Читать книгу Frederick William Maitland, Downing Professor of the Laws of England - H. A. L. Fisher - Страница 6

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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."

Working partly for Mr. Rogers and partly for Mr. Bradley Dyne, Maitland saw a good deal of conveyancing business and in after years was wont to lay stress upon the value of this part of his education. Conveyancing is a fine art, full of delicate technicalities, and Maitland used to say that there could be no better introduction to the study of ancient diplomata than a few years spent in the chambers of a busy conveyancer. Here every document was made to yield up its secret; every word and phrase was important, and the habit of balancing the precise practical consequences of seemingly indifferent and conventional formulæ became engrained in the mind. Paleography might teach men to read documents, diplomatics to date them and to test their authenticity; but the full significance of an ancient deed might easily escape the most exact paleographer and the most accomplished diplomatist, for the want of that finished sense for legal technicality which is the natural fruit of a conveyancing practice.[8]

Business of this type, however, does not provide opportunities for forensic oratory and Maitland's voice was rarely heard in Court[9]. But meanwhile he was rapidly exploring the vast province of legal science, mastering the Statute Books, reading Frenchmen, Germans and Americans, and occasionally contributing articles upon philosophical and legal topics to the Press.

To the deepest and most serious minds the literature of knowledge is also the literature of power. Maitland's outlook and ideal were at the period of intellectual virility greatly affected by two books, Savigny's Geschichte des Römischen Rechts and Stubbs' Constitutional History. The English book he found in a London Club and "read it because it was interesting," falling perhaps, as he afterwards suggested, for that very reason "more completely under its domination than those who have passed through schools of history are likely to fall." Of the German he used to say that Savigny first opened his eyes as to the way in which law should be regarded.

Justinian's Pandects only make precise

What simply sparkled in men's eyes before,

Twitched in their brow or quivered in their lip,

Waited the speech that called but would not come[10].

Law was a product of human life, the expression of human needs, the declaration of the social will; and so a rational view of law would be won only from some height whence it would be possible to survey the great historic prospect which stretches from the Twelve Tables and the Leges Barbarorum to the German Civil Code and the judgments reported in the morning newspaper. Readers of Bracton's Note Book will remember Maitland's description of Azo as "the Savigny of the thirteenth century," as a principal source from which our greatest medieval jurist obtained a rational conception of the domain of law. Savigny did not write the same kind of book as Azo. He worked in a different medium and on a larger canvas but with analogous effects. He made the principles of legal development intelligible by exhibiting them in the vast framework of medieval Latin and Teutonic civilization and as part of the organic growth of the Western nations. Maitland's early enthusiasm for the German master took a characteristic form: he began a translation of the history.

The translation of Savigny was neither completed nor published. Maitland's first contribution to legal literature was an anonymous article which appeared in the Westminster Review in 1879. This was not primarily an historical disquisition though it displayed a width of historical knowledge surprising in so young a man, but a bold, eloquent, and humorous plea for a sweeping change in the English law of Real Property. "Let all Property be personal property. Abolish the heir at law." This alteration in the law of inheritance would lead to great simplification and would remove much ambiguity, injustice and cost. Nothing short of this would do anything worth doing. A few little changes had been made in the past, "for accidents will happen in the best regulated museums," but it was no use recommending timid subsidiary changes while the central anomaly, the source of all complexity and confusion, was permitted to continue. "It is not unlikely," remarked the author with grave irony, "that we are behind an age whose chief ambition is to be behind itself."

The article exhibits a quality of mind which is worth attention. Maitland never allowed his clear strong common sense to be influenced by that vague emotion which the conventional imagination of half-informed people readily draws from antiquity. He loved the past but never defended an institution because it was old. He saw antiquity too vividly for that. And so despite the ever increasing span of his knowledge he retained to the end the alert temper of a reformer, ready to consider every change upon its merits, and impelled by a natural proclivity of mind to desire a state of society in some important respects very different from that which he found existing. At the same time he is far too subtle a reasoner to acquiesce in the doctrinaire logic of Natural Rights or in some expositions of social philosophy which pretended to refinements superior to those provided by empirical utilitarianism. Two early articles contributed to the pages of Mind on Mr. Herbert Spencer's Theory of Society contain a modest but very sufficient exposure of the shortcomings of that popular philosopher's a priori reasoning in politics.

With these serious pursuits there was mingled a great deal of pleasant recreation. Holidays were spent in adventurous walking and climbing in the Tyrol, in Switzerland, and among the rolling fir-clad hills of the Black Forest, for Maitland as a young man was a swift and enduring walker, with the true mountaineer's contempt for high roads and level places. We hear of boating expeditions on the Thames, of visits to burlesques and pantomimes, of amusing legal squibs and parodies poured out to order without any appearance of effort. From childhood upwards music had played a large part in Maitland's life and now that the shadow of the Tripos was removed he was able to gratify his musical taste to the full. In 1873 he spent some time alone in Munich, listening to opera night after night and then travelled to Bonn that he might join his sisters at the Schumann Commemoration. Those were the days when the star of Richard Wagner was fast rising above the horizon and though he was not prepared to burn all his incense at one shrine, Maitland was a good Wagnerian. In London musical taste was experiencing a revival, the origin of which dated back, perhaps, to the starting of the Saturday Concerts at the Crystal Palace by August Manns in 1855. The musical world made pilgrimages to the Crystal Palace to listen to the orchestral compositions of Schubert and Schumann or to the St. James' Hall popular concerts, founded in 1859, to enjoy the best chamber music of the greatest composers. New developments followed, the first series of the Richter Concerts in 1876 and the first performance of Wagner's Ring in 1882. Maitland with his friend Cyprian Williams regularly attended concert and opera. Without claiming to be an expert he had a good knowledge of music and a deep delight in it. One of his chief Cambridge friends, Edmund Gurney, best known perhaps as one of the principal founders of the Society for Psychical Research, wrote a valuable book on The Power of Sound and interested Maitland in the philosophy of their favourite art. "I walked once with E. Gurney in the Tyrol," Maitland wrote long afterwards, "What moods he had! On a good day it was a joy to hear him laugh!" Gurney died prematurely in 1888 and the increasing stress of work came more and more between Maitland and the concert room; but problems of sound continued to exercise a certain fascination over his mind and his last paper contributed to the Eranos Club at Cambridge on May 8, 1906, and entitled with characteristic directness "Do Birds Sing?" was a speculation as to the conditions under which articulate sound passes into music.

That by the natural workings of his enthusiastic genius Maitland would have been drawn to history whatever might have been the outward circumstances of his career, is as certain as anything can be in the realm of psychological conjecture. Men of the ordinary fibre are confronted by alternatives which are all the more real and painful by reason of their essential indifference. This career is open to them or that career, and they can adapt themselves with equal comfort to either. But the man of genius follows his star. His life acquires a unity of purpose which stands out in contrast to the confused and blurred strivings of lesser men. Other things he might do, other tastes he might gratify; but there is one thing that he can do supremely well, one taste which becomes a passion, which swallows up all other impulses, and for which he is prepared to sacrifice money and health and the pleasures of society and many other things which are prized among men.

When Maitland stood for the Trinity Fellowship he was already aware that success at the bar would mean the surrender of the reading which had "become very dear" to him, and yet his ambition desired success of one kind or another. The varied humours of his profession pleased him; he loved the law and all its ways; yet it is difficult to believe that the routine of a prosperous equity business would ever have satisfied so comprehensive and enquiring a mind. The young barrister had a soul for something beyond drafts; he lectured on political economy and political philosophy in manufacturing towns and in London[11], wrote for the Pall Mall Gazette, then a liberal evening paper under the direction of Mr. John Morley; but more and more he was drawn to feel the fascination and importance of legal history. Two friends helped to determine his course. Mr, now Sir Frederick, Pollock had preceded Maitland by six years at Eton and Trinity and was also a member of Lincoln's Inn. Coming of a famous legal family, and himself already rising to distinction as a scientific lawyer, Mr. Pollock appreciated both the value of English legal history and the neglect into which it had been allowed to fall. He sought out Maitland and a friendship was formed between the two men which lasted in unbroken intimacy and frequent intellectual communion to the end. An historical note on the classification of the Forms of Personal Action, contributed to his friend's book on the Law of Torts, was the first overt evidence of the alliance.

The other friend was a Russian. Professor Paul Vinogradoff, of Moscow, who had received his historical education in Mommsen's Seminar in Berlin, happened in 1884 to be paying a visit in England. The Russian scholar, his superb instinct for history fortified by the advantages of a system of training such as no British University could offer, had, in a brief visit to London, learnt something about the resources of our Public Record Office which was hidden from the Inns of Court and from the lecture rooms of Oxford and Cambridge. On January 20, Maitland and Vinogradoff chanced to meet upon one of Leslie Stephen's Sunday tramps, concerning which there will be some words hereafter, and at once discovered a communion of tastes. The two men found that they were working side by side and brushing one another in their researches. Correspondence followed of a learned kind; then on Sunday, May 11, there was a decisive meeting at Oxford. The day was fine and the two scholars strolled into the Parks, and lying full length on the grass took up the thread of their historical discourse. Maitland has spoken to me of that Sunday talk; how from the lips of a foreigner he first received a full consciousness of that matchless collection of documents for the legal and social history of the middle ages, which England had continuously preserved and consistently neglected, of an unbroken stream of authentic testimony flowing for seven hundred years, of tons of plea-rolls from which it would be possible to restore an image of long-vanished life with a degree of fidelity which could never be won from chronicles and professed histories. His vivid mind was instantly made up: on the following day he returned to London, drove to the Record Office, and being a Gloucestershire man and the inheritor of some pleasant acres in that fruitful shire asked for the earliest plea-roll of the County of Gloucester. He was supplied with a roll for the year 1221, and without any formal training in paleography proceeded to puzzle it out and to transcribe it.

The Pleas of the Crown for the County of Gloucester which appeared in 1884 with a dedication to Paul Vinogradoff is a slim and outwardly insignificant volume; but it marks an epoch in the history of history. "What is here transcribed," observes the editor, "is so much of the record of the Gloucestershire eyre of 1221 as relates to pleas of the Crown. Perhaps it may be welcome, not only to some students of English law, but also (if such a distinction be maintainable) to some students of English history. It is a picture, or rather, since little imaginative art went to its making, a photograph of English life as it was early in the thirteenth century, and a photograph taken from a point of view at which chroniclers too seldom place themselves. What is there visible in the foreground is crime, and crime of a vulgar kind—murder and rape and robbery. This would be worth seeing even were there no more to be seen, for crime is a fact of which history must take note; but the political life of England is in a near background. We have here, as it were, a section of the body politic which shows just those most vital parts, of which, because they were deep-seated, the soul politic was hardly conscious, the system of local government and police, the organization of county, hundred, and township."

It was the publication of a new and fundamental type of authority accomplished with affectionate and exquisite diligence by a scholar who had a keen eye for the large issues as well as for the minutiæ of the text. And it came at a timely moment. Sir James Fitzjames Stephen's History of Criminal Law had recently appeared and Maitland has written of it in terms of genuine admiration; but remarkable as those volumes undoubtedly were, miraculous even, if regard be paid to the competing claims upon the author's powers, they did not pretend to extend the boundaries of medieval knowledge. The task of making discoveries in the field of English legal antiquity, of utilizing the material which had been brought to light by the Record Commission appeared to have devolved upon Germans and Americans. All the really important books were foreign—Brunner's Schwurgerichte, Bigelow's Placita Anglo-Normannica and History of Procedure in England, the Harvard Essays on Anglo-Saxon Law, Holmes' brilliant volume on the Common Law. Of one great name indeed England could boast. Sir Henry Maine's luminous and comprehensive genius had drawn from the evidence of early law a number of brilliant and fascinating conclusions respecting the life and development of primitive society, and had applied an intellectual impulse which made itself felt in every branch of serious historical enquiry. But the very seductions of Maine's method, the breadth of treatment, the all-prevailing atmosphere of nimble speculation, the copious use of analogy and comparison, the finish and elasticity of the style were likely to lead to ambitious and ill-founded imitations. It is so pleasant to build theories; so painful to discover facts. Maitland was strong enough to resist the temptation to premature theorizing about the beginnings of human society. As an undergraduate he had seen that simplicity had been the great enemy of English Political Philosophy; and as a mature student he came to discover how confused and indistinct were the thoughts of our forefathers, and how complex their social arrangements. What those thoughts and arrangements were he determined to discover, by exploring the sources published and unpublished for English legal history. He knew exactly what required to be done, and gallantly faced long hours of unremunerative drudgery in the sure and exultant faith that the end was worth the labour. "Everything which he touched turned to gold." He took up task after task, never resting, never hasting, and each task was done in the right way and in the right order. The study of English legal history was revolutionised by his toil.

Before the fateful meeting with Vinogradoff at Oxford, Maitland had made friends with Leslie Stephen. In 1880 he joined "the goodly company, fellowship or brotherhood of the Sunday tramps," which had been founded in the previous year by Stephen, George Crome Robertson, the Editor of Mind, and Frederick Pollock. "The original members of the Society about ten in number were for the most part addicted to philosophy, but there was no examination, test, oath or subscription, and in course of time most professions and most interests were represented." The rule of the Club was "to walk every other Sunday for about eight months in the year," and so long as Maitland lived in London he was a faithful member of that strenuous company. A certain wet Sunday lived in his memory and, though he did not know it, lived also in the memory of Leslie Stephen. "I was the only tramp who had obeyed the writ of summons, which took the form of a postcard. When the guide (we had no 'president,' certainly no chairman, only so to speak, a 'preambulator') and his one follower arrived at Harrow station, the weather was so bad that there was nothing for it but to walk back to London in drenching rain; but that day, faithful alone among the faithless found, I learnt something of Stephen, and now I bless the downpour which kept less virtuous men indoors." That wet Sunday made Maitland a welcome guest at the Stephen's house; and it brought other happiness in its train. In 1886 Maitland was married in the village church of Brockenhurst, Hants, to Florence Henrietta, eldest daughter of Mr. Herbert Fisher, some time Vice Warden of the Stannaries, and niece of Mrs. Leslie Stephen. Two daughters, the elder born in 1887, and the younger in 1889, were the offspring of the marriage.