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
While the pages of the _History_ were passing through the press, two
other works had been planned and were already partially accomplished.
In his edition of the _Note Book_ Maitland had proclaimed the
necessity for a new edition of Bracton, an edition based not upon
inferior manuscripts but upon the best manuscripts, and accompanied
by an adequate critical apparatus. Such a task would demand many
years of painful toil and Maitland had more pressing calls upon his
energies. Nevertheless he regarded it as important to arrive at a
definite conclusion with regard to one fundamental question respecting
his favourite author. What was the precise extent and character of
Bracton's indebtedness to Roman Law? Sir Henry Maine in his famous
lectures upon _Ancient Law_, published in 1860, went so far as to
assert that Bracton "put off on his countrymen as a compendium of pure
English law a treatise of which the entire form and two thirds of the
contents was directly borrowed from the _Corpus Juris_." But the amount
of matter which Bracton directly borrowed from the _Corpus Juris_ was
comparatively insignificant, "not a thirteenth part of the book"; the
Devonshire justice went for his Roman law not to the original springs
but to a famous Italian doctor. Dr Carl Guterbock established the
fact that large portions of Bracton's _De Legibus_ were derived from
the works of Azo, a Bolognese Jurist who flourished at the end of the
twelfth and at the beginning of the thirteenth century, and whose fame
endured throughout the Middle Ages. But what was the precise measure of
Bracton's obligation to "the master of all the masters of the laws"?
It was Maitland's opinion that the debt might easily be overstated.
In order that the matter might be thoroughly cleared up he planned a
volume for the Selden Society which should exhibit in parallel columns
the text of the Bolognese _Summa_ and the corresponding portions
of Bracton. From this he drew three conclusions, that Bracton's
obligations to Roman Jurisprudence were small in extent, that Bracton
was an indifferent Romanist, and thirdly that Bracton only borrowed
from Roman law when he had no English cases to cite. Bracton was, in
fact, a thorough Englishman. Like everyone else in the Middle Ages he
regarded Roman law as a source of authority to which recourse should
be had when the stock of home-bred law ran out, but it was improbable
that he had ever received a University training in the _Leges_ and it
is certain that he was far more comfortable with his English writs and
his English plea-rolls than with the elegant refinements of the Code or
the Digest.
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