of his books can give the impression which he made upon those who were privileged to know and speak with him. "It is impossible for me," said Professor J. C. Gray, "to write or think of Maitland without recalling his personal charm. How great that was! I never saw him but once. But to have broken bread at his house among the Cotswold Hills will always be one of the happiest of my memories. If I said what I felt you would understand it, but to one who had not known him it would seem extravagant."l But though I speak without the advantages possessed by many contemporaries, and without those opportunities for estimating the full influence of his work which can only belong to posterity, I felt that I should be the ungrateful pupil of a great master if I did not, when asked, attempt to say something of the great work which he has done both for English law and English history. I shall not attempt to deal with the facts of his life, as they have been adequately recorded by Mr. Fisher. Nor shall I attempt to enumerate the works which he wrote-a marvellous output for one who, in his later years, was always suffering as they have been admirably calendared by Mr. A. L. Smith, I shall only attempt to say something of the intellectual characteristics and mental outlook which determined the direction of his life's work; of the literary qualities of that work, which helped to make it so extraordinarily effective; and of the influence which his work has had, and may be expected to have, upon English law and history. First and foremost Maitland was a lawyer. Mr. B. B. Rogers, in whose chambers he read, says, "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. 1 L. Q. R., XXIII, 138. 2 Frederick William Maitland: A Biographical Sketch. His opinions, had he suddenly been made a judge, would have been an honour to the Bench." After he had left the Bar he used his practical knowledge of law and conveyancing to serve the interests of his college and his university; and in all his work on legal history we can see that his training in chambers and in the Courts gives both an air of reality to his descriptions of the manner of life and thought of the remote ancestors of his contemporaries at the Bar and on the Bench, and a sureness of touch in his interpretation of mediæval doctrine and in his criticism of mediæval documents, which could never have been learned from books. Dr. Hazeltine says of Selden, "Undoubtedly his activities as a conveyancer, as an advocate at the Bar, and as a lawyer Member of Parliament, largely developed those capacities for accurate definition and statement, for clear and subtle analysis, for sound legal reasoning, and for judicial sifting and use of evidence, which we discern in his writings"; we see exactly the same characteristics in Maitland's work, and for the same reasons. But, unlike most practising barristers, he was not content to be, as Sir F. Pollock puts it,3 merely a sound lawyer with scholarly tastes." His was a mind which would take nothing for granted, which was driven to analyse the causes and effects of all the legal rules and institutions, and all the political and social phenomena with which he was conversant. Naturally he turned to history. In history alone could be found the explanations which he sought. History alone could show what was the original form of these legal rules and institutions, what sphere of usefulness they had once filled, whether they still performed any useful functions, and, if they did, whether by judicious change, they could be fitted to perform them better. While still a practising barrister he had been greatly impressed by 2 Harv. Law Rev., XXIV, 207. 8 Quarterly Review, Vol. CCVI, 406. 1 Fisher, 15, 16. Stubbs' constitutional history which he had read “because it was interesting"; and he so admired Savigny's Geschichte des Römischen Rechts that he began to translate it. A sound lawyer, equipped with philosophy and history, and willing to use his philosophical and historical learning to criticize the technical rules of which he is a master, will produce some surprising results. The paper which he contributed in 1879 to the Westminster Review on the Law of Real Property showed that a new and peculiar star had arisen in the English legal firmament.1 His use of Brunner's researches into the history of the English law of inheritance, to demonstrate that our division of property into realty and personalty was a relic of ancient barbarism, working mischief and injustice, which all other civilised peoples had long ago abandoned, showed what philosophy and history united to a technical mastery of legal rules could do for the cause of law reform. Long ago Bentham had wished to abandon the heir-at-law to the Society of Antiquaries. Maitland wittily suggested a more suitably historic hereafter. He was to be consigned to the "Gradualisten" and "Parentalisten" schools "who shall write monographs upon him to the end of time." This paper marks an epoch in the development of legal thought. Most of the law reforms of the century had, up to that date, been inspired by lawyers of the school of Bentham. Their simple faith in à priori principles had accomplished much in an age in which the legal system was in danger of being choked by the accumulated rubbish of centuries. But it could not accomplish all that they had hoped. It was a faith born of inexperience; and a larger knowledge of the complexity of human nature, of social problems, and of the technical legal rules which successive ages had invented to solve these problems, had somewhat dimmed it. Writers of the school of Maine were demon 1 Collected Papers, I, 162–201. are. strating that many of these principles were based upon a very superficial view of human nature; that they could not explain all existing rules even at the present day; that they did not even exist in the past. But the writings of the historical school generally stopped short at explanation, they showed how existing legal rules came to be what they They showed that even the most unreasonable of them once had a reasonable basis and that some still had more reason than whole-hearted followers of Bentham's principles might allow. But that was all. Maitland's paper showed how history in the hands of a first-rate lawyer and philosopher could suggest practical proposals for law reforms based not only upon a knowledge of existing law, but also upon a knowledge of the ideas which had created it. It showed that a knowledge of legal antiquities could be used, not only to teach old law and to explain present law, but also to suggest the changes needed to bring the present law into harmony with its modern environment. And this was not all. Maitland's habit of analysing existing legal rules and institutions in the light of their history enabled him to throw new light not only on some of the most technical and difficult, but also on some of the most ordinary and familiar features of our legal landscape. His critical mind was never dulled by familiarity. It was just these familiar things, which are generally accepted without comment and without explanation, that aroused him to investigate. And thus he gave us an explanation of the relation of equity to law, and an exposition of the great part which the Trust has played in our English life, which are as obviously true as they are strikingly original. In 1884 Maitland abandoned the Bar, and became Reader in English law at Cambridge. It was during the course of this year that he made the acquaintance of Professor Vinogradoff and learned from him something of the wealth of unedited material for the making of legal history to be found in the Record Office.1 "His vivid mind," says Mr. Fisher, "was instantly made up: on the following day he ... 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 palæography proceeded to puzzle it out and to transcribe it." The result was the volume of Pleas of the Crown for the County of Gloucestershire which appeared in the course of that year. It marked the beginning of his life work on English legal history, and made, as Mr. Fisher has said, an epoch in the history of history. It showed lawyers and historians what could be learned from a set of Records which had only been very occasionally used to illustrate isolated points in legal history, which no one before had ever dreamed of using systematically as primary authorities for the social and constitutional history of England. Maitland soon showed that he was even greater as an historian than as a lawyer or a philosopher. Passing over many lesser works, we have his edition of Bracton's NoteBook, his work as Literary Director of the Selden Society, his articles on Seisin, and on the history of the Register of Writs, and then the great History of English Law. Then came a series of monographs on many cognate topics dealt with in that history:-Domesday Book and Beyond; Canon Law in the Church of England; his great work on the Year Books; his works on the problem of corporate personality— the lectures on Township and Borough, the translation and introduction to a chapter of Gierke's great work on Political Theories of the Middle Age, the illuminating paper on Corporation and Trust; and his two excursions into the sixteenth-century history-the Rede lecture on English law 1 See Professor Vinogradoff's Paper in the English Historical Review, XXII, 280, 281. Fisher, 25. |