Frederick William Maitland

PREFATORY NOTE

Whatever merit this Memoir may possess it owes to Maitland and to the circle of those who cherish his memory. My own disabilities will be made plain to the reader, but, lest he entertain false expectations, let me explain at the outset that I was educated neither at Eton, nor at Cambridge, nor at Lincoln's Inn, that I am no lawyer, and that I have never received a formal education in the law. Finally, I did not make Maitland's acquaintance till he was in his thirty-seventh year. These are grave shortcomings, and if I do not rehearse the long roll of benefactors who have helped me to repair them, let it not be imputed to a failure in gratitude. I cannot, however, forbear from mentioning five names. Before these sheets went to Press they were read by Mrs Maitland, by Mrs Reynell, by Dr Henry Jackson, by Dr A. W. Verrall and by Professor Vinogradoff. To their intimate knowledge and weighty counsels I owe a deliverance from many errors. Dr Jackson has generously laid upon himself the additional burden of helping me to see the volume through the Press.

May 1910.

I

The life of a great scholar may be filled with activity as intense and continuous as that demanded by any other calling, and yet is in the nature of things uneventful. Or rather it is a story which tells itself not in outward details of perils endured, places visited, appointments held, but in the revelation of the scholar's mind given in his work. Of such revelation there is no stint in the case of Frederic William Maitland. Within his brief span of life he crowded a mass of intellectual achievements which, if regard be had to its quality as well as to its volume, has hardly, if ever, been equalled in the history of English learning. And yet though a long array of volumes stands upon the Library shelves to give witness to Maitland's work, and not only to the work, but to the modest, brilliant and human spirit which shines through it all and makes it so different from the achievement of many learned men, some few words may be fitly said here as to his life and as to the place which he held and holds in our learning.

He was born on the 28th of May, 1850, at 53 Guilford Street, London, the only son of John Gorham Maitland and Emma Daniell. Father and mother both came of good intellectual lineage. John Gorham Maitland was the son of Samuel Roffey Maitland, the vigorous, learned and unconventional historian whose volume on the Dark Ages, published in 1844, dissipated a good deal of uncritical Protestant tradition. Emma Daniell was the daughter of John Frederic Daniell, a distinguished physicist, who became a Fellow of the Royal Society at the age of twenty-three, invented the hygrometer and published, as Professor of Chemistry at King's College, a well-known Introduction to Chemical Philosophy.

Such ancestry, at once historical and scientific, may explain some of Maitland's tastes and aptitudes. Indeed the words in which Dr Jessop has summarised the work of Samuel Maitland might be applied with equal propriety to the grandson. "Animated by a rare desire after simple truth, generously candid and free from all pretence or pedantry, he wrote in a style which was peculiarly sparkling, lucid and attractive." The secret of this stimulating and suggestive quality lay in the fact that Samuel Maitland was a man of independent mind who took nothing for granted and investigated things for himself. In 1891 his grandson wrote the following words to his eldest sister, who asked whether their grandfather's works would live. "Judging him merely as I should judge any other literary man I think him great. It seems to me that he did what was wanted just at the moment when it was wanted and so has a distinct place in the history of history in England. The Facts and Documents (illustrative of the History, Documents and Rites of the Ancient Albigenses and Waldenses) is the book that I admire most. Of course it is a book for the few, but then those few will be just the next generation of historians. It is a book which 'renders impossible' a whole class of existing books. I don't mean physically impossible – men will go on writing books of that class – but henceforth they will not be mistaken for great historians. One has still to do for legal history something of the work which S. R. M. did for ecclesiastical history – to teach men e.g. that some statement about the thirteenth century does not become the truer because it has been constantly repeated, that 'a chain of testimony' is never stronger than its first link. It is the 'method' that I admire in S. R. M. more even than the style or the matter – the application to remote events of those canons of evidence which we should all use about affairs of the present day, e.g. of the rule which excludes hearsay."

Cambridge and the bar were familiar traditions. Samuel Maitland was a member of Trinity College, Cambridge, who, having been called to the bar, abandoned the professional pursuit of the law for historical research. He took orders, became Librarian at Lambeth, and ultimately retired to Gloucester to read and to write. John Gorham, seventh wrangler, third classic, Chancellor's medallist, crowned a brilliant undergraduate career by a Fellowship in his father's college and was then called to the bar, but finding little practice drifted away into the Civil Service, becoming first, examiner, and afterwards, in succession to his friend James Spedding, secretary to the Civil Service Commission, which last office he held till his death in 1863, at the age of forty-five. That he could write with point and vigour is made clear by a pamphlet upon the Property and Income Tax, published in 1853, but the work of the Civil Service Commission must have left little leisure for writing, and early death cut short the career of a man whose high gifts were as remarkable to his friends as was the modesty with which he veiled them from the world1. Frederic William, too, passed from Cambridge to the law and then away to work more congenial to his rare and original powers.

Of direct parental influence Maitland can have known little. His mother died in 1851 when he was a baby, and twelve years afterwards, six months before a Brighton preparatory school was exchanged for Eton, he and his two sisters were left fatherless and the sole charge of the family devolved upon Miss Daniell the aunt, who stood in a mother's place. Dr Maitland, the historian, lived on till 1866 and his home in Gloucester, still called Maitland House, was from time to time enlivened by the visits of grandchildren. The fair landscape of Gloucestershire – the wooded slopes of the Cotswolds, the rich pastures of the Severn Valley with the silver thread of river widening into a broad band as it nears the Bristol Channel, the magical outline of the Malvern Hills, the blaze of the nocturnal forges in the Forest of Dean, were familiar to Maitland's boyhood. Gloucestershire was his county, well-known and well-loved. The beautiful old manor-house of Brookthorpe, one of those small grey-stone manor-houses which are the special pride of Gloucestershire, stood upon the lands which had come into the possession of the family through the marriage of Alexander Maitland with Caroline Busby in 1785. Round it in the parishes of Brookthorpe and Harescombe lay "Squire Maitland's" lands – a thriving cheese-making district until Canada began to filch away the favour of its Welsh customers.

Maitland was at Eton from 1863 to 1869, but failed to become prominent either in work or play. "He played football, was for a while a volunteer, rowed so much that he 'spoilt his style,' spent Sunday afternoons in running to St George's chapel to hear the anthem, and more than once began the holidays by walking home to Kensington2." Long afterwards when the question of compulsory Greek was being hotly debated in the Senate House at Cambridge he spoke with deep feeling of a "boy at school not more than forty years ago who was taught Greek for eight years and never learnt it … who reserved the greater part of his gratitude for a certain German governess … who if he never learnt Greek, did learn one thing, namely, to hate Greek and its alphabet and its accents and its accidence and its syntax and its prosody, and all its appurtenances; to long for the day when he would be allowed to learn something else; to vow that if ever he got rid of that accursed thing never, never again would he open a Greek book or write a Greek word3." We imagine a shy, awkward delicate boy bursting into jets of wittiness at the least provocation, caring for things which other boys did not care for, misliking the classics, especially Greek, but "brought out by Chaucer" as his tutor Mr E. D. Stone reports, and discovering some taste for mathematics and a passionate interest in music. One contemporary remembers his "jolly, curiously-lined face"; another writes that he was regarded as "a thoroughly good fellow," but his striking originality of mind was perhaps only realised by one schoolfellow, Gerald Balfour, who was the sharer of many a Sunday walk and both at Eton and Cambridge bound to Maitland by close ties of friendship. To the masters Maitland presented none of the obvious points of interest. Even William Johnson, that learned and catholic scholar who made so many happy discoveries, failed to discover Maitland. The boy was not a Hellenist and his deficiencies in Greek and Latin prosody put him outside the intellectual pale. He was whimsical, full of eccentric interests, of puns and paradox and original humour. His closest school friend thought that he would possibly develop into "a kind of philosophic Charles Lamb4."

In the autumn of 1869 Maitland went up to Trinity College, Cambridge, as a Commoner. The learned Samuel Roffey had been a musician both in theory and practice, and the taste for music descended through the son to the grandson. The first year of Maitland's undergraduate life was given over to music, mathematics and athletics; but his earliest distinctions were gained not in the most but in the least intellectual of these pursuits. Though he can never have looked otherwise than fragile, he had outgrown his early delicacy and become an active lad with considerable powers of endurance. He won the Freshman's mile in four minutes forty-seven seconds, excellent time as records went then, and obtained his "blue" as a three-miler in the Inter-University Sports. The two mile walking race, the quarter, and the mile, fell to him at various times in the Third Trinity Sports. Nor were his athletic activities confined to the running path. His friend Mr Cyprian Williams remembers his last appearance as a racing oarsman; how on the final day of the Lent races of 1872 the Third Trinity second boat after a successful week made a crowning bump, how in the moment of the victory the crew were tipped over into the cold and dirty waters of the Cam, and how in the evening the boat dined in Maitland's lodgings over Palmer's boot-shop and kept up its festivity well into the morning.

Long before this – at the beginning of his second year at Cambridge – Maitland found his way into Henry Sidgwick's lecture-room and made a discovery which shall be told in his own words. "It is now thirty years ago that some chance – I think it was the idle whim of an idle undergraduate – took me to Sidgwick's lecture-room, there to find teaching the like of which had never come in my way before. There is very much else to be said of Sidgwick; some part of it has been beautifully said this afternoon; but I should like to add this: I believe that he was a supremely great teacher. In the first place I remember the admirable patience which could never be out-worn by stupidity, and which nothing but pretentiousness could disturb. Then there was the sympathetic and kindly endeavour to overcome our shyness, to make us talk, and to make us think. Then there was that marked dislike for any mere reproduction of his own opinions which made it impossible for Sidgwick to be in the bad sense the founder of a school. I sometimes think that the one and only prejudice that Sidgwick had was a prejudice against his own results. All this was far more impressive and far more inspiriting to us than any dogmatism could have been. Then the freest and boldest thinking was set forth in words which seemed to carry candour and sobriety and circumspection to their furthest limit. It has been said already this afternoon, but I will say it again: I believe that no more truthful man than Sidgwick ever lived. I am speaking of a rare intellectual virtue. However small the class might be, Sidgwick always gave us his very best; not what might be good enough for undergraduates, or what might serve for temporary purposes, but the complex truth just as he saw it, with all those reservations and qualifications, exceptions and distinctions which suggested themselves to a mind that was indeed marvellously subtle but was showing us its wonderful power simply because, even in a lecture room, it could be content with nothing less than the maximum of attainable and communicable truth. Then, as the terms went by, we came to think of lecture time as the best time we had in Cambridge; and some of us, looking back now, can say that it was in a very true sense the best time that we have had in our lives. We turned away to other studies and pursuits, but the memories of Sidgwick's lectures lived on. The matter of the lectures, the theories and the arguments, might be forgotten; but the method remained, the spirit remained, as an ideal – an unattainable ideal, perhaps, but a model of perfect work. I know that in this matter I can speak for others; but just one word in my own case. For ten years and more I hardly saw Sidgwick. To meet him was a rare event, a rare delight. But there he always was: the critic and judge of any work that I might be doing: a master, who, however forbearing he might be towards others, always exacted from himself the utmost truthfulness of which word and thought are capable. Well, I think it no bad thing that young men should go away from Cambridge with such a master as that in their minds, even though in a given case little may come of the teaching … I can say no more. Perhaps I have already tried to say too much. We who were, we who are, Sidgwick's pupils, need no memorial of him. We cannot forget. Only in some way or another we would bear some poor testimony of our gratitude and our admiration, our reverence and our love5."

Such teaching was precisely calculated to ripen Maitland's unsuspected powers. The pupil was as modest, as exact, as truth-loving as the master, and possessed a quick turn for witty casuistry which was quite individual though not dissimilar to Sidgwick's own gift in the same direction. Under Sidgwick's influence Maitland's intellect deepened and widened. The piano was ejected from the college room; the University running path knew him no more; mathematics were abandoned for philosophy with such good result that a scholarship was gained at Trinity, and that in the Moral and Mental Science Tripos of 1872 Maitland came out at the head of the First Class, bracketed with his friend W. Cunningham, who has since won high distinction in the field of economic history. But the chief prize of undergraduate ambition, a Fellowship at Trinity, was denied him. Maitland competed, and was beaten in the competition by James Ward, now one of the most distinguished of living psychologists. Examiners make fewer mistakes than is commonly supposed, and on this occasion Henry Sidgwick and Thomas Fowler reached their decision not without hesitation. While admitting Maitland's literary brilliance and facility they discovered in his successful rival a deeper interest in the problems of philosophy and therefore a superior claim to a Fellowship in Moral and Mental Science6.

Maitland's Fellowship dissertation entitled "A Historical Sketch of Liberty and Equality as Ideals of English Political Philosophy from the time of Hobbes to the time of Coleridge" is, despite some defects of proportion, a remarkable performance for so young a man. Not only does it cover a wide range of reading, especially in the English moralists, but it is distinguished by two characteristic qualities – independence of judgment and a scrupulous estimate of the canons of proof. The scholar of Trinity says many good things7, but says nothing at random. Even when it would have been tempting to sally forth with a flourish of affirmation, he prefers to stand within the zone of caution. "I am inclined to think," he writes, "(though there is great risk of such speculations being wrong) that Hobbes was led to exaggerate his account of man's naturally unsocial character by a desire to bring the state of nature into discredit." One cannot dogmatise about the motives of the dead; our dogmas are but plausible hypotheses, and so complex is human nature, so inexhaustible is life's casuistry that the likeliest conjecture may fail of the mark. "There is a great risk of such speculation being wrong." Touches like this reveal the fact that the disciple of Sidgwick had learnt his master's lesson.

The scholarship at Trinity, carrying with it a place at the scholar's table, brought Maitland into communion with the ablest men in the College. It often happens that a youth who has attracted little attention at school by reason of his failure to satisfy the limited conventions of schoolboy excellence, springs into sudden prominence at the University. His conversation attracts notice; his friends discover that he has original opinions, or some peculiar charm of bearing, or that his gifts of mind or character are out of the common. So it was with Maitland. He soon achieved a reputation not only as a witty and brilliant talker, but as a charming companion and as the most original public speaker of his time. He was elected to be a member of the Apostles, a small society which for many university generations has been a bond between clever young Cambridge men and has brought them into friendly relations with their seniors: and by the suffrages of a larger and less select electorate he rose to be Secretary and then President of the Union Society.

Maitland's speeches at the Union printed themselves upon the minds of his audience as being very effective for their immediate purpose and yet quite unlike the speeches of ordinary vote-winners. His artifice was all his own. Others were more eloquent, more prompt in the cut and thrust of debate, but in the power of condensing an argument into a surprising phrase or epigram he stood alone. After his first successful appearance as the advocate of the opening of National Collections of Science and Art on Sunday afternoons he became the favourite undergraduate orator of his time. "You insist that we must keep the Mosaic Law," he argued in his maiden speech, "but under it a man who gathered sticks on the Sabbath was stoned to death. Now I have picked up sticks on Sundays. Will you in your consistency stone me?" On another occasion he delighted the House by observing that at the Reformation the English State put an end to its Roman bride but married its deceased wife's sister. The shape of his opinions was frankly radical and fashioned by a vehement enthusiasm for free thinking and plain speaking. "There are two things," he remarked, "which we have learnt by costly experience that the Law cannot control – Religious Belief and the Rate of Interest." Compulsory attendance at College Chapel, Church Establishment, the closing of the Cambridge Union on Sunday mornings aroused his opposition and furnished the theme of well-remembered speeches. "O Sir," he once exclaimed to the President with outstretched hands, "I would I were a vested nuisance! Then I should be sure of being protected by the whole British Public."

There is a pleasant story contributed by Professor Kenny – to whom this portion of the narrative is greatly indebted – of a debate upon a motion that certain annotations upon the annual report of the Union's proceedings should be cancelled in the interests of "the literary credit of the Society." The notes were ungrammatical, ludicrous, unauthorised. They had been composed during the Long Vacation by the Society's senior servant in the name of the absent Secretary. There was nothing to be said for them save that it was hard that a good old man should be humiliated for an excess of official zeal. Maitland was Secretary at the time and chivalrously undertook the defence of his subordinate. It was the eve of the Fifth of November; the name of the mover was James. Such an historical coincidence was not lost upon the ingenious mind of the Secretary. "Tomorrow," he observed, boldly carrying the war into the enemy's country, "is the Feast of the Blessed Saint Guy. Appropriately enough the House appears to be under search this evening for indications of a new plot. Enter King James the Third, surrounded by his minions, with a loud flourish of his own trumpet. He produces the dark lantern of his intellect and discovers – not a conspirator, but a mare's nest." And when, at last, by successive strokes of humour Maitland had won over the sympathies of the House, he proceeded to venture upon the merits of his defence. "We are attacked," he said, "for bad grammar. A great crime, no doubt, in some men's eyes. For at times I have met men to whom words were everything, and whose everything was words; men undistinguished by any other capacity, and unknown outside this House, but reigning here in self-satisfaction, lords of the realm of Tautology."

II

The failure to obtain a fellowship broke off any design which may have been entertained of an academic career, and Maitland, following the family example, returned to London to try his fortune at the bar. Men of high academic achievement sometimes fail in the practical professions, by reason of a certain abstract habit of mind or from an engrained unsociability of temperament. Neither of these disadvantages affected Maitland. A combined training in philosophy and law had given him just that capacity for deriving principles from the facts of experience, and of using the facts of experience as the touchstone of principles, which is essential to the adroit and intelligent use of legal science; and for all his learning and zeal there was nothing harsh and unsocial about him. On the other hand he was completely deficient in the moral alloy which appears to be an essential element in the fabric of most successful careers. He was entirely destitute of the arts of "push" or advertisement, and so disinterested and self-effacing that a world which is accustomed to take men at their own valuation was not likely to seize his measure.

Maitland entered at Lincoln's Inn in 1872 and was called to the bar in 1876, reading first with Mr Upton and afterwards with Mr B. B. Rogers, the brilliant translator and editor of Aristophanes. "I had only one vacancy," writes Mr Rogers, "in my pupil room and that was about to be filled by a very distinguished young Cambridge scholar. But he was anxious – stipulated I think – that I should also take his friend Maitland. I did not much like doing so, for I considered four pupils as many as I could properly take, and I knew nothing of Maitland and supposed that he would prove the crude and awkward person that a new pupil usually is, however capable he may be, and however distinguished he may become in later life. However, I agreed to take him as a fifth pupil, and he had not been with me a week before I found that I had in my chambers such a lawyer as I had never met before. I have forgotten, if I ever knew, where and how he acquired his mastery of law; he certainly did not acquire it in my chambers: he was a consummate lawyer when he entered them. Every opinion that he gave was a complete legal essay, starting from first principles, showing how the question agreed with one, and disagreed with another, series of decisions and finally coming to a conclusion with the clearest grasp of legal points and the utmost lucidity of expression. I may add (and though this is a small point it is of importance in a barrister's chambers) that it was given in a handwriting which it was always a pleasure to read. He must have left me in 1877, and towards the end of 1879, my health being in a somewhat precarious state, and my medical advisers insisting on my lessening the strain of my work, I at once asked Maitland to come in and superintend my business. He gave up his own chambers and took a seat in mine (the chambers in 3 Stone Buildings where I then was are I think the largest in the Inn), superintended the whole of my business, managed my pupils, saw my clients and in case of necessity held my briefs in Court. I doubt if he would have succeeded as a barrister; all the time that I knew him he was the most retiring and diffident man I ever knew; not the least shy or awkward; his manners were always easy and self-possessed; but he was the last man to put himself forward in any way. But his opinions, had he suddenly been made a judge, would have been an honour to the Bench. One of them may still be read in Re Cope Law Rep. 16 Ch. D. 49. There a long and learned argument filling nearly two pages of the Report is put into the mouth of Chitty Q.C. and myself, not one word of which was ever spoken by either of us. It was an opinion of Maitland's on the case laid before us which I gave to Chitty to assist him in his argument… I cannot close this long though hastily written letter without expressing my personal esteem for the man. Wholly without conceit or affectation, simple, generous and courteous to everybody, he was the pleasantest companion that anybody could ever wish for: and I think that the three years he spent in my chambers were the most delightful three years I ever spent at the bar."