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
with the half-blood must always be difficult, and the solution is
always likely to be capricious. "The lawyers of the thirteenth and
fourteenth centuries had no definite solution, and we strongly suspect
that the rule that was ultimately established had its origin in a few
precedents...." "Our rule was one eminently favourable to the King; it
gave him escheats; we are not sure that any profounder explanation of
it would be true."
In Maitland's hands a treatise upon antiquarian law became something
greater than an antiquarian treatise. It became a contribution to the
general history of human society. Even the most superficial reader must
be struck by the number of foreign books quoted in the footnotes and
by the way in which analogues and contrasts from French and German law
are brought in to illustrate the course of our legal history. English
law became insular; pursued a course of its own. We avoided torture;
we escaped the secret and inquisitorial procedure of the continent; we
developed the jury; primogeniture became the general rule among us in
case of intestacy; the _retrait lignager_ of the French customs did
not become established in our land-law. But just for this reason it
was the more necessary to understand the main stream of continental
development. Many a rule which, if considered from a purely insular
standpoint, might seem part of the natural order, would assume its
true character of a deviation from the normal, if viewed in the larger
context of European law; many features of our law apparently arbitrary
would in that larger context receive explanation. Maitland takes care
to know that which was known to Glanvill and Bracton; but he does not
for that reason neglect Brunner or Gierke, Esmein or Viollet. A piece
of continental evidence suggested by the history of the Inquisition
points to the reason why in England alone the public trial of primitive
Teutonic civilisation survived through the Middle Ages. It survived
because the Inquisition was never introduced into this country, and
England had no Inquisition because at the critical period it was
singularly unfertile in heresy.
Public-domain text, read in full here on John Shaqi.
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