Frederick William Maitland, Downing Professor of the Laws of England: A Biographical SketchFisher, H. A. L. (Herbert Albert Laurens)
History
Frederick William Maitland, Downing Professor of the Laws of England: A Biographical Sketch
Fisher, H. A. L. (Herbert Albert Laurens)
Maitland, Frederic William, 1850-1906
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?
Public-domain text, read in full here on John Shaqi.
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