diff options
| -rw-r--r-- | .gitattributes | 4 | ||||
| -rw-r--r-- | LICENSE.txt | 11 | ||||
| -rw-r--r-- | README.md | 2 | ||||
| -rw-r--r-- | old/50124-0.txt | 5321 | ||||
| -rw-r--r-- | old/50124-0.zip | bin | 119566 -> 0 bytes | |||
| -rw-r--r-- | old/50124-h.zip | bin | 374777 -> 0 bytes | |||
| -rw-r--r-- | old/50124-h/50124-h.htm | 7093 | ||||
| -rw-r--r-- | old/50124-h/images/cover.jpg | bin | 22180 -> 0 bytes | |||
| -rw-r--r-- | old/50124-h/images/illus_046.jpg | bin | 64192 -> 0 bytes | |||
| -rw-r--r-- | old/50124-h/images/illus_frontispiece.jpg | bin | 115437 -> 0 bytes | |||
| -rw-r--r-- | old/50124-h/images/illus_frontispiece_1.jpg | bin | 17877 -> 0 bytes | |||
| -rw-r--r-- | old/50124-h/images/illus_publ_logo.jpg | bin | 29492 -> 0 bytes |
12 files changed, 17 insertions, 12414 deletions
diff --git a/.gitattributes b/.gitattributes new file mode 100644 index 0000000..d7b82bc --- /dev/null +++ b/.gitattributes @@ -0,0 +1,4 @@ +*.txt text eol=lf +*.htm text eol=lf +*.html text eol=lf +*.md text eol=lf diff --git a/LICENSE.txt b/LICENSE.txt new file mode 100644 index 0000000..6312041 --- /dev/null +++ b/LICENSE.txt @@ -0,0 +1,11 @@ +This eBook, including all associated images, markup, improvements, +metadata, and any other content or labor, has been confirmed to be +in the PUBLIC DOMAIN IN THE UNITED STATES. + +Procedures for determining public domain status are described in +the "Copyright How-To" at https://www.gutenberg.org. + +No investigation has been made concerning possible copyrights in +jurisdictions other than the United States. Anyone seeking to utilize +this eBook outside of the United States should confirm copyright +status under the laws that apply to them. diff --git a/README.md b/README.md new file mode 100644 index 0000000..d8beb0a --- /dev/null +++ b/README.md @@ -0,0 +1,2 @@ +Project Gutenberg (https://www.gutenberg.org) public repository for +eBook #50124 (https://www.gutenberg.org/ebooks/50124) diff --git a/old/50124-0.txt b/old/50124-0.txt deleted file mode 100644 index db1b8b3..0000000 --- a/old/50124-0.txt +++ /dev/null @@ -1,5321 +0,0 @@ -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 -available by Internet Archive/Canadian Libraries -(https://archive.org/details/toronto) - - - -Note: Project Gutenberg also has an HTML version of this - file which includes the original illustrations. - See 50124-h.htm or 50124-h.zip: - (http://www.gutenberg.org/files/50124/50124-h/50124-h.htm) - or - (http://www.gutenberg.org/files/50124/50124-h.zip) - - - Images of the original pages are available through - Internet Archive/Canadian Libraries. See - https://archive.org/details/frederickwilliam00fishuoft - - -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*** - - -******* This file should be named 50124-0.txt or 50124-0.zip ******* - - -This and all associated files of various formats will be found in: -http://www.gutenberg.org/dirs/5/0/1/2/50124 - - -Updated editions will replace the previous one--the old editions will -be renamed. - -Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for the eBooks, unless you receive -specific permission. If you do not charge anything for copies of this -eBook, complying with the rules is very easy. You may use this eBook -for nearly any purpose such as creation of derivative works, reports, -performances and research. They may be modified and printed and given -away--you may do practically ANYTHING in the United States with eBooks -not protected by U.S. copyright law. Redistribution is subject to the -trademark license, especially commercial redistribution. - -START: FULL LICENSE - -THE FULL PROJECT GUTENBERG LICENSE -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK - -To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license. - -Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works - -1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8. - -1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below. - -1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others. - -1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country outside the United States. - -1.E. Unless you have removed all references to Project Gutenberg: - -1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed: - - 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. - -1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9. - -1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work. - -1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm. - -1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License. - -1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1. - -1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9. - -1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that - -* You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation." - -* You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works. - -* You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work. - -* You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works. - -1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from both the Project Gutenberg Literary Archive Foundation and The -Project Gutenberg Trademark LLC, the owner of the Project Gutenberg-tm -trademark. Contact the Foundation as set forth in Section 3 below. - -1.F. - -1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment. - -1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE. - -1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem. - -1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE. - -1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions. - -1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. - -Section 2. Information about the Mission of Project Gutenberg-tm - -Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life. - -Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org - -Section 3. Information about the Project Gutenberg Literary -Archive Foundation - -The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws. - -The Foundation's principal office is in Fairbanks, Alaska, with the -mailing address: PO Box 750175, Fairbanks, AK 99775, but its -volunteers and employees are scattered throughout numerous -locations. Its business office is located at 809 North 1500 West, Salt -Lake City, UT 84116, (801) 596-1887. Email contact links and up to -date contact information can be found at the Foundation's web site and -official page at www.gutenberg.org/contact - -For additional contact information: - - Dr. Gregory B. Newby - Chief Executive and Director - gbnewby@pglaf.org - -Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation - -Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS. - -The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit www.gutenberg.org/donate - -While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate. - -International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff. - -Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate - -Section 5. General Information About Project Gutenberg-tm electronic works. - -Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support. - -Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition. - -Most people start at our Web site which has the main PG search -facility: www.gutenberg.org - -This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks. - diff --git a/old/50124-0.zip b/old/50124-0.zip Binary files differdeleted file mode 100644 index 4c3aecd..0000000 --- a/old/50124-0.zip +++ /dev/null diff --git a/old/50124-h.zip b/old/50124-h.zip Binary files differdeleted file mode 100644 index 5d5e44e..0000000 --- a/old/50124-h.zip +++ /dev/null diff --git a/old/50124-h/50124-h.htm b/old/50124-h/50124-h.htm deleted file mode 100644 index b0a95de..0000000 --- a/old/50124-h/50124-h.htm +++ /dev/null @@ -1,7093 +0,0 @@ -<!DOCTYPE html PUBLIC "-//W3C//DTD XHTML 1.0 Strict//EN" - "http://www.w3.org/TR/xhtml1/DTD/xhtml1-strict.dtd"> -<html xmlns="http://www.w3.org/1999/xhtml"> -<head> -<meta http-equiv="Content-Type" content="text/html; charset=UTF-8" /> -<title>The Project Gutenberg eBook of Frederick William Maitland, by H. A. L. (Herbert Albert Laurens) Fisher</title> - <style type="text/css"> - -body { - margin-left: 10%; - margin-right: 10%; -} - - h1,h2,h3,h4 { - text-align: center; /* all headings centered */ - clear: both; -} - -p { - margin-top: .51em; - text-align: justify; - margin-bottom: .49em; -} - -.p6 {margin-top: 6em;} - -/* Easy Epub/HRs */ - -hr { - width: 33%; - margin-top: 2em; - margin-bottom: 2em; - margin-left: 33.5%; - margin-right: 33.5%; - clear: both; -} - -hr.tb {width: 45%; margin-left: 22.5%; margin-right: 22.5%;} -hr.chap {width: 65%; margin-left: 17.5%; margin-right: 17.5%;} - -ul, ul#index { list-style-type: none; display: inline-block;} -li {text-align: left;} - -.pagenum { /* uncomment the next line for invisible page numbers */ - visibility: hidden; - position: absolute; - left: 92%; - font-size: smaller; - text-align: right; -} /* page numbers */ - -.blockquot { - margin-left: 5%; - margin-right: 10%; -} - -.center {text-align: center;} - -.smcap {font-variant: small-caps;} - -.old-english {font-weight: bold; - font-family: "Old English Text MT", Parchment, Garamond, serif;} - -.cursive {font-family: Script, "Snell Roundhand", cursive, sans-serif; - font-style: italic;} - -.caption p {font-weight: bold; - text-align: center;} - -.caption2 p {font-weight: bold; - text-align: justify;} - -/* Images */ -.figcenter { - margin: auto; - text-align: center; -} - -.figright { - float: right; - clear: right; - margin-left: 1em; - margin-bottom: - 1em; - margin-top: 1em; - margin-right: 0; - padding: 0; - text-align: center; -} -@media handheld -{ - .figright - { - float: none; - text-align: center; - margin-left: 0; - } -} - -/* Footnotes */ -.footnotes {border: dashed 1px;} - -.footnote {margin-left: 10%; margin-right: 10%; font-size: 0.9em;} - -.footnote .label {position: absolute; right: 84%; text-align: right;} - -.fnanchor { - vertical-align: super; - font-size: .8em; - text-decoration: - none; -} - -/* Poetry and Case Study: Poetry */ -.poem { - margin-left:10%; - margin-right:10%; - text-align: left; - display: inline-block; -} -@media handheld -{ - .poetry - { - display: block; - margin-left: 1.5em; - } -} - -.poem br {display: none;} - -.poem .stanza {margin: 1em 0em 1em 0em;} - -.poetry-center -{ - text-align: center; -} - -/* Transcriber's notes */ -#transnote {background-color: #E6E6FA; - color: black; - font-size: smaller; - padding: 0.5em; - margin-bottom: 5em; - font-family: Georgia, Times, Times New Roman, serif} - -/* Easy Epub/Headings */ - -.ph1, .ph2 { text-align: center; text-indent: 0em; font-weight: bold; } -.ph1 { font-size: xx-large; margin: .67em auto; } -.ph2 { font-size: x-large; margin: .75em auto; } - -.medium {font-size: medium;} -.large {font-size: large;} -.xlarge {font-size: x-large;} - -div#titlepage { - text-align: center; - page-break-before: always; - page-break-after: always; -} -div#titlepage p { - text-align: center; - text-indent: 0em; - font-weight: bold; - line-height: 1.5; - margin-top: 3em; -} - -div.chapter {page-break-before: always;} - -/* Case Study: Title Pages */ - -div#halftitle -{ - text-align: center; - page-break-before: always; - page-break-after: always; -} -@media screen -{ - #halftitle - { - margin: 6em 0; - } -} -@media print, handheld -{ - #halftitle - { - page-break-before: always; - page-break-after: always; - margin: 0; - padding-top: 6em; - } -} - -/* Easy Epub/Cover */ - -.covercaption {font-weight: bold; font-size: small;} -@media handheld { - .covercaption { display: none; } -} - -div.tnotes {background-color: #eeeeee; border: 1px solid black; padding: 1em;} -.covernote {visibility: hidden; display: none;} -@media handheld { - .covernote {visibility: visible; display: block;} -} - .poem span.i0 {display: block; margin-left: 0em; padding-left: 3em; text-indent: -3em;} - - hr.full { width: 100%; - margin-top: 3em; - margin-bottom: 0em; - margin-left: auto; - margin-right: auto; - height: 4px; - border-width: 4px 0 0 0; /* remove all borders except the top one */ - border-style: solid; - border-color: #000000; - clear: both; } - - </style> -</head> -<body> -<h1>The Project Gutenberg eBook, Frederick William Maitland, by H. A. L. -(Herbert Albert Laurens) Fisher</h1> -<p>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 <a -href="http://www.gutenberg.org">www.gutenberg.org</a>. 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.</p> -<p>Title: Frederick William Maitland</p> -<p> Downing Professor of the Laws of England; A Biographical Sketch</p> -<p>Author: H. A. L. (Herbert Albert Laurens) Fisher</p> -<p>Release Date: October 3, 2015 [eBook #50124]</p> -<p>Language: English</p> -<p>Character set encoding: UTF-8</p> -<p>***START OF THE PROJECT GUTENBERG EBOOK FREDERICK WILLIAM MAITLAND***</p> -<p> </p> -<h4>E-text prepared by Richard Tonsing, Clarity,<br /> - and the Online Distributed Proofreading Team<br /> - (<a href="http://www.pgdp.net">http://www.pgdp.net</a>)<br /> - from page images generously made available by<br /> - Internet Archive/Canadian Libraries<br /> - (<a href="https://archive.org/details/toronto">https://archive.org/details/toronto</a>)</h4> -<p> </p> -<div class="tnotes covernote"> - <p>The cover image was created by the transcriber and is placed in the public domain.</p> -</div> -<p> </p> -<hr class="full" /> -<p> </p> -<p> </p> - -<p><span class="pagenum"><a name="Page_i" id="Page_i">[Pg i]</a></span></p> -<div id="halftitle"> - -<p class="ph1">FREDERICK WILLIAM MAITLAND</p> - -<p class="ph2">A BIOGRAPHICAL SKETCH -</p> -</div> -<p><span class="pagenum"><a name="Page_ii" id="Page_ii">[Pg ii]</a></span></p> - -<p class="center">CAMBRIDGE UNIVERSITY PRESS</p> - -<p class="center"><span class="old-english">London</span>: FETTER LANE, E.C.</p> - -<p class="center"><span class="smcap">C. F. CLAY, Manager</span></p> - -<div class="figcenter" style="width: 329px;"> -<img src="images/illus_publ_logo.jpg" width="329" height="350" alt="" /> -</div> - -<p class="center"><span class="old-english">Edinburgh</span>: 100, PRINCES STREET<br /> -<span class="old-english">Berlin</span>: A. ASHER AND CO.<br /> -<span class="old-english">Leipzig</span>: F. A. BROCKHAUS<br /> -<span class="old-english">New York</span>: G. P. PUTNAM'S SONS<br /> -<span class="old-english">Bombay and Calcutta</span>: MACMILLAN AND CO., <span class="smcap">Ltd.</span></p> - -<p class="center"><em>All rights reserved</em> -</p> - -<p><span class="pagenum"><a name="Page_iii" id="Page_iii">[Pg iii]</a><br /><a name="Page_iv" id="Page_iv">[Pg iv]</a></span></p> - -<div class="figcenter" style="width: 536px;"> -<img src="images/illus_frontispiece.jpg" width="536" height="700" alt="" /> -<div class="caption"><p>Photogravure by Annan & Sons Glasgow</p></div> -</div> - -<div class="figright" style="width: 675px;"> -<img src="images/illus_frontispiece_1.jpg" width="675" height="294" alt="" /> -<div class="caption"> - -<p> -<span class="cursive">Yours very truly<br /> -<span style="margin-left: 20%;">F.W. Maitland</span></span><br /> -</p> - -</div> -</div> - -<p><span class="pagenum"><a name="Page_v" id="Page_v">[Pg v]</a></span></p> -<div id="titlepage"> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h1>FREDERICK WILLIAM MAITLAND<br /> - -<span class="medium">DOWNING PROFESSOR OF THE LAWS OF ENGLAND</span><br /> - -<span class="large">A BIOGRAPHICAL SKETCH</span></h1> - - -<p>BY</p> - -<p class="xlarge">H. A. L. FISHER</p> - -<p><span class="large p6">Cambridge:<br /></span> -at the University Press<br /> -1910 -</p> - -<p><span class="pagenum"><a name="Page_vi" id="Page_vi">[Pg vi]</a></span></p> - -<p class="center p6">Cambridge:<br /> -PRINTED BY JOHN CLAY, M.A.<br /> -AT THE UNIVERSITY PRESS -</p> -</div> - -<h2>CONTENTS</h2> -<div class="center"> -<ul><li><a href="#PREFATORY_NOTE">PREFATORY NOTE</a></li> -<li><a href="#FREDERIC_WILLIAM_MAITLAND">FREDERIC WILLIAM MAITLAND</a></li> -<li><a href="#I">I.</a></li> -<li><a href="#II">II.</a></li> -<li><a href="#III">III.</a></li> -<li><a href="#IV">IV.</a></li> -<li><a href="#V">V.</a></li> -<li><a href="#VI">VI.</a></li> -<li><a href="#VII">VII.</a></li> -<li><a href="#VIII">VIII.</a></li> -<li><a href="#IX">IX.</a></li> -<li><a href="#X">X.</a></li> -<li><a href="#XI">XI.</a></li> -<li><a href="#XII">XII.</a></li> -<li><a href="#TRANSCRIBERS_NOTES">TRANSCRIBER'S NOTES</a></li> -</ul> -</div> -<p><span class="pagenum"><a name="Page_vii" id="Page_vii">[Pg vii]</a></span></p> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="PREFATORY_NOTE" id="PREFATORY_NOTE">PREFATORY NOTE</a></h2> - - -<p>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.</p> - -<p> -<span style="margin-left: 76%;">H. A. L. FISHER.</span><br /> -<br /> -<em>May 1910.</em><br /> -</p> - -<p><span class="pagenum"><a name="Page_viii" id="Page_viii">[Pg viii]</a><br /><a name="Page_1" id="Page_1">[Pg 1]</a></span></p> - -<p class="ph2"><a name="FREDERIC_WILLIAM_MAITLAND" id="FREDERIC_WILLIAM_MAITLAND">FREDERIC WILLIAM MAITLAND</a></p> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="I" id="I">I.</a></h2> - - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_2" id="Page_2">[Pg 2]</a></span></p> - -<p>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 <cite>Introduction to -Chemical Philosophy</cite>.</p> - -<p>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<span class="pagenum"><a name="Page_3" id="Page_3">[Pg 3]</a></span> -of history in England. The <cite>Facts and Documents</cite> -(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."</p> - -<p>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<span class="pagenum"><a name="Page_4" id="Page_4">[Pg 4]</a></span> -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<a name="FNanchor_1_1" id="FNanchor_1_1"></a><a href="#Footnote_1_1" class="fnanchor">[1]</a>. Frederic William, too, passed -from Cambridge to the law and then away to work -more congenial to his rare and original powers.</p> - -<p>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<span class="pagenum"><a name="Page_5" id="Page_5">[Pg 5]</a></span> -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.</p> - -<p>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<a name="FNanchor_2_2" id="FNanchor_2_2"></a><a href="#Footnote_2_2" class="fnanchor">[2]</a>." 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<a name="FNanchor_3_3" id="FNanchor_3_3"></a><a href="#Footnote_3_3" class="fnanchor">[3]</a>." We -imagine a shy, awkward delicate boy bursting into jets -<span class="pagenum"><a name="Page_6" id="Page_6">[Pg 6]</a></span>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<a name="FNanchor_4_4" id="FNanchor_4_4"></a><a href="#Footnote_4_4" class="fnanchor">[4]</a>."</p> - -<p>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<span class="pagenum"><a name="Page_7" id="Page_7">[Pg 7]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_8" id="Page_8">[Pg 8]</a></span> -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<span class="pagenum"><a name="Page_9" id="Page_9">[Pg 9]</a></span> -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<a name="FNanchor_5_5" id="FNanchor_5_5"></a><a href="#Footnote_5_5" class="fnanchor">[5]</a>."</p> - -<p>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<span class="pagenum"><a name="Page_10" id="Page_10">[Pg 10]</a></span> -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<a name="FNanchor_6_6" id="FNanchor_6_6"></a><a href="#Footnote_6_6" class="fnanchor">[6]</a>.</p> - -<p>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<span class="pagenum"><a name="Page_11" id="Page_11">[Pg 11]</a></span> -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<a name="FNanchor_7_7" id="FNanchor_7_7"></a><a href="#Footnote_7_7" class="fnanchor">[7]</a>, 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.</p> - -<p>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<span class="pagenum"><a name="Page_12" id="Page_12">[Pg 12]</a></span> -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.</p> - -<p>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?"<span class="pagenum"><a name="Page_13" id="Page_13">[Pg 13]</a></span> -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."</p> - -<p>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<span class="pagenum"><a name="Page_14" id="Page_14">[Pg 14]</a></span> -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."</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_1_1" id="Footnote_1_1"></a><a href="#FNanchor_1_1"><span class="label">[1]</span></a> "The Cambridge Apostles," by W. D. Christie. <cite>Macmillan's -Magazine</cite>, Nov. 1864.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_2_2" id="Footnote_2_2"></a><a href="#FNanchor_2_2"><span class="label">[2]</span></a> A Biographical Notice by Mrs Reynell (privately printed).</p></div> - -<div class="footnote"> - -<p><a name="Footnote_3_3" id="Footnote_3_3"></a><a href="#FNanchor_3_3"><span class="label">[3]</span></a> <cite>Cambridge University Reporter</cite>, Dec. 17, 1904.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_4_4" id="Footnote_4_4"></a><a href="#FNanchor_4_4"><span class="label">[4]</span></a> A punning squib, very spirited and amusing, entitled "A -solemn Mystery," and contributed to <cite>The Adventurer</cite>, June 4, 1869, -seems to have been Maitland's first appearance in print.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_5_5" id="Footnote_5_5"></a><a href="#FNanchor_5_5"><span class="label">[5]</span></a> <cite>Cambridge University Reporter</cite>, Dec. 7, 1900.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_6_6" id="Footnote_6_6"></a><a href="#FNanchor_6_6"><span class="label">[6]</span></a> 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.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_7_7" id="Footnote_7_7"></a><a href="#FNanchor_7_7"><span class="label">[7]</span></a> Such for instance as:— -</p> -<p> -"The love of simplicity has done vast harm to English Political -Philosophy." -</p> -<p> -"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." -</p> -<p> -"The idea of a social compact did not become really active till -it was allied with the doctrine that all men are equal." -</p> -<p> -"In Hume we see the first beginnings of a scientific use of -History."</p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="II" id="II">II.</a></h2> - - -<p>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 disad<span class="pagenum"><a name="Page_15" id="Page_15">[Pg 15]</a></span>vantages -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.</p> - -<p>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,<span class="pagenum"><a name="Page_16" id="Page_16">[Pg 16]</a></span> -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, <span class="pagenum"><a name="Page_17" id="Page_17">[Pg 17]</a></span><em>not one word -of which was ever spoken by either of us</em>. 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."</p> - -<p>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.<a name="FNanchor_8_8" id="FNanchor_8_8"></a><a href="#Footnote_8_8" class="fnanchor">[8]</a></p> - -<p><span class="pagenum"><a name="Page_18" id="Page_18">[Pg 18]</a></span></p> - -<p>Business of this type, however, does not provide -opportunities for forensic oratory and Maitland's voice -was rarely heard in Court<a name="FNanchor_9_9" id="FNanchor_9_9"></a><a href="#Footnote_9_9" class="fnanchor">[9]</a>. 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.</p> - -<p>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 <cite>Geschichte des Römischen Rechts</cite> and Stubbs' -<cite>Constitutional History</cite>. 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.</p> -<div class="center"> -<div class="poem"><div class="stanza"> -<span class="i0">Justinian's Pandects only make precise<br /></span> -<span class="i0">What simply sparkled in men's eyes before,<br /></span> -<span class="i0">Twitched in their brow or quivered in their lip,<br /></span> -<span class="i0">Waited the speech that called but would not come<a name="FNanchor_10_10" id="FNanchor_10_10"></a><a href="#Footnote_10_10" class="fnanchor">[10]</a>.<br /></span> -</div></div> -</div> -<p>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 -<span class="pagenum"><a name="Page_19" id="Page_19">[Pg 19]</a></span>historic prospect which stretches from the Twelve -Tables and the <i lang="la">Leges Barbarorum</i> to the German -Civil Code and the judgments reported in the morning -newspaper. Readers of <cite>Bracton's Note Book</cite> 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.</p> - -<p>The translation of Savigny was neither completed -nor published. Maitland's first contribution to legal -literature was an anonymous article which appeared in -the <cite>Westminster Review</cite> 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<span class="pagenum"><a name="Page_20" id="Page_20">[Pg 20]</a></span> -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."</p> - -<p>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 <cite>Mind</cite> on Mr Herbert Spencer's <cite>Theory -of Society</cite> contain a modest but very sufficient exposure -of the shortcomings of that popular philosopher's <i lang="la">a -priori</i> reasoning in politics.</p> - -<p>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<span class="pagenum"><a name="Page_21" id="Page_21">[Pg 21]</a></span> -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 -<cite>Ring</cite> 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 per<span class="pagenum"><a name="Page_22" id="Page_22">[Pg 22]</a></span>haps -as one of the principal founders of the Society for -Psychical Research, wrote a valuable book on <cite>The -Power of Sound</cite> 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.</p> - -<p>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<span class="pagenum"><a name="Page_23" id="Page_23">[Pg 23]</a></span> -pleasures of society and many other things which are -prized among men.</p> - -<p>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<a name="FNanchor_11_11" id="FNanchor_11_11"></a><a href="#Footnote_11_11" class="fnanchor">[11]</a>, wrote for the -<cite>Pall Mall Gazette</cite>, 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 -<span class="pagenum"><a name="Page_24" id="Page_24">[Pg 24]</a></span>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 <em>Law of Torts</em>, -was the first overt evidence of the alliance.</p> - -<p>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<span class="pagenum"><a name="Page_25" id="Page_25">[Pg 25]</a></span> -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.</p> - -<p>The <cite>Pleas of the Crown for the County of Gloucester</cite> -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<span class="pagenum"><a name="Page_26" id="Page_26">[Pg 26]</a></span> -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."</p> - -<p>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 <cite>History of Criminal Law</cite> 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 <cite>Schwurgerichte</cite>, -Bigelow's <cite>Placita Anglo-Normannica</cite> and <cite>History of -Procedure in England</cite>, the <cite>Harvard Essays on Anglo-Saxon -Law</cite>, Holmes' brilliant volume on the <cite>Common -Law</cite>. 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<span class="pagenum"><a name="Page_27" id="Page_27">[Pg 27]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_28" id="Page_28">[Pg 28]</a></span> -<cite>Mind</cite>, 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.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_8_8" id="Footnote_8_8"></a><a href="#FNanchor_8_8"><span class="label">[8]</span></a> For a good instance of Maitland's trained insight see <cite>Domesday -Book and Beyond</cite>, p. 232.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_9_9" id="Footnote_9_9"></a><a href="#FNanchor_9_9"><span class="label">[9]</span></a> Maitland once conducted an argument before Jessel, M. R. -Re Morton v. Hallett (Feb. & May, 1880, Ch. 15, D. 143).</p></div> - -<div class="footnote"> - -<p><a name="Footnote_10_10" id="Footnote_10_10"></a><a href="#FNanchor_10_10"><span class="label">[10]</span></a> Browning, <cite>Ring and the Book</cite>. See Maitland, <cite>Bracton's Note -Book</cite>, vol. 1.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_11_11" id="Footnote_11_11"></a><a href="#FNanchor_11_11"><span class="label">[11]</span></a> 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, <cite>These Eighty Years</cite>, vol. <span class="smcap">II.</span> p. 440.</p> - -<p><span class="pagenum"><a name="Page_29" id="Page_29">[Pg 29]</a></span></p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="III" id="III">III.</a></h2> - - -<p>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<span class="pagenum"><a name="Page_30" id="Page_30">[Pg 30]</a></span> -£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.</p> - -<p>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<span class="pagenum"><a name="Page_31" id="Page_31">[Pg 31]</a></span> -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 <cite>Law -Quarterly Review</cite> 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.</p> - -<p>"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 <cite>De Legibus et -Consuetudinibus Angliæ</cite>, 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—<span class="pagenum"><a name="Page_32" id="Page_32">[Pg 32]</a></span><i lang="la">Et -sciendum est quod materia est facta et casus qui -quotidie emergunt et eveniunt in regno Angliæ</i>—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.</p> - -<p>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 <cite>Athenæum</cite> 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<span class="pagenum"><a name="Page_33" id="Page_33">[Pg 33]</a></span> -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."</p> - -<p>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 <i lang="la">nova gracia</i>; 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 <i lang="la">coram rege</i>; 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<span class="pagenum"><a name="Page_34" id="Page_34">[Pg 34]</a></span> -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. <i lang="la">Beati omnes -qui ambulant.</i>"</p> - -<p>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<span class="pagenum"><a name="Page_35" id="Page_35">[Pg 35]</a></span> -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.</p> - -<p>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—<span class="pagenum"><a name="Page_36" id="Page_36">[Pg 36]</a></span>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."</p> - -<p>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."</p> - -<div class="figcenter" style="width: 637px;"> -<img src="images/illus_046.jpg" width="637" height="700" alt="" /> -<div class="caption2"><p>stock or marketable securities which undoubtedly are not the -same things as the land and trade marks.'</p> - -<p>Now it may occur to you that in their anxiety to -avoid a confusion of the persons our courts fall into the opposite -of error and divide the substance. But that is not so. The -old things still exist and are owned, though new things 'transferable -in the books of the company' have come into being. Also it -seems possible that we may easily over-estimate the creative -powers of lawyers and courts and legislators. Let us -remember that these new things will be things for the man -of business, things for the Stock Exchange. And in passing -let us ask ourselves whether if these 'things' are not unreal, -the personality of the company must needs be fictitious?</p> - -<p class="center"><em>Fragment of a Lecture</em></p></div> -</div> -<p><span class="pagenum"><a name="Page_37" id="Page_37">[Pg 37]</a></span></p> - -<p>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 <cite>History of English Law</cite> 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.</p> - - -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">6, New Square,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">Lincoln's Inn.</span></span><br /> -<span style="margin-left: 68%;"><em>28 April, 1884.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_38" id="Page_38">[Pg 38]</a></span> -make good sense of the passage—but I have made a -note<a name="FNanchor_12_12" id="FNanchor_12_12"></a><a href="#Footnote_12_12" class="fnanchor">[12]</a> 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.</p> - -<p>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.</p> - - -<p class="center"><span class="smcap">To Frederick Pollock.</span></p> - -<p class="center">(On a postcard.) -</p> - -<p> -<span style="margin-left: 75%;"><em>Jan. 1881.</em></span><br /> -</p> - -<p>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.</p> - -<p>Revera predictus F. seisitus fuit de uno frigore -valde damnando. Judicium—Recuperet se ipsum.</p> -<p><span class="pagenum"><a name="Page_39" id="Page_39">[Pg 39]</a></span></p> - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">15, Brookside,</span></span><br /> -<span style="margin-left: 72%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 70%;"><em>12 Nov. 1887.</em></span><br /> -</p> - -<p>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.</p> - -<p>I cannot, alas, be at the Selden meeting on Monday, -for I have undertaken to audit some accounts.</p> -<div class="center"> -<div class="poem"><div class="stanza"> -<span class="i0">With many more thanks I rest<br /></span> -<span class="i0">Sectator tuus set minus sufficiens.<br /></span> -</div></div> -</div> -<p> -<span style="margin-left: 65%;"><span class="smcap">F. W. Maitland.</span></span><br /> -</p> - -<p><span class="pagenum"><a name="Page_40" id="Page_40">[Pg 40]</a></span></p> - - -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">15, Brookside,</span></span><br /> -<span style="margin-left: 72%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 69%;"><em>12 June, 1887.</em></span><br /> -</p> - -<p>"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<a name="FNanchor_13_13" id="FNanchor_13_13"></a><a href="#Footnote_13_13" class="fnanchor">[13]</a>, 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.</p> - -<p>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.</p> -<p><span class="pagenum"><a name="Page_41" id="Page_41">[Pg 41]</a></span></p> - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 56%;"><span class="smcap">Jubilee Teapot Tor,</span></span><br /> -<span style="margin-left: 69%;"><span class="smcap">Horrabridge.</span></span><br /> -<span style="margin-left: 69%;"><em>26 July, 1887.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_42" id="Page_42">[Pg 42]</a></span> -stomach were not high. Have you seen the new -ordnance map of the moor? Mr Collier showed it -me. <em>Pew</em> Tor is the spelling that it adopts.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">15, Brookside,</span></span><br /> -<span style="margin-left: 72%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 69%;"><em>7 April, 1888.</em></span><br /> -</p> - -<p>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 <cite>L. Q. R.</cite><a name="FNanchor_14_14" id="FNanchor_14_14"></a><a href="#Footnote_14_14" class="fnanchor">[14]</a> this quarter; really it ought -to sell and if it doesn't the constitution of the universe -wants reforming....</p> - -<p>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 <cite>Codex</cite>. 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.</p> - -<p>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<span class="pagenum"><a name="Page_43" id="Page_43">[Pg 43]</a></span> -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.</p> - -<p>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.</p> - - -<p class="center"><span class="smcap">To Frederick Pollock.</span> -(On a postcard.) -</p> - -<p> -<span style="margin-left: 72%;"><em>9 May, 1888.</em></span><br /> -</p> - -<p>Predicti sokemanni habebunt remedium per tale -breve de Monstraverunt.</p> - -<p>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.</p> - - -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 55%;"><span class="smcap">3, Albany Terrace,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">St Ives,</span></span><br /> -<span style="margin-left: 73%;"><span class="smcap">Cornwall.</span></span><br /> -<span style="margin-left: 69%;"><em>25 July, 1888.</em></span><br /> -</p> - -<p>I ought before now to have sent you my address -to meet the case of your having any MS to send me.<span class="pagenum"><a name="Page_44" id="Page_44">[Pg 44]</a></span> -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.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 50%;"><span class="smcap">3, Albany Terrace,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">St Ives,</span></span><br /> -<span style="margin-left: 73%;"><span class="smcap">Cornwall.</span></span><br /> -<span style="margin-left: 72%;"><em>5 Aug. 1888.</em></span><br /> -</p> - -<p>Many thanks for your telegram: it was kind of -you to send so prompt a message<a name="FNanchor_15_15" id="FNanchor_15_15"></a><a href="#Footnote_15_15" class="fnanchor">[15]</a>. 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 -<span class="pagenum"><a name="Page_45" id="Page_45">[Pg 45]</a></span>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.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 55%;"><span class="smcap">3, Albany Terrace,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">St Ives,</span></span><br /> -<span style="margin-left: 73%;"><span class="smcap">Cornwall.</span></span><br /> -<span style="margin-left: 72%;"><em>6 Aug. 1888.</em></span><br /> -</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_46" id="Page_46">[Pg 46]</a></span></p> - - -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 52%;"><span class="smcap">22, Hyde Park Gate, S.W.</span></span><br /> -<span style="margin-left: 66%;"><em>September, 1888.</em></span><br /> -</p> - -<p>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 <em>of course</em> -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.</p> - -<hr class="tb" /> - -<p> -<span style="margin-left: 68%;"><span class="smcap">Downing.</span></span><br /> -<span style="margin-left: 70%;"><em>14 Oct. 1888.</em></span><br /> -</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_47" id="Page_47">[Pg 47]</a></span></p> - -<p>... 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.</p> - - -<h3><span class="smcap">To Henry Sidgwick.</span></h3> - -<p> -<span style="margin-left: 54%;"><span class="smcap">The West Lodge,</span></span><br /> -<span style="margin-left: 61%;"><span class="smcap">Downing College,</span></span><br /> -<span style="margin-left: 63%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 70%;"><em>11 Dec. 1888.</em></span><br /> -</p> - -<p>I have been reading your proof sheets<a name="FNanchor_16_16" id="FNanchor_16_16"></a><a href="#Footnote_16_16" class="fnanchor">[16]</a> 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.," <em>if he thinks them sound</em>—but -how far he would think himself bound as judge by -<span class="pagenum"><a name="Page_48" id="Page_48">[Pg 48]</a></span>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 -<em>justice</em> 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. <a href="#Page_92">92</a>, 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_49" id="Page_49">[Pg 49]</a></span></p> - - -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 70%;"><em>20 Feb. 1889.</em></span><br /> -</p> - -<p>You ask me about the Preface<a name="FNanchor_17_17" id="FNanchor_17_17"></a><a href="#Footnote_17_17" class="fnanchor">[17]</a>—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.</p> - -<p><span class="pagenum"><a name="Page_50" id="Page_50">[Pg 50]</a></span></p> -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">The West Lodge.</span></span><br /> -<span style="margin-left: 68%;"><em>12 March, 1889.</em></span><br /> -</p> - -<p>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,<span class="pagenum"><a name="Page_51" id="Page_51">[Pg 51]</a></span> -as, shall I say Madox's <cite>History of the Exchequer</cite>? -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.</p> - -<p>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.</p> - - -<h3><span class="smcap">To Paul Vinogradoff.</span></h3> - -<p> -<span style="margin-left: 65%;"><span class="smcap">Downing.</span></span><br /> -<span style="margin-left: 70%;"><em>15 Nov. 1891.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_52" id="Page_52">[Pg 52]</a></span> -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.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_12_12" id="Footnote_12_12"></a><a href="#FNanchor_12_12"><span class="label">[12]</span></a> The note shows a knowledge of 18 Bracton MSS.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_13_13" id="Footnote_13_13"></a><a href="#FNanchor_13_13"><span class="label">[13]</span></a> The Russian edition of <cite>Studies in Villeinage</cite>.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_14_14" id="Footnote_14_14"></a><a href="#FNanchor_14_14"><span class="label">[14]</span></a> <cite>Law Quarterly Review.</cite></p></div> - -<div class="footnote"> - -<p><a name="Footnote_15_15" id="Footnote_15_15"></a><a href="#FNanchor_15_15"><span class="label">[15]</span></a> Announcing Maitland's election to the Downing Chair.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_16_16" id="Footnote_16_16"></a><a href="#FNanchor_16_16"><span class="label">[16]</span></a> Professor Sidgwick's <cite>Elements of Politics</cite> was published in -1891.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_17_17" id="Footnote_17_17"></a><a href="#FNanchor_17_17"><span class="label">[17]</span></a> Of the English edition of Vinogradoff's <cite>Studies in Villainage</cite>.</p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="IV" id="IV">IV.</a></h2> - - -<p>The year which brought Maitland to Downing -witnessed the appearance of a new volume from his -pen entitled <cite>Select Pleas of the Crown 1200-1255</cite>. 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<a name="FNanchor_18_18" id="FNanchor_18_18"></a><a href="#Footnote_18_18" class="fnanchor">[18]</a>." He set the standard, planned the -<span class="pagenum"><a name="Page_53" id="Page_53">[Pg 53]</a></span>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.</p> - -<p>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<span class="pagenum"><a name="Page_54" id="Page_54">[Pg 54]</a></span> -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 -<cite>Baga de Secretis</cite>. 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.</p> - -<p>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<span class="pagenum"><a name="Page_55" id="Page_55">[Pg 55]</a></span> -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 <cite>Mirror of Justice</cite> followed by a -volume on <cite>Bracton and Azo</cite>. Of these first eight -volumes Maitland wrote four and contributed a brilliant -introduction to a fifth—the edition of the <cite>Mirror</cite>, -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 -<cite>History of English Law</cite>.</p> - -<p>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<span class="pagenum"><a name="Page_56" id="Page_56">[Pg 56]</a></span> -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.</p> - -<p>A saying used to be attributed to E. A. Freeman<span class="pagenum"><a name="Page_57" id="Page_57">[Pg 57]</a></span> -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 sub<span class="pagenum"><a name="Page_58" id="Page_58">[Pg 58]</a></span>stantial -discoveries. Each volume contributed new -thought as well as new facts. The preface to <cite>Select -Pleas of the Crown</cite> 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 <cite>Select Pleas of Manorial Courts</cite> -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<a name="FNanchor_19_19" id="FNanchor_19_19"></a><a href="#Footnote_19_19" class="fnanchor">[19]</a>, the customary suitors -<span class="pagenum"><a name="Page_59" id="Page_59">[Pg 59]</a></span>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."</p> - -<p>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<span class="pagenum"><a name="Page_60" id="Page_60">[Pg 60]</a></span> -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.</p> - -<p>In the <cite>Institutes</cite> of the learned but uncritical Coke -there are many tales drawn from a curious Anglo-French -treatise entitled the <cite>Mirror of Justices</cite>, "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? <cite>Wahrheit -und Dichtung</cite> 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.</p> - -<p>One reassuring result was obtained from Mr -Whittaker's critical enquiry into the manuscript. The -<cite>Mirror</cite> 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<span class="pagenum"><a name="Page_61" id="Page_61">[Pg 61]</a></span> -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.</p> - -<p>In a brilliant piece of persiflage Maitland once and -for all demolishes the author of the <cite>Mirror</cite>. 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<span class="pagenum"><a name="Page_62" id="Page_62">[Pg 62]</a></span> -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 -<cite>Mirror</cite> unless we were prepared to believe "that an -Englishman called Nolling was indicted for a sacrifice -to Mahomet."</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_18_18" id="Footnote_18_18"></a><a href="#FNanchor_18_18"><span class="label">[18]</span></a> "Frederick William Maitland," by B. F. L., <cite>Solicitor's Journal</cite>, -Jan. 5, 1907. See also <cite>The Year Books of Edward II</cite> (Selden -Society), vol. iv., Preface.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_19_19" id="Footnote_19_19"></a><a href="#FNanchor_19_19"><span class="label">[19]</span></a> I.e. as Domesmen.</p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="V" id="V">V.</a></h2> - - -<p>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<span class="pagenum"><a name="Page_63" id="Page_63">[Pg 63]</a></span> -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<a name="FNanchor_20_20" id="FNanchor_20_20"></a><a href="#Footnote_20_20" class="fnanchor">[20]</a>."</p> - -<p>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<span class="pagenum"><a name="Page_64" id="Page_64">[Pg 64]</a></span> -the law merely as a means of livelihood<a name="FNanchor_21_21" id="FNanchor_21_21"></a><a href="#Footnote_21_21" class="fnanchor">[21]</a>." 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.</p> - -<p>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 Downin<span class="pagenum"><a name="Page_65" id="Page_65">[Pg 65]</a></span>g -Chair was J. K. Stephen, the brilliant author of <cite>Lapsus -Calami</cite>. 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.</p> - -<p>In January, 1888, Stephen launched a weekly -magazine called <cite>The Reflector</cite>. 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<span class="pagenum"><a name="Page_66" id="Page_66">[Pg 66]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_67" id="Page_67">[Pg 67]</a></span> -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<a name="FNanchor_22_22" id="FNanchor_22_22"></a><a href="#Footnote_22_22" class="fnanchor">[22]</a>."</p> - -<p>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<span class="pagenum"><a name="Page_68" id="Page_68">[Pg 68]</a></span> -at Bletchley you change either for Oxford or for -Cambridge."</p> - -<p>The oration against compulsory Greek, though less -cogent in substance, was hardly less striking in form.</p> - -<p>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 <em>rôle</em>. 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<span class="pagenum"><a name="Page_69" id="Page_69">[Pg 69]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_70" id="Page_70">[Pg 70]</a></span> -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<span class="pagenum"><a name="Page_71" id="Page_71">[Pg 71]</a></span> -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.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_20_20" id="Footnote_20_20"></a><a href="#FNanchor_20_20"><span class="label">[20]</span></a> <cite>Political Science Quarterly</cite>, vol. xxii., No. 2, p. 287.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_21_21" id="Footnote_21_21"></a><a href="#FNanchor_21_21"><span class="label">[21]</span></a> <cite>Cambridge University Reporter</cite>, July 22, 1907, p. 1313.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_22_22" id="Footnote_22_22"></a><a href="#FNanchor_22_22"><span class="label">[22]</span></a> <cite>Cambridge University Reporter</cite>, June 22, 1907, p. 1303.</p> - -<p><span class="pagenum"><a name="Page_72" id="Page_72">[Pg 72]</a></span></p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="VI" id="VI">VI.</a></h2> - - -<p>Among the operations which belong to that wonderful -period of activity which culminated in the <cite>History -of English Law</cite>, 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 -<cite>Harvard Law Review</cite> in 1889 and to the <cite>Memoranda -de Parliamento</cite> edited for the Rolls Series in 1893.</p> - -<p>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<span class="pagenum"><a name="Page_73" id="Page_73">[Pg 73]</a></span> -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.</p> - -<p>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 <cite>Corpus Brevium</cite>." -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 <span class="pagenum"><a name="Page_74" id="Page_74">[Pg 74]</a></span><cite>Corpus -Brevium</cite> 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.</p> - -<p>Maitland's contribution to parliamentary history -consisted in the editing of the <cite>Parliament Roll</cite> 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' <cite>Constitutional -History</cite> 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 -<cite>Memoranda de Parliamento</cite> showed that such an<span class="pagenum"><a name="Page_75" id="Page_75">[Pg 75]</a></span> -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 <i lang="la">Parliamentum</i> 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.</p> - -<p>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 <cite>History of Law</cite> 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 -<cite>History</cite> 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."</p> - -<p><span class="pagenum"><a name="Page_76" id="Page_76">[Pg 76]</a></span></p> - -<p>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 <cite>Antiquary</cite> "Pretorian -here Pretorian there I mind the bigging o't." In two -weighty articles contributed to the <cite>Law Quarterly -Review</cite> 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.</p> - -<p>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 <cite>History of English -Law up to the time of Edward I</cite> 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<span class="pagenum"><a name="Page_77" id="Page_77">[Pg 77]</a></span> -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.</p> - -<p>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 <cite>Leges Henrici</cite>, that almost -unique memorial of the really feudal stage of legal<span class="pagenum"><a name="Page_78" id="Page_78">[Pg 78]</a></span> -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."</p> - -<p>Perhaps the most distinct impression which the -reader derives from the study of Maitland's work in -the <cite>History</cite> 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.</p> - -<p>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<span class="pagenum"><a name="Page_79" id="Page_79">[Pg 79]</a></span> -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 <i lang="la">gens</i>, of the agnatic group. On the contrary<span class="pagenum"><a name="Page_80" id="Page_80">[Pg 80]</a></span> -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<a name="FNanchor_23_23" id="FNanchor_23_23"></a><a href="#Footnote_23_23" class="fnanchor">[23]</a>. "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 -<span class="pagenum"><a name="Page_81" id="Page_81">[Pg 81]</a></span>that any profounder explanation of it would be -true."</p> - -<p>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 <i lang="fr">retrait -lignager</i> 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<span class="pagenum"><a name="Page_82" id="Page_82">[Pg 82]</a></span> -was never introduced into this country, and England -had no Inquisition because at the critical period it was -singularly unfertile in heresy.</p> - -<p>"It has generally been apprehended," writes Reeves -in the Preface to the First Edition of the <cite>History of -English Law</cite> (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 <cite>History of English Law</cite> 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 -<cite>Placitorum Abbreviatio</cite> nor Palgrave's <cite>Rotuli Curiæ -Regis</cite>; 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 <cite>Britton</cite>, nor Pike's nor Harwood's <cite>Year -Books</cite>, nor Stubbs' <cite>Select Charters</cite>, nor Bigelow's -<cite>Placita Anglo-Normannica</cite>; 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<span class="pagenum"><a name="Page_83" id="Page_83">[Pg 83]</a></span> -a sufficient commentary upon such a view to read -Maitland's opening paragraph upon the Norman -Conquest.</p> - -<p>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.</p> - -<p>While the pages of the <cite>History</cite> were passing -through the press, two other works had been planned -and were already partially accomplished. In his -edition of the <cite>Note Book</cite> 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<span class="pagenum"><a name="Page_84" id="Page_84">[Pg 84]</a></span> -character of Bracton's indebtedness to Roman Law? -Sir Henry Maine in his famous lectures upon <cite>Ancient -Law</cite>, 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 <cite>Corpus Juris</cite>." But the amount of matter -which Bracton directly borrowed from the <cite>Corpus -Juris</cite> 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 <cite>De Legibus</cite> 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 <cite>Summa</cite> 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<span class="pagenum"><a name="Page_85" id="Page_85">[Pg 85]</a></span> -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 <i lang="la">Leges</i> 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.</p> - -<p>"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 (<cite>Bodl. Digby 222</cite>) 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<span class="pagenum"><a name="Page_86" id="Page_86">[Pg 86]</a></span> -technical to interest the general reader: but scholars -will measure the devotion which it implies; and the -future edition of the <cite>De Legibus</cite> will be based on the -results of Maitland's unsparing toil among the Bracton -manuscripts in London and Oxford, Cheltenham and -Eton.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_23_23" id="Footnote_23_23"></a><a href="#FNanchor_23_23"><span class="label">[23]</span></a> Maitland was probably drawn too far on the path of scepticism. -See Vinogradoff, <cite>Growth of the Manor</cite>, pp. 135-40, and Brunner, -<cite>Deutsche Rechtsgeschichte</cite>, 2nd ed., vol. 1., pp. 110 ff.</p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="VII" id="VII">VII.</a></h2> - - -<p>In the summer vacation of 1895 Maitland wrote as -follows to his friend, Mr R. L. Poole, the editor of the -<cite>English Historical Review</cite>:</p> - -<p>"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 <cite>E. H. R.</cite> 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<span class="pagenum"><a name="Page_87" id="Page_87">[Pg 87]</a></span> -will say first what you think; in no case shall I be -disappointed."</p> - -<p>The publication of the <cite>Domesday Inquest</cite> 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.</p> - -<p>But the survey was not understood. Even Freeman, -who devoted to it a whole chapter in the fifth -volume of the <cite>Norman Conquest</cite>, 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<span class="pagenum"><a name="Page_88" id="Page_88">[Pg 88]</a></span> -twenty years after the shock of the Norman Conquest.</p> - -<p>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 -<cite>English Village Community</cite> 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<a name="FNanchor_24_24" id="FNanchor_24_24"></a><a href="#Footnote_24_24" class="fnanchor">[24]</a>. Alike in its methods and conclusions -the <cite>English Village Community</cite> 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 -<span class="pagenum"><a name="Page_89" id="Page_89">[Pg 89]</a></span>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 <cite>Feudal England</cite> in 1895, were recognised as -having a bearing upon the largest problems of English -history.</p> - -<p>It was left to Sir Frederick Pollock to appraise -Mr Round's work in the pages of the <cite>English Historical -Review</cite>. Maitland's researches, which were pushed to -a conclusion with astonishing rapidity, appeared in 1896<span class="pagenum"><a name="Page_90" id="Page_90">[Pg 90]</a></span> -in a volume entitled <cite>Domesday Book and Beyond—Three -Essays in the Early History of England</cite>. -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."</p> - -<p>Identity of method, however, did not imply identical -conclusions. Eight years before Maitland had revised -the sheets of a remarkable study of <cite>Villainage in -England</cite>, 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 <cite>English Village Community</cite> 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 -<cite>Villainage in England</cite> would have had a -sequel. When that sequel comes (and may it come -soon) my provisional answer can be forgotten."</p> - -<p><span class="pagenum"><a name="Page_91" id="Page_91">[Pg 91]</a></span></p> - -<p>All scientific work is in a sense provisional, and -<cite>Domesday Book and Beyond</cite> 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<span class="pagenum"><a name="Page_92" id="Page_92">[Pg 92]</a></span> -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 <i lang="la">persona -ficta</i> 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 <i lang="la">coloni</i> 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<span class="pagenum"><a name="Page_93" id="Page_93">[Pg 93]</a></span> -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.</p> - -<p>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 <i lang="la">colonus</i> 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 <i lang="la">manerium</i> 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 <i lang="la">manerium</i> means a house. For the fiscal -purpose of these Norman officials <i lang="la">manerium</i> 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<span class="pagenum"><a name="Page_94" id="Page_94">[Pg 94]</a></span> -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 -<i lang="la">manerium</i> 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.</p> - -<p>The problem was no doubt mainly economic, but it -possessed its legal aspect. A brilliant analysis of -Anglo-Saxon <i lang="ang">diplomata</i>, 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<span class="pagenum"><a name="Page_95" id="Page_95">[Pg 95]</a></span> -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."</p> - -<p>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<span class="pagenum"><a name="Page_96" id="Page_96">[Pg 96]</a></span> -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.</p> - -<p>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 <i lang="ang">diplomata</i> 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 <i lang="la">dominium</i> -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<span class="pagenum"><a name="Page_97" id="Page_97">[Pg 97]</a></span> -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.</p> - -<p>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 un<span class="pagenum"><a name="Page_98" id="Page_98">[Pg 98]</a></span>wise -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 <i lang="la">gens</i> 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 <i lang="la">gentes</i> and house communities." -In particular we were not entitled to assume -without further enquiry that the early English village -community owned land.</p> - -<p>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.</p> - -<p>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,<span class="pagenum"><a name="Page_99" id="Page_99">[Pg 99]</a></span> -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 <cite>Domesday -Book and Beyond</cite>. 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.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_24_24" id="Footnote_24_24"></a><a href="#FNanchor_24_24"><span class="label">[24]</span></a> 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 -<cite>Agrarhistorische Abhandlungen</cite>] date back to 1835.</p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="VIII" id="VIII">VIII.</a></h2> - - -<p>In the course of his researches for the <cite>History of -English Law</cite> 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<span class="pagenum"><a name="Page_100" id="Page_100">[Pg 100]</a></span> -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."</p> - -<p>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 <cite>Provinciale</cite> of William Lyndwood, a<span class="pagenum"><a name="Page_101" id="Page_101">[Pg 101]</a></span> -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.</p> - -<hr class="tb" /> - -<p> -<span style="margin-left: 62%;"><span class="smcap">Horsepools,</span></span><br /> -<span style="margin-left: 73%;"><span class="smcap">Stroud</span>.</span><br /> -<span style="margin-left: 63%;"><em>15th August, 1895.</em></span><br /> -</p> - -<p>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 <em>English</em> 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<span class="pagenum"><a name="Page_102" id="Page_102">[Pg 102]</a></span> -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 <cite>L. Q. R.</cite> or <cite>E. H. R.</cite>, -will let me trail my coat through its pages.</p> - -<hr class="tb" /> - -<p><cite>Roman Canon Law in the Church of England</cite> -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 <cite>English -Historical Review</cite> 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<span class="pagenum"><a name="Page_103" id="Page_103">[Pg 103]</a></span> -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.</p> - -<p>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."</p> - -<p>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<span class="pagenum"><a name="Page_104" id="Page_104">[Pg 104]</a></span> -of a great man whom I admire, but tried hard to seem -as well as to be respectful."</p> - -<p>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.</p> - -<p>The <cite>Cambridge Modern History</cite> 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,<span class="pagenum"><a name="Page_105" id="Page_105">[Pg 105]</a></span> -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 <cite>English Historical Review</cite>, and gave evidence of -refined investigations which did not stop at printed<span class="pagenum"><a name="Page_106" id="Page_106">[Pg 106]</a></span> -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.</p> - -<p>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 <em>florilegium</em> 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<span class="pagenum"><a name="Page_107" id="Page_107">[Pg 107]</a></span> -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<span class="pagenum"><a name="Page_108" id="Page_108">[Pg 108]</a></span> -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.</p> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="IX" id="IX">IX.</a></h2> - - -<p>Not the least brilliant passage in <cite>Domesday Book -and Beyond</cite> 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<span class="pagenum"><a name="Page_109" id="Page_109">[Pg 109]</a></span> -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."</p> - -<p>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<span class="pagenum"><a name="Page_110" id="Page_110">[Pg 110]</a></span> -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.</p> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="X" id="X">X.</a></h2> - - -<p>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<span class="pagenum"><a name="Page_111" id="Page_111">[Pg 111]</a></span> -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 <em>only to you</em>; many things are telling me that I -have not got unlimited time at my command and -I have to take things very easily."</p> - -<p>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<span class="pagenum"><a name="Page_112" id="Page_112">[Pg 112]</a></span> -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."</p> - -<p>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 <cite>Deutsche -Genossenschaftrecht</cite>, 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.</p> - -<p><span class="pagenum"><a name="Page_113" id="Page_113">[Pg 113]</a></span></p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 50%;"><span class="smcap">Hotel Santa Catalina,</span></span><br /> -<span style="margin-left: 59%;"><span class="smcap">Las Palmas,</span></span><br /> -<span style="margin-left: 65%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 72%;"><em>5 Nov. 1898.</em></span><br /> -</p> - -<p>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 -<em>£ s. d.</em> 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<span class="pagenum"><a name="Page_114" id="Page_114">[Pg 114]</a></span> -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 <cite>Life -of Henry Fawcett</cite> 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.</p> - -<p>It is breakfast time and the porridge is good.</p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 48%;">S<sup>ta</sup> <span class="smcap">Brigida,</span></span><br /> -<span style="margin-left: 59%;"><span class="smcap">Monte,</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">G. Canary</span>.</span><br /> -<span style="margin-left: 72%;"><em>9 Jan. 1899.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_115" id="Page_115">[Pg 115]</a></span> -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.</p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 56%;"><span class="smcap">Hotel</span> S<sup>ta</sup> <span class="smcap">Brigida,</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">Monte,</span></span><br /> -<span style="margin-left: 65%;"><span class="smcap">Grand Canary</span>.</span><br /> -<span style="margin-left: 70%;"><em>23 Jan. 1899.</em></span><br /> -</p> - -<p>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 -<cite>Utilitarians</cite>. 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<span class="pagenum"><a name="Page_116" id="Page_116">[Pg 116]</a></span> -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.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 58%;"><span class="smcap">Casa Peñate,</span></span><br /> -<span style="margin-left: 65%;"><span class="smcap">Monte.</span></span><br /> -<span style="margin-left: 70%;"><em>Dec. 4, 1899.</em></span><br /> -</p> - -<p>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 S<sup>ta</sup> 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,<span class="pagenum"><a name="Page_117" id="Page_117">[Pg 117]</a></span> -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.</p> - -<p>Lies in the garden on a long chair mostly—has -there written for <cite>Encyclop. Brit.</cite> 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.<a name="FNanchor_25_25" id="FNanchor_25_25"></a><a href="#Footnote_25_25" class="fnanchor">[25]</a>"—O.G. has given consent—will -make lectures (if I return) and possibly book—but -what to do with "Publicistic"? Am reading Creighton's -<cite>Papacy</cite> and Gardiner's <cite>History</cite>—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.</p> - -<p>Influence of climate on epistolary style—a certain<span class="pagenum"><a name="Page_118" id="Page_118">[Pg 118]</a></span> -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.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 56%;"><span class="smcap">Casa Peñate, Monte,</span></span><br /> -<span style="margin-left: 65%;"><span class="smcap">Las Palmas.</span></span><br /> -<span style="margin-left: 72%;"><em>5 Jan. 1900.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_119" id="Page_119">[Pg 119]</a></span> -thermometer which has refused to register anything -less than 54°.</p> - -<p>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.</p> - -<p>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 <cite>Materialien</cite> are very -interesting—especially so much as consists of the -debates in the Reichstag<a name="FNanchor_26_26" id="FNanchor_26_26"></a><a href="#Footnote_26_26" class="fnanchor">[26]</a>. By far the keenest debate -was about damage done by hares and pheasants: the -sportsmen of the Right were very keen about this -matter.</p> - -<p>... You will gather from this scrawl that I am -recumbent in a garden—the fact is so and I won't -deny it.</p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 70%;"><em>22 Jan. 1900.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_120" id="Page_120">[Pg 120]</a></span> -heavily upon me and is always coming between me -and my book: at the moment Gardiners <cite>History</cite>: 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.</p> - -<p>... 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."</p> - -<p>Well you don't laze. I congratulate you heartily -on coming out at the other end of the <cite>Utilitarians</cite>. -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 <cite>Encyclop. Britan.</cite> and risked -about Austin a couple of sentences which are not in -accordance with common repute—and now I feel a<span class="pagenum"><a name="Page_121" id="Page_121">[Pg 121]</a></span> -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.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 72%;"><span class="smcap">Casa Peñate, Monte,</span></span><br /> -<span style="margin-left: 80%;"><span class="smcap">Les Palmas.</span></span><br /> -<span style="margin-left: 88%;">5/2/00.</span><br /> -</p> - -<p>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.</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_122" id="Page_122">[Pg 122]</a></span></p> - -<p>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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>But I like this illiterate folk.</p> - -<p><span class="pagenum"><a name="Page_123" id="Page_123">[Pg 123]</a></span></p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 52%;"><span class="smcap">Casa Peñate, Monte,</span></span><br /> -<span style="margin-left: 61%;"><span class="smcap">Las Palmas.</span></span><br /> -<span style="margin-left: 70%;"><em>18 Feb. 1900.</em></span><br /> -</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_124" id="Page_124">[Pg 124]</a></span> -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.</p> - -<p>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....</p> - -<p>It will be a very strange book that <cite>History</cite> of -ours<a name="FNanchor_27_27" id="FNanchor_27_27"></a><a href="#Footnote_27_27" class="fnanchor">[27]</a>. 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 -<span class="pagenum"><a name="Page_125" id="Page_125">[Pg 125]</a></span> -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.</p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 58%;"><span class="smcap">Casa Peñate, Monte,</span></span><br /> -<span style="margin-left: 58%;"><span class="smcap">Las Palmas.</span></span><br /> -<span style="margin-left: 62%;"><em>12th January, 1901.</em></span><br /> -</p> - -<p>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 <cite>La Muerta</cite>—but then<span class="pagenum"><a name="Page_126" id="Page_126">[Pg 126]</a></span> -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.</p> - -<p>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?</p> - -<p><span class="pagenum"><a name="Page_127" id="Page_127">[Pg 127]</a></span></p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 59%;"><span class="smcap">Casa Peñate, Monte.</span></span><br /> -<span style="margin-left: 70%;"><em>21 Jan. 1901.</em></span><br /> -</p> - -<p>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.</p> - -<p>So I make some progress through Spanish novels—or -rather novels that have been translated into Spanish. -At present I am in <cite>Resurreccion</cite> 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.</p> - -<p>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<span class="pagenum"><a name="Page_128" id="Page_128">[Pg 128]</a></span> -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.</p> - -<p>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.</p> - - -<h3><span class="smcap">To John C. Gray</span>,</h3> - -<p class="center"><em>Professor of Law in the University of Harvard</em>. -</p> - -<p> -<span style="margin-left: 48%;"><span class="smcap">Downing College, Cambridge.</span></span><br /> -<span style="margin-left: 68%;"><em>21 April, 1901.</em></span><br /> -</p> - -<p>My best thanks for <cite>Future Interests in Personal -Property</cite>, 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.</p> - -<p class="center">Yours in perpetuity, -</p> - -<p> -<span style="margin-left: 52%;">(Signed) <span class="smcap">F. W. Maitland</span>.</span><br /> -</p> - -<p><span class="pagenum"><a name="Page_129" id="Page_129">[Pg 129]</a></span></p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 51%;"><span class="smcap">5 Leon y Castillo,</span></span><br /> -<span style="margin-left: 58%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 63%;"><em>30 December, 1901.</em></span><br /> -</p> - -<p>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....</p> - -<p>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.</p> - -<p><span class="pagenum"><a name="Page_130" id="Page_130">[Pg 130]</a></span></p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 50%;"><span class="smcap">5, Leon y Castillo,</span></span><br /> -<span style="margin-left: 58%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">Las Palmas,</span></span><br /> -<span style="margin-left: 65%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 70%;"><em>20 Jan. 1902.</em></span><br /> -</p> - -<p>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 <cite>Joh. -Althusius</cite> if you could penetrate the shell<a name="FNanchor_28_28" id="FNanchor_28_28"></a><a href="#Footnote_28_28" class="fnanchor">[28]</a>. 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 <cite>Leviathan</cite> -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!</p> - -<p>Have you read <cite>De Mirabilibus Pecci</cite>? Stevenson -the Anglo-Saxon scholar, who travelled outwards with -me, told me that the first recorded appearance of the<span class="pagenum"><a name="Page_131" id="Page_131">[Pg 131]</a></span> -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!</p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 48%;"><span class="smcap">5, Leon y Castillo,</span></span><br /> -<span style="margin-left: 56%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 70%;"><em>30 Jan. 1902.</em></span><br /> -</p> - -<p>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.</p> - -<p>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<span class="pagenum"><a name="Page_132" id="Page_132">[Pg 132]</a></span> -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.</p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 45%;"><span class="smcap">5, Leon y Castillo,</span></span><br /> -<span style="margin-left: 54%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 59%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 62%;"><em>1st February, 1902.</em></span><br /> -</p> - -<p>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.</p> - -<p>The Spaniard ends his letter with S.S.S.Q.B.S.M. -and I understand this to mean su seguro servidor que<span class="pagenum"><a name="Page_133" id="Page_133">[Pg 133]</a></span> -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 <cite>Diario de Las Palmas</cite> -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 <cite>Tit Bits</cite>, etc.</p> - -<p>Which makes me think of Acton. (His professed -admiration of <cite>Tit Bits</cite> 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 <cite>History</cite>. 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.</p> - -<p>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.</p> - -<p>If you have good news to give, give it.</p> - -<p><span class="pagenum"><a name="Page_134" id="Page_134">[Pg 134]</a></span></p> - - -<h3><span class="smcap">To John C. Gray.</span></h3> - -<p> -<span style="margin-left: 56%;"><span class="smcap">Downing College,</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 68%;"><em>19 April, 1902.</em></span><br /> -</p> - -<p>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. <em>Practically</em> 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.</p> - -<p>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.</p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 66%;"><span class="smcap">Downing.</span></span><br /> -<span style="margin-left: 70%;"><em>6 July, 1902.</em></span><br /> -</p> - -<p>You repay me my letter with usurious interest. -However you are <i lang="la">sui juris</i>—or ought I to say <i lang="la">tui</i>?—and -I doubt a court of equity would extend to you<span class="pagenum"><a name="Page_135" id="Page_135">[Pg 135]</a></span> -the protection which it bestows on improvident young -gentlemen.</p> - -<p>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<a name="FNanchor_29_29" id="FNanchor_29_29"></a><a href="#Footnote_29_29" class="fnanchor">[29]</a> 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.</p> - -<p>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.</p> - -<p>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 <cite>George Eliot</cite> 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?</p> -<p><span class="pagenum"><a name="Page_136" id="Page_136">[Pg 136]</a></span></p> - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 63%;"><em>20 December, 1902.</em></span><br /> -<br /> -<span class="smcap">Muy Señor mio</span><br /> -</p> - -<div class="blockquot"> - -<p>Deseo que pase Vd. bien las Pascuas y que -tenga feliz año nuevo</p> - -<p>Quedo de Vd. atento y Seguro</p> - -<p>Servidor que besa su mano</p></div> - -<p> -<span style="margin-left: 65%;"><span class="smcap">F. W. Maitland.</span></span><br /> -</p> - -<p>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 <em>men</em> (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 -<cite>L'Étape</cite>? 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<span class="pagenum"><a name="Page_137" id="Page_137">[Pg 137]</a></span> -ritualistic curate and is very sweet upon his highly -artificial style. I am now tackling <cite>Gil Blas</cite> in the -classical Spanish translation which some say is better -than the original.</p> - -<p>My house of call is Quiney's but I am up country -at a place called Tafira.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 58%;"><span class="smcap">Casa Verda,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">Tafira.</span></span><br /> -<span style="margin-left: 70%;"><em>17 Jan. 1903.</em></span><br /> -</p> - -<p>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.</p> - -<p>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 <i lang="fr">lier</i>. In French you (an -advocate) are said to <i lang="fr">lier</i> the seisin, or the esplees, or<span class="pagenum"><a name="Page_138" id="Page_138">[Pg 138]</a></span> -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 V<sup>d</sup>? -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).</p> - -<p>Much rain has fallen—but a road recovers from -the most appalling mud in a very few hours.</p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 58%;"><span class="smcap">Casa Verda,</span></span><br /> -<span style="margin-left: 63%;"><span class="smcap">Tafira.</span></span><br /> -<span style="margin-left: 70%;"><em>17 Jan. 1903.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_139" id="Page_139">[Pg 139]</a></span> -become reasonably comfortable. What I wish you -know.</p> - -<p>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.</p> - -<p>I brought with me this time all the three supplementary -volumes of <cite>Dict. Natl. Biog.</cite> 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.</p> - -<p>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.</p> - -<p>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.</p> - -<p>Back at Hobbes again? I hope so. Florence -joins me in hopes—as you can well suppose.</p> - -<p> -<span style="margin-left: 30%;">Yours very affectionately,</span><br /> -<span style="margin-left: 65%;"><span class="smcap">F. W. Maitland.</span></span><br /> -</p> - -<p><span class="pagenum"><a name="Page_140" id="Page_140">[Pg 140]</a></span></p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 51%;"><span class="smcap">Tafira,</span></span><br /> -<span style="margin-left: 56%;"><span class="smcap">Las Palmas.</span></span><br /> -<span style="margin-left: 63%;"><em>14 February, 1903.</em></span><br /> -</p> - -<p>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 <cite>Gil -Blas</cite>. 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.</p> - - -<h3><span class="smcap">To Frederick Pollock.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">Tafira.</span></span><br /> -<span style="margin-left: 68%;"><em>14 March, 1903.</em></span><br /> -</p> - -<p>... 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.</p> - -<p><span class="pagenum"><a name="Page_141" id="Page_141">[Pg 141]</a></span></p> - - -<h3><span class="smcap">To A. W. Verrall.</span></h3> - -<p> -<span style="margin-left: 59%;"><span class="smcap">Quiney's Hotel,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">Las Palmas.</span></span><br /> -<span style="margin-left: 70%;"><em>14 Feb. 1903.</em></span><br /> -</p> - -<p>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.</p> - -<p>The proposal made by "the minister" and mentioned -by you was rejected by return of post<a name="FNanchor_30_30" id="FNanchor_30_30"></a><a href="#Footnote_30_30" class="fnanchor">[30]</a>. 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 -<span class="pagenum"><a name="Page_142" id="Page_142">[Pg 142]</a></span>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.</p> - - -<h3><span class="smcap">To W. W. Buckland.</span></h3> - -<p> -<span style="margin-left: 63%;"><span class="smcap">Telde.</span></span><br /> -<span style="margin-left: 70%;"><em>14 Feb. 1903.</em></span><br /> -</p> - -<p>Muy estimado colega y querido amigo mío</p> - -<p>Espero que V<sup>d</sup> 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 V<sup>d</sup> perdonará.</p> - -<p>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.<span class="pagenum"><a name="Page_143" id="Page_143">[Pg 143]</a></span> -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 V<sup>d</sup> y le daré -el duro que mi dió para él. La viruela todavia se -enfurece en Telde y en las Palmas tambien.</p> - -<p>Todos sus amigos de V<sup>d</sup> estan muy bien pero un -señor cuyo nombre no mencionaré estaba fuertemente -ébrio cuando le ví la ultima vez....</p> - -<p>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.</p> - -<p>Estas pocas palabras son una recompensa muy -ligera por su carta de V<sup>d</sup> que me interesó mucho y -por que estoy muy agradecido pero he tornado un -largo tiempo escribiendolas. Si pudiere<a name="FNanchor_31_31" id="FNanchor_31_31"></a><a href="#Footnote_31_31" class="fnanchor">[31]</a> escribir mas -facilmente le contaría a V<sup>d</sup> todos los sucesos que han -acontecido en Gran Canaria. Pero es preciso acabar.</p> - -<p> -<span style="margin-left: 36%;">Con muchas memorias</span><br /> -<br /> -<span style="margin-left: 45%;">Quedo su afectuoso amigo</span><br /> -<br /> -<span style="margin-left: 65%;"><span class="smcap">F. W. Maitland</span>.</span><br /> -<br /> -Al muy excelente<br /> -<br /> -<span style="margin-left: 5%;">Sen. <span class="smcap">D. G. G. Buckland</span>.</span><br /> -</p> -<p><span class="pagenum"><a name="Page_144" id="Page_144">[Pg 144]</a></span></p> - -<h3><span class="smcap">To John C. Gray.</span></h3> - -<p> -<span style="margin-left: 52%;"><span class="smcap">Downing College,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 72%;"><em>4 Oct. 1903.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_145" id="Page_145">[Pg 145]</a></span> -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?</p> - -<p>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.</p> - -<p>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 <em>clubs</em> 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?</p> - -<p>There! you see what comes of writing to me! A<span class="pagenum"><a name="Page_146" id="Page_146">[Pg 146]</a></span> -whole catechism! Please think no more of it unless -a very few words would set my feet in the straight -road.</p> - -<p>Most of my time is being given to the Year Books. -The first volume is with the binder.</p> - -<p>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.</p> - - -<h3><span class="smcap">To John C. Gray.</span></h3> - -<p> -<span style="margin-left: 54%;"><span class="smcap">Downing College,</span></span><br /> -<span style="margin-left: 65%;"><span class="smcap">Cambridge.</span></span><br /> -<span style="margin-left: 70%;"><em>15 Nov. 1903.</em></span><br /> -</p> - -<p>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.</p> - -<p>The brief in Howe <em>v.</em> 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 <em>say</em> things which -stray from the path of rectitude as drawn by Prof. -Gray.</p> - -<p>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<span class="pagenum"><a name="Page_147" id="Page_147">[Pg 147]</a></span> -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.</p> - - -<h3><span class="smcap">To Leslie Stephen.</span></h3> - -<p> -<span style="margin-left: 56%;"><span class="smcap">Leon y Castillo 5,</span></span><br /> -<span style="margin-left: 63%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 66%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 72%;"><em>6 Dec. 1903.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_148" id="Page_148">[Pg 148]</a></span> -your quotations from Hobbes—just here and there -your writing beats me, but a few minutes with Molesworth -will settle the matter....</p> - -<p>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.</p> - -<p>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?</p> - -<p>Well he was a delightful old person and deserved -the expositor whom he has found.</p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 50%;"><span class="smcap">Leon y Castillo 5,</span></span><br /> -<span style="margin-left: 56%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 59%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 63%;"><em>13 December, 1903.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_149" id="Page_149">[Pg 149]</a></span> -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.</p> - -<p>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."</p> - -<p>I am living in hope that Pollock's successor at -Oxford may be Vinogradoff. I wish much that we -had him at Cambridge.</p> - -<p>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<span class="pagenum"><a name="Page_150" id="Page_150">[Pg 150]</a></span> -here I can do a great deal with photographed manuscripts -and so on, whereas in England I get nothing -done.</p> - -<p>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<a name="FNanchor_32_32" id="FNanchor_32_32"></a><a href="#Footnote_32_32" class="fnanchor">[32]</a>. My own impression -when I left England was that the crusade was -failing.</p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 52%;"><span class="smcap">Leon y Castillo 5,</span></span><br /> -<span style="margin-left: 59%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 63%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 70%;"><em>14 Feb. 1904.</em></span><br /> -</p> - -<p>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 <cite>La Manana</cite> -which is often hard up for news would I fear give me -nothing for secret intelligence concerning the S.S.</p> -<p><span class="pagenum"><a name="Page_151" id="Page_151">[Pg 151]</a></span></p> -<p>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 <i lang="es">hereje</i>.</p> - -<p>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<span class="pagenum"><a name="Page_152" id="Page_152">[Pg 152]</a></span> -I should think that H. Paul was the right man for -the job.</p> - -<p>... I hope that Vol. <span class="smcap">III</span> 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.</p> - - -<h3><span class="smcap">To A. W. Verrall.</span></h3> - -<p> -<span style="margin-left: 55%;"><span class="smcap">C/o Leacock & Co.</span></span><br /> -<span style="margin-left: 62%;"><span class="smcap">Funchal,</span></span><br /> -<span style="margin-left: 68%;"><span class="smcap">Madeira.</span></span><br /> -<span style="margin-left: 70%;"><em>15 Jan. 1905.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_153" id="Page_153">[Pg 153]</a></span> -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.</p> - - -<h3><span class="smcap">To Henry Jackson.</span></h3> - -<p> -<span style="margin-left: 50%;"><span class="smcap">Leon y Castillo, 5,</span></span><br /> -<span style="margin-left: 56%;"><span class="smcap">Telde,</span></span><br /> -<span style="margin-left: 61%;"><span class="smcap">Gran Canaria.</span></span><br /> -<span style="margin-left: 65%;"><em>15 January, 1906.</em></span><br /> -</p> - -<p>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<span class="pagenum"><a name="Page_154" id="Page_154">[Pg 154]</a></span> -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 <em>pp.</em> 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.</p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_25_25" id="Footnote_25_25"></a><a href="#FNanchor_25_25"><span class="label">[25]</span></a> Middle Ages. In 1900 Maitland published a translation of -part of Otto Gierke's (O.G.) <cite>Das deutsche Genossenschaftrecht</cite> under -the title <cite>Political Theories of the Middle Ages</cite>.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_26_26" id="Footnote_26_26"></a><a href="#FNanchor_26_26"><span class="label">[26]</span></a> The B. G. B. is the <cite>Bürgerliche Gesetzbuch</cite>. Maitland was -reading Mugdan's <cite>Die Gesammten Materialien zum Bürgerlichen -Gesetzbuch</cite>. The Y. B. B. are the Year-books.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_27_27" id="Footnote_27_27"></a><a href="#FNanchor_27_27"><span class="label">[27]</span></a> <cite>The Cambridge Modern History.</cite></p></div> - -<div class="footnote"> - -<p><a name="Footnote_28_28" id="Footnote_28_28"></a><a href="#FNanchor_28_28"><span class="label">[28]</span></a> Otto Gierke's monograph on Johannes Althusius, published -1880.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_29_29" id="Footnote_29_29"></a><a href="#FNanchor_29_29"><span class="label">[29]</span></a> To the <cite>Cambridge Modern History</cite>.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_30_30" id="Footnote_30_30"></a><a href="#FNanchor_30_30"><span class="label">[30]</span></a> Maitland was invited to succeed Lord Acton in the Chair of -Modern History at Cambridge.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_31_31" id="Footnote_31_31"></a><a href="#FNanchor_31_31"><span class="label">[31]</span></a> Mire V<sup>d</sup>! No verá cada día el condicional de -subjunctivo.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_32_32" id="Footnote_32_32"></a><a href="#FNanchor_32_32"><span class="label">[32]</span></a> The Duke of Devonshire, Chancellor of the University of -Cambridge, had criticised Mr Joseph Chamberlain's fiscal proposals.</p> - -<p><span class="pagenum"><a name="Page_155" id="Page_155">[Pg 155]</a></span></p></div></div> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="XI" id="XI">XI.</a></h2> - - -<p>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<span class="pagenum"><a name="Page_156" id="Page_156">[Pg 156]</a></span> -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." <i lang="la">Solus princeps fingit quod in -rei veritate non est.</i> 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<span class="pagenum"><a name="Page_157" id="Page_157">[Pg 157]</a></span> -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.</p> - -<p>Maitland had followed with unflagging interest and<span class="pagenum"><a name="Page_158" id="Page_158">[Pg 158]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_159" id="Page_159">[Pg 159]</a></span> -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 <cite>Justice and Police</cite>; he analysed certain underlying -sources of confusion in <cite>Township and Borough</cite>. In -his Introduction to Gierke's <cite>Political Theories of the -Middle Ages</cite> 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.</p> - -<p>Other defects of loose and imperfect thinking upon -the Corporation were pointed out to the readers of the -<cite>Law Quarterly Review</cite> 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<span class="pagenum"><a name="Page_160" id="Page_160">[Pg 160]</a></span> -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<span class="pagenum"><a name="Page_161" id="Page_161">[Pg 161]</a></span> -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?</p> - -<p>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. -<i lang="la">Quasi</i> 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<span class="pagenum"><a name="Page_162" id="Page_162">[Pg 162]</a></span> -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.</p> - -<p>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,<span class="pagenum"><a name="Page_163" id="Page_163">[Pg 163]</a></span> -"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. <i lang="la">Nihil aptius, nihil -efficacius ad plures provincias sub uno imperio retinendas -et fovendas.</i> 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."</p> -<div class="chapter"></div> -<hr class="chap" /> - - - - -<h2><a name="XII" id="XII">XII.</a></h2> - - -<p>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 <cite>Year Books of -Edward II</cite>. "These Year Books are a precious -heritage. They come to us from life. Some day they<span class="pagenum"><a name="Page_164" id="Page_164">[Pg 164]</a></span> -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<span class="pagenum"><a name="Page_165" id="Page_165">[Pg 165]</a></span> -wonderful thing that men once thought that they could -write the history of medieval England without the -Year Books."</p> - -<p>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 -<cite>Noun Dieu</cite> or <cite>Par Seint Piere</cite>! 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?"</p> - -<p>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<span class="pagenum"><a name="Page_166" id="Page_166">[Pg 166]</a></span> -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 <i lang="la">apparatus -criticus</i>, 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.</p> - -<p>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 <cite>Cambridge -History of English Literature</cite> have thought good to -reprint it. In the course of a winter spent under a<span class="pagenum"><a name="Page_167" id="Page_167">[Pg 167]</a></span> -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.</p> - -<p>"Let it be that the Latin and French were not -of a very high order, still we see at Westminster a<span class="pagenum"><a name="Page_168" id="Page_168">[Pg 168]</a></span> -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."</p> - -<p>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<span class="pagenum"><a name="Page_169" id="Page_169">[Pg 169]</a></span> -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 <i lang="la">persona ficta</i>. He would -not lightly abandon the law. <i lang="la">Nolumus leges Angliæ -mutare</i>, 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 <cite>Life and Letters of Leslie Stephen</cite>.</p> - -<p>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<span class="pagenum"><a name="Page_170" id="Page_170">[Pg 170]</a></span> -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.</p> - -<p>The <cite>Life and Letters of Leslie Stephen</cite> 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 -<cite>De Republica Anglorum</cite>, 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<span class="pagenum"><a name="Page_171" id="Page_171">[Pg 171]</a></span> -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.</p> - -<p>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.</p> - -<p>One Cambridge disciple there was, who, under -Maitland's guidance, attained to rare distinction.<span class="pagenum"><a name="Page_172" id="Page_172">[Pg 172]</a></span> -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<span class="pagenum"><a name="Page_173" id="Page_173">[Pg 173]</a></span> -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.</p> - -<p>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<a name="FNanchor_33_33" id="FNanchor_33_33"></a><a href="#Footnote_33_33" class="fnanchor">[33]</a>." -<span class="pagenum"><a name="Page_174" id="Page_174">[Pg 174]</a></span> -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 <cite>Domesday Book</cite>, 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.</p> - -<p>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 -<span class="pagenum"><a name="Page_175" id="Page_175">[Pg 175]</a></span>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.</p> - -<p>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<span class="pagenum"><a name="Page_176" id="Page_176">[Pg 176]</a></span> -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 <cite>Ancient Law</cite> 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<span class="pagenum"><a name="Page_177" id="Page_177">[Pg 177]</a></span> -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<a name="FNanchor_34_34" id="FNanchor_34_34"></a><a href="#Footnote_34_34" class="fnanchor">[34]</a>."</p> - -<p>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<span class="pagenum"><a name="Page_178" id="Page_178">[Pg 178]</a></span> -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.</p> - -<p>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<span class="pagenum"><a name="Page_179" id="Page_179">[Pg 179]</a></span> -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<a name="FNanchor_35_35" id="FNanchor_35_35"></a><a href="#Footnote_35_35" class="fnanchor">[35]</a>." 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. <i lang="la">Res severa est verum gaudium.</i></p> - -<div class="footnotes"><h3>FOOTNOTES:</h3> - -<div class="footnote"> - -<p><a name="Footnote_33_33" id="Footnote_33_33"></a><a href="#FNanchor_33_33"><span class="label">[33]</span></a> 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.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_34_34" id="Footnote_34_34"></a><a href="#FNanchor_34_34"><span class="label">[34]</span></a> <cite>Cambridge University Reporter</cite>, July 22, 1907, p. 1308.</p></div> - -<div class="footnote"> - -<p><a name="Footnote_35_35" id="Footnote_35_35"></a><a href="#FNanchor_35_35"><span class="label">[35]</span></a> <cite>Cambridge University Reporter</cite>, July 22, 1907, p. 1306.</p></div></div> -<p> </p> -<p> </p> -<div id="transnote"> - -<div class="chapter"></div> - -<hr class="chap" /> - - - - -<h2><a name="TRANSCRIBERS_NOTES" id="TRANSCRIBERS_NOTES">TRANSCRIBER'S NOTE</a></h2> - - -<p>Added table of contents.</p> - -<p>Silently corrected simple spelling, grammar, and typographical errors.</p> - -<p>Retained anachronistic and non-standard spellings as printed.</p> - -</div> -<p> </p> -<p> </p> -<hr class="full" /> - -<p>***END OF THE PROJECT GUTENBERG EBOOK FREDERICK WILLIAM MAITLAND***</p> -<p>******* This file should be named 50124-h.htm or 50124-h.zip *******</p> -<p>This and all associated files of various formats will be found in:<br /> -<a href="http://www.gutenberg.org/dirs/5/0/1/2/50124">http://www.gutenberg.org/5/0/1/2/50124</a></p> -<p> -Updated editions will replace the previous one--the old editions will -be renamed.</p> - -<p>Creating the works from print editions not protected by U.S. copyright -law means that no one owns a United States copyright in these works, -so the Foundation (and you!) can copy and distribute it in the United -States without permission and without paying copyright -royalties. Special rules, set forth in the General Terms of Use part -of this license, apply to copying and distributing Project -Gutenberg-tm electronic works to protect the PROJECT GUTENBERG-tm -concept and trademark. Project Gutenberg is a registered trademark, -and may not be used if you charge for the eBooks, unless you receive -specific permission. If you do not charge anything for copies of this -eBook, complying with the rules is very easy. You may use this eBook -for nearly any purpose such as creation of derivative works, reports, -performances and research. They may be modified and printed and given -away--you may do practically ANYTHING in the United States with eBooks -not protected by U.S. copyright law. Redistribution is subject to the -trademark license, especially commercial redistribution. -</p> - -<h2>START: FULL LICENSE<br /> -<br /> -THE FULL PROJECT GUTENBERG LICENSE<br /> -PLEASE READ THIS BEFORE YOU DISTRIBUTE OR USE THIS WORK</h2> - -<p>To protect the Project Gutenberg-tm mission of promoting the free -distribution of electronic works, by using or distributing this work -(or any other work associated in any way with the phrase "Project -Gutenberg"), you agree to comply with all the terms of the Full -Project Gutenberg-tm License available with this file or online at -www.gutenberg.org/license.</p> - -<h3>Section 1. General Terms of Use and Redistributing Project -Gutenberg-tm electronic works</h3> - -<p>1.A. By reading or using any part of this Project Gutenberg-tm -electronic work, you indicate that you have read, understand, agree to -and accept all the terms of this license and intellectual property -(trademark/copyright) agreement. If you do not agree to abide by all -the terms of this agreement, you must cease using and return or -destroy all copies of Project Gutenberg-tm electronic works in your -possession. If you paid a fee for obtaining a copy of or access to a -Project Gutenberg-tm electronic work and you do not agree to be bound -by the terms of this agreement, you may obtain a refund from the -person or entity to whom you paid the fee as set forth in paragraph -1.E.8.</p> - -<p>1.B. "Project Gutenberg" is a registered trademark. It may only be -used on or associated in any way with an electronic work by people who -agree to be bound by the terms of this agreement. There are a few -things that you can do with most Project Gutenberg-tm electronic works -even without complying with the full terms of this agreement. See -paragraph 1.C below. There are a lot of things you can do with Project -Gutenberg-tm electronic works if you follow the terms of this -agreement and help preserve free future access to Project Gutenberg-tm -electronic works. See paragraph 1.E below.</p> - -<p>1.C. The Project Gutenberg Literary Archive Foundation ("the -Foundation" or PGLAF), owns a compilation copyright in the collection -of Project Gutenberg-tm electronic works. Nearly all the individual -works in the collection are in the public domain in the United -States. If an individual work is unprotected by copyright law in the -United States and you are located in the United States, we do not -claim a right to prevent you from copying, distributing, performing, -displaying or creating derivative works based on the work as long as -all references to Project Gutenberg are removed. Of course, we hope -that you will support the Project Gutenberg-tm mission of promoting -free access to electronic works by freely sharing Project Gutenberg-tm -works in compliance with the terms of this agreement for keeping the -Project Gutenberg-tm name associated with the work. You can easily -comply with the terms of this agreement by keeping this work in the -same format with its attached full Project Gutenberg-tm License when -you share it without charge with others.</p> - -<p>1.D. The copyright laws of the place where you are located also govern -what you can do with this work. Copyright laws in most countries are -in a constant state of change. If you are outside the United States, -check the laws of your country in addition to the terms of this -agreement before downloading, copying, displaying, performing, -distributing or creating derivative works based on this work or any -other Project Gutenberg-tm work. The Foundation makes no -representations concerning the copyright status of any work in any -country outside the United States.</p> - -<p>1.E. Unless you have removed all references to Project Gutenberg:</p> - -<p>1.E.1. The following sentence, with active links to, or other -immediate access to, the full Project Gutenberg-tm License must appear -prominently whenever any copy of a Project Gutenberg-tm work (any work -on which the phrase "Project Gutenberg" appears, or with which the -phrase "Project Gutenberg" is associated) is accessed, displayed, -performed, viewed, copied or distributed:</p> - -<blockquote><p>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 <a href="http://www.gutenberg.org">www.gutenberg.org</a>. 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.</p></blockquote> - -<p>1.E.2. If an individual Project Gutenberg-tm electronic work is -derived from texts not protected by U.S. copyright law (does not -contain a notice indicating that it is posted with permission of the -copyright holder), the work can be copied and distributed to anyone in -the United States without paying any fees or charges. If you are -redistributing or providing access to a work with the phrase "Project -Gutenberg" associated with or appearing on the work, you must comply -either with the requirements of paragraphs 1.E.1 through 1.E.7 or -obtain permission for the use of the work and the Project Gutenberg-tm -trademark as set forth in paragraphs 1.E.8 or 1.E.9.</p> - -<p>1.E.3. If an individual Project Gutenberg-tm electronic work is posted -with the permission of the copyright holder, your use and distribution -must comply with both paragraphs 1.E.1 through 1.E.7 and any -additional terms imposed by the copyright holder. Additional terms -will be linked to the Project Gutenberg-tm License for all works -posted with the permission of the copyright holder found at the -beginning of this work.</p> - -<p>1.E.4. Do not unlink or detach or remove the full Project Gutenberg-tm -License terms from this work, or any files containing a part of this -work or any other work associated with Project Gutenberg-tm.</p> - -<p>1.E.5. Do not copy, display, perform, distribute or redistribute this -electronic work, or any part of this electronic work, without -prominently displaying the sentence set forth in paragraph 1.E.1 with -active links or immediate access to the full terms of the Project -Gutenberg-tm License.</p> - -<p>1.E.6. You may convert to and distribute this work in any binary, -compressed, marked up, nonproprietary or proprietary form, including -any word processing or hypertext form. However, if you provide access -to or distribute copies of a Project Gutenberg-tm work in a format -other than "Plain Vanilla ASCII" or other format used in the official -version posted on the official Project Gutenberg-tm web site -(www.gutenberg.org), you must, at no additional cost, fee or expense -to the user, provide a copy, a means of exporting a copy, or a means -of obtaining a copy upon request, of the work in its original "Plain -Vanilla ASCII" or other form. Any alternate format must include the -full Project Gutenberg-tm License as specified in paragraph 1.E.1.</p> - -<p>1.E.7. Do not charge a fee for access to, viewing, displaying, -performing, copying or distributing any Project Gutenberg-tm works -unless you comply with paragraph 1.E.8 or 1.E.9.</p> - -<p>1.E.8. You may charge a reasonable fee for copies of or providing -access to or distributing Project Gutenberg-tm electronic works -provided that</p> - -<ul> -<li>You pay a royalty fee of 20% of the gross profits you derive from - the use of Project Gutenberg-tm works calculated using the method - you already use to calculate your applicable taxes. The fee is owed - to the owner of the Project Gutenberg-tm trademark, but he has - agreed to donate royalties under this paragraph to the Project - Gutenberg Literary Archive Foundation. Royalty payments must be paid - within 60 days following each date on which you prepare (or are - legally required to prepare) your periodic tax returns. Royalty - payments should be clearly marked as such and sent to the Project - Gutenberg Literary Archive Foundation at the address specified in - Section 4, "Information about donations to the Project Gutenberg - Literary Archive Foundation."</li> - -<li>You provide a full refund of any money paid by a user who notifies - you in writing (or by e-mail) within 30 days of receipt that s/he - does not agree to the terms of the full Project Gutenberg-tm - License. You must require such a user to return or destroy all - copies of the works possessed in a physical medium and discontinue - all use of and all access to other copies of Project Gutenberg-tm - works.</li> - -<li>You provide, in accordance with paragraph 1.F.3, a full refund of - any money paid for a work or a replacement copy, if a defect in the - electronic work is discovered and reported to you within 90 days of - receipt of the work.</li> - -<li>You comply with all other terms of this agreement for free - distribution of Project Gutenberg-tm works.</li> -</ul> - -<p>1.E.9. If you wish to charge a fee or distribute a Project -Gutenberg-tm electronic work or group of works on different terms than -are set forth in this agreement, you must obtain permission in writing -from both the Project Gutenberg Literary Archive Foundation and The -Project Gutenberg Trademark LLC, the owner of the Project Gutenberg-tm -trademark. Contact the Foundation as set forth in Section 3 below.</p> - -<p>1.F.</p> - -<p>1.F.1. Project Gutenberg volunteers and employees expend considerable -effort to identify, do copyright research on, transcribe and proofread -works not protected by U.S. copyright law in creating the Project -Gutenberg-tm collection. Despite these efforts, Project Gutenberg-tm -electronic works, and the medium on which they may be stored, may -contain "Defects," such as, but not limited to, incomplete, inaccurate -or corrupt data, transcription errors, a copyright or other -intellectual property infringement, a defective or damaged disk or -other medium, a computer virus, or computer codes that damage or -cannot be read by your equipment.</p> - -<p>1.F.2. LIMITED WARRANTY, DISCLAIMER OF DAMAGES - Except for the "Right -of Replacement or Refund" described in paragraph 1.F.3, the Project -Gutenberg Literary Archive Foundation, the owner of the Project -Gutenberg-tm trademark, and any other party distributing a Project -Gutenberg-tm electronic work under this agreement, disclaim all -liability to you for damages, costs and expenses, including legal -fees. YOU AGREE THAT YOU HAVE NO REMEDIES FOR NEGLIGENCE, STRICT -LIABILITY, BREACH OF WARRANTY OR BREACH OF CONTRACT EXCEPT THOSE -PROVIDED IN PARAGRAPH 1.F.3. YOU AGREE THAT THE FOUNDATION, THE -TRADEMARK OWNER, AND ANY DISTRIBUTOR UNDER THIS AGREEMENT WILL NOT BE -LIABLE TO YOU FOR ACTUAL, DIRECT, INDIRECT, CONSEQUENTIAL, PUNITIVE OR -INCIDENTAL DAMAGES EVEN IF YOU GIVE NOTICE OF THE POSSIBILITY OF SUCH -DAMAGE.</p> - -<p>1.F.3. LIMITED RIGHT OF REPLACEMENT OR REFUND - If you discover a -defect in this electronic work within 90 days of receiving it, you can -receive a refund of the money (if any) you paid for it by sending a -written explanation to the person you received the work from. If you -received the work on a physical medium, you must return the medium -with your written explanation. The person or entity that provided you -with the defective work may elect to provide a replacement copy in -lieu of a refund. If you received the work electronically, the person -or entity providing it to you may choose to give you a second -opportunity to receive the work electronically in lieu of a refund. If -the second copy is also defective, you may demand a refund in writing -without further opportunities to fix the problem.</p> - -<p>1.F.4. Except for the limited right of replacement or refund set forth -in paragraph 1.F.3, this work is provided to you 'AS-IS', WITH NO -OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT -LIMITED TO WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE.</p> - -<p>1.F.5. Some states do not allow disclaimers of certain implied -warranties or the exclusion or limitation of certain types of -damages. If any disclaimer or limitation set forth in this agreement -violates the law of the state applicable to this agreement, the -agreement shall be interpreted to make the maximum disclaimer or -limitation permitted by the applicable state law. The invalidity or -unenforceability of any provision of this agreement shall not void the -remaining provisions.</p> - -<p>1.F.6. INDEMNITY - You agree to indemnify and hold the Foundation, the -trademark owner, any agent or employee of the Foundation, anyone -providing copies of Project Gutenberg-tm electronic works in -accordance with this agreement, and any volunteers associated with the -production, promotion and distribution of Project Gutenberg-tm -electronic works, harmless from all liability, costs and expenses, -including legal fees, that arise directly or indirectly from any of -the following which you do or cause to occur: (a) distribution of this -or any Project Gutenberg-tm work, (b) alteration, modification, or -additions or deletions to any Project Gutenberg-tm work, and (c) any -Defect you cause. </p> - -<h3>Section 2. Information about the Mission of Project Gutenberg-tm</h3> - -<p>Project Gutenberg-tm is synonymous with the free distribution of -electronic works in formats readable by the widest variety of -computers including obsolete, old, middle-aged and new computers. It -exists because of the efforts of hundreds of volunteers and donations -from people in all walks of life.</p> - -<p>Volunteers and financial support to provide volunteers with the -assistance they need are critical to reaching Project Gutenberg-tm's -goals and ensuring that the Project Gutenberg-tm collection will -remain freely available for generations to come. In 2001, the Project -Gutenberg Literary Archive Foundation was created to provide a secure -and permanent future for Project Gutenberg-tm and future -generations. To learn more about the Project Gutenberg Literary -Archive Foundation and how your efforts and donations can help, see -Sections 3 and 4 and the Foundation information page at -www.gutenberg.org.</p> - -<h3>Section 3. Information about the Project Gutenberg -Literary Archive Foundation</h3> - -<p>The Project Gutenberg Literary Archive Foundation is a non profit -501(c)(3) educational corporation organized under the laws of the -state of Mississippi and granted tax exempt status by the Internal -Revenue Service. The Foundation's EIN or federal tax identification -number is 64-6221541. Contributions to the Project Gutenberg Literary -Archive Foundation are tax deductible to the full extent permitted by -U.S. federal laws and your state's laws.</p> - -<p>The Foundation's principal office is in Fairbanks, Alaska, with the -mailing address: PO Box 750175, Fairbanks, AK 99775, but its -volunteers and employees are scattered throughout numerous -locations. Its business office is located at 809 North 1500 West, Salt -Lake City, UT 84116, (801) 596-1887. Email contact links and up to -date contact information can be found at the Foundation's web site and -official page at www.gutenberg.org/contact</p> - -<p>For additional contact information:</p> - -<p> Dr. Gregory B. Newby<br /> - Chief Executive and Director<br /> - gbnewby@pglaf.org</p> - -<h3>Section 4. Information about Donations to the Project Gutenberg -Literary Archive Foundation</h3> - -<p>Project Gutenberg-tm depends upon and cannot survive without wide -spread public support and donations to carry out its mission of -increasing the number of public domain and licensed works that can be -freely distributed in machine readable form accessible by the widest -array of equipment including outdated equipment. Many small donations -($1 to $5,000) are particularly important to maintaining tax exempt -status with the IRS.</p> - -<p>The Foundation is committed to complying with the laws regulating -charities and charitable donations in all 50 states of the United -States. Compliance requirements are not uniform and it takes a -considerable effort, much paperwork and many fees to meet and keep up -with these requirements. We do not solicit donations in locations -where we have not received written confirmation of compliance. To SEND -DONATIONS or determine the status of compliance for any particular -state visit <a href="http://www.gutenberg.org/donate">www.gutenberg.org/donate</a>.</p> - -<p>While we cannot and do not solicit contributions from states where we -have not met the solicitation requirements, we know of no prohibition -against accepting unsolicited donations from donors in such states who -approach us with offers to donate.</p> - -<p>International donations are gratefully accepted, but we cannot make -any statements concerning tax treatment of donations received from -outside the United States. U.S. laws alone swamp our small staff.</p> - -<p>Please check the Project Gutenberg Web pages for current donation -methods and addresses. Donations are accepted in a number of other -ways including checks, online payments and credit card donations. To -donate, please visit: www.gutenberg.org/donate</p> - -<h3>Section 5. General Information About Project Gutenberg-tm electronic works.</h3> - -<p>Professor Michael S. Hart was the originator of the Project -Gutenberg-tm concept of a library of electronic works that could be -freely shared with anyone. For forty years, he produced and -distributed Project Gutenberg-tm eBooks with only a loose network of -volunteer support.</p> - -<p>Project Gutenberg-tm eBooks are often created from several printed -editions, all of which are confirmed as not protected by copyright in -the U.S. unless a copyright notice is included. Thus, we do not -necessarily keep eBooks in compliance with any particular paper -edition.</p> - -<p>Most people start at our Web site which has the main PG search -facility: www.gutenberg.org</p> - -<p>This Web site includes information about Project Gutenberg-tm, -including how to make donations to the Project Gutenberg Literary -Archive Foundation, how to help produce our new eBooks, and how to -subscribe to our email newsletter to hear about new eBooks.</p> - -</body> -</html> - diff --git a/old/50124-h/images/cover.jpg b/old/50124-h/images/cover.jpg Binary files differdeleted file mode 100644 index 7ea6dbe..0000000 --- a/old/50124-h/images/cover.jpg +++ /dev/null diff --git a/old/50124-h/images/illus_046.jpg b/old/50124-h/images/illus_046.jpg Binary files differdeleted file mode 100644 index 61c6c2e..0000000 --- a/old/50124-h/images/illus_046.jpg +++ /dev/null diff --git a/old/50124-h/images/illus_frontispiece.jpg b/old/50124-h/images/illus_frontispiece.jpg Binary files differdeleted file mode 100644 index fec4ba7..0000000 --- a/old/50124-h/images/illus_frontispiece.jpg +++ /dev/null diff --git a/old/50124-h/images/illus_frontispiece_1.jpg b/old/50124-h/images/illus_frontispiece_1.jpg Binary files differdeleted file mode 100644 index fc7aac5..0000000 --- a/old/50124-h/images/illus_frontispiece_1.jpg +++ /dev/null diff --git a/old/50124-h/images/illus_publ_logo.jpg b/old/50124-h/images/illus_publ_logo.jpg Binary files differdeleted file mode 100644 index 59f48e9..0000000 --- a/old/50124-h/images/illus_publ_logo.jpg +++ /dev/null |
