H. A. L. Fisher

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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." ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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 nation. ”

“ 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. ”

“ 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. ”

“ 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 [Pg 176] probably have done this—but demonstrating. The needed demonstration has been made by Maitland, and will not be forgotten. ”

“ 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. ”

“ 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 [Pg 62] 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 ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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 ”

“ 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. ”

“ 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 [Pg 71] 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." ”

“ 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. ”

“ 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 [Pg 177] 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 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. ”