Kitabı oku: «Frederick William Maitland», sayfa 9
Quiero leer el libro de Sen. X aunque no sé si le podré entender. Es un hombre docto, doctísimo pero stogioso – esta ultima no puedo deletrear.
Estas pocas palabras son una recompensa muy ligera por su carta de Vd que me interesó mucho y por que estoy muy agradecido pero he tornado un largo tiempo escribiendolas. Si pudiere31 escribir mas facilmente le contaría a Vd todos los sucesos que han acontecido en Gran Canaria. Pero es preciso acabar.
Con muchas memorias
Quedo su afectuoso amigoF. W. Maitland.
Al muy excelente
Sen. D. G. G. Buckland.
To John C. Gray
Downing College,Cambridge.4 Oct. 1903.
I should like to take this opportunity of asking you a question which you will be able to answer very easily. In 1862 our Parliament made it possible for any seven or more persons associated for any lawful purpose to form themselves into a corporation. But this provision was accompanied by a prohibition. For the future the formation of large partnerships (of more than 20 persons) was forbidden. In effect the legislature said that every big association having for its object the acquisition of gain must be a corporation. Thereby the formation of "unincorporated joint stock companies" was stopped. I may say in passing that now-a-days few Englishmen are aware of the existence of this prohibitory law because the corporate form has proved itself to be very much more convenient than the unincorporate. Now what I should like to know is whether when in your States the time came for general corporation laws there was any parallel legislation against unincorporated companies. I have some of your American books on Corporations and I gather from them that the repressive or prohibitory side of our Companies Act is not represented among you. But am I right in drawing this inference, and (if so) should I also be right in supposing that you would see constitutional objections to such a rule as that of which I am speaking: i.e. a rule prohibiting the formation of large partnerships or unincorporated joint-stock companies? A friend in New York supplied me with some very interesting trust deeds which in effect seemed to create companies of this sort. Should I then be right in supposing that in the U.S.A. the unincorporate company lived on beside the new trading corporation?
I am endeavouring to explain in a German journal how our law (or equity) of trusts enabled us to keep alive "unincorporate bodies" which elsewhere must have perished. Of course I must not speak of America. Still I should like to know in a general way whether the development of the "unincorporated company" which we repressed in 1862 was similarly repressed in the States, and a word or two from you about this matter would be most thankfully received.
By the way – and here I enter your own particular close – I observed that those New York deeds were careful to confine the trust within the limits of the perpetuity rule. Is it settled American law that this is necessary? We explain our clubs by saying that as the whole equitable ownership is vested in the original members there can be no talk of perpetuity – and I believe that there are some extremely important unincorporated companies with transferable shares (formed before 1862 – in particular the London Stock Exchange) which are built up on this theory: the theory is that the original shareholders were in equity absolute masters of the land, buildings, etc. Does that commend itself to you?
There! you see what comes of writing to me! A whole catechism! Please think no more of it unless a very few words would set my feet in the straight road.
Most of my time is being given to the Year Books. The first volume is with the binder.
I often look back with great pleasure to the few hours that you and Mrs Gray spent with us in Gloucestershire. Would that I could see you again, but all my journeys have to be to the Canaries.
To John C. Gray
Downing College,Cambridge.15 Nov. 1903.
Your very kind letter of the 4th is exactly what I wanted. But surely there is nothing "odd" in my asking you questions which you of living men can answer best. It would be odd if I went elsewhere.
The brief in Howe v. Morse is extremely interesting. I think that an English Court would take your view in such a case, but when it comes to questions about legacies our judges sometimes say things which stray from the path of rectitude as drawn by Prof. Gray.
I have been trying all this summer to finish an essay designed to explain to Germans the nature of a trust, and especially the manner in which the trust enabled us to keep alive all sorts of "bodies" which were not technically corporate. I am obliged now to flee to the Canaries leaving this unfinished, for a particularly fraudulent summer has made me very useless. Some one ought to explain our trust to the world at large, for I am inclined to think that the construction thereof is the greatest feat that men of our race have performed in the field of jurisprudence. Whether I shall be able to do this remains to be seen – but it ought to be done.
To Leslie Stephen
Leon y Castillo 5,Telde,Gran Canaria.6 Dec. 1903.
I fear that I must not carry my good wishes beyond the point of hoping that the improvement that I saw last time I visited you has gone further and that at any rate you are easy and free from pain. I have just had a week in this island. Part of it I spent foolishly in bed but now I am in a delightful atmosphere and have been thoroughly enjoying your Hobbes. It is worthy of you, and you know what I mean when I say that. I have been all through it once and have corrected most of the typists errors. A few little points must stand over until I can command the whole of the "Works" (I only brought two volumes with me) but they are not of such a kind as would prevent the copy going to the printers, and I propose to send it to them very soon, for they will let me keep the stuff in type until I am again in England. The difficulties to which I refer are words occurring in your quotations from Hobbes – just here and there your writing beats me, but a few minutes with Molesworth will settle the matter…
I think I told you that in my estimate you have written, more rather than less, your due tale of words. I shall add nothing save some tag which will serve as a substitute for the missing end of the final paragraph (said tag I may be able to submit to you) and I shall omit nothing save trifles unless the publishers insist.
I have been speculating as to what T. H. would have said had he lived until 1688. If it becomes clear that your "sovereign" is going to acknowledge the pope's claims, this of course is no breach of any contract between ruler and ruled (for there is no such contract) but is there not an abdication? Putting theory out of the question, which would the old gentleman have disliked most, Revolution against Leviathan, or a Leviathan with the Roman fisherman's hook in his nose?
Well he was a delightful old person and deserved the expositor whom he has found.
To Henry Jackson
Leon y Castillo 5,Telde,Gran Canaria.13 December, 1903.
This may – I cannot be sure that it will – be in time to salute you on Christmas day. Posts are irregular and nine miles of bad road separate us from Las Palmas. So, not being able as yet to cycle to our ciudad, I shall just drop this into the village letter box and trust that it may reach you some day.
I had the good luck to find the Bay of Biscay reflecting a really warm sun and very soon I could hardly believe that so grey a place as Cambridge existed. I arrived here at the end of a prolonged drought and the good folk of Telde "clapped on the prayer for rain": or rather they did much more; they carried round the town a milagroso Cristo whom they keep for great occasions. I am not sure that the priest let him go his rounds until he, the priest, saw that the clouds were collecting thick over the mountains. Anyhow the rain came at once, to the great edification of the faithful. Since then we have celebrated the Immaculate Conception. It is very queer how events get turned into persons. The Conception became a person for the people. I think that the historian of myths would learn a good deal here. Just lately I discovered – it was no great discovery – that the pet name "Concha" is the short for Concepcion, as Lola is the short for Dolores. My protestant mind has been a little shocked by a female form of Jesus, namely "Jesusa."
I am living in hope that Pollock's successor at Oxford may be Vinogradoff. I wish much that we had him at Cambridge.
I am curious to hear any news that there may be concerning the deliberations of the great syndicate. I suppose that something will be known before I return to Cambridge – if ever I return. I say "if ever" for I am always thinking of resignation. Out here I can do a great deal with photographed manuscripts and so on, whereas in England I get nothing done.
You I suppose are deep in "Josephism" – by the way has anybody endeavoured to transfer that term from a manner of treating the church to Mr C.'s fiscal policy? My latest newspaper gives the Duke's oration – how very good our Chancellor can be! – but no doubt that is with you a very ancient history32. My own impression when I left England was that the crusade was failing.
To Henry Jackson
Leon y Castillo 5,Telde,Gran Canaria.14 Feb. 1904.
No, you draw a wrong inference from my silence. When I am hurt I cry. When I am not crying I am happy. In this instance I have been very happy indeed and so busy that I have taken six weeks over a novel, and am once more developing a corn on my little finger by copying… All that you tell me of the Studies Syndicate is extremely interesting – you may rely upon my discretion, for as you remark there is nobody to whom I could babble – even La Manana which is often hard up for news would I fear give me nothing for secret intelligence concerning the S.S.
Writing those initials made me think of your Eranus. I wish that I had heard you. I think that I might have been able to add an ancient story or two. I think that I once told you how the "to wit" placed after the name of a county at the beginning of a legal record (e.g. Cambridgeshire, to wit, A.B. complains that C. D. etc.) represents a mere flourish ʃ dividing the name of the county from the beginning of the story. This was mistaken for a long S which was supposed to be the abbreviation of scilicet. The Spaniards are fond of using mere initials: after a dead person's name you can put q.d.h.e.g. = que Dios haya en gloria. The case that amuses me most is that you can speak of the Host as S.D.M. (his divine majesty – just like H.R.H.). One day in Las Palmas I had to spring from my bicycle and kneel in the road because S.D.M. was coming along. But I have just had my revenge. I have been mistaken for S.D.M. They ring a little bell in front of him. I rarely ring my bicycle bell because I don't think it a civil thing to do in a land where cycles are very rare. However the other day I was almost upon the backs of two men, so I rang. They started round and at the same time instinctively raised their hats – and instead of S.D.M. there was only an hereje.
To be sure those letters of Acton's are thrilling. I saw them out here last year. Mrs Drew wanted me to edit them. I declined the task, after talking to Leslie Stephen. Obviously I was not the right man. I am boundlessly ignorant of contemporary history and could not in the least tell what would give undeserved and unnecessary pain. On the other hand I should think that H. Paul was the right man for the job.
… I hope that Vol. III is doing well, though I foresee that I shall be slated in all quarters. Acton was an adroit flatterer and induced me to put my hand far into a very nest of hornets.
To A. W. Verrall
C/o Leacock & Co.Funchal,Madeira.15 Jan. 1905.
It is good to see your hand and kind of you to write to me, especially as I fear that writing is not so easy to you as it once was. I do very earnestly hope that things go fairly well with you and that you have not much pain. Yesterday I was thinking a lot of your courage and my cowardice for I took an off day – off from the biography I mean – and attained an altitude of (say) 5250 feet (a cog-wheel railway saving me 2000 thereof, however) and I was bounding about up there like a kid of the goats – and very base I thought myself not to be lecturing. There is not much left of me avoirdupoisly speaking; but that little bounds along when it has had a good sunning; and to-day I have a rubbed heel and a permanent thirst as in the good old days. Missing a train on said railway I made the last part of the descent in the special Madeira fashion on a sledge glissading down over polished cobble stone pavement – a youth running behind to hold the thing back by a rope: it gives the unaccustomed a pretty little squirm at starting. Up in the hills it is a pleasant world – you pass through many different zones of vegetation very rapidly – at one moment all is laurel and heath – you cross a well-marked line and all is tilling – then you are out among dead bracken on an open hill-top that might be English. Get on a sledge and wiss (or is it wiz?) you go down to the sugar and bananas through bignonia and bougainvillia which blind you by their ferocity.
To Henry Jackson
Leon y Castillo, 5,Telde,Gran Canaria.15 January, 1906.
I have your second letter, not your first. The first may be lying in the Hotel at Las Palmas and I must attempt to get it. This year it is difficult to communicate with the "ciudad" for there has been a prolonged drought and the roads – but did you ever try cycling across a ploughed field? Moreover people here are lazy and casual and the semi-hispanised English people who keep the English hotels are perhaps more casual than the true Jack Spaniards. Well, I must get that letter, for which I thank in advance, even if it costs me a day's labour and some strong language. Meanwhile I will talk of canary birds. The birds are named after our islands. What our islands are named after, nobody, so I am told, knows for certain. Whether the birds are found wild in all the seven islands I don't know. Certainly there are many in Gran Canaria. Also there are many in Madeira. The wild canary is, I believe, always a dusky little chap, brown and green. The sulphur coloured or canary-coloured canary is, I am told, a work of art, and I have heard say that he was made at Norwich: by "made" of course I mean bred by human selection. The most highly priced canaries are, I believe, made in Germany. I have known two guineas asked for a "Hartz Mountain Canary": it sang pp. like a very sweet musical box. On the other hand, wild canaries are cheap here, especially if you go up country and buy of the boys who catch them. My wife quotes as a fair range of price half a peseta to a peseta and a half. The peseta ought to be equivalent to the franc but is much depreciated. So let us say that a bird can be had for a shilling. My wife adds that she would be very happy to import birds for your daughter – and this is not a civil phrase but gospel truth: she is never happier than when she is acquiring pets as principal or agent: – so it is, and I can't help it. I like the song of these dusky birds: it is not nearly so piercing as that of the Norwich variety. I daresay that I have told you some untruths in this ornithological excursus – but at any rate I make no mistake about the price of wild birds or about my wife's willingness – I might say eagerness – to transact business.
XI
One of the principal subjects which engaged Maitland's mind during these years was the history of the Corporation. Problems connected with the growth and definition of the Corporate idea had furnished the theme of the Ford Lectures and a course upon the Corporation in English law was delivered in Cambridge in the Autumn Term of 1899. It was a subject from which Maitland derived deep and peculiar delight. It brought into play the full range of his faculties, for it was at once metaphysical, legal and historical. It was associated with the enquiries which he had already been making into municipal origins, and into the law of the medieval Church, while, at the same time, it was connected with some living and familiar developments of modern law, with those corporate groups which, during the later half of the nineteenth century "had been multiplying all the world over at a rate far outstripping the increase of natural persons." Trades unions and joint-stock companies, chartered boroughs and medieval universities, village communities and townships, merchant guilds and crafts, every form of association known to medieval or modern life came within his view, as illustrating the way in which Englishmen attempted "to distinguish and reconcile the manyness of the members and the oneness of the body." An enquiry of this kind was something entirely new in England. Here lawyers had accepted from the Canonists the view that the Corporation was a fiction of the law created by the authoritative act of the State. A mindless thing, "incapable of knowing, intending, willing, acting, distinct from the living corporators who are called its members," the Corporation is and must be the creature of the State. "Into its nostrils the State must breathe the breath of fictitious life, for otherwise it would be no animated body but individualistic dust." Solus princeps fingit quod in rei veritate non est. Such a theory was, as Maitland pointed out, likely to play into the hands of the paternal despot. The Corporation so conceived – and this is how not only Savigny but Blackstone also conceived it – was no subject for liberties and franchises and rights of self-government. It was but "a wheel in the State machinery." And yet in England, where the Concession theory of the Corporation was received without challenge, there had certainly not been less of autonomy and free grouping in guilds and fellowships than elsewhere. The secret of this apparent contradiction, between a theory which made corporateness the creature of a sovereign authority and a practice which enabled permanent groups to be freely formed without such authority, was to be found in a legal conception peculiar to England, the conception of the Trust. "Behind the screen of trustees and concealed from the direct scrutiny of legal theories, all manner of groups can flourish: Lincoln's Inn, or Lloyds, or the Stock Exchange, or the Jockey Club, a whole presbyterian system or even the Church of Rome with the Pope at its head…" Even a large company, trading with a joint-stock with vendible shares and a handsome measure of "limited liability," could be constructed by means of a trust deed without any incorporation. Aided by this "loose trust-concept," under the shelter of which organic groups of the most various kinds could live and prosper, English lawyers were not vitally concerned with the theory of the Corporation. The law of the Corporation was only one part, and probably not the most important part, of the English fellowship-law, but in Germany, where no such convenient shelter had been provided for the "unincorporate body," the case was different, and active discussion had raged round the nature of the Corporation. The fiction theory invented by Sinibald Fieschi, who became Pope Innocent IV in 1243, and developed and expounded by Savigny, had proved itself inadequate in an age of joint-stock companies and railway collisions; and in the rising tide of German nationalism men were prone to question the validity of a conception derived from the alien jurisprudence of Rome. A new school of thinkers arose preaching the theory of the Genossenschaft or Fellowship. They held that the German Fellowship was neither fictitious nor State-made, that it was "a living organism, and a real person with body and members and will of its own," a group-person with a group-will. The most important representative of this new school of German realists was Dr Gierke, whose work Maitland introduced to the British public after his first winter exile in Grand Canary.
Maitland had followed with unflagging interest and steady enthusiasm the great outburst of legal literature in Germany which preceded the construction of the German Civil Code. Of the Code itself he wrote that "it was the most carefully considered statement of a nation's law that the world has ever seen"; while he found in the legal debate of the Germanist and Romanist schools work which sometimes showed "a delicacy of touch and a subtlety of historical perception," of which Englishmen, "having no pressing need for comparison," could know little. For the purpose which Maitland had in view, the explanation of the way in which Englishmen had conceived of group life in its various embodiments, this subtle and delicate treatment of the forms of legal thought, this "ideal morphology" of the Germans, was no less full of suggestion than the ample historical science with which it was supported. It provided tests, and suggested those points of analogy and contrast between English and German development, which give to Maitland's treatment of the Corporate and Unincorporate Body the quality of an original discourse upon the legal and political theory of Western Europe.
Nor was the interest of the subject merely speculative. Maitland was a practical lawyer with a genius for detecting the source of bad law and bad administration in confused modes of thinking about ultimate questions. Looking for the moment at the English law concerning Corporations through the spectacles of a German realist, he detected as the principal offence against jurisprudence "a certain half-heartedness in our treatment of unincorporate groups." We were unwilling to recognise trades-unions for example as persons, while we made fairly adequate provision for their continuous life. The consequence of this half-heartedness was felt in the domain of public administration as well as in the domain of private law. Englishmen had accepted "a bad and foreign theory, which coupling corporateness with princely privilege refused to recognise and call forth into vigour the bodiliness that was immanent in every township." The Americans had been less pedantic and had permitted the New England town to develop its inherent corporateness. We, on the contrary, influenced by the Concession theory of the Corporation, had shrunk from declaring the village to be a legal person, the subject of rights and the object of gifts. The consequences of this fatal blunder were not measurable merely in terms of administrative symmetry; but so measured they were very great. No one knew better than Maitland the "appalling mess" of English local government. He had described its broader features in Justice and Police; he analysed certain underlying sources of confusion in Township and Borough. In his Introduction to Gierke's Political Theories of the Middle Ages he was disposed to ascribe no small part of this confusion to the timidity "tardily redressed by the invention of Parish Councils" which had stood between the English village and legal personality.
Other defects of loose and imperfect thinking upon the Corporation were pointed out to the readers of the Law Quarterly Review in the articles entitled the "Corporation Sole and the Crown as Corporation." The American State has private rights; it has power to sue: English law, on the other hand, had never yet formally admitted that the Corporate realm, besides being the wielder of public power, might also be the subject of private rights, the owner of lands and chattels. Our habit is to speak of the Sovereign as a corporation sole, and to refuse to recognise him as the head of a complex and highly organised "corporation aggregate of many." Such modes of thought, however well they may have fitted the designs of Tudor despotism, were neither appropriate to the needs of a free community nor adjusted to the conditions of modern life. The talk about "Kings who do not die, who are never under age, who are ubiquitous, who do no wrong and think no wrong" had "not been innocuous"; and other practical inconveniences were involved in the identification of the Common-wealth with the person of the Sovereign and in the failure to discriminate between the natural and official aspects of the Sovereign's personality. Special legislation, for instance, had been required to secure private estates for Kings. For these insular peculiarities there were, of course, assignable historical reasons, and one of these reasons, which Maitland was the first to suggest, is certainly very curious. The idea of treating the King of England as a corporation sole had occurred to Coke, or some other lawyer of Coke's day, because the parson had already been treated as a corporation sole. Why, when and how the parson came so to be treated furnishes matter for a very pretty piece of historical investigation. Who would have imagined that an unfortunate analogy, striking across the mind of a Tudor lawyer, would have helped to give to the legal aspect of the English State a peculiar colour – a colour different from that which it has received, for instance, in America. Without a superb knowledge of the Year Books, who could have fixed the offence upon Richard Broke or upon one of Richard Broke's contemporaries? And how many men, having mastered the recondite knowledge of the Year Books, would have retained a sense of the large perspectives of history sufficiently strong and vivid as to apprehend the successive legal and political forces which gave support to a "juristic abortion" through three and a half centuries of national life?
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. The making of grand theories has never been our strong point. The theory which lies upon the surface is sometimes a borrowed theory which has never penetrated far, while the really vital principles must be sought for in out of the way places. A dogma is of no importance unless and until there is some great desire within it. Quasi is one of the few Latin words that English lawyers really love. English history can never be an elementary subject. We are not logical enough to be elementary." Such phrases, even if detached from their context, have a life of their own, but they cannot be so detached without the loss of the greater part of their significance. An epigram may be an extraneous flourish as irrelevant to all substantial purpose as the ornament of the bad architect. Maitland's wit was seldom otiose; it was a shining segment in the solid masonry of argument.
In the summer of 1907 Maitland delivered the Rede Lecture at Cambridge, choosing for his theme English Law and the Renaissance. It was his object to show how, when Humanism was reviving the study of Roman law, when Roman law was expelling German law from Germany and winning victories over the relics of Anglo-Norman custom in Scotland, England succeeded in preserving her medieval law books despite their bad Latin and their worse French. The secret was to be found in an institution peculiar to this country, in the existence of the Inns of Court. "Unchartered, unprivileged, unendowed, without remembered founders, these groups of lawyers formed themselves, and in course of time evolved a scheme of legal education; an academic scheme of the medieval sort, oral and disputatious… We may well doubt whether aught else would have saved English law in the age of the Reception." But the lecture, though based upon minute enquiries, was not purely historical. After pointing out that a hundred legislatures were now building on that foundation of English law – "the work which was not submerged" – Maitland surveyed the prospects for the future and pronounced that the unity of English law was precarious. Queensland had made her own penal code in 1895; other colonies might follow in the same way. The Germans, "by a mighty effort of science and forbearance," had unified their law upon a national and historical basis. Might not the British Parliament endeavour to put out work which would be a model for the British world? "To make law that is worthy of acceptance for free communities that are not bound to accept it, this would be no mean ambition. Nihil aptius, nihil efficacius ad plures provincias sub uno imperio retinendas et fovendas. But it is hardly to Parliament that one's hopes must turn in the first instance." Certain ancient and honourable societies, proud of a past that is unique in the history of the world, may become fully conscious of the heavy weight of responsibility that was assumed when English law schools saved, but isolated, English law in the days of the Reception. "In that case the glory of Bruges, the glory of Bologna, the glory of Harvard, may yet be theirs." The lecturer paused, and then surveying the crowded Senate House added, with an effect which those who heard him cannot forget, certain words which have not been printed. "But," he concluded, "I see, Mr Vice-Chancellor, that strangers are present."
