Frederick William Maitland, Downing Professor of the Laws of England: A Biographical Sketch — John Shaqi
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
To the deepest and most serious minds the literature of knowledge is
also the literature of power. Maitland's outlook and ideal were at
the period of intellectual virility greatly affected by two books,
Savigny's _Geschichte des Römischen Rechts_ and Stubbs' _Constitutional
History_. The English book he found in a London Club and "read it
because it was interesting," falling perhaps, as he afterwards
suggested, for that very reason "more completely under its domination
than those who have passed through schools of history are likely to
fall." Of the German he used to say that Savigny first opened his eyes
as to the way in which law should be regarded.
Justinian's Pandects only make precise
What simply sparkled in men's eyes before,
Twitched in their brow or quivered in their lip,
Waited the speech that called but would not come[10].
Law was a product of human life, the expression of human needs, the
declaration of the social will; and so a rational view of law would
be won only from some height whence it would be possible to survey
the great historic prospect which stretches from the Twelve Tables
and the _Leges Barbarorum_ to the German Civil Code and the judgments
reported in the morning newspaper. Readers of _Bracton's Note Book_
will remember Maitland's description of Azo as "the Savigny of the
thirteenth century," as a principal source from which our greatest
medieval jurist obtained a rational conception of the domain of law.
Savigny did not write the same kind of book as Azo. He worked in a
different medium and on a larger canvas but with analogous effects. He
made the principles of legal development intelligible by exhibiting
them in the vast framework of medieval Latin and Teutonic civilization
and as part of the organic growth of the Western nations. Maitland's
early enthusiasm for the German master took a characteristic form: he
began a translation of the history.
The translation of Savigny was neither completed nor published.
Maitland's first contribution to legal literature was an anonymous
article which appeared in the _Westminster Review_ in 1879. This was
not primarily an historical disquisition though it displayed a width
of historical knowledge surprising in so young a man, but a bold,
eloquent, and humorous plea for a sweeping change in the English law
of Real Property. "Let all Property be personal property. Abolish the
heir at law." This alteration in the law of inheritance would lead
to great simplification and would remove much ambiguity, injustice
and cost. Nothing short of this would do anything worth doing. A few
little changes had been made in the past, "for accidents will happen
in the best regulated museums," but it was no use recommending
timid subsidiary changes while the central anomaly, the source of
all complexity and confusion, was permitted to continue. "It is not
unlikely," remarked the author with grave irony, "that we are behind an
age whose chief ambition is to be behind itself."
Public-domain text, read in full here on John Shaqi.
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