Frederic William Maitland Essay - Critical Essays

Maitland, Frederic William

Introduction

Frederic William Maitland 1850-1906

English historian and lawyer.

Maitland was the preeminent English legal historian of the late nineteenth century. In such works as The History of English Law before the Time of Edward I (1895), which he coauthored with Sir Frederick Pollock, Maitland traced the development of common law, which comprises the body of law based on custom, precedent, and judicial decisions rather than on written statutes and which forms the basis of the modern English and American judicial systems. Maitland's prolific scholarship includes volumes on medieval property laws, public institutions, constitutional law, canon law, the history of malice aforethought, and judicial cases dating back to the thirteenth century. In addition, through his role as a founder and literary director of the Selden Society, Maitland was instrumental in publishing numerous primary sources to aid scholarship in the area of legal history.

Biographical Information

Maitland was born in London in 1850. He was educated at Eton College and Trinity College, Cambridge, taking a B.A. in 1873 and a master's degree in 1876. He considered an academic career but, having failed to win a fellowship in history, began law studies at Lincoln's Inn, London, in 1872. Maitland was called to the bar in 1876 and entered a legal firm in London, where he specialized in conveyances, the drawing of deeds and leases for transferring ownership of real property. While working as a barrister in the late 1870s and early 1880s he began contributing articles on historical topics to the Westminster Review and the Law Magazine and Review. In 1884 he left legal practice to return to Cambridge as a reader in English law. During this period he was instrumental in founding the Selden Society, a group devoted to publishing primary materials for the study of English law, and in 1888 he was named Downing Professor of the Laws of England, a position he held for the remainder of his life. From 1899 onward Maitland spent winter months in the Canary Islands, where he died in December 1906.

Major Works

During the twenty years of Maitland's publishing activity he completed a broad range of works, including numerous volumes of primary materials that he annotated and edited. Until the late-Victorian period, the source materials for the study of English legal history remained largely unknown although readily available in public records offices in England. Maitland is credited with initiating interest in these court records and other public documents through his early works, including Pleas of the Crown for the County of Gloucester in 1221 (1884) and other records of judicial cases from the twelfth and thirteenth centuries. In his works Maitland traced ideas and general principles that by the nineteenth century had become seminal in English law back to their roots in particular events and court cases. His History of English Law before the Time of Edward I presents an exhaustive survey of Angevin law—law under the rule of the Plantagenet monarchs who reigned in England from 1154 to 1399—and focuses on technical aspects of such areas as matrimonial law, class distinctions, criminal law, and contract law, among other topics. Domesday Book and Beyond (1897) extends Maitland's earlier efforts to an examination of the English manorial system using as source material the "Domesday book," a survey of English life in 1086. Another area that Maitland had examined in History of English Law was the relationship between church and state in medieval England, and in Roman Canon Law in the Church of England (1898) he argued that, contrary to the position outlined by the Royal Commission on Ecclesiastical Courts in 1883, English ecclesiastical courts of the Middle Ages did uphold papal law. Among other works, Maitland's lectures were published in such volumes as Township and Borough (1898), English Law and the Renaissance (1901), and The Constitutional History of England (1908).

Critical Reception

Both Maitland's original works and those he compiled were instrumental in uniting the study of law with the study of English history, which in the nineteenth century had largely been focused on the monarchy and struggles over governing power. Later historians have broadened scholarly inquiry into subjects that Maitland first brought to the fore, and the primary materials that were made available through his efforts continue to serve scholars in researching legal history. Assessing Maitland's influence, W. S. Holdsworth commented in the 1930s that "In an age of great historians I think that Maitland was the greatest, I think that he was the equal of the greatest lawyers of his day, and that, as a legal historian, English law from before the time of legal memory has never known his like."

Principal Works

Pleas of the Crown for the County of Gloucester in 1221 [editor] (law) 1884

Justice and Police (history) 1885

Bracton's Note Book 3 vols. [editor] (law) 1887

Select Pleas of the Crown, Vol. I: 1200-1225 [editor] (law) 1888

Why the History of English Law Is Not Written (lecture) 1888

Select Pleas in Manorial and Other Seignorial Courts, Vol. I: Reigns of Henry III and Edward I [editor] (law) 1889

The Court Baron [editor, with W. P. Baildon] (history) 1891

The History of English Law before the Time of Edward I 2 vols. [with Frederick Pollock] (history) 1895; revised edition, 1898

Select Passages from the Works of Bracton and Azo [editor] (law) 1895

Domesday Book and Beyond: Three Essays in the Early History of England (history) 1897

Magistri Vacarii Summa de Matrimonio [editor] (law) 1898

Roman Canon Law in the Church of England (history) 1898

Township and Borough (lecture) 1898

Political Theories of the Middle Ages [translator] (history) 1900

The Charters of the Borough of Cambridge [editor, with Mary Bateson] (history) 1901

English Law and the Renaissance (lecture) 1901

* Year Books of Edward II 4 vols. [editor] (law) 1903-7

The Life and Letters of Leslie Stephen (biography and letters) 1906

The Constitutional History of England (lectures) 1908

Equity; also, The Forms of Action at Common Law (lectures) 1909

The Collected Papers of Frederic William Maitland. 3 vols. (lectures, essays, and history) 1911

A Sketch of English Legal History [with Francis C. Montague] (history) 1915

Selected Essays (essays) 1936

Selected Historical Essays (essays) 1957

Frederic William Maitland, Historian: Selections from His Writings (history and essays) 1960

Letters of Frederic William Maitland (letters) 1965

Letters to George Neilson (letters) 1976

* Volume IV of this work was completed by G. J. Turner.

Criticism

P. Vinogradoff (essay date 1907)

SOURCE: "Frederic William Maitland," in The English Historical Review, Vol. XXII, No. 86, April, 1907, pp. 280-89.

[In the following obituary tribute, Vinogradoff provides a personal retrospective of Maitland's life and work.]

A Greek myth tells us of a king at whose touch all objects, however homely, were turned into gold. We do not see such transformations nowadays, but we know another king at whose touch every living being, however noble, is turned into dust. King Death has touched with his wand one of the most subtle and profound thinkers of our time, and stores of patiently accumulated knowledge, marvellous designs of a creative intellect have disappeared for ever from this world of ours. The best thing we have to do is to look for moral support to the example of the fallen champion, to his indomitable energy and absorbing devotion to his task through a life of pains and forebodings which might have crippled a less courageous nature. Of late years he was walking in the shadow of death in a more manifest sense than most of us, but he was too proud and strong to slacken in his efforts.

It is not my intention in the present notice to give anything like a complete account and estimate of Maitland's achievement; it is too early yet to condense its value in a short summary, and in one way or another all students of English law and history must realise constantly the importance of his bequests in the course of their own work. I should like merely to tell the readers of his Review of some impressions created by his personality and his writings in the mind of one who has had many opportunities to study both. It has been my privilege to stand very near Maitland in the early stage of his career, and since then our friendly intercourse has never been interrupted, in spite of the fact that I lived most of the time in another country and our personal interviews were not very frequent. I met him the first time at a friend's house in London in the beginning of 1884. It was at a dinner party, at which Sir Henry Maine was present. Maitland did not take much part in the talk, and listened modestly, but when we went home together we had some interesting conversation on the subject of our studies. He said, among other things—and he often repeated to me afterwards—that he would much rather devote his life to the historical study of English law than watch in his chambers in Lincoln's Inn for the footsteps of the client who never comes. Since that day we met often, and I always look with a peculiar feeling on the Gloucester Pleas of the Crown, the Note Book of Bracton, the Rolls of King's Ripton, and many pages of my own book on Villainage. They recall to my mind endless talks on remote problems of legal and social history; there are many personal traits about them which the duty of addressing a large audience of strangers has not entirely wiped out.

I am, perhaps, dwelling too long on these recollections, which concern chiefly myself. To his ever increasing public of readers and pupils the great scholar stood also in a kind of special, personal relation through his style, the literary presentment of his subject. The French saying, Le style c'est l'homme, seems true in more ways than one. A writer's style is not only a significant expression of his character and moods; it constitutes a sort of medium between him and his audience; it may attract and electrify, or, on the contrary, it may jar on them. It is not for me to speak of the idiomatic pith, the boldness, and picturesqueness of Maitland's style; but I may be allowed to dwell on a feature which has been often noticed by more competent judges: one of the qualities which contributed most to attract his readers and to dispose them towards admiration and persuasion was the wealth of humour that pervaded all his writings, in spite of their severe aims and their highly technical details. It is certainly not of smoothly polished classical patterns that one is reminded when reading brilliant pages on Anglo-Saxon hides, medieval modes of pleading, or German juridical theories. The poignant sense of the irony of life makes one rather think of Shakespeare, the continual shifting of colour and light of Sterne, the coruscating epigram of Meredith. One may take illustrations almost at random, and I do not try to select an especially happy one by quoting a passage from the introduction to Gierke's Political Theories of the Middle Age.

The Realist's cause would be described by those who are forwarding it as an endeavour to give scientific precision and legal operation to thoughts which are in all modern minds and which are always displaying themselves especially in the political field. We might be told to read the leading article in to-day's paper and observe the ideas with which the writer 'operates': the will of the nation, the mind of the legislature, the settled policy of one State, the ambitious designs of another: the praise and blame that are awarded to group-units of all sorts and kinds. We might be asked to count the lines that our journalist can write without talking of organisation. We might be asked to look at our age's criticism of the political theories and political projects of its immediate predecessor and to weight those charges of abstract individualism, atomism, and macadamisation that are currently made. We might be asked whether the British Empire has not yet revolted against a Sovereign that was merely Many (a Sovereign Number as Austin said) and in no sense really One, and whether 'the People' that sues and prosecutes in American courts is a collective name for some living men and a name whose meaning changes at every minute. We might be referred to modern philosophers: to the social tissue of one and the general will, which is the real will, of another. Then, perhaps, we might fairly be charged with entertaining a deep suspicion that all this is a metaphor: apt perhaps and useful, but essentially like the personification of the ocean and the ship, the storm and the stormy petrel.

One of the most marked peculiarities of such a style is its vividness, the power of closing abstract reasoning into forms taken from the living world of shapes and sounds. The wealth of concrete illustration was not suggested in this case merely by artistic taste. It corresponded to a constant striving of the mind to obtain a full and close grasp of the subject studied. Powerful though he was in abstract speculation and dialectic analysis, what Maitland wanted most was to trace ideas to their embodiment in facts, to sketch their ramifications and complications in practice. Therefore he never fell a prey to those scholastic formulae in which analytical jurists often delight. It is interesting to watch him in close proximity to prominent German jurists.

He much admired the work of Gierke, for instance, and fully appreciated the part played by the 'Germanists' in the remodelling of their country's private law. Of late years he had begun studying very attentively the German civil code, and even, I believe, to translate portions of it in his spare moments. But the reading of his preface to the Politcal Theories of the Middle Age suggests interesting comparisons with the main text of the German writer; the latter is, after all, a masterly exposition of formulae and principles, while the English introduction tries to reduce all theories to their practical consequences, and to sketch their evolution in all the complexity of their natural environment. Of Jellinek's dogmatic constructions and of his deductive 'Study of the State' Maitland never had occasion to speak; but in a recent production of one of Jellinek's pupils, Hatschek's Handbook of English Public Law, much is said about coincidences with Maitland's views in regard to English public bodies as representing 'passive unions' (passive Verbdnde) in contrast with 'active' ones. There is good reason to believe that this pitting of abstract categories against one another did not meet with Maitland's approval, and the latter's masterly analysis of the life of English townships and parishes, boroughs and counties, certainly does not lend itself to such scholastic distinctions. He laid stress on their responsibilities in regard to the State, but did not consider them as produced by outside pressure or void of active interests and life. In this case, as in the study on trusts, Maitland was chiefly concerned to show by what legally imperfect and clumsy means the need for corporate organisations is sometimes met in practice, and how slowly a clear conception of the principles of an institution ripens in the course of its historical life. A London club or an Inn of Court serves the purposes of a social or collegiate group, although the technical principle of the corporation is absent in this and in many other similar cases. Even so the vill and the county were certainly groups with independent cohesion and real interests; but it was important to show to what extent their self-government was determined, among other things, by the requirements of central government. It may perhaps be urged that Maitland's statements are somewhat eccentric in form and influenced by his desire to avoid commonplaces, but they do not fit into the pigeon-hole of the passiver Verband.

Even so the attention bestowed on the concrete, the interest for first-hand evidence, the disinclination to deal in other people's words made it impossible for our scholar to sympathise either with the old-fashioned doctrines of Austinian jurisprudence which he found to be 'nature-rightly'—that is, outside the frame of space and time—or with grandiloquent 'sociology,' piling up hollow terms and pretentious generalisations on very slight foundations of fact. He was emphatically an historian, a student of actual development in the past. Although his work never stuck in details for their own sake, it will always remain an example of what a thorough grasp of details and keen investigation of all the particulars of a case can mean in the research of scientific truth. For a teacher of this kind the drudgery of special disquisitions did not exist, because every minute observation connected itself with other observations on the lines of a profound insight into general processes. He shared the enthusiasm of the naturalist who is not repelled by the mean or the insignificant, for whom such terms have, in truth, no meaning; so he thoroughly realises that a microscopic study of...

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Ernest Barker (essay date 1937)

SOURCE: "Maitland as a Sociologist," in Sociological Review, Vol. XXIX, No. 2, April, 1937, pp. 121-35.

[In the following essay, Barker discusses the sociological aspects of Maitland's historical writings.]

Frederic William Maitland, the grandson of Samuel Maitland, a historian of the Dark Ages who was famous a hundred years ago, was born in 1850 and died at the end of 1906. Educated at Eton and at Trinity College, Cambridge, he was called to the bar in 1876; but devoting himself to the study of law rather than its practice (as Jeremy Bentham had done before him), he came back to Cambridge in 1884 as Reader of English Law, and in 1888 he was elected Downing Professor...

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G. M. Young (essay date 1937)

SOURCE: "Maitland," in Daylight and Champaign: Essays, revised edition, Rupert Hart-Davis, 1948, pp. 271-77.

[In the following essay, Young evaluates Maitland as a historian.]

Some years ago it was proposed in Cambridge to issue, with due comment and annotation, Maitland's Collected Papers. 'The Syndics of the University Press did not, however, see their way to a new edition on these lines, and another project was suggested. This was to select certain of the papers likely to be most useful to students in law, history, and politics, to edit them and publish them in one volume.… The editors venture to think that they (the students to wit) have here all that is of...

(The entire section is 1986 words.)

R. J. White (essay date 1951)

SOURCE: "F. W. Maitland: 1850-1950," in The Cambridge Journal, Vol. 4, October, 1950-September, 1951, pp. 134-43.

[In the following essay, White offers an appraisal of Maitland's work on the centenary of his birth.]

It is strange to think that Maitland should have joined the centenarians. His genius has always seemed to lie in just those qualities of mind and spirit that should protect a man from the centenary-mongers, Wisden-watchers, and monumental masons of the memory. Yet, so it is. Maitland was born a century ago, and the word has gone round, and the plums of Fisher's little Life of 1910 have been pulled out and offered to us as substitutes for thinking...

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Robert Livingston Schuyler (essay date 1960)

SOURCE: Introduction to Frederic William Maitland: Historian, edited by Robert Livingston Schuyler, University of California Press, 1960, pp. 1-45.

[In the following excerpt, Schuyler provides an overview of Maitland's works.]

During Maitland's lifetime he came to be generally regarded by those best qualified to judge his work as the greatest historian English law had ever known, and in the half century that has passed since his death his stature as a legal historian has not diminished. His writing, however, was not confined to the field of legal history. Whatever its subject, it is permeated with a spirit that is the essence of the historical mind. He has a message...

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James R. Cameron (essay date 1961)

SOURCE: "Maitland as Historian," in Frederick William Maitland and the History of English Law, 1961. Reprint by Greenwood Press, 1977, pp. 3-25.

[In the following excerpt from a study of Maitland that was first published in 1961, Cameron offers an analysis of Maitland's concept of history.]

[Maitland] came to history from the study of law, and the interrelationship of these two strains is evident throughout his writings. I do not mean to imply that Maitland was a narrow legal historian; this is far from the truth. Traditionally a lawyer is conservative in judgment and looks to the past only to find precedents for a case or evidence to sustain a preconceived opinion....

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K. B. McFarlane (essay date 1965)

SOURCE: "Mount Maitland," in New Statesman, Vol. LXIX, No. 1786, June 4, 1965, pp. 882-83.

[In the following essay, McFarlane reviews The Letters of Frederic William Maitland.]

F. W. Maitland's posthumous reputation has run an oddly uneven course. When he died in 1906 his university received what was surely a letter with few if any precedents: an official address of condolence from the Chancellor and Masters of Oxford. Did her ancient sister perhaps feel that Cambridge, having already lost so much learning, wanted loyalty? Those seven lines of obituary in the Cambridge Review, when set beside the Oxford Magazine's two columns, were few enough to incite...

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H. E. Bell (essay date 1965)

SOURCE: "The Characteristics of Maitland's Work," in Maitland: A Critical Examination and Assessment, Harvard University Press, 1965, pp. 3-16.

[In the following excerpt, Bell examines the defining characteristics of Maitland's works.]

Historiography—the study of the ways in which men have applied themselves to the problem of writing history—has become a fashionable, perhaps too fashionable, subject. For the professional, in history as in any other craft, there must always be an interest in seeing how the greatest practitioners have gone about their business; but whether that interest is sufficient to justify the mass of work that has recently appeared on...

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G. R. Elton (essay date 1985)

SOURCE: "The Historian," in F. W. Maitland, Yale University Press, 1985, pp. 19-55.

[In the following excerpt, Elton outlines Maitland's approach to writing history.]

In Maitland's day historians, especially English historians, virtually never reflected on their activities. Most of them wrote history—or failed to commit their knowledge to paper—because they enjoyed doing so, and they did not feel called upon to philosophize about it; at most they would stake claims for the role their calling played in the formation of public men. Philosophers accepted the triumph of historical studies which had followed in the wake of the renewal of the methods of enquiry that in...

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