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Title: Frederick William Maitland - Downing Professor of the Laws of England; A Biographical Sketch
Author: Fisher, H. A. L. (Herbert Albert Laurens)
Language: English
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A Biographical Sketch

Cambridge University Press
C. F. Clay, Manager


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~]


Downing Professor of the Laws of England

A Biographical Sketch



at the University Press

Printed by John Clay, M.A.
At the University Press


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._



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

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

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

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."


[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

[7] Such for instance as:--

"The love of simplicity has done vast harm to English Political

"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

"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."


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.


[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.


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.


     _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.


       _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.



      _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

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.


           _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.


      _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

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

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

                         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.


          ST IVES,
            _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.


              ST IVES,
                  _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.


          ST IVES,
              _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.


            _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.

       *       *       *       *       *

    _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.


              _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


  _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.


     _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.


      _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.


[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_.


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

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."


[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.


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.


[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.


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.


[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.


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.


[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.


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.

       *       *       *       *       *

   _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

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.


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.


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.


         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.


            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


            _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


           _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.


        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

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.


  _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.


        LES PALMAS.

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

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

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.


        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

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.


     _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?


          _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

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_.

                _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.


          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.


           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!


            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


            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.


          _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.


     _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

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?


                                                _20 December, 1902._


  Deseo que pase Vd. bien las Pascuas y que tenga feliz año nuevo

  Quedo de Vd. atento y Seguro

  Servidor que besa su mano


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


           _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.


           _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.


           _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.


     _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.


       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.


       _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.


                _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.


              _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.


         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.


         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.


          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.


                                             C/O LEACOCK & CO.
                                                        _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.


          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.


[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.


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

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."


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

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._


[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

  Retained anachronistic and non-standard spellings as printed.

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