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
One of the inevitable consequences of the process was a confusion
in legal ideas. Distinctions which in the classical Roman law were
clearly drawn became obliterated in the Middle Ages. Ownership and
sovereignty, rents and taxes, public and private rights, became blended
together in one large, hazy, undistinguished concept. Even the contrast
between freedom and unfreedom which appears to the modern mind so
elementary and so logical did not fit the intricate economic facts
of the eleventh century. Of freedom there were many grades and many
criteria. In one sense the villein was free, in another sense unfree,
as a combination of forces fiscal, economic, penal were assimilating
the rural population free and servile to the hybrid type. "Freedom is
measured along several different scales. At one time it is to the power
of alienation or withdrawal that attention is attracted, at another to
the number and kind of services and 'customs' that the man must render
to his lord." The closer the facts of Domesday were scrutinised the
more impossible did it appear to arrive at exact definitions.
Maitland's subtle powers of analysis were never shown to better
advantage than in this attempt to rethink "the common thoughts of our
forefathers, their common thoughts about common things." We doubt
whether any historian had ever set himself down so seriously to
get inside the medieval mind. The pompous phraseology in the early
_diplomata_ does not deceive him, for he knows that the romanesque
terms neither express the thoughts nor represent the facts of a
barbarian age. Large phrases confidently used by modern historians,
such as "property" or "joint liability," must be closely scrutinised
before they can be applied to a remote age; property is a bundle of
rights, and with every advance in economic progress, in material
aspirations, in intellectual definition, rights and powers multiply,
the conception of _dominium_ becomes more intensive, fuller of
content and discriminations. There is no fixed immutable limit to
the implications of such a concept. The Saxon chieftain learnt the
extent of his powers in the process of alienating them to the Church,
as some African chieftain tempted by gin and rifles may acquire a
knowledge that land is not made for sheep alone, but may also yield
gold and diamonds. But as the barbarian is vague, so also he is for
all his materialism an idealist. "He sees things not as they are but
as they might conveniently be. Every householder has a hide; every
hide has 120 acres of arable; every hide is worth one pound a year;
every householder has a team; every team is of eight oxen; every team
is worth one pound. If all this be not so, then it ought to be so, and
must be deemed to be so. Then by a Procrustean system he packs the
complex and irregular facts into his scheme!" It is no light enterprise
to understand the puzzled and inadequate thought which lies at the
basis of our social history; Maitland believed that the reward was
Public-domain text, read in full here on John Shaqi.
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