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
A mind so exact and disinterested and endowed with so rare a capacity
for divesting itself of the intellectual accretions of its own age
was naturally full of dissolvents for ambitious theories. Maitland
expressed in his Inaugural lecture his high respect for the genius and
learning of Henry Maine, and nothing which was then written would have
been afterwards retracted. Yet the close study of English medieval law
had brought him to the conclusion that some of the generalisations to
which Maine seemed disposed to assign a general validity, at least for
the Indo-Germanic races, received no adequate support from the English
evidence. In a brilliant discussion of the antiquities of inheritance
he argues that in the present state of the evidence it would be rash
to accept "family ownership," or in other words a strong form of
birth-right, as an institution which once prevailed among the English
in England. Maine, operating chiefly with Roman law but also drawing
upon Teutonic, Slavonic and even Indian evidence, had argued that the
primitive unit of society was an agnatic patriarchal group and that the
ownership of land was vested in a family or clan constructed on strict
agnatic principles and governed by the paterfamilias. Maitland submits
the conception of common ownership to analysis. Common ownership
implies corporate ownership, and the idea of a corporation is modern,
not primitive. Co-ownership indeed there was, but co-ownership spells
individualism. If there is a law which declares how shares should be
distributed among the members of the group upon partition, then there
is a law which assigns ideal shares in the unpartitioned land. There
was no proof that anything which ought to be called family-ownership
existed among the Anglo-Saxons; there was no proof of the patriarchal
_gens_, of the agnatic group. On the contrary there was a grave
difficulty in accepting the patriarchal family as the primitive
unit of English society, for the earliest rules about Anglo-Saxon
inheritance and the Anglo-Saxon blood-feud exhibit the fact that "the
persons who must bear the feud and who may share the weregild are
partly related through the father and partly through the mother."
Birth-rights indeed there were, but birth-rights do not imply agnation
or corporate ownership. In some cases they may even be the consequence
of intestate succession. Submitted to concrete tests of this character
the evidence for the strict agnatic land-owning group in England became
in Maitland's eyes very ghostly[23]. "In Agnation," wrote Maine, "is
to be sought the explanation of that extraordinary rule of English law
which prohibited brothers of the half-blood from succeeding to one
another's lands." Maitland's solution of "this extraordinary rule" is
very different and highly characteristic of his concrete, practical
turn of mind. In his opinion it is "neither a very ancient nor a very
deep-seated phenomenon." He points out that the problem of dealing
Public-domain text, read in full here on John Shaqi.
Reviews
Reviews
No reviews yet
Be the first to share your thoughts on this work.
Join the Discussion
Join the discussion
Sign in to leave a comment or review.
Sign InorCreate an account