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Maitland

Published online by Cambridge University Press:  25 July 2001

S.F.C. Milsom

Abstract

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An address on the unveiling in Westminster Abbey of a memorial to F.W. Maitland (1850–1906). The main propositions are: (1) It was the lawyer’s power of synthesis that gave the historians’ work uniquely enduring authority. (2) Maitland’s achievement was in arranging details, which in themselves he hardly ever mistook, into a convincing framework. (3) The extreme concentration behind so much work in just 22 years carries a risk that details were left out of account. (4) The emergence of details which do not fit increasingly suggests anachronism in the essentially 19th-century assumptions upon which medieval historians have ever since worked.

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Type
Articles
Information
The Cambridge Law Journal , Volume 60 , Issue 2 , July 2001, pp. 265 - 270
Copyright
Copyright © Cambridge Law Journal and Contributors 2001

Footnotes

*

The text of an address given at the unveiling on 4 January 2001 of a memorial tablet for L.W. Maitland in Westminster Abbey. The tablet, by Richard Kindersley, is set in the floor of the South Transept. The initiative with the Dean and Chapter had been taken by two Oxford historians, Patrick Wormaid of Christ Church and George Garnett of St Hugh's College; and at the ceremony the speaker was introduced by Sir James Holt. It seemed appropriate for publication to be in the Journal which has printed other occasional pieces about Maitland. There were two memoirs: W.W Buckland, “F.W. Maitland”, Vol. 1 (1923), 279-301; and S.C. Reynell, “Frederic William Maitland”, Vol. 11 (1953), 67-73 (this was written by Maitland's elder sister in the months after his death, but had circulated only privately and in mimeograph). There were also two pieces by Maitland himself: “From the Old Law Courts to the New”, Vol. 8 (1942), 2-14 (this was first published in 1883 in The English Illustrated Magazine, Vol. 1, 3-15); and “Two Lectures delivered by F.W. Maitland” [1966] 54-74 (these lectures were given in 1889 to advise candidates for Part II of the Law Tripos on their course of study in the light of new regulations then coming into force; Downing College gave the manuscript in 1959 to the Law School of Northwestern University).

1 See the memoir by Mrs. Reynell (reference in asterisked note above) at p. 67. The landed status was of course not paraded: cf. “I did not realise that you were landowners”, Fifoot, C.H.S., Frederic William Maitland: A Life (Cambridge, Mass., 1971), at p. 17410.4159/harvard.9780674333840.

2 The poor start was in mathematics, lasting dislike of Greek having ruled out classics. These were the only subjects in which success might lead to a college fellowship; and the move to moral sciences under the influence of Henry Sidgwick (who later provided the money for Maitland's readership) might have dismayed Maitland's father, whose success in both classics and mathematics had gained him a Trinity fellowship.

3 His mother's sister died in 1880, having looked after Maitland and his sisters ever since the death of their mother. The elder sister (who was to write the memoir mentioned in the asterisked note above) married in 1883.

4 For Maitland's own account of the removal of the courts from Westminster Hall, see the asterisked note above.

5 “I should never have succeeded if I had not failed once”: S.C. Reynell, “Frederic William Maitland” (asterisked note above) at p. 70. Mrs. Reynell took this to refer to the undergraduate failure in mathematics (n. 2 above), but at p. 72 she referred also to the surely more relevant passage in his Inaugural Lecture ﹛Collected Papers, vol. 1, 480 at pp. 495-496) about failure at the bar.

6 The serious books were Pleas of the Crown for the County of Gloucester, 1221 (London 1884) and Bracton's Note Book, 3 vols (London 1887). The adjective is needed because there was also a relatively slight volume in a citizenship series, Justice and Police (London 1885). Maitland's precise part among those responsible for founding the Selden Society is not known.

7 This was one of the things to come out of a symposium organised in 1995 by the British Academy. The papers, edited by Hudson, John, were published as The History of English Law: Centenary Essays on “Pollock and Maitland” (Proceedings of the British Academy, vol. 89, Oxford 1996).

8 Outstanding examples are his onslaught on the law of real property in 1879, necessarily anonymous while he was at the bar (reprinted in Collected Papers, vol. 1, 162-201); and one of his contributions in the Cambridge University Senate in 1897 on the question of degrees for women, Cambridge University Reporter, vol. 27 (1896-97), 748 esp. at p. 751.

9 Cambridge, 1901.

10 “Why the History of English Law is not written” (Inaugural Lecture), Collected Papers, vol. 1, 480 at p. 491.

11 For his lecture subjects see Fifoot's Life (n. 1 above), 66, 96-97. The recommendation by some teachers that beginners in trusts should start with his Equity (published posthumously in 1909 and lightly edited in 1936) may be compared with Maitland's recommendation in 1889 that beginners in land law might profitably begin with Blackstone (“Two Lectures” in asterisked note above at pp. 65-70). It is not the changing details but the elementary bearings that give difficulty. Maitland's rejection of Blackstone's history (Inaugural Lecture, n. 10 above, at p. 489) makes his recommendation more striking.

12 Letters of F.W. Maitland, vol. 1, ed. C.H.S. Fifoot, Selden Soc. (London 1965), nos. 323, 348.

13 Ibid., no. 323.

14 Ibid., no. 175.

15 Ibid., nos. 343, 348.

16 Plucknett, T.F.T., Early English Legal Literature (Cambridge 1958: this chapter of the book had appeared in the Law Quarterly Review in 1951), 13. The reference is to Maitland's Inaugural Lecture (n. 10 above) Collected Papers, vol. 1, at pp. 493-494.

17 Elton, G.R., F.W. Maitland (London 1985), Chapter 4.

18 The legal historian is primarily interested in kinds of situation or relationship or transaction or legal proceeding. An index of names is no help in finding these in the first place, though it may amplify information gained elsewhere.

19 Pollock, F. and Maitland, F.W., History of English Law (2nd ed. 1898), vol. 1, 623.

20 Cf the enchanting recollections of his elder daughter Ermengard, F.W. Maitland, A Child’s-Eye View (London 1957, format of Selden Society Lectures) at p. 8: “In his dealing with words I believe he said them as he wrote, or at any rate heard them very clearly…

21 For Maitland's opinion of his grandfather's work, see Letters, vol. 1 (n. 12 above), no. 98.

22 History of English Law (n. 19 above), vol. 2, 561.

23 This vision gained wider currency from the posthumous publication of his lectures on The Forms of Action at Common Law (first published together with Equity in 1909; published separately but unedited in 1936).

24 Cf. the published papers of the British Academy's centenary symposium on “Pollock and Maitland” (n. 7 above), at p. 246.

25 Early publications raising incongruities (though not always spelling them out) were as follows. On the forms of action: Richardson, H.G. and Sayles, G.O., Select Cases of Procedure without Writ under Henry III (1941, Selden Soc. vol. 60); Milsom, S.F.C., “Not Doing is No Trespass” (1954 Cambridge Law Journal) Studies in the History of the Common Law (London & Ronceverte 1985), 91–103; Milsom, “Reason in the Development of the Common Law” (1965 Law Quarterly Review) ibid., 149-170. On property law: Thorne, S.E., “Livery of Seisin” (1936 Law Quarterly Review) Essays in English Legal History (London & Ronceverte 1985), 31–50; Thorne, “English Feudalism and Estates in Land” (1959 Cambridge Law Journal) ibid., 1329; S.F.C. Milsom, new introduction to reissue of “Pollock and Maitland” (1968). For a recent survey of the incongruities about property (a certain exasperation itself tribute to the continuing power of Maitland's analysis) see Milsom, S.F.C., “Maitland and the Grand Assize” (1995) Haskins Society Journal, vol. 7 (Woodbridge & Rochester NY 1997), 151–177.

26 “Maitland's great work is essentially Bractonian”: T.F.T. Plucknett, Early English Legal Literature (n. 16 above) at p. 105.

27 Year Books of 1 & 2 Edward II (1903, Selden Soc. vol. 17), Introduction at p. xvii.

28 The Life and Letters of Leslie Stephen (London 1906). Letters between Maitland and Stephen after the death of Stephen's second wife in 1895 show Stephen believing that if there was to be any memoir of himself it should be short and hoping that Maitland would write it; Letters, vol. 1 (n. 12 above), no. 157; Fifoot's Life (n. 1 above), 268; Letters of F.W. Maitland, vol. 2, ed. P.N.R. Zutshi, Selden Soc. (London 1995), no. 63. Stephen died early in 1904; and instead of a short memoir Maitland collected letters and impressions from both sides of the Atlantic and wrote a book running to 500 pages. It appeared early in November 1906 and Maitland knew it had been well received: but the cost in time and worry appears from many of his own letters and from a letter written after his death by his wife to her mother: Fifoot's Life, 279.

29 From the closing paragraph of Domesday Book and Beyond (Cambridge 1897).