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Other documents randomly have
different content
The Project Gutenberg eBook of Frederick William
Maitland, Downing Professor of the Laws of
England
 This ebook is for the use of anyone anywhere in the United States and
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you are located before using this eBook.

Title: Frederick William Maitland, Downing Professor of the Laws of

England

Author: H. A. L. Fisher

Release date: October 3, 2015 [eBook #50124]

Most recently updated: October 22, 2024

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*** START OF THE PROJECT GUTENBERG EBOOK FREDERICK WILLIAM

MAITLAND, DOWNING PROFESSOR OF THE LAWS OF ENGLAND ***
The Project Gutenberg eBook, Frederick William Maitland, by H. A. L.
(Herbert Albert Laurens) Fisher
FREDERICK WILLIAM MAITLAND
A BIOGRAPHICAL SKETCH
 CAMBRIDGE UNIVERSITY PRESS
London: FETTER LANE, E.C.
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
Photogravure by Annan & Sons Glasgow
 Yours very truly
F.W. Maitland

FREDERICK WILLIAM MAITLAND

DOWNING PROFESSOR OF THE LAWS OF ENGLAND

A BIOGRAPHICAL SKETCH

BY

H. A. L. FISHER

Cambridge:
at the University Press
 1910

Cambridge:
PRINTED BY JOHN CLAY, M.A.
AT THE UNIVERSITY PRESS
 CONTENTS

PREFATORY NOTE
FREDERIC WILLIAM MAITLAND
I.
II.
III.
IV.
V.
VI.
VII.
VIII.
IX.
X.
XI.
XII.
TRANSCRIBER'S NOTES
 PREFATORY NOTE
Whatever merit this Memoir may possess it owes to Maitland and to
the circle of those who cherish his memory. My own disabilities will
be made plain to the reader, but, lest he entertain false
expectations, let me explain at the outset that I was educated
neither at Eton, nor at Cambridge, nor at Lincoln's Inn, that I am no
lawyer, and that I have never received a formal education in the law.
Finally, I did not make Maitland's acquaintance till he was in his
thirty-seventh year. These are grave shortcomings, and if I do not
rehearse the long roll of benefactors who have helped me to repair
them, let it not be imputed to a failure in gratitude. I cannot,
however, forbear from mentioning five names. Before these sheets
went to Press they were read by Mrs Maitland, by Mrs Reynell, by Dr
Henry Jackson, by Dr A. W. Verrall and by Professor Vinogradoff. To
their intimate knowledge and weighty counsels I owe a deliverance
from many errors. Dr Jackson has generously laid upon himself the
additional burden of helping me to see the volume through the
Press.
H. A. L. FISHER.

May 1910.

FREDERIC WILLIAM MAITLAND

 I.
The life of a great scholar may be filled with activity as intense and
continuous as that demanded by any other calling, and yet is in the
nature of things uneventful. Or rather it is a story which tells itself
not in outward details of perils endured, places visited, appointments
held, but in the revelation of the scholar's mind given in his work. Of
such revelation there is no stint in the case of Frederic William
Maitland. Within his brief span of life he crowded a mass of
intellectual achievements which, if regard be had to its quality as
well as to its volume, has hardly, if ever, been equalled in the history
of English learning. And yet though a long array of volumes stands
upon the Library shelves to give witness to Maitland's work, and not
only to the work, but to the modest, brilliant and human spirit which
shines through it all and makes it so different from the achievement
of many learned men, some few words may be fitly said here as to
his life and as to the place which he held and holds in our learning.
He was born on the 28th of May, 1850, at 53 Guilford Street,
London, the only son of John Gorham Maitland and Emma Daniell.
Father and mother both came of good intellectual lineage. John
Gorham Maitland was the son of Samuel Roffey Maitland, the
vigorous, learned and unconventional historian whose volume on the
Dark Ages, published in 1844, dissipated a good deal of uncritical
Protestant tradition. Emma Daniell was the daughter of John
Frederic Daniell, a distinguished physicist, who became a Fellow of
the Royal Society at the age of twenty-three, invented the
hygrometer and published, as Professor of Chemistry at King's
College, a well-known Introduction to Chemical Philosophy.
Such ancestry, at once historical and scientific, may explain some of
Maitland's tastes and aptitudes. Indeed the words in which Dr
Jessop has summarised the work of Samuel Maitland might be
applied with equal propriety to the grandson. "Animated by a rare
desire after simple truth, generously candid and free from all
pretence or pedantry, he wrote in a style which was peculiarly
sparkling, lucid and attractive." The secret of this stimulating and
suggestive quality lay in the fact that Samuel Maitland was a man of
independent mind who took nothing for granted and investigated
things for himself. In 1891 his grandson wrote the following words to
his eldest sister, who asked whether their grandfather's works would
live. "Judging him merely as I should judge any other literary man I
think him great. It seems to me that he did what was wanted just at
the moment when it was wanted and so has a distinct place in the
history of history in England. The Facts and Documents (illustrative
of the History, Documents and Rites of the Ancient Albigenses and
Waldenses) is the book that I admire most. Of course it is a book for
the few, but then those few will be just the next generation of
historians. It is a book which 'renders impossible' a whole class of
existing books. I don't mean physically impossible—men will go on
writing books of that class—but henceforth they will not be mistaken
for great historians. One has still to do for legal history something of
the work which S. R. M. did for ecclesiastical history—to teach men
e.g. that some statement about the thirteenth century does not
become the truer because it has been constantly repeated, that 'a
chain of testimony' is never stronger than its first link. It is the
'method' that I admire in S. R. M. more even than the style or the
matter—the application to remote events of those canons of
evidence which we should all use about affairs of the present day,
e.g. of the rule which excludes hearsay."
Cambridge and the bar were familiar traditions. Samuel Maitland was
a member of Trinity College, Cambridge, who, having been called to
the bar, abandoned the professional pursuit of the law for historical
research. He took orders, became Librarian at Lambeth, and
ultimately retired to Gloucester to read and to write. John Gorham,
seventh wrangler, third classic, Chancellor's medallist, crowned a
brilliant undergraduate career by a Fellowship in his father's college
and was then called to the bar, but finding little practice drifted away
into the Civil Service, becoming first, examiner, and afterwards, in
succession to his friend James Spedding, secretary to the Civil
Service Commission, which last office he held till his death in 1863,
at the age of forty-five. That he could write with point and vigour is
made clear by a pamphlet upon the Property and Income Tax,
published in 1853, but the work of the Civil Service Commission
must have left little leisure for writing, and early death cut short the
career of a man whose high gifts were as remarkable to his friends
as was the modesty with which he veiled them from the world[1].
Frederic William, too, passed from Cambridge to the law and then
away to work more congenial to his rare and original powers.
Of direct parental influence Maitland can have known little. His
mother died in 1851 when he was a baby, and twelve years
afterwards, six months before a Brighton preparatory school was
exchanged for Eton, he and his two sisters were left fatherless and
the sole charge of the family devolved upon Miss Daniell the aunt,
who stood in a mother's place. Dr Maitland, the historian, lived on till
1866 and his home in Gloucester, still called Maitland House, was
from time to time enlivened by the visits of grandchildren. The fair
landscape of Gloucestershire—the wooded slopes of the Cotswolds,
the rich pastures of the Severn Valley with the silver thread of river
widening into a broad band as it nears the Bristol Channel, the
magical outline of the Malvern Hills, the blaze of the nocturnal forges
in the Forest of Dean, were familiar to Maitland's boyhood.
Gloucestershire was his county, well-known and well-loved. The
beautiful old manor-house of Brookthorpe, one of those small grey-
stone manor-houses which are the special pride of Gloucestershire,
stood upon the lands which had come into the possession of the
family through the marriage of Alexander Maitland with Caroline
Busby in 1785. Round it in the parishes of Brookthorpe and
Harescombe lay "Squire Maitland's" lands—a thriving cheese-making
district until Canada began to filch away the favour of its Welsh
customers.
Maitland was at Eton from 1863 to 1869, but failed to become
prominent either in work or play. "He played football, was for a while
a volunteer, rowed so much that he 'spoilt his style,' spent Sunday
afternoons in running to St George's chapel to hear the anthem, and
more than once began the holidays by walking home to
Kensington[2]." Long afterwards when the question of compulsory
Greek was being hotly debated in the Senate House at Cambridge he
spoke with deep feeling of a "boy at school not more than forty
years ago who was taught Greek for eight years and never learnt it
... who reserved the greater part of his gratitude for a certain
German governess ... who if he never learnt Greek, did learn one
thing, namely, to hate Greek and its alphabet and its accents and its
accidence and its syntax and its prosody, and all its appurtenances;
to long for the day when he would be allowed to learn something
else; to vow that if ever he got rid of that accursed thing never,
never again would he open a Greek book or write a Greek word[3]."
We imagine a shy, awkward delicate boy bursting into jets of
wittiness at the least provocation, caring for things which other boys
did not care for, misliking the classics, especially Greek, but "brought
out by Chaucer" as his tutor Mr E. D. Stone reports, and discovering
some taste for mathematics and a passionate interest in music. One
contemporary remembers his "jolly, curiously-lined face"; another
writes that he was regarded as "a thoroughly good fellow," but his
striking originality of mind was perhaps only realised by one
schoolfellow, Gerald Balfour, who was the sharer of many a Sunday
walk and both at Eton and Cambridge bound to Maitland by close
ties of friendship. To the masters Maitland presented none of the
obvious points of interest. Even William Johnson, that learned and
catholic scholar who made so many happy discoveries, failed to
discover Maitland. The boy was not a Hellenist and his deficiencies in
Greek and Latin prosody put him outside the intellectual pale. He
was whimsical, full of eccentric interests, of puns and paradox and
original humour. His closest school friend thought that he would
possibly develop into "a kind of philosophic Charles Lamb[4]."
In the autumn of 1869 Maitland went up to Trinity College,
Cambridge, as a Commoner. The learned Samuel Roffey had been a
musician both in theory and practice, and the taste for music
descended through the son to the grandson. The first year of
Maitland's undergraduate life was given over to music, mathematics
and athletics; but his earliest distinctions were gained not in the
most but in the least intellectual of these pursuits. Though he can
never have looked otherwise than fragile, he had outgrown his early
delicacy and become an active lad with considerable powers of
endurance. He won the Freshman's mile in four minutes forty-seven
seconds, excellent time as records went then, and obtained his
"blue" as a three-miler in the Inter-University Sports. The two mile
walking race, the quarter, and the mile, fell to him at various times in
the Third Trinity Sports. Nor were his athletic activities confined to
the running path. His friend Mr Cyprian Williams remembers his last
appearance as a racing oarsman; how on the final day of the Lent
races of 1872 the Third Trinity second boat after a successful week
made a crowning bump, how in the moment of the victory the crew
were tipped over into the cold and dirty waters of the Cam, and how
in the evening the boat dined in Maitland's lodgings over Palmer's
boot-shop and kept up its festivity well into the morning.
Long before this—at the beginning of his second year at Cambridge
—Maitland found his way into Henry Sidgwick's lecture-room and
made a discovery which shall be told in his own words. "It is now
thirty years ago that some chance—I think it was the idle whim of an
idle undergraduate—took me to Sidgwick's lecture-room, there to
find teaching the like of which had never come in my way before.
There is very much else to be said of Sidgwick; some part of it has
been beautifully said this afternoon; but I should like to add this: I
believe that he was a supremely great teacher. In the first place I
remember the admirable patience which could never be out-worn by
stupidity, and which nothing but pretentiousness could disturb. Then
there was the sympathetic and kindly endeavour to overcome our
shyness, to make us talk, and to make us think. Then there was that
marked dislike for any mere reproduction of his own opinions which
made it impossible for Sidgwick to be in the bad sense the founder
of a school. I sometimes think that the one and only prejudice that
Sidgwick had was a prejudice against his own results. All this was far
more impressive and far more inspiriting to us than any dogmatism
could have been. Then the freest and boldest thinking was set forth
in words which seemed to carry candour and sobriety and
circumspection to their furthest limit. It has been said already this
afternoon, but I will say it again: I believe that no more truthful man
than Sidgwick ever lived. I am speaking of a rare intellectual virtue.
However small the class might be, Sidgwick always gave us his very
best; not what might be good enough for undergraduates, or what
might serve for temporary purposes, but the complex truth just as
he saw it, with all those reservations and qualifications, exceptions
and distinctions which suggested themselves to a mind that was
indeed marvellously subtle but was showing us its wonderful power
simply because, even in a lecture room, it could be content with
nothing less than the maximum of attainable and communicable
truth. Then, as the terms went by, we came to think of lecture time
as the best time we had in Cambridge; and some of us, looking back
now, can say that it was in a very true sense the best time that we
have had in our lives. We turned away to other studies and pursuits,
but the memories of Sidgwick's lectures lived on. The matter of the
lectures, the theories and the arguments, might be forgotten; but
the method remained, the spirit remained, as an ideal—an
unattainable ideal, perhaps, but a model of perfect work. I know
that in this matter I can speak for others; but just one word in my
own case. For ten years and more I hardly saw Sidgwick. To meet
him was a rare event, a rare delight. But there he always was: the
critic and judge of any work that I might be doing: a master, who,
however forbearing he might be towards others, always exacted
from himself the utmost truthfulness of which word and thought are
capable. Well, I think it no bad thing that young men should go
away from Cambridge with such a master as that in their minds,
even though in a given case little may come of the teaching ... I can
say no more. Perhaps I have already tried to say too much. We who
were, we who are, Sidgwick's pupils, need no memorial of him. We
cannot forget. Only in some way or another we would bear some
poor testimony of our gratitude and our admiration, our reverence
and our love[5]."
Such teaching was precisely calculated to ripen Maitland's
unsuspected powers. The pupil was as modest, as exact, as truth-
loving as the master, and possessed a quick turn for witty casuistry
which was quite individual though not dissimilar to Sidgwick's own
gift in the same direction. Under Sidgwick's influence Maitland's
intellect deepened and widened. The piano was ejected from the
college room; the University running path knew him no more;
mathematics were abandoned for philosophy with such good result
that a scholarship was gained at Trinity, and that in the Moral and
Mental Science Tripos of 1872 Maitland came out at the head of the
First Class, bracketed with his friend W. Cunningham, who has since
won high distinction in the field of economic history. But the chief
prize of undergraduate ambition, a Fellowship at Trinity, was denied
him. Maitland competed, and was beaten in the competition by
James Ward, now one of the most distinguished of living
psychologists. Examiners make fewer mistakes than is commonly
supposed, and on this occasion Henry Sidgwick and Thomas Fowler
reached their decision not without hesitation. While admitting
Maitland's literary brilliance and facility they discovered in his
successful rival a deeper interest in the problems of philosophy and
therefore a superior claim to a Fellowship in Moral and Mental
Science[6].
Maitland's Fellowship dissertation entitled "A Historical Sketch of
Liberty and Equality as Ideals of English Political Philosophy from the
time of Hobbes to the time of Coleridge" is, despite some defects of
proportion, a remarkable performance for so young a man. Not only
does it cover a wide range of reading, especially in the English
moralists, but it is distinguished by two characteristic qualities—
independence of judgment and a scrupulous estimate of the canons
of proof. The scholar of Trinity says many good things[7], but says
nothing at random. Even when it would have been tempting to sally
forth with a flourish of affirmation, he prefers to stand within the
zone of caution. "I am inclined to think," he writes, "(though there is
great risk of such speculations being wrong) that Hobbes was led to
exaggerate his account of man's naturally unsocial character by a
desire to bring the state of nature into discredit." One cannot
dogmatise about the motives of the dead; our dogmas are but
plausible hypotheses, and so complex is human nature, so
inexhaustible is life's casuistry that the likeliest conjecture may fail of
the mark. "There is a great risk of such speculation being wrong."
Touches like this reveal the fact that the disciple of Sidgwick had
learnt his master's lesson.
The scholarship at Trinity, carrying with it a place at the scholar's
table, brought Maitland into communion with the ablest men in the
College. It often happens that a youth who has attracted little
attention at school by reason of his failure to satisfy the limited
conventions of schoolboy excellence, springs into sudden
prominence at the University. His conversation attracts notice; his
friends discover that he has original opinions, or some peculiar
charm of bearing, or that his gifts of mind or character are out of the
common. So it was with Maitland. He soon achieved a reputation not
only as a witty and brilliant talker, but as a charming companion and
as the most original public speaker of his time. He was elected to be
a member of the Apostles, a small society which for many university
generations has been a bond between clever young Cambridge men
and has brought them into friendly relations with their seniors: and
by the suffrages of a larger and less select electorate he rose to be
Secretary and then President of the Union Society.
Maitland's speeches at the Union printed themselves upon the minds
of his audience as being very effective for their immediate purpose
and yet quite unlike the speeches of ordinary vote-winners. His
artifice was all his own. Others were more eloquent, more prompt in
the cut and thrust of debate, but in the power of condensing an
argument into a surprising phrase or epigram he stood alone. After
his first successful appearance as the advocate of the opening of
National Collections of Science and Art on Sunday afternoons he
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