Frederick William Maitland, Downing Professor of the Laws of England / A Biographical Sketch

by H. A. L. Fisher

With health so broken that even the summers in England seldom passed without periods of illness and pain Maitland embarked upon one of the great undertakings of his life, an edition of the Year Books of Edward II. "These Year Books are a precious heritage. They come to us from life. Some day they will return to life once more at the touch of some great historian." The spirit in which Maitland approached the work is indicated by two quotations, the first from Roger North, the second from Albert Sorel, which are printed on the title page of each volume. "He (Sergeant Maynard) had such a relish of the old Year Books that he carried one in his coach to divert him in travel, and said he chose it before any comedy." "C'est toute la tragédie, toute la comédie humaine que met en scène sous nos yeux l'histoire de nos lois. Ne craignons pas de le dire et de le montrer." The edition of these Year Books printed in the reign of Charles II. from a single inferior manuscript was imperfect and bad. Maitland determined to show how an edition should be made, and in his eyes no labour was too great for such a task. These records were unique, priceless, imcomparable. "Are they not the earliest reports, systematic reports, continuous reports, of oral debate? What has the whole world to put by their side? In 1500, in 1400, in 1300, English lawyers were systematically reporting what of interest was said in Court. Who else in Europe was trying to do the like, to get down on paper and parchment the shifting argument, the retort, the quip, the expletive? Can we, for example, hear what was really said in the momentous councils of the Church, what was really said in Constance and Basel, as we can hear what was really said at Westminster long years before the beginning of 'the conciliar age'?" The Year Books contained more medieval conversation than had survived in any other authentic source. The history of law could not be written without them. "Some day it will seem a wonderful thing that men once thought that they could write the history of medieval England without the Year Books."

The Reports began in 1285, and from 1293 the stream was fairly continuous. "This surely is a memorable event. When duly considered it appears as one of the great events in English History. To-day men are reporting at Edinburgh and Dublin, at Boston and San Francisco, at Quebec and Sydney and Cape Town, at Calcutta and Madras. Their pedigree is unbroken and indisputable. It goes back to some nameless lawyers at Westminster to whom a happy thought had come. What they desired was not a copy of the chilly record, cut and dried, with its concrete particulars concealing the point of law: the record overladen with the uninteresting names of litigants and oblivious of the interesting names of sages, of justices, of sergeants. What they desired was the debate with the life-blood in it, the twists and turns of advocacy, the quip courteous and the countercheck quarrelsome. They wanted to remember what really fell from Bereford, C. J., his proverbs, his sarcasms: how he emphasised a rule of law by Noun Dieu or Par Seint Piere! They wanted to remember how a clever move of Sergeant Herle drove Sergeant Toudeby into an awkward corner, or how Sergeant Passeley invented a new variation on an old defence: and should such a man's name die if the name of Ruy López is to live?"

Maitland lived to complete three volumes of the Year Books. The French was printed on one side of the page, a translation executed in terse and faithful English on the other. Those who were familiar with the work of the Literary Director of the Selden Society had no cause for surprise at the exquisite finish of the editing. They were prepared for an elaborate apparatus criticus, for a careful account of the manuscripts, and for such notes as might be requisite to explain allusions and to elucidate obscurities. The great discovery, that the Reports were not official records but the private note books of law students, was so entirely in Maitland's happy and characteristic vein, that, although no one else had earned the title to make it, it was quite natural that it should be made by him. But there was one feature in the Introduction to the first volume which startled even his admirers. The editor took occasion to settle the grammar and syntax of the Anglo-French language, its nouns and its verbs, its declensions and its tenses. His friends had known him as lawyer, historian, diplomatist, paleographer, and no exhibition of excellence in any one of these departments would have afforded them the slightest sensation of novelty; but they had not divined in him the philologist and grammarian.

In answer to surprised congratulations, he said, with the quick sparkle of humour which his friends knew so well, that he would go down to posterity as the author of "Maitland's law"; he had discovered that such few Anglo-French verbs as possessed "an imperfect on active service" rarely employed their preterites. The experts in medieval French have applauded the work, and the editors of the Cambridge History of English Literature have thought good to reprint it. In the course of a winter spent under a blue sky Maitland had made a really important contribution to medieval philology. And yet, far as he carried his investigations into the forms, the structure, and the orthography of the language which he found in his manuscripts of the fourteenth century, philology was not the primary object of his quest. He wished to edit his text as well as it was capable of being edited, and to provide guidance for those who should take up the work when he was no longer there to direct it. The French text of the Year Books was full of abbreviations which could not be expanded unless the forms of the language were accurately ascertained. Maitland therefore applied himself to learn whatever might be learned about them. The work was pioneer work, very minute and laborious, but for Maitland a labour of love. The men who wrote this forgotten and unexplored language were often clumsy and careless scribes. Their spelling was full of vagaries; there was no word so short but that they would spell it in several ways; through neglect of the "e" feminine they lost not entirely but very largely their sense of gender; they would murder the infinitive; they coined strange terminations out of misunderstood contractions; but they were using a living tongue to describe law that was alive; and if in some ways a fine language degenerated in the current usage of the English Courts, healthy processes were at work determining the use of words, processes which it was worth while to watch with some narrowness, for if thought fashions language, language in turn reacts upon thought.

"Let it be that the Latin and French were not of a very high order, still we see at Westminster a cluster of men which deserves more attention than it receives from our unsympathetic, because legally uneducated, historians. No, the clergy were not the only learned men in England, the only cultivated men, the only men of ideas. Vigorous intellectual effort was to be found outside the monasteries and universities. 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."

Meanwhile health was failing and gaps were being made in the circle of his most intimate friends. Henry Sidgwick, the revered master of philosophy, went first, then Lord Acton, finally, in 1904, Leslie Stephen. Some words which Maitland spoke of Henry Sidgwick have already been quoted in this memoir; they are passionate in the intensity of their affection and regard. Acton was a friend of less ancient standing, who by his high character and vast learning had conquered Maitland's unreserved enthusiasm; the loss of Leslie Stephen was mourned as that of a near relative. Of these deaths one was a possible and the other an actual cause of some deviation from Maitland's appointed course of legal work. Upon the vacancy in the Cambridge Chair of Modern History which occurred in 1902, Maitland was invited by Mr Balfour to succeed Acton. The appointment would have been applauded throughout the historical world, but Maitland felt that his health was too precarious to admit of his undertaking the labours of a new Chair. Besides, there were the Year Books; there were the illusive and fascinating subtleties of the persona ficta. He would not lightly abandon the law. Nolumus leges Angliæ mutare, he wrote to a friend, with a slight variation on the classic words of those English barons who in the reign of Henry III. resisted the introduction of a foreign usage. The decision was doubtless wise, but the continuity of Maitland's legal work was not destined to remain unbroken. Leslie Stephen had expressed a wish that, if any appreciation of him were published, it should be done by Maitland. "He, as I always feel, understands me." Such a call could not be neglected, and so the Year Books were laid aside, or rather the pace was slackened, while Maitland laboured with loving and scrupulous diligence upon the Life and Letters of Leslie Stephen.

To those who knew Leslie Stephen best the biography has seemed to be a true and vivid picture of the man; yet the work was undertaken with many misgivings, and gave cause for much anxiety. In the editing of the Year Books Maitland was exercising his own familiar craft, and doing what no other living man could do so well; but the writing of biography was new ground, and Maitland felt uncertain of his powers. The task was rendered more difficult by the depth of Maitland's affection for Stephen, and by his scrupulous anxiety to write down no epithet or adverb which would have seemed to Stephen himself to be excessive. Then there were the thousand and one little questions of taste and judgment which always confront the biographer. Should such a passage be omitted in deference to so and so's feelings? Will such and such a letter, interesting though it be to an intimate friend, commend itself to the chance reader? 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. "He is too big for me for one sort of writing and too dear for another," he wrote to a friend; and only when a considerable portion of the book had received the approval of relatives did he begin to experience a sensible measure of relief. The steady appreciation of Miss Caroline Stephen, and some warm words written by Lady Ritchie, brought him peculiar pleasure.

The Life and Letters of Leslie Stephen appeared in the autumn of 1906, and reviews were steadily flowing in when the Downing household began to make preparations for its annual pilgrimage across the sea. Maitland, who was greatly relieved at the publication of his book, and at its friendly reception in the press, seemed to have recovered something of his old buoyancy. He pushed on an edition of Sir Thomas Smith's De Republica Anglorum, which a pupil was undertaking at his instigation and under his supervision, and renewed his attack upon the Year Books. For some years past he had been concerned with the prospect of finding a trained scholar who would be capable of carrying on the work when he was no longer there to direct it. In a foreign university a man of Maitland's power would have created a school; young men from all parts of the country would have clustered round him to learn paleography and law French, and the elements of social and legal history, and the zeal of the class would have atoned for any deficiency in numbers. But the climate of the English University is not favourable to the production of finished historical technique. We are an economical race, and since advanced work does not pay in the Tripos, or in the careers to which the Tripos serves as a portal, it is left to the casual patronage of amateurs. Maitland thoroughly understood the practical limitations under which an English professor must work. He gave courses of lectures which were expressly adapted to the general needs of the undergraduates, and were attended by all the law students in the University, but interspersed these general courses with others of a more special character, designed to interest the real historical student. Thus, in 1892 and 1894, he held classes for the study of English Medieval Charters, and this instruction in paleography and diplomatic was repeated in 1903, 1904 and 1905. In sixty hours spent over facsimiles Maitland contended that he could turn out a man who would be able to read medieval documents with fluency and exactitude.

But with two exceptions the contributors to the volumes of the Selden Society were not drawn from the ranks of Maitland's Cambridge pupils, and the completion of the fourth volume of the Year Books was undertaken by a distinguished scholar, who, though he would be the first to admit that he had learnt much of his craft from Maitland, was never an academical pupil in the strict sense of the term.

One Cambridge disciple there was, who, under Maitland's guidance, attained to rare distinction. Miss Mary Bateson was writing essays for Maitland while he was Reader in English Law, and at that early period impressed him with the thoroughness and grasp of her knowledge. Under Maitland's direction Miss Bateson became one of the best medievalists in England. Her industry rivalled that of her master; her judgments were sane and level, and in the art of historical editing she acquired almost all that Maitland could teach her. Articles and volumes flowed from her pen, all of them good, but best of all the two volumes upon Borough customs, published by the Selden Society in 1904 and 1906, and owing much "to the counsel and direction of Professor Maitland." Then very suddenly, in the late autumn of 1906, Miss Bateson died. Maitland was already preparing to sail for the Canaries, whither his wife and elder daughter had preceded him. The loss of Miss Bateson affected him deeply. He found time to write two short notices for the Press, speaking of qualities which had impressed him, "the hunger and thirst for knowledge, the keen delight in the chase, the good-humoured willingness to admit that the scent was false, the eager desire to get on with the work, the cheerful resolution to go back and begin again, the broad good sense and the unaffected modesty," and then embarked for Southampton. Friends who saw him upon the eve of his departure spoke of him hopefully: for judged by his own frail standard he seemed to be well. Then came a telegram announcing his death. On the voyage out he had developed or contracted pneumonia, and being alone and ill-cared for, arrived at Las Palmas desperately ill. His wife flew down from the villa which she had prepared against his coming, but the malady had obtained too firm a hold, and he died on December 19, 1906, at Quiney's Hotel. His body lies in the English cemetery at Las Palmas. At the time of his death he was fifty-six years of age.