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
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
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