Kitabı oku: «Frederick William Maitland», sayfa 4
And now as to Essay I. I have nothing to withdraw or to qualify. I think it superb, by far the greatest thing done for English legal history. I am looking forward with the utmost anxiety to Essay II.
To Paul Vinogradoff
Downing.15 Nov. 1891.
Even the title page has been passed for the press and I am now awaiting your book. I shall be proud when I paste into you the piece of paper that you sent me. I have felt it a great honour to correct your proof sheet and am almost as curious about what the critics will say as if the book were my own. I often think what an extraordinary piece of luck for me it was that you and I met upon a "Sunday tramp." That day determined the rest of my life. And now the Council of the University has offered me the honour of doctor "honoris causa." I was stunned by the offer for it is an unusual one and of course I must accept it. But for that Sunday tramp this would not have been. As to the reception of your book my own impression is that it will be very well received. Good criticism you can hardly expect, for very few people here will be able to judge of your work. But I think that you will be loudly praised. Perhaps you will become an idol like Maine – who can tell? I hardly wish you this fate, though you might like it for a fortnight. I was ill in September, but am better now and have been doing a good many things – preparing myself for some paragraphs about Canon law.
IV
The year which brought Maitland to Downing witnessed the appearance of a new volume from his pen entitled Select Pleas of the Crown 1200-1255. 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. Eight of the twenty-one volumes issued by the Society during his lifetime came from his pen; a ninth was almost completed at his death. "Of the rest every sheet passed under his supervision either in manuscript or in proof, and often in both18." He set the standard, planned the programme, trained many of the contributors. 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. The Common law of England ruled two vast continents, and was the concern of Americans, Canadians, and Australians as well as of Englishmen and Irishmen. Its history had never been written; few of the materials for its exploration had been given to the world. There was no scientific grammar or glossary of the Anglo-French language; there was no accurate dictionary of law terms; a great province, that of Anglo-Saxon law, had fallen into the occupation of the Germans. A short account of some of the principal classes of Records which might be dealt with by the Society was appended to the first two volumes and exhibited a prospect of great breadth, richness and variety. The state of the Criminal law in early times might be shown from the Eyre rolls and Assize rolls. The records of the Court of the Exchequer and the Court of Chancery, the Privy Council Registers, the proceedings before the Star chamber, the Court of Requests and the Court of Augmentations would illustrate the history of royal justice in its different sides and in different ages, in the formative period of legal and parliamentary growth, in the dreary turmoil of Lancastrian anarchy, under the vigorous despotism of the Tudors and in the dust of the great conflict which led to the Civil War. Then there were the records of the Courts Christian, of the Courts of the Forest and the Manor, records illustrating the history of the Palatine jurisdictions, the franchises of the Lords Marchers of Wales, the Court of the Staple in London and Calais, the Court of Castle Chamber in Dublin. Borough customs would throw light on one quarter of history; records of the Stanneries of Devon and Cornwall upon another. The origins of mercantile and international law might be explored; and closer knowledge could be obtained of many important State trials by a systematic account of the contents of the Baga de Secretis. The Society held out the further hope of scientific contributions to the knowledge of the Anglo-Saxon law and Anglo-French language of the Year Books.
In the selection of specimens from this copious material, Maitland displayed a felicitous strategy the aim of which was to exhibit, as rapidly as might be, the range and versatility of the Society's operations. A sequence of volumes illustrating any one department of law would fatigue attention, warn off subscribers and fail to make the desired impression on the general historical public. It was better to begin upon several different types of record than to work one vein without intermission; better for the cause of science, and a course more likely to bring forward good contributors as well as to stimulate public interest in the undertaking. With a general editor less perfectly equipped such a scheme might have been hazardous; but Maitland was master of the whole field and could be trusted not to fail in proportion and perspective. In swift succession the members of the Selden Society received volumes illustrating Pleas of the Crown, Pleas of Manorial Courts, Civil Pleas, manorial formularies, the Leet jurisdiction of Norwich, Admiralty Pleas; then an edition of the Mirror of Justice followed by a volume on Bracton and Azo. Of these first eight volumes Maitland wrote four and contributed a brilliant introduction to a fifth – the edition of the Mirror, executed by his pupil and friend Mr W. J. Whittaker. It was an astonishing performance; even had the work been spread over twelve years of robust energy it would still have been astonishing. It was accomplished in half that time by a busy, delicate, University Professor who apart from statutory Professorial lectures was simultaneously engaged in writing the classical History of English Law.
Much might be said by qualified persons as to the exquisite technique displayed in Maitland's contributions to the Selden Society. He spared no pains in the examination and collation of manuscripts, and although he modestly disdained expert paleographical knowledge, he need not, we imagine, fear comparison with the most accurate transcribers of medieval documents, or with those who have achieved a special renown for their studies in "diplomatic" or in the affiliation of manuscripts. He possessed other qualities which are not often combined with such a passion and gift for minute scholarship. In the first place he was exceedingly anxious to make his work practically useful and to ease the path for students whose tastes might lead them to attempt similar explorations. He takes the reader into his laboratory and exhibits the whole process of discovery, showing where the difficulties lie, pointing out hopeful lines of enquiry, and providing always a clear chart to the documents, published and unpublished, of his subject. Secondly he combined in an extraordinary measure the gift for hypothesis with the quality of patience. He did not aim at providing sensational or curious results; – "the editor," he writes in the introduction to the first Selden volume, "has not conceived it his duty to hunt for curiosities, the history of law is not a history of curiosities" – he wished for plain truth – to discover the course of medieval justice in all its natural and instructive monotony, in its common forms and in its everyday working garb. "It has been necessary," he writes, referring to his selection of manorial pleas, "to print some matter which in itself is dull and monotonous; a book full of curiosities would be a very unfair representative of what went on in the local courts. We cannot form a true notion of them unless we know how they did their ordinary work, and this we cannot know until we have mastered their common forms." Such a scheme no doubt involves repetition, but there is at least one student of English history who, despite some acquaintance with histories and chronicles, never understood the everyday working of medieval life until he had the good fortune to dive into the publications of the Selden Society.
A saying used to be attributed to E. A. Freeman to the effect that it is impossible to write history from manuscripts; and it is obvious that a man who uses manuscript authority to any great extent, especially if he imposes upon himself great labours of transcription, will run the risk of losing his perspective and will be inclined to attach undue importance to those parts of his evidence which have cost him most sacrifice to obtain. On the other hand it is clear that the editor of historical manuscripts will do his work much better if he is also an historian; and this is specially true if he is called upon to pick and choose out of a vast repository of unedited material those specimens which are most likely to promote the advance of scientific knowledge. Maitland brought to the task of editing legal records an exact and comprehensive knowledge of the various problems, each in its proper order of importance, towards the solution of which his material might be expected to contribute. Like a skilful advocate examining a string of reluctant witnesses he had in his mind a provisional scheme of the whole transaction to quicken and define his curiosity. "These rolls," he writes, "are taciturn, they do not easily yield up their testimony, but must be examined and cross-examined." It was a close, seductive, patient cross-examination, one in which a little matter would often suggest an important conclusion, as where it is shown that the rapid development of the Common law in the thirteenth century is mirrored on the surface of the plea-rolls, which become fuller, more regular and more mechanical as the century goes on. And this cross-examination being conducted with great subtlety, vividness and penetration resulted in substantial discoveries. Each volume contributed new thought as well as new facts. The preface to Select Pleas of the Crown traced the gradual differentiation of the several branches of the Royal Court in the early part of the thirteenth century and embodied valuable conclusions "drawn from a superficial perusal of all the rolls of John's reign" as to the state of criminal justice and criminal procedure at that epoch. The Introduction to the Select Pleas of Manorial Courts was even more important, giving as it did for the first time an account of the stages in the decline of the English private courts and supplying an analysis, subtler than any which had yet been attempted, of the legal connotation of the term "manerium" and of the composition of the manorial courts. One suggestion was startling in its originality. The orthodox theory, contained in the works of Coke, had laid it down that a Court Baron could not be held without at least two freeholders. Maitland came upon the whole to the conclusion – though he is careful to state countervailing arguments – that originally no distinction was made between the freeholders and customary tenants. Both classes attended the Manorial Court and both classes gave judgment. Distinctions, however, did come to be drawn, and this by reason of a force the operation of which had escaped the notice of enquirers who had not been trained to attend to legal phenomena – by the force of legal procedure. "New modes of procedure are emphasising distinctions which have heretofore been less felt. The freehold suitors can maintain their position19, the customary suitors become mere presenters and jurymen with the lord's steward as their judge. 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."
The third volume edited by Maitland for the Selden Society consisted of two parts – a collection of Precedences for use in seignorial and other local courts belonging to the thirteenth and early part of the fourteenth century, and Select Pleas from the Bishop of Ely's Court at Littleport. Here there was less matter for elaborate historical disquisition, for the main problem with regard to the first class of document was to settle the age of the manuscripts; but the brief introduction to the Littleport pleas contained an important suggestion with regard to the early history of the English law of Contract. Were not the local courts enforcing "formless" arguments long before the King's Court had developed the action of "assumpsit" for the enforcement of agreements not under seal? The reader is reminded that the King's Court never by any formal act or declaration took upon itself to enforce the whole law of the land, that only by degrees did its "catalogue of the forms of action become the one standard of English law." There was an action for defamation in the local courts long before the Kings Court had undertaken to punish the slanderer; and what was true of defamation might equally be true of "parol" agreements. The Bishop's Court at Littleport was certainly enforcing agreements and it was difficult to suppose that the villeins of Littleport put their contracts into writing. Here again a few slight indications had prompted a secure and far-reaching inference.
In the Institutes of the learned but uncritical Coke there are many tales drawn from a curious Anglo-French treatise entitled the Mirror of Justices, "a very ancient and learned treatise of the laws and usages of this kingdom," opined Sir Edward, "whereby the Common-wealth of our nation was governed about eleven hundred years past." For a long time the book was accepted at Coke's high valuation with no little injury to the sober study of legal antiquities. Then it was exposed as apocryphal by Sir Francis Palgrave. It could not be taken as evidence "concerning the early jurisprudence of Anglo-Saxon England." But could it be taken as evidence of anything at all? Wahrheit und Dichtung was Vinogradoff's verdict, – sediments of truth floating in a sea of absurdity. It was worth while at least to establish the text and to examine the credentials of a treatise which, like the pseudo-Ingulph, had done much harm to sound learning.
One reassuring result was obtained from Mr Whittaker's critical enquiry into the manuscript. The Mirror was never in the middle ages a popular or influential book. It existed in a single unique manuscript. Such authority as it obtained was conferred upon it by lawyers who lived some three hundred years after it was written, were "greedy of old tales and not too critical of the source from which they were derived." Still, in a book so full of concrete positive statement, so full of denunciation of practical abuses, there might for all its rubble of absurdity be a quarry for historians.
In a brilliant piece of persiflage Maitland once and for all demolishes the author of the Mirror. He exposes his wilful lies, his unctuous piety, the perverse originality which amuses itself by playing havoc among technical terms, his absence of all lawyerly interest, his perplexing and fantastic inconsistencies. A most ingenious hypothesis is advanced to explain the source of this curious piece of apocryphal literature. "In order to discover the date of its composition we ask what statutes are, and what are not, noticed in it, and we are thus led to the years between 1285 and 1290. Then we see that its main and ever-recurring theme is a denunciation of 'false judges,' and we call to mind the shameful events of 1289. The truth was bad enough; no doubt it was made far worse by suspicions and rumours. Wherever English men met they were talking of 'false judges' and the punishment that awaited them. All confidence in the official oracles of the law had vanished. 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 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; the certainty was that no statement not elsewhere warranted could be accepted from the Mirror unless we were prepared to believe "that an Englishman called Nolling was indicted for a sacrifice to Mahomet."
V
The Chair of the Laws of England carried with it a Fellowship and an official house at Downing. The College, standing apart from "the sights" of Cambridge and possessing neither antiquarian nor architectural interest, is probably neglected even by the most conscientious of our foreign visitors. Yet during Maitland's tenure of the Downing Chair distinguished jurists from many distant parts, from America, Germany, Austria, France, found their way "through the inconspicuous gateway opening off the main business street" into the spacious quadrangle, with its pleasant grove of lime and elm, and its two rows of late Georgian buildings fronting one another across the grass. One of these guests has recorded his impressions. "About the middle of the row on the western side Maitland had his house. His study was a plain square room, not entirely given up to law or history and not overcrowded with folios. Yet every book on the shelves had evidently been chosen; there was no useless pedantic lumber. One gained at once an impression of refined taste and sure critical judgment. The workshop mirrored the worker. The view from the study window was that of the open lawn and the monotonous row of houses opposite. But on the western side the house was set right into the thicket. Here every sort of English songster seemed to have its nest20."
Maitland at least was well content. He loved Cambridge, every stone of it, and prized its friendships. There were Henry Sidgwick, his old master in philosophy; and A. W. Verrall, an exact equal in University standing, who had become intimate with him at Trinity, had shared his chambers at Lincoln's Inn but had abandoned the law for the Greek and Latin Classics; there were C. S. Kenny, a friend of undergraduate days, a Union orator and a criminal lawyer; and G. W. Prothero, who bore most of the weight of the historical teaching in the University; and Henry Jackson, who long afterwards succeeded Jebb in the Chair of Greek; and R. T. Wright, the Secretary to the University Press. For Dr Alex Hill, the Master of Downing, Maitland soon came to entertain feelings of affectionate admiration. Nor was his power of making friends limited to men of his own age. His directness of manner, his simplicity and humour at once secured him the confidence and respect of younger men, and he rapidly made his name as one of the most inspiring teachers in the University, giving to the student, in Mr Whittaker's eloquent words, "a sense of the importance, of the magnificence, of the splendour of the study in which he was engaged, so that it was impossible at any time thereafter for one of his pupils to regard the law merely as a means of livelihood21." His method of lecturing, like everything else he did, was quite individual. The lecture was carefully written and read in a slow distinct impressive voice to the audience, so slowly that it was possible to take very full notes, and yet with such a rare intensity of feeling in every word and intonation, with such quiet and unsuspected jets of humour, such electric flashes of vision, that the hearers were never weary, and one of them has reported that Maitland made you feel that the history of law in the twelfth century was the only thing in life worth living for. Stories, too, have reached the sister University of witty speeches made after dinner, as for instance on November 11, 1897, when fourteen of Her Majesty's judges were entertained in the Hall of Downing upon the occasion of the Lord Chief Justice receiving an honorary degree, and the speech of the evening was made by the Professor of the Laws of England. And there were other less august occasions. The members of a distinguished and occult society record a series of impromptu speculations as to the character of the company assembled round the table. Were they the Salvation Army? No, they were not musical. Were they the Board of Works? Were they the Saved of Faith? – and so on through a series of hypotheses each more grotesque and fantastic than the last and delivered in the clear grave tones which made Maitland's humour irresistible.
Among the most welcome guests at Brookside in the days of the Readership and at the West Lodge in the early days of Maitland's tenure of the Downing Chair was J. K. Stephen, the brilliant author of Lapsus Calami. J. K. Stephen, son of Sir James and nephew of Leslie Stephen, most tender, witty, and vivacious of companions, was on every account dear to Maitland and his wife.
In January, 1888, Stephen launched a weekly magazine called The Reflector. It was the year in which Maitland exchanged Brookside for Downing, the year of the first publication of the Selden Society, and finally the year of Mr Ritchie's County Council Act. Being invited to contribute a paper to the new periodical Maitland chose as his theme the impending revolution in English local government. The administrative functions of the Justices of the Peace were to be transferred to elective County Councils. In a charming essay full of ripe wisdom and pleasant wit Maitland bade farewell to the old order and expressed some of the misgivings which the inevitable change aroused in his mind. Master Shallow and Master Silence were to be stripped of half their functions and might come to the conclusion that the other half was not worth preserving. That which was "perhaps the most distinctively English part of all our institutions," the Commission of the Peace, was attacked in a vital part, not because the Justices had been corrupt or extravagant, but because the spirit of the age condemned them. "The average Justice of the Peace is a far more capable man than the average alderman, or the average guardian of the poor; consequently he requires much less official supervision. As a governor he is doomed; but there has been no accusation. He is cheap, he is pure, he is capable, but he is doomed; he is to be sacrificed to a theory, on the altar of the spirit of the age." Regrets, however, were vain. On the contrary, since the control of the central Government was already vested in the people, it was best that the people should gain political experience in local affairs, that the local authorities should be given a free hand to manage and to mismanage, and that care should be taken to invest them with such a degree of dignity and independence as should attract the best men into the public service. Maitland did not often express himself on public affairs; but he watched them closely and took no conclusions at second-hand.
It is part of our English system to expect of our professors, however eminent they may be, that they should examine undergraduates, serve on boards, committees, syndicates, and take an active part in University and College affairs. Maitland did not seek to escape any duty which he might be expected to discharge. He examined five times in the Law Tripos, twice in the Historical Tripos and three times in the Moral Science Tripos. From November, 1886, to January, 1895, he served as secretary to the Law Board, and always took an active share in its work. He was a member of the Library Syndicate (helping to redraft its regulations), he served on the General Board of Studies, and in 1894 was elected to the Council of the Senate. Nobody is so valuable on a committee as a good draftsman and Maitland's quick and exact draftsmanship caused his services to be highly esteemed by any board or syndicate of which he was a member. "He took," says Mr Wright, "little part in the discussions of these bodies unless he had something definite to say, but was always ready to state his views on being appealed to, and it is not necessary to say that they always carried great weight." The Dean of Westminster, who for some time sat next to him at the Council meetings, was impressed by the "sagacity and courage" of his judgments in the interpretation of statutes. "'I always stretch a statute,' he whispered to me once half humourously. He seemed to be making the law grow under his hands22."
In the public debates of the Senate House he was rarely heard, but when he spoke there was a sensation. Academic oratory is generally above the average in tone and ability, but is seldom spirited or passionate, and often goes astray into subtleties and side issues. In the judgment of some members of his audience, Maitland's speaking was quite unlike any other oratory which was heard in Cambridge. The whole man seemed quick with fire. His animation was so intense that it hardly seemed to belong to a northern temperament, expressing itself with dramatic force in every line of his eloquent face, in every movement of hand and arm and in the rhythm of the body which swayed with the spoken word. The language of his speeches, which had been carefully thought out, was clear and weighty, full of pungent humour and unexpected turns, and stamped with the impress of a restrained but vehement idealism. The speech on Women's Degrees was a masterpiece after its kind and very little was heard of a proposal to establish a separate University for Women after Maitland had suggested that it should be called the "Bletchley Junction Academy" – "for at Bletchley you change either for Oxford or for Cambridge."
The oration against compulsory Greek, though less cogent in substance, was hardly less striking in form.
College business claimed and received no small part of the time which under the system of the continental Universities would have been devoted to the advancement of knowledge. "When," writes Dr Hill, "in 1888 Maitland was elected Downing Professor of the Laws of England, the older members of the Society, knowing his attachment to Trinity, doubted whether he would feel himself naturalised in the smaller College. From the moment of his admission all misgivings vanished. With characteristic chivalry he assumed and almost over-acted his new rôle. His eager patriotism was a challenge to our own. He was prepared to out-do Downing men in his labours in all matters pertaining to the welfare of the College." If a Statute was to be interpreted, if title deeds were to be scheduled, if a voyage was to be made to the Record office in search of "feet of fines," Maitland was at hand willing and eager to interpret, to schedule, to investigate. "In all questions of interpretation," Dr Hill continues, "Maitland was standing counsel to the College as he was to the University." It so happened that when he joined Downing rents were rapidly falling and that the management of the estates entailed much care and thought. College meetings were very frequent and not a few of the special difficulties which arose, involved legal proceedings. Maitland, who for three years received no part of his salary as fellow, put himself unreservedly at the disposition of the College, and an academic society struggling to extricate itself from financial embarrassments could not have invoked a more valuable ally. Now he would help to draft a memorial to the Master of the Rolls; now a bill to be brought before Parliament. "His legal training and knowledge and his nicely balanced judgment were of inestimable use in the solution of the special problems with which the College had to deal." But it was not in legal matters only that he gave service without stint. "He was equally loyal in taking his share in all phases of administration and in doing all that in him lay to enrich the College life. He dined regularly in Hall and spent the evening in the combination room to the delight of his own guests and those introduced by other members of the Society." The Master of Downing might be painting the portrait of an ideal Fellow; those who know the College best will be the last to dispute its resemblance.
In the summer of 1892 Maitland advertised a course of lectures upon "Some Principles of Equity," and from that date onward till 1906 a course upon equity – "Equity more especially Trusts" was the favourite title – figured in the yearly programme of the Downing Professor. At first the subject was packed into the Lent term; then the lectures grew and overflowed into the summer. "I put in some business," he would observe gaily, "the business" consisting of recent decisions of the Chancery division, for the lectures were revised year by year to keep pace with the march of knowledge and the requirements of the practical student. Of these discourses there is the less reason to speak, even if the present writer were entitled to be heard, seeing that they have now been given to the world, thanks to the labour of two distinguished and devoted pupils. Maitland explained to his audience the whole system of modern equity, and when a lawyer is unfolding the Administration of Assets or the doctrines of Conversion, Election and Specific Performance to qualified persons, the layman would do well to keep his peace. It is, however, a quality in Maitland that much as he enjoyed the technicalities of law, he was never content to be purely technical. The same gifts which shone out in his conversation, the genius for perspicuous and graphic description, the quick darting flight to the essential point, the fertile power of exhibiting a subject in new and original aspects were conspicuous in his handling of the least promising topics, and these lectures could never have been written by a man who was nothing more than a sound Chancery practitioner. What is equity and what is its relation to the common law? So simple and fundamental do these questions appear to be that one would imagine that the correct answer to them must have been given again and again. It is one of those numerous cases in which a truth which appears to be quite obvious as soon as it is pointed out has lain if not unperceived, at least imperfectly perceived, because the proper perspective depends upon an unusual combination of studies. 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 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." Such observations will soon savour of platitude. That equity was not a self-sufficient system, that it was hardly a system at all but rather "a collection of additional rules," that if the common law had been abolished equity must have disappeared also, for it presupposed a great body of common law, that normally the relation between equity and law has not been one of conflict, for the presence of two conflicting systems of law would have been destructive of all good government – such propositions only require to be stated to meet with acceptance. Yet it was left to Maitland to state them. The need for thus emphasising the essential unity of English law was due partly to the tendency of teachers to lay stress upon the cases in which there is a variance between the rules of common law and the rules of equity and partly to the fact that in the routine of his profession the practitioner would have his attention directed rather to such occasions of variance than to the necessary and intricate dependence of equity on common law. Perhaps there is no greater proof of originality than the discovery of truths, which have no surprising quality about them except the length of time during which they have gone unnoticed or obscured.
