you (an advocate) are said to _lier_ the
-seisin, or the esplees, or the like, in this person or that. When
-translating I naturally write "lay," and I have a suspicion that the
-"to lay" of our legal vocabulary (e.g. to lay these damages) really
-descends from lier--que piensa Vᵈ? That is the sort of triviality
-that occupies my mind:--however I am meditating a final say about the
-personality of states and corporations. Why not bring over Salmond
-to succeed you at Oxford? He is a good man. Local politics are
-interesting. I think that when Gladstone was in power he never was
-subjected to such continuous assaults as are directed against the
-Alcalde of Las Palmas by the organ of opinion that I patronize. Drought
-and flood, mud and dust, smallpox and measles are all from him, he
-fills the butchers' shops with large blue flies. But I should like to
-hear the lectures that you make for los Yanquis (N.B. in a Spanish
-mouth Americano is apt to mean a Spanish speaking man--and Yanqui is
-not uncivilly meant).
-
-Much rain has fallen--but a road recovers from the most appalling mud
-in a very few hours.
-
-
-TO LESLIE STEPHEN.
-
-  CASA VERDA,
-      TAFIRA.
-           _17 Jan. 1903._
-
-The news that we get of you out here is satisfactory rather than
-satisfying--I mean that we have heard little, but it was all to the
-good. The last intelligence takes you back to your home and I feel good
-reason for hoping that long before now you have become reasonably
-comfortable. What I wish you know.
-
-All here goes well. I am having a supremely good time--the only pains
-are those given by my conscience or by the voice that exists where
-my conscience should be--but the remedies for moral twinges are not
-difficult to come by in this world of sin--which also is (locally) a
-world of corrupting sunshine.
-
-I brought with me this time all the three supplementary volumes of
-_Dict. Natl. Biog._ I stare at them and wonder how anybody can have
-the energy to make such things. Even novels strike me as laborious
-productions when the sun is at its best.
-
-We have been having rain: and when it rains here you find that the roof
-of your house has been surprised by the performance. I am now engaged
-in drying a boxful of copied Year Book which unfortunately was left
-beneath a weak point in the ceiling. Is it "ceiling" by the way? I
-don't know, and while I am in the garden the dictionary is in the house
-and I don't care a perrita (primarily little bitch but also a five
-centimo piece) how this or any other word spells itself; and all this I
-ascribe to the sun.
-
-It will be a good day when I get a postcard signed L. S.--but don't be
-in a hurry to send one before the spirit moves you.
-
-Back at Hobbes again? I hope so. Florence joins me in hopes--as you can
-well suppose.
-
-  Yours very affectionately,
-                           F. W. MAITLAND.
-
-
-TO HENRY JACKSON.
-
-  TAFIRA,
-      LAS PALMAS.
-           _14 February, 1903._
-
-We have been having bad news of sorts from home and this has spoilt
-what would otherwise have been a pleasant time, for though we have
-had heavy rain--even snow on the hill tops--we keep a really working
-sun that is up to a sun's business and converts the most appalling
-mud into dust in the space of a few hours. Until just lately I have
-been wondrous well. My amusement I have taken in the shape of lessons
-in Spanish from the hostess of the village inn. She prides herself on
-not talking like the other folk of Tafira--but asked me whether Perez
-Galdos wrote _Gil Blas_. P. G. is by birth a Canario and mighty proud
-they are of him here. Every little town has a street named after him.
-To my mind he is a most unequal storyteller--sometimes very good, at
-others dull.
-
-
-TO FREDERICK POLLOCK.
-
-  TAFIRA.
-     _14 March, 1903._
-
-... Did I tell you that a while ago I was informed that I had been
-elected a bencher of Lincoln's Inn (with the "usual fees" forgiven).
-The news made my hair stand on end--one of the vacant bishoprics would
-have been less of a surprise.
-
-
-TO A. W. VERRALL.
-
-  QUINEY'S HOTEL,
-       LAS PALMAS.
-          _14 Feb. 1903._
-
-Until just this week I have been doing wonderfully well. Now the
-messenger of Satan has returned to buffet me and abate my pride. So
-the cycle has to rest; but I am hopeful that the visitation may be
-short--it ought to be if the climate has anything to do with the
-matter, for after some rainy weeks we are on the sun again. El Señor
-Cura "clapped in the prayer for rain" so very effectually that he had
-to protest before all saints that he had not meant quite so much as all
-that. Rainmaking is still one of the chief duties of the priesthood in
-such a country as this.
-
-The proposal made by "the minister" and mentioned by you was rejected
-by return of post[30]. There were seven or eight good causes for
-the refusal--all of which will at once occur to your l'dship except
-perhaps one which I will tell you. My present place has been made
-extremely easy to me by the very great kindness of such colleagues as
-it has happened to few to have. Even if I had been a historian and
-an able-bodied man I should have thought many times before I changed
-my estate.--And what you say of the crowd at Bury's first lecture--I
-thought the appointment very good--confirms my view. The Regius
-Professor of Modern History is expected to speak to the world at large
-and even if I had anything to say to the W. at L. I don't think that
-I should like full houses and the limelight. So I go back to the Year
-Books. Really they are astonishing. I copy and translate for some hours
-every day and shall only have scratched the surface if I live to the
-age of Methusalem--but if I last a year or two longer I shall be a
-"dab" at real actions. It was a wonderful game as intricate as chess
-and not like chess cosmopolitan. Unravelling it is an amusement not
-unlike that of turning the insides out of ancient comedies I guess.
-
-
-TO W. W. BUCKLAND.
-
-  TELDE.
-       _14 Feb. 1903._
-
-Muy estimado colega y querido amigo mío
-
-Espero que Vᵈ no ha olvidado lo que ha aprendido de la lengua
-castillana cuando estaba en Gran Canaria el año próximo pasado. Por
-tanto me esforzaré escribir una carta en aquel lenguaje aunque no puedo
-expresar mis pensamientos sin muchas disparates ridiculosas que quizas
-Vᵈ perdonará.
-
-Mientras las primeras semanas de mia estancia en Tafira hacia buen
-tiempo y D. Benito del Colegio de Manuel y yo dabamos algunos largos
-paseos en nuestras bicicletas. Despues de su partida en Enero llovía
-muchas veces y se ha visto nieve en las cumbres. Los barrancos fueron
-llenos de agua y le agua se introdujó por el tejado de nuestra casa. El
-fango me recordaba el viaje que hicimos en Marzo de Galdar á Telde. No
-mé gustaba el frio y no estoy tan bién que estaba hace poco tiempo. Mi
-antiguo enemigo me amenaza pero espero que le venceré. De consiguiente
-no he ido á Telde; pero espero ir luego, y si fuere buscaré á Santiago
-su criado de Vᵈ y le daré el duro que mi dió para él. La viruela
-todavia se enfurece en Telde y en las Palmas tambien.
-
-Todos sus amigos de Vᵈ estan muy bien pero un señor cuyo nombre no
-mencionaré estaba fuertemente ébrio cuando le ví la ultima vez....
-
-Quiero leer el libro de Sen. X aunque no sé si le podré entender. Es un
-hombre docto, doctísimo pero stogioso--esta ultima no puedo deletrear.
-
-Estas pocas palabras son una recompensa muy ligera por su carta de Vᵈ
-que me interesó mucho y por que estoy muy agradecido pero he tornado
-un largo tiempo escribiendolas. Si pudiere[31] escribir mas facilmente
-le contaría a Vᵈ todos los sucesos que han acontecido en Gran Canaria.
-Pero es preciso acabar.
-
-                            Con muchas memorias
-
-                                   Quedo su afectuoso amigo
-
-                                                 F. W. MAITLAND.
-
-  Al muy excelente
-
-      Sen. D. G. G. BUCKLAND.
-
-
-TO JOHN C. GRAY.
-
-  DOWNING COLLEGE,
-            CAMBRIDGE.
-                _4 Oct. 1903._
-
-I should like to take this opportunity of asking you a question which
-you will be able to answer very easily. In 1862 our Parliament made
-it possible for any seven or more persons associated for any lawful
-purpose to form themselves into a corporation. But this provision was
-accompanied by a prohibition. For the future the formation of large
-partnerships (of more than 20 persons) was forbidden. In effect the
-legislature said that every big association having for its object
-the acquisition of gain must be a corporation. Thereby the formation
-of "unincorporated joint stock companies" was stopped. I may say in
-passing that now-a-days few Englishmen are aware of the existence of
-this prohibitory law because the corporate form has proved itself
-to be very much more convenient than the unincorporate. Now what I
-should like to know is whether when in your States the time came for
-general corporation laws there was any parallel legislation against
-unincorporated companies. I have some of your American books on
-Corporations and I gather from them that the repressive or prohibitory
-side of our Companies Act is not represented among you. But am I right
-in drawing this inference, and (if so) should I also be right in
-supposing that you would see constitutional objections to such a rule
-as that of which I am speaking: i.e. a rule prohibiting the formation
-of large partnerships or unincorporated joint-stock companies? A friend
-in New York supplied me with some very interesting trust deeds which in
-effect seemed to create companies of this sort. Should I then be right
-in supposing that in the U.S.A. the unincorporate company lived on
-beside the new trading corporation?
-
-I am endeavouring to explain in a German journal how our law (or
-equity) of trusts enabled us to keep alive "unincorporate bodies" which
-elsewhere must have perished. Of course I must not speak of America.
-Still I should like to know in a general way whether the development of
-the "unincorporated company" which we repressed in 1862 was similarly
-repressed in the States, and a word or two from you about this matter
-would be most thankfully received.
-
-By the way--and here I enter your own particular close--I observed
-that those New York deeds were careful to confine the trust within
-the limits of the perpetuity rule. Is it settled American law that
-this is necessary? We explain our _clubs_ by saying that as the whole
-equitable ownership is vested in the original members there can be
-no talk of perpetuity--and I believe that there are some extremely
-important unincorporated companies with transferable shares (formed
-before 1862--in particular the London Stock Exchange) which are built
-up on this theory: the theory is that the original shareholders were in
-equity absolute masters of the land, buildings, etc. Does that commend
-itself to you?
-
-There! you see what comes of writing to me! A whole catechism! Please
-think no more of it unless a very few words would set my feet in the
-straight road.
-
-Most of my time is being given to the Year Books. The first volume is
-with the binder.
-
-I often look back with great pleasure to the few hours that you and
-Mrs Gray spent with us in Gloucestershire. Would that I could see you
-again, but all my journeys have to be to the Canaries.
-
-
-TO JOHN C. GRAY.
-
-  DOWNING COLLEGE,
-          CAMBRIDGE.
-              _15 Nov. 1903._
-
-Your very kind letter of the 4th is exactly what I wanted. But surely
-there is nothing "odd" in my asking you questions which you of living
-men can answer best. It would be odd if I went elsewhere.
-
-The brief in Howe _v._ Morse is extremely interesting. I think that an
-English Court would take your view in such a case, but when it comes to
-questions about legacies our judges sometimes _say_ things which stray
-from the path of rectitude as drawn by Prof. Gray.
-
-I have been trying all this summer to finish an essay designed to
-explain to Germans the nature of a trust, and especially the manner
-in which the trust enabled us to keep alive all sorts of "bodies"
-which were not technically corporate. I am obliged now to flee to
-the Canaries leaving this unfinished, for a particularly fraudulent
-summer has made me very useless. Some one ought to explain our trust to
-the world at large, for I am inclined to think that the construction
-thereof is the greatest feat that men of our race have performed in the
-field of jurisprudence. Whether I shall be able to do this remains to
-be seen--but it ought to be done.
-
-
-TO LESLIE STEPHEN.
-
-  LEON Y CASTILLO 5,
-       TELDE,
-         GRAN CANARIA.
-             _6 Dec. 1903._
-
-I fear that I must not carry my good wishes beyond the point of hoping
-that the improvement that I saw last time I visited you has gone
-further and that at any rate you are easy and free from pain. I have
-just had a week in this island. Part of it I spent foolishly in bed but
-now I am in a delightful atmosphere and have been thoroughly enjoying
-your Hobbes. It is worthy of you, and you know what I mean when I say
-that. I have been all through it once and have corrected most of the
-typists errors. A few little points must stand over until I can command
-the whole of the "Works" (I only brought two volumes with me) but they
-are not of such a kind as would prevent the copy going to the printers,
-and I propose to send it to them very soon, for they will let me keep
-the stuff in type until I am again in England. The difficulties to
-which I refer are words occurring in your quotations from Hobbes--just
-here and there your writing beats me, but a few minutes with Molesworth
-will settle the matter....
-
-I think I told you that in my estimate you have written, more rather
-than less, your due tale of words. I shall add nothing save some tag
-which will serve as a substitute for the missing end of the final
-paragraph (said tag I may be able to submit to you) and I shall omit
-nothing save trifles unless the publishers insist.
-
-I have been speculating as to what T. H. would have said had he lived
-until 1688. If it becomes clear that your "sovereign" is going to
-acknowledge the pope's claims, this of course is no breach of any
-contract between ruler and ruled (for there is no such contract)
-but is there not an abdication? Putting theory out of the question,
-which would the old gentleman have disliked most, Revolution against
-Leviathan, or a Leviathan with the Roman fisherman's hook in his nose?
-
-Well he was a delightful old person and deserved the expositor whom he
-has found.
-
-
-TO HENRY JACKSON.
-
-  LEON Y CASTILLO 5,
-       TELDE,
-         GRAN CANARIA.
-            _13 December, 1903._
-
-This may--I cannot be sure that it will--be in time to salute you on
-Christmas day. Posts are irregular and nine miles of bad road separate
-us from Las Palmas. So, not being able as yet to cycle to our ciudad,
-I shall just drop this into the village letter box and trust that it
-may reach you some day.
-
-I had the good luck to find the Bay of Biscay reflecting a really
-warm sun and very soon I could hardly believe that so grey a place as
-Cambridge existed. I arrived here at the end of a prolonged drought
-and the good folk of Telde "clapped on the prayer for rain": or rather
-they did much more; they carried round the town a milagroso Cristo
-whom they keep for great occasions. I am not sure that the priest
-let him go his rounds until he, the priest, saw that the clouds were
-collecting thick over the mountains. Anyhow the rain came at once, to
-the great edification of the faithful. Since then we have celebrated
-the Immaculate Conception. It is very queer how events get turned
-into persons. The Conception became a person for the people. I think
-that the historian of myths would learn a good deal here. Just lately
-I discovered--it was no great discovery--that the pet name "Concha"
-is the short for Concepcion, as Lola is the short for Dolores. My
-protestant mind has been a little shocked by a female form of Jesus,
-namely "Jesusa."
-
-I am living in hope that Pollock's successor at Oxford may be
-Vinogradoff. I wish much that we had him at Cambridge.
-
-I am curious to hear any news that there may be concerning the
-deliberations of the great syndicate. I suppose that something will be
-known before I return to Cambridge--if ever I return. I say "if ever"
-for I am always thinking of resignation. Out here I can do a great
-deal with photographed manuscripts and so on, whereas in England I get
-nothing done.
-
-You I suppose are deep in "Josephism"--by the way has anybody
-endeavoured to transfer that term from a manner of treating the
-church to Mr C.'s fiscal policy? My latest newspaper gives the Duke's
-oration--how very good our Chancellor can be!--but no doubt that is
-with you a very ancient history[32]. My own impression when I left
-England was that the crusade was failing.
-
-
-TO HENRY JACKSON.
-
-  LEON Y CASTILLO 5,
-       TELDE,
-          GRAN CANARIA.
-               _14 Feb. 1904._
-
-No, you draw a wrong inference from my silence. When I am hurt I cry.
-When I am not crying I am happy. In this instance I have been very
-happy indeed and so busy that I have taken six weeks over a novel, and
-am once more developing a corn on my little finger by copying.... All
-that you tell me of the Studies Syndicate is extremely interesting--you
-may rely upon my discretion, for as you remark there is nobody to whom
-I could babble--even _La Manana_ which is often hard up for news would
-I fear give me nothing for secret intelligence concerning the S.S.
-
-Writing those initials made me think of your Eranus. I wish that I
-had heard you. I think that I might have been able to add an ancient
-story or two. I think that I once told you how the "to wit" placed
-after the name of a county at the beginning of a legal record (e.g.
-Cambridgeshire, to wit, A.B. complains that C. D. etc.) represents a
-mere flourish ʃ dividing the name of the county from the beginning of
-the story. This was mistaken for a long S which was supposed to be
-the abbreviation of scilicet. The Spaniards are fond of using mere
-initials: after a dead person's name you can put q.d.h.e.g. = que Dios
-haya en gloria. The case that amuses me most is that you can speak of
-the Host as S.D.M. (his divine majesty--just like H.R.H.). One day
-in Las Palmas I had to spring from my bicycle and kneel in the road
-because S.D.M. was coming along. But I have just had my revenge. I have
-been mistaken for S.D.M. They ring a little bell in front of him. I
-rarely ring my bicycle bell because I don't think it a civil thing to
-do in a land where cycles are very rare. However the other day I was
-almost upon the backs of two men, so I rang. They started round and at
-the same time instinctively raised their hats--and instead of S.D.M.
-there was only an _hereje_.
-
-To be sure those letters of Acton's are thrilling. I saw them out here
-last year. Mrs Drew wanted me to edit them. I declined the task, after
-talking to Leslie Stephen. Obviously I was not the right man. I am
-boundlessly ignorant of contemporary history and could not in the least
-tell what would give undeserved and unnecessary pain. On the other
-hand I should think that H. Paul was the right man for the job.
-
-... I hope that Vol. III is doing well, though I foresee that I shall
-be slated in all quarters. Acton was an adroit flatterer and induced me
-to put my hand far into a very nest of hornets.
-
-
-TO A. W. VERRALL.
-
-                                             C/O LEACOCK & CO.
-                                                   FUNCHAL,
-                                                       MADEIRA.
-                                                        _15 Jan. 1905._
-
-It is good to see your hand and kind of you to write to me, especially
-as I fear that writing is not so easy to you as it once was. I do very
-earnestly hope that things go fairly well with you and that you have
-not much pain. Yesterday I was thinking a lot of your courage and my
-cowardice for I took an off day--off from the biography I mean--and
-attained an altitude of (say) 5250 feet (a cog-wheel railway saving
-me 2000 thereof, however) and I was bounding about up there like a
-kid of the goats--and very base I thought myself not to be lecturing.
-There is not much left of me avoirdupoisly speaking; but that little
-bounds along when it has had a good sunning; and to-day I have a rubbed
-heel and a permanent thirst as in the good old days. Missing a train
-on said railway I made the last part of the descent in the special
-Madeira fashion on a sledge glissading down over polished cobble stone
-pavement--a youth running behind to hold the thing back by a rope: it
-gives the unaccustomed a pretty little squirm at starting. Up in the
-hills it is a pleasant world--you pass through many different zones of
-vegetation very rapidly--at one moment all is laurel and heath--you
-cross a well-marked line and all is tilling--then you are out among
-dead bracken on an open hill-top that might be English. Get on a sledge
-and wiss (or is it wiz?) you go down to the sugar and bananas through
-bignonia and bougainvillia which blind you by their ferocity.
-
-
-TO HENRY JACKSON.
-
-  LEON Y CASTILLO, 5,
-       TELDE,
-          GRAN CANARIA.
-             _15 January, 1906._
-
-I have your second letter, not your first. The first may be lying in
-the Hotel at Las Palmas and I must attempt to get it. This year it
-is difficult to communicate with the "ciudad" for there has been a
-prolonged drought and the roads--but did you ever try cycling across
-a ploughed field? Moreover people here are lazy and casual and the
-semi-hispanised English people who keep the English hotels are perhaps
-more casual than the true Jack Spaniards. Well, I must get that letter,
-for which I thank in advance, even if it costs me a day's labour and
-some strong language. Meanwhile I will talk of canary birds. The birds
-are named after our islands. What our islands are named after, nobody,
-so I am told, knows for certain. Whether the birds are found wild in
-all the seven islands I don't know. Certainly there are many in Gran
-Canaria. Also there are many in Madeira. The wild canary is, I believe,
-always a dusky little chap, brown and green. The sulphur coloured or
-canary-coloured canary is, I am told, a work of art, and I have heard
-say that he was made at Norwich: by "made" of course I mean bred by
-human selection. The most highly priced canaries are, I believe, made
-in Germany. I have known two guineas asked for a "Hartz Mountain
-Canary": it sang _pp._ like a very sweet musical box. On the other
-hand, wild canaries are cheap here, especially if you go up country
-and buy of the boys who catch them. My wife quotes as a fair range of
-price half a peseta to a peseta and a half. The peseta ought to be
-equivalent to the franc but is much depreciated. So let us say that a
-bird can be had for a shilling. My wife adds that she would be very
-happy to import birds for your daughter--and this is not a civil phrase
-but gospel truth: she is never happier than when she is acquiring pets
-as principal or agent:--so it is, and I can't help it. I like the
-song of these dusky birds: it is not nearly so piercing as that of
-the Norwich variety. I daresay that I have told you some untruths in
-this ornithological excursus--but at any rate I make no mistake about
-the price of wild birds or about my wife's willingness--I might say
-eagerness--to transact business.
-
-FOOTNOTES:
-
-[25] Middle Ages. In 1900 Maitland published a translation of part of
-Otto Gierke's (O.G.) _Das deutsche Genossenschaftrecht_ under the title
-_Political Theories of the Middle Ages_.
-
-[26] The B. G. B. is the _Bürgerliche Gesetzbuch_. Maitland was reading
-Mugdan's _Die Gesammten Materialien zum Bürgerlichen Gesetzbuch_. The
-Y. B. B. are the Year-books.
-
-[27] _The Cambridge Modern History._
-
-[28] Otto Gierke's monograph on Johannes Althusius, published 1880.
-
-[29] To the _Cambridge Modern History_.
-
-[30] Maitland was invited to succeed Lord Acton in the Chair of Modern
-History at Cambridge.
-
-[31] Mire Vᵈ! No verá cada día el condicional de subjunctivo.
-
-[32] The Duke of Devonshire, Chancellor of the University of Cambridge,
-had criticised Mr Joseph Chamberlain's fiscal proposals.
-
-
-
-
-XI.
-
-
-One of the principal subjects which engaged Maitland's mind during
-these years was the history of the Corporation. Problems connected with
-the growth and definition of the Corporate idea had furnished the theme
-of the Ford Lectures and a course upon the Corporation in English law
-was delivered in Cambridge in the Autumn Term of 1899. It was a subject
-from which Maitland derived deep and peculiar delight. It brought into
-play the full range of his faculties, for it was at once metaphysical,
-legal and historical. It was associated with the enquiries which he had
-already been making into municipal origins, and into the law of the
-medieval Church, while, at the same time, it was connected with some
-living and familiar developments of modern law, with those corporate
-groups which, during the later half of the nineteenth century "had
-been multiplying all the world over at a rate far outstripping the
-increase of natural persons." Trades unions and joint-stock companies,
-chartered boroughs and medieval universities, village communities and
-townships, merchant guilds and crafts, every form of association known
-to medieval or modern life came within his view, as illustrating the
-way in which Englishmen attempted "to distinguish and reconcile the
-manyness of the members and the oneness of the body." An enquiry
-of this kind was something entirely new in England. Here lawyers
-had accepted from the Canonists the view that the Corporation was a
-fiction of the law created by the authoritative act of the State. A
-mindless thing, "incapable of knowing, intending, willing, acting,
-distinct from the living corporators who are called its members,"
-the Corporation is and must be the creature of the State. "Into its
-nostrils the State must breathe the breath of fictitious life, for
-otherwise it would be no animated body but individualistic dust."
-_Solus princeps fingit quod in rei veritate non est._ Such a theory
-was, as Maitland pointed out, likely to play into the hands of the
-paternal despot. The Corporation so conceived--and this is how not only
-Savigny but Blackstone also conceived it--was no subject for liberties
-and franchises and rights of self-government. It was but "a wheel in
-the State machinery." And yet in England, where the Concession theory
-of the Corporation was received without challenge, there had certainly
-not been less of autonomy and free grouping in guilds and fellowships
-than elsewhere. The secret of this apparent contradiction, between a
-theory which made corporateness the creature of a sovereign authority
-and a practice which enabled permanent groups to be freely formed
-without such authority, was to be found in a legal conception peculiar
-to England, the conception of the Trust. "Behind the screen of trustees
-and concealed from the direct scrutiny of legal theories, all manner of
-groups can flourish: Lincoln's Inn, or Lloyds, or the Stock Exchange,
-or the Jockey Club, a whole presbyterian system or even the Church of
-Rome with the Pope at its head...." Even a large company, trading with
-a joint-stock with vendible shares and a handsome measure of "limited
-liability," could be constructed by means of a trust deed without any
-incorporation. Aided by this "loose trust-concept," under the shelter
-of which organic groups of the most various kinds could live and
-prosper, English lawyers were not vitally concerned with the theory
-of the Corporation. The law of the Corporation was only one part, and
-probably not the most important part, of the English fellowship-law,
-but in Germany, where no such convenient shelter had been provided for
-the "unincorporate body," the case was different, and active discussion
-had raged round the nature of the Corporation. The fiction theory
-invented by Sinibald Fieschi, who became Pope Innocent IV in 1243, and
-developed and expounded by Savigny, had proved itself inadequate in an
-age of joint-stock companies and railway collisions; and in the rising
-tide of German nationalism men were prone to question the validity
-of a conception derived from the alien jurisprudence of Rome. A new
-school of thinkers arose preaching the theory of the Genossenschaft or
-Fellowship. They held that the German Fellowship was neither fictitious
-nor State-made, that it was "a living organism, and a real person
-with body and members and will of its own," a group-person with a
-group-will. The most important representative of this new school of
-German realists was Dr Gierke, whose work Maitland introduced to the
-British public after his first winter exile in Grand Canary.
-
-Maitland had followed with unflagging interest and steady enthusiasm
-the great outburst of legal literature in Germany which preceded the
-construction of the German Civil Code. Of the Code itself he wrote that
-"it was the most carefully considered statement of a nation's law that
-the world has ever seen"; while he found in the legal debate of the
-Germanist and Romanist schools work which sometimes showed "a delicacy
-of touch and a subtlety of historical perception," of which Englishmen,
-"having no pressing need for comparison," could know little. For the
-purpose which Maitland had in view, the explanation of the way in which
-Englishmen had conceived of group life in its various embodiments,
-this subtle and delicate treatment of the forms of legal thought, this
-"ideal morphology" of the Germans, was no less full of suggestion than
-the ample historical science with which it was supported. It provided
-tests, and suggested those points of analogy and contrast between
-English and German development, which give to Maitland's treatment
-of the Corporate and Unincorporate Body the quality of an original
-discourse upon the legal and political theory of Western Europe.
-
-Nor was the interest of the subject merely speculative. Maitland
-was a practical lawyer with a genius for detecting the source of
-bad law and bad administration in confused modes of thinking about
-ultimate questions. Looking for the moment at the English law
-concerning Corporations through the spectacles of a German realist,
-he detected as the principal offence against jurisprudence "a certain
-half-heartedness in our treatment of unincorporate groups." We were
-unwilling to recognise trades-unions for example as persons, while
-we made fairly adequate provision for their continuous life. The
-consequence of this half-heartedness was felt in the domain of public
-administration as well as in the domain of private law. Englishmen had
-accepted "a bad and foreign theory, which coupling corporateness with
-princely privilege refused to recognise and call forth into vigour the
-bodiliness that was immanent in every township." The Americans had
-been less pedantic and had permitted the New England town to develop
-its inherent corporateness. We, on the contrary, influenced by the
-Concession theory of the Corporation, had shrunk from declaring the
-village to be a legal person, the subject of rights and the object
-of gifts. The consequences of this fatal blunder were not measurable
-merely in terms of administrative symmetry; but so measured they were
-very great. No one knew better than Maitland the "appalling mess"
-of English local government. He had described its broader features
-in _Justice and Police_; he analysed certain underlying sources of
-confusion in _Township and Borough_. In his Introduction to Gierke's
-_Political Theories of the Middle Ages_ he was disposed to ascribe no
-small part of this confusion to the timidity "tardily redressed by
-the invention of Parish Councils" which had stood between the English
-village and legal personality.
-
-Other defects of loose and imperfect thinking upon the Corporation
-were pointed out to the readers of the _Law Quarterly Review_ in the
-articles entitled the "Corporation Sole and the Crown as Corporation."
-The American State has private rights; it has power to sue: English
-law, on the other hand, had never yet formally admitted that the
-Corporate realm, besides being the wielder of public power, might also
-be the subject of private rights, the owner of lands and chattels.
-Our habit is to speak of the Sovereign as a corporation sole, and to
-refuse to recognise him as the head of a complex and highly organised
-"corporation aggregate of many." Such modes of thought, however well
-they may have fitted the designs of Tudor despotism, were neither
-appropriate to the needs of a free community nor adjusted to the
-conditions of modern life. The talk about "Kings who do not die, who
-are never under age, who are ubiquitous, who do no wrong and think no
-wrong" had "not been innocuous"; and other practical inconveniences
-were involved in the identification of the Common-wealth with the
-person of the Sovereign and in the failure to discriminate between
-the natural and official aspects of the Sovereign's personality.
-Special legislation, for instance, had been required to secure private
-estates for Kings. For these insular peculiarities there were, of
-course, assignable historical reasons, and one of these reasons,
-which Maitland was the first to suggest, is certainly very curious.
-The idea of treating the King of England as a corporation sole had
-occurred to Coke, or some other lawyer of Coke's day, because the
-parson had already been treated as a corporation sole. Why, when and
-how the parson came so to be treated furnishes matter for a very
-pretty piece of historical investigation. Who would have imagined that
-an unfortunate analogy, striking across the mind of a Tudor lawyer,
-would have helped to give to the legal aspect of the English State a
-peculiar colour--a colour different from that which it has received,
-for instance, in America. Without a superb knowledge of the Year Books,
-who could have fixed the offence upon Richard Broke or upon one of
-Richard Broke's contemporaries? And how many men, having mastered the
-recondite knowledge of the Year Books, would have retained a sense of
-the large perspectives of history sufficiently strong and vivid as to
-apprehend the successive legal and political forces which gave support
-to a "juristic abortion" through three and a half centuries of national
-life?
-
-Apart from their interest for the professional student of legal
-antiquities, Maitland's papers upon Trust and Corporation possess an
-enduring value by reason of the fine touches of legal and historical
-perception which are scattered so freely through them. A collection of
-acute and brilliant observations might without difficulty be made from
-this as from any other portion of his historical work. "All that we
-English people mean by religious liberty has been intimately connected
-with the making of Trusts. Persons who can never be in the wrong are
-useless in a Court of law. The making of grand theories has never been
-our strong point. The theory which lies upon the surface is sometimes a
-borrowed theory which has never penetrated far, while the really vital
-principles must be sought for in out of the way places. A dogma is of
-no importance unless and until there is some great desire within it.
-_Quasi_ is one of the few Latin words that English lawyers really love.
-English history can never be an elementary subject. We are not logical
-enough to be elementary." Such phrases, even if detached from their
-context, have a life of their own, but they cannot be so detached
-without the loss of the greater part of their significance. An epigram
-may be an extraneous flourish as irrelevant to all substantial purpose
-as the ornament of the bad architect. Maitland's wit was seldom otiose;
-it was a shining segment in the solid masonry of argument.
-
-In the summer of 1907 Maitland delivered the Rede Lecture at
-Cambridge, choosing for his theme English Law and the Renaissance. It
-was his object to show how, when Humanism was reviving the study of
-Roman law, when Roman law was expelling German law from Germany and
-winning victories over the relics of Anglo-Norman custom in Scotland,
-England succeeded in preserving her medieval law books despite their
-bad Latin and their worse French. The secret was to be found in an
-institution peculiar to this country, in the existence of the Inns
-of Court. "Unchartered, unprivileged, unendowed, without remembered
-founders, these groups of lawyers formed themselves, and in course of
-time evolved a scheme of legal education; an academic scheme of the
-medieval sort, oral and disputatious.... We may well doubt whether
-aught else would have saved English law in the age of the Reception."
-But the lecture, though based upon minute enquiries, was not purely
-historical. After pointing out that a hundred legislatures were now
-building on that foundation of English law--"the work which was
-not submerged"--Maitland surveyed the prospects for the future and
-pronounced that the unity of English law was precarious. Queensland
-had made her own penal code in 1895; other colonies might follow
-in the same way. The Germans, "by a mighty effort of science and
-forbearance," had unified their law upon a national and historical
-basis. Might not the British Parliament endeavour to put out work which
-would be a model for the British world? "To make law that is worthy of
-acceptance for free communities that are not bound to accept it, this
-would be no mean ambition. _Nihil aptius, nihil efficacius ad plures
-provincias sub uno imperio retinendas et fovendas._ But it is hardly to
-Parliament that one's hopes must turn in the first instance." Certain
-ancient and honourable societies, proud of a past that is unique in the
-history of the world, may become fully conscious of the heavy weight
-of responsibility that was assumed when English law schools saved, but
-isolated, English law in the days of the Reception. "In that case the
-glory of Bruges, the glory of Bologna, the glory of Harvard, may yet
-be theirs." The lecturer paused, and then surveying the crowded Senate
-House added, with an effect which those who heard him cannot forget,
-certain words which have not been printed. "But," he concluded, "I see,
-Mr Vice-Chancellor, that strangers are present."
-
-
-
-
-XII.
-
-
-With health so broken that even the summers in England seldom passed
-without periods of illness and pain Maitland embarked upon one of
-the great undertakings of his life, an edition of the _Year Books of
-Edward II_. "These Year Books are a precious heritage. They come to us
-from life. Some day they will return to life once more at the touch
-of some great historian." The spirit in which Maitland approached the
-work is indicated by two quotations, the first from Roger North, the
-second from Albert Sorel, which are printed on the title page of each
-volume. "He (Sergeant Maynard) had such a relish of the old Year Books
-that he carried one in his coach to divert him in travel, and said
-he chose it before any comedy." "C'est toute la tragédie, toute la
-comédie humaine que met en scène sous nos yeux l'histoire de nos lois.
-Ne craignons pas de le dire et de le montrer." The edition of these
-Year Books printed in the reign of Charles II. from a single inferior
-manuscript was imperfect and bad. Maitland determined to show how an
-edition should be made, and in his eyes no labour was too great for
-such a task. These records were unique, priceless, imcomparable. "Are
-they not the earliest reports, systematic reports, continuous reports,
-of oral debate? What has the whole world to put by their side? In 1500,
-in 1400, in 1300, English lawyers were systematically reporting what
-of interest was said in Court. Who else in Europe was trying to do the
-like, to get down on paper and parchment the shifting argument, the
-retort, the quip, the expletive? Can we, for example, hear what was
-really said in the momentous councils of the Church, what was really
-said in Constance and Basel, as we can hear what was really said at
-Westminster long years before the beginning of 'the conciliar age'?"
-The Year Books contained more medieval conversation than had survived
-in any other authentic source. The history of law could not be written
-without them. "Some day it will seem a wonderful thing that men once
-thought that they could write the history of medieval England without
-the Year Books."
-
-The Reports began in 1285, and from 1293 the stream was fairly
-continuous. "This surely is a memorable event. When duly considered
-it appears as one of the great events in English History. To-day men
-are reporting at Edinburgh and Dublin, at Boston and San Francisco, at
-Quebec and Sydney and Cape Town, at Calcutta and Madras. Their pedigree
-is unbroken and indisputable. It goes back to some nameless lawyers
-at Westminster to whom a happy thought had come. What they desired
-was not a copy of the chilly record, cut and dried, with its concrete
-particulars concealing the point of law: the record overladen with the
-uninteresting names of litigants and oblivious of the interesting names
-of sages, of justices, of sergeants. What they desired was the debate
-with the life-blood in it, the twists and turns of advocacy, the quip
-courteous and the countercheck quarrelsome. They wanted to remember
-what really fell from Bereford, C. J., his proverbs, his sarcasms: how
-he emphasised a rule of law by _Noun Dieu_ or _Par Seint Piere_! They
-wanted to remember how a clever move of Sergeant Herle drove Sergeant
-Toudeby into an awkward corner, or how Sergeant Passeley invented a new
-variation on an old defence: and should such a man's name die if the
-name of Ruy López is to live?"
-
-Maitland lived to complete three volumes of the Year Books. The French
-was printed on one side of the page, a translation executed in terse
-and faithful English on the other. Those who were familiar with the
-work of the Literary Director of the Selden Society had no cause for
-surprise at the exquisite finish of the editing. They were prepared
-for an elaborate _apparatus criticus_, for a careful account of the
-manuscripts, and for such notes as might be requisite to explain
-allusions and to elucidate obscurities. The great discovery, that
-the Reports were not official records but the private note books of
-law students, was so entirely in Maitland's happy and characteristic
-vein, that, although no one else had earned the title to make it,
-it was quite natural that it should be made by him. But there was
-one feature in the Introduction to the first volume which startled
-even his admirers. The editor took occasion to settle the grammar
-and syntax of the Anglo-French language, its nouns and its verbs,
-its declensions and its tenses. His friends had known him as lawyer,
-historian, diplomatist, paleographer, and no exhibition of excellence
-in any one of these departments would have afforded them the slightest
-sensation of novelty; but they had not divined in him the philologist
-and grammarian.
-
-In answer to surprised congratulations, he said, with the quick sparkle
-of humour which his friends knew so well, that he would go down to
-posterity as the author of "Maitland's law"; he had discovered that
-such few Anglo-French verbs as possessed "an imperfect on active
-service" rarely employed their preterites. The experts in medieval
-French have applauded the work, and the editors of the _Cambridge
-History of English Literature_ have thought good to reprint it. In
-the course of a winter spent under a blue sky Maitland had made a
-really important contribution to medieval philology. And yet, far as
-he carried his investigations into the forms, the structure, and the
-orthography of the language which he found in his manuscripts of the
-fourteenth century, philology was not the primary object of his quest.
-He wished to edit his text as well as it was capable of being edited,
-and to provide guidance for those who should take up the work when he
-was no longer there to direct it. The French text of the Year Books was
-full of abbreviations which could not be expanded unless the forms of
-the language were accurately ascertained. Maitland therefore applied
-himself to learn whatever might be learned about them. The work was
-pioneer work, very minute and laborious, but for Maitland a labour of
-love. The men who wrote this forgotten and unexplored language were
-often clumsy and careless scribes. Their spelling was full of vagaries;
-there was no word so short but that they would spell it in several
-ways; through neglect of the "e" feminine they lost not entirely but
-very largely their sense of gender; they would murder the infinitive;
-they coined strange terminations out of misunderstood contractions;
-but they were using a living tongue to describe law that was alive;
-and if in some ways a fine language degenerated in the current usage
-of the English Courts, healthy processes were at work determining the
-use of words, processes which it was worth while to watch with some
-narrowness, for if thought fashions language, language in turn reacts
-upon thought.
-
-"Let it be that the Latin and French were not of a very high order,
-still we see at Westminster a cluster of men which deserves more
-attention than it receives from our unsympathetic, because legally
-uneducated, historians. No, the clergy were not the only learned men
-in England, the only cultivated men, the only men of ideas. Vigorous
-intellectual effort was to be found outside the monasteries and
-universities. These lawyers are worldly men, not men of the sterile
-caste; they marry and found families, some of which become as noble as
-any in the land; but they are in their way learned, cultivated men,
-linguists, logicians, tenacious disputants, true lovers of the nice
-case and the moot point. They are gregarious, clubable men, grouping
-themselves in hospices, which become schools of law, multiplying
-manuscripts, arguing, learning and teaching, the great mediators
-between life and logic, a reasoning, reasonable element in the English
-nation."
-
-Meanwhile health was failing and gaps were being made in the circle
-of his most intimate friends. Henry Sidgwick, the revered master of
-philosophy, went first, then Lord Acton, finally, in 1904, Leslie
-Stephen. Some words which Maitland spoke of Henry Sidgwick have already
-been quoted in this memoir; they are passionate in the intensity
-of their affection and regard. Acton was a friend of less ancient
-standing, who by his high character and vast learning had conquered
-Maitland's unreserved enthusiasm; the loss of Leslie Stephen was
-mourned as that of a near relative. Of these deaths one was a possible
-and the other an actual cause of some deviation from Maitland's
-appointed course of legal work. Upon the vacancy in the Cambridge Chair
-of Modern History which occurred in 1902, Maitland was invited by Mr
-Balfour to succeed Acton. The appointment would have been applauded
-throughout the historical world, but Maitland felt that his health
-was too precarious to admit of his undertaking the labours of a new
-Chair. Besides, there were the Year Books; there were the illusive
-and fascinating subtleties of the _persona ficta_. He would not
-lightly abandon the law. _Nolumus leges Angliæ mutare_, he wrote to a
-friend, with a slight variation on the classic words of those English
-barons who in the reign of Henry III. resisted the introduction of a
-foreign usage. The decision was doubtless wise, but the continuity
-of Maitland's legal work was not destined to remain unbroken. Leslie
-Stephen had expressed a wish that, if any appreciation of him were
-published, it should be done by Maitland. "He, as I always feel,
-understands me." Such a call could not be neglected, and so the Year
-Books were laid aside, or rather the pace was slackened, while Maitland
-laboured with loving and scrupulous diligence upon the _Life and
-Letters of Leslie Stephen_.
-
-To those who knew Leslie Stephen best the biography has seemed to be
-a true and vivid picture of the man; yet the work was undertaken with
-many misgivings, and gave cause for much anxiety. In the editing of the
-Year Books Maitland was exercising his own familiar craft, and doing
-what no other living man could do so well; but the writing of biography
-was new ground, and Maitland felt uncertain of his powers. The task
-was rendered more difficult by the depth of Maitland's affection for
-Stephen, and by his scrupulous anxiety to write down no epithet or
-adverb which would have seemed to Stephen himself to be excessive. Then
-there were the thousand and one little questions of taste and judgment
-which always confront the biographer. Should such a passage be omitted
-in deference to so and so's feelings? Will such and such a letter,
-interesting though it be to an intimate friend, commend itself to the
-chance reader? A man in the full tide of vigour might have shouldered
-the labour without a twinge of self-criticism, but Maitland, who was
-very ill and full of a most delicate and sensitive modesty, felt the
-burden of responsibility. "He is too big for me for one sort of writing
-and too dear for another," he wrote to a friend; and only when a
-considerable portion of the book had received the approval of relatives
-did he begin to experience a sensible measure of relief. The steady
-appreciation of Miss Caroline Stephen, and some warm words written by
-Lady Ritchie, brought him peculiar pleasure.
-
-The _Life and Letters of Leslie Stephen_ appeared in the autumn of
-1906, and reviews were steadily flowing in when the Downing household
-began to make preparations for its annual pilgrimage across the sea.
-Maitland, who was greatly relieved at the publication of his book,
-and at its friendly reception in the press, seemed to have recovered
-something of his old buoyancy. He pushed on an edition of Sir Thomas
-Smith's _De Republica Anglorum_, which a pupil was undertaking at his
-instigation and under his supervision, and renewed his attack upon
-the Year Books. For some years past he had been concerned with the
-prospect of finding a trained scholar who would be capable of carrying
-on the work when he was no longer there to direct it. In a foreign
-university a man of Maitland's power would have created a school;
-young men from all parts of the country would have clustered round
-him to learn paleography and law French, and the elements of social
-and legal history, and the zeal of the class would have atoned for any
-deficiency in numbers. But the climate of the English University is not
-favourable to the production of finished historical technique. We are
-an economical race, and since advanced work does not pay in the Tripos,
-or in the careers to which the Tripos serves as a portal, it is left to
-the casual patronage of amateurs. Maitland thoroughly understood the
-practical limitations under which an English professor must work. He
-gave courses of lectures which were expressly adapted to the general
-needs of the undergraduates, and were attended by all the law students
-in the University, but interspersed these general courses with others
-of a more special character, designed to interest the real historical
-student. Thus, in 1892 and 1894, he held classes for the study of
-English Medieval Charters, and this instruction in paleography and
-diplomatic was repeated in 1903, 1904 and 1905. In sixty hours spent
-over facsimiles Maitland contended that he could turn out a man who
-would be able to read medieval documents with fluency and exactitude.
-
-But with two exceptions the contributors to the volumes of the
-Selden Society were not drawn from the ranks of Maitland's Cambridge
-pupils, and the completion of the fourth volume of the Year Books was
-undertaken by a distinguished scholar, who, though he would be the
-first to admit that he had learnt much of his craft from Maitland, was
-never an academical pupil in the strict sense of the term.
-
-One Cambridge disciple there was, who, under Maitland's guidance,
-attained to rare distinction. Miss Mary Bateson was writing essays for
-Maitland while he was Reader in English Law, and at that early period
-impressed him with the thoroughness and grasp of her knowledge. Under
-Maitland's direction Miss Bateson became one of the best medievalists
-in England. Her industry rivalled that of her master; her judgments
-were sane and level, and in the art of historical editing she acquired
-almost all that Maitland could teach her. Articles and volumes flowed
-from her pen, all of them good, but best of all the two volumes upon
-Borough customs, published by the Selden Society in 1904 and 1906,
-and owing much "to the counsel and direction of Professor Maitland."
-Then very suddenly, in the late autumn of 1906, Miss Bateson died.
-Maitland was already preparing to sail for the Canaries, whither his
-wife and elder daughter had preceded him. The loss of Miss Bateson
-affected him deeply. He found time to write two short notices for the
-Press, speaking of qualities which had impressed him, "the hunger and
-thirst for knowledge, the keen delight in the chase, the good-humoured
-willingness to admit that the scent was false, the eager desire to get
-on with the work, the cheerful resolution to go back and begin again,
-the broad good sense and the unaffected modesty," and then embarked for
-Southampton. Friends who saw him upon the eve of his departure spoke
-of him hopefully: for judged by his own frail standard he seemed to be
-well. Then came a telegram announcing his death. On the voyage out he
-had developed or contracted pneumonia, and being alone and ill-cared
-for, arrived at Las Palmas desperately ill. His wife flew down from the
-villa which she had prepared against his coming, but the malady had
-obtained too firm a hold, and he died on December 19, 1906, at Quiney's
-Hotel. His body lies in the English cemetery at Las Palmas. At the time
-of his death he was fifty-six years of age.
-
-He was not without honour in his own generation. In that inclement
-December five invitations travelled out to Las Palmas,--from the
-University of Oxford that he should deliver the Romanes lecture, and
-from the United States of America that he should lecture at the Lowell
-Institute, at Harvard, and at the Universities of Columbia and Chicago.
-Academic honours had come to him in plenty. Cambridge and Oxford,
-Glasgow, Moscow and Cracow gave him their honorary degrees. He was
-corresponding member of the Royal Prussian and of the Royal Bavarian
-Academies, distinctions rarely conferred upon English scholars, an
-honorary Fellow of his old College, Trinity, an honorary Bencher of
-Lincoln's Inn, an original Fellow of the British Academy. The newly
-established bronze medal of the Harvard Law School was awarded to him
-in the last days of his life, and on the news of his death movements
-were set on foot at each of the great English Universities to do honour
-to his memory. At a public meeting held in the Hall of Trinity College,
-Cambridge, on June 1, 1907, and addressed by some of the most eminent
-representatives of English learning it was resolved that "a Frederic
-William Maitland Memorial Fund should be established for the promotion
-of research and instruction in the history of law and legal language
-and institutions, and that this should be supplemented by a personal
-memorial to be placed in the Squire Library of the University[33]." At
-Oxford some students of law and history contributed to form a library
-of legal and social history to be called the Maitland Library, and
-to be connected with the Corpus Chair of Jurisprudence now held by
-Professor Vinogradoff. By the kindness of the Warden and Fellows of All
-Souls a room was lent to the Maitland Library in the front quadrangle
-of the College, and there the student may find Maitland's own copy of
-_Domesday Book_, together with many other volumes which had been in
-his possession and which bear the traces of his usage. As a token of
-his respect for Maitland's memory, and to further the skilled editing
-of a valuable repertory of knowledge, Mr Seebohm has presented to the
-Maitland Library his famous manuscript of the Denbigh Cartulary, one of
-the cardinal authorities for the history of Welsh land-tenures, and an
-edition of this collection of documents, executed by the pupils of the
-Corpus professor, will be the most appropriate tribute to Maitland's
-example in a University in which he might have been, but was not, an
-adopted son.
-
-Lord Acton once spoke of "our three Cambridge historians, Maine,
-Lightfoot, Maitland," each a pioneer in his own region of research,
-and each a name of significance for universal history. Maitland was
-not a Conservative like Maine, or a Churchman like Lightfoot; he was
-simply a scientific historian, with a singularly open and candid mind,
-and with a detachment almost unique from the prejudice of sect or
-party. In politics he would have ranked himself as a Liberal Unionist,
-though his mind was far too independent to bear the strain of party
-allegiance and led him to differ upon some important questions from the
-principles upheld by the Unionist government. Thus he was in favour
-of what is called "the secular solution" in education, and tried, but
-without success, to think well of the policy which brought about the
-South African War. The Protectionist reaction excited his disapproval,
-and he joined a Free Trade Committee in Cambridge: but he rarely spoke
-of politics, and like all men of the scientific temperament had small
-interest in the party game, and no little diffidence as to his power of
-reaching solid conclusions upon questions which he had not the leisure
-thoroughly to explore. But upon matters which affected the interests of
-knowledge and education his views were firm and clear-cut.
-
-His place in the history of English law has been summarized by
-Professor Dicey with an authority to which I can make no pretence.
-"Maitland's services to law were at least threefold. He demonstrated in
-the first place what many lawyers must have suspected, that law could
-contribute at least as much to history as history could contribute to
-law. Now that the truth of this assertion has been proved it seems a
-commonplace to insist upon it. But if one looks at the works of our
-best historians, even of so great an historian as Macaulay, who had
-rare legal capacity, and who had extensive knowledge from some points
-of view of English law, one is astonished to observe how small a part
-law was made to play in the development of the English nation, which
-had been, above all, a legal-minded nation. The doctrine that law was
-an essential part of history needed not only asserting--we could all
-probably have done this--but demonstrating. The needed demonstration
-has been made by Maitland, and will not be forgotten. Maitland's
-second achievement is this: law ought to be, but hitherto in England
-has not been, a part of the literature of England. Among Maitland's
-predecessors two men living in different ages have done their best to
-make law a part of the literature of England. You will forgive me for
-commemorating, as in my case is almost a matter of private duty, the
-noble effort made by Blackstone to give law its rightful position in
-the world of letters. Blackstone failed, not by any weakness of his
-own, but because he left no successors. He did as much as a man could
-achieve in Blackstone's time. Maitland himself, I believe, shared this
-opinion. The next man who took in hand a book somewhat similar to that
-undertaken by Blackstone was Sir Henry Maine. He achieved a great
-measure of success. He stimulated in a way which it was difficult for
-anyone to realise who had not read Maine's _Ancient Law_ when it first
-appeared, public interest in law and jurisprudence. He gave to the
-English world a new view of the possibilities of interest possessed by
-the study of law. But his success is not complete. He did not show,
-as did Maitland, that even the most crabbed details of English law
-might be made part of English literature. The reason why Maine cannot
-in this matter stand on the same level with Maitland is that he did
-not possess the qualifications for the third and last of Maitland's
-great achievements. No one can say that profound learning was possessed
-by either Blackstone or Sir Henry Maine. But Maitland was a learned
-historian as well as a learned lawyer. He therefore could and did
-demonstrate that extraordinary learning and research have no connection
-whatever with dullness and pedantry, and that learning may be combined
-with the most philosophic and the profoundest views of law which the
-mind of man can form[34]."
-
-This sketch will have been written in vain if it fails to suggest
-that the world lost in Maitland not only a great and original scholar
-but also a nature of singular charm and beauty. The life of severe
-scholarship may, and perhaps often does, dry up the fountains of
-sympathy, but this was not the case with Maitland. The current of his
-affections ran deep and strong, and so easily was his enthusiasm fired
-that he would praise the books of young authors with a delight which
-seemed almost unqualified if they happened to contain any real merit.
-No one was more entirely free from self-importance or from any desire
-to defend, after they had become untenable, positions which he had
-once been inclined to maintain. He possessed a gift which is far rarer
-than it is generally supposed to be, and is often very imperfectly
-possessed by learned men, an intense and disinterested passion for
-truth, a passion so pure that he would speak with genuine enthusiasm
-of such criticisms of his own work as he judged to be well founded and
-to constitute a positive addition to knowledge. His modesty, both in
-speech and writing, was so extreme that it might have been put down to
-affectation; but it was an integral part of the temper which made him
-great in scholarship. He saw the vast hive of science and the infinite
-garden of things, and knew how little the most busy life could add to
-the store; and so, living always in the company of large projects and
-measuring himself by the highest standard of that which is obtainable
-in knowledge, he viewed his own acquisitions as a small thing--a
-fragment of light won from a shoreless ocean of darkness.
-
-His peculiar genius lay in discovery. He thought for himself, wrote
-a pure nervous English of his own, and even in the ordinary converse
-of life gave the impression of a being to whom everything was fresh
-and alive. His style was very characteristic of his vivid and elastic
-mind, ranging as it did from grave eloquence to colloquial fun, and
-using only the simplest vocabulary to produce its effects. Conscious
-theory or method of style he neither claimed nor cared to possess;
-he wrote as the spirit moved him, finding with astonishing ease the
-vestment most appropriate to his thought, and composing with such
-fluency that his manuscript went to press almost free of erasures.
-The literary and artistic conventions of the hour did not appeal to
-him. He never went to picture galleries; in later life he seldom read
-poetry, though as a boy he had been fond of it; and he would profess
-to be unable to distinguish a good sonnet when he saw one. Knowing
-the thing which he could do best, and judging that it was worthy of a
-life, he stripped himself of all superfluous tastes and inclinations
-that his whole time and strength might be dedicated to the work. Even
-music had to give way. And yet, though he laboured under the spur of a
-most exacting conscience and with every discouragement which illness
-and harrowing physical pain could oppose, it was with a certain blithe
-alacrity, as if work, however protracted and monotonous, was always
-a delightful pastime. He would sit in an armchair with a pipe in his
-mouth and some ponderous folio propped against his knees, steadily
-reading and smoking far into the night, thinking closely, taking no
-note, but apparently retaining everything. For a man who wrote and
-taught so much his knowledge was amazing both in range and accuracy;
-but his panoply might have been of gossamer so lightly did he bear it,
-and those who saw him a few times only may remember him chiefly for
-his irrepressible gift of humour, or for some external features, the
-fine steady brown eye, the rich flexible voice, the pale clear cut face
-seamed with innumerable lines, which lit up so quickly in the play of
-talk. Mr S. H. Butcher, who was in the same year at Cambridge and of
-the same college, has spoken the mind of those who knew him best. "When
-they think of him they recall, in the first instance, the delightful
-companion, the friend who had himself the genius of friendship. They
-think of his humour, overflowing from his talk and his speeches into
-what seems to many the driest regions of legal or antiquarian learning,
-and they recall his modesty, his quiet charm and his essential courtesy
-of soul[35]." And there was withal that high spiritual power of
-abnegation and of purpose in which the lover of hard won truth attains
-to his beatitude. _Res severa est verum gaudium._
-
-
-FOOTNOTES:
-
-[33] A bronze bust, executed by Mr S. Nicholson Babb, has, in pursuance
-of this resolution, been presented to the University by the subscribers
-to the fund and is placed in the Squire Law Library.
-
-[34] _Cambridge University Reporter_, July 22, 1907, p. 1308.
-
-[35] _Cambridge University Reporter_, July 22, 1907, p. 1306.
-
-
-
-
-      *      *      *      *      *      *
-
-
-
-
-Transcriber's note:
-
-
-  Silently corrected simple spelling, grammar, and typographical
-  errors.
-
-  Retained anachronistic and non-standard spellings as printed.
-
-
-
-***END OF THE PROJECT GUTENBERG EBOOK FREDERICK WILLIAM MAITLAND***
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