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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