Maitland, Frederic William
Maitland, Frederic William
Frederic William Maitland (1850–1906), English legal historian and jurist, was born in London and died at Las Palmas in the Canary Islands, where ill-health had compelled him to winter since 1898. He was born into a family of intellectual distinction: his father was successively a fellow of Trinity College, Cambridge, a barrister, and secretary to the civil service commissioners; his mother was a daughter of a physicist, J. F. Daniell, a fellow of the Royal Society; his paternal grandfather, Samuel Roffey Maitland, barrister, clergyman, and for a short time the Archbishop of Canterbury’s librarian at Lambeth Palace, London, was the author of 37 works, among them a remarkable book on medieval heresies (1832) that, in its skeptical attitude to accepted beliefs and its insistence on documentary proof, curiously anticipates the salient characteristics of his grandson’s approach to history. From this grandparent, Maitland inherited, at the age of 16, a small property at Brookthorpe in Gloucestershire, which made him financially independent. In 1886 he married a niece by marriage of Sir Leslie Stephen (whom he commemorated in The Life and Letters of Leslie Stephen 1906), who was also the sister of H. A. L. Fisher, the historian and politician.
Education and academic career . With an excellent grounding in German from his governesses that was to serve him well in later life, Maitland went to Eton College in 1863, where his school life was unremarkable and unremarked, and then in 1869 to Trinity College, Cambridge. There he abandoned his first interest, mathematics, in favor of moral and mental sciences, in which he was bracketed first in the final examination in 1872. A long-distance runner for his university and a skilled oarsman for his college, he was also president of the Union Society and already noted for his fluent and witty speech. Called to the bar as a member of Lincoln’s Inn in 1876, he was professionally engaged for eight years afterward in the work of conveyancing and equity; his first publication, in 1879, “The Law of Real Property” (see Collected Papers, vol. 1, pp. 162-201), entered a sardonic plea for the abolition of cumbrous procedures, however sacrosanct the passage of time had apparently made them. Not until 1926 was this reform belatedly accomplished.
Maitland was slow to find his true vocation and to realize that to him the history of the law was much more attractive than its practice. Nevertheless, his course was being set by three essays: “The Laws of Wales: The Kindred and the Blood Feud” in 1881, “The Criminal Liability of the Hundred” in 1882, and “The Early History of Malice Aforethought” in 1883 (ibid., pp. 202-229, 230-246, 304-328). Furthermore, he had in these years taken the momentous step of reading legal records in the Latin shorthand of the original manuscripts at the Public Record Office in London and as a result edited his first book, Pleas of the Crown for the County of Gloucester Before the Abbot of Reading ...1221 (1884). Seeking entrance to academic life, he was rejected by Oxford but accepted by Cambridge in 1884 as reader in English law. He produced a magnificent three-volume edition of Bracton’s Note Book (1887), defraying the cost of publication himself. It contained a collection of some two thousand legal actions between 1217 and 1240 that had been made for the great thirteenth-century judge Henri de Bracton to use in writing his monumental treatise De legibus et consuetudinibus Angliae (1569). This scholarly achievement led to Maitland’s appointment as Downing professor of the laws of England at Cambridge in 1888.
The legal historian . Before Maitland’s time, the history of English law had suffered from three main defects: its expositors, among whom the most worthy was John Reeves (History of the English Law 1783–1829), were overwhelmed by the austere technicalities of the law as it existed in their day and in consequence produced quite unreadable factual surveys; they isolated the subject from all other departments of learning; and they saw no need to place it against its European background. Maitland wrought the great metamorphosis. Although he mastered the facts with infinite patience and used them constantly to provide concrete illustrations for his generalizations, he was interested above all else in the pattern of legal thought, particularly as it revealed itself in the origin and development of legal institutions. He insisted that the study of law, far from being a narrow, specialized discipline, provides the indispensable means of understanding the political, constitutional, social, economic, and religious history of the English people; he emphasized the value of comparative law, whether Roman and Germanic, Norman and French, Welsh and Scandinavian, and he placed the law of England firmly in the mainstream of European jurisprudence. In sharp contrast to William Stubbs, Maitland possessed the rare quality of mind that could free itself from the fetters of traditional concepts, whether about church or state, and reveal the way people of past eras defined the truth, thus making “the thoughts of men of the past thinkable to us.”
Common law To advance the knowledge of the history of English law, in 1887 he helped to found the Selden Society in London, and he sustained the burden of editing its early volumes until it had firmly established itself. Thus, he edited volume 1 of Select Pleas of the Crown (1888), Select Pleas in Manorial and Other Seignorial Courts (1889), and The Court Baron (1891a), and he provided the introduction to The Mirror of Justices (1895). These volumes helped to prepare the way for the incomparable History of English Law Before the Time of Edward I (1895). Though ostensibly a joint work with Sir Frederick Pollock, this work was written entirely by Maitland except for a section on Anglo-Saxon law. Soon after, Maitland made his own investigations into the dark terrain of pre-Conquest England in his Domesday Book and Beyond (1897). In 1903 he committed the Selden Society to the formidable task of printing the Year Books, which recounted the arguments of counsel in the king’s courts from the first years of Edward I’s reign until the time of the early Tudors, and he himself edited three of them and coedited three (1903–1951). To assist the reader, Maitland made an elaborate study of the complicated accidence of law French and this has ever since elicited the praise of grammarians. Whether discussing the knotty problem of law enforcement (1885) or the obdurate persistence of custom (1898a) or compiling the charters of the borough of Cambridge (1901a), he never failed to focus a new and brilliant light upon the many facets of English society in the Middle Ages. [seeLegal systems, article onCommon Law Systems.]
Canon law . Although not anticlerical, Maitland was, in his own words, “a dissenter from all churches” and remarkably free from ecclesiastical presuppositions. His Roman Canon Law in the Church of England (1898b) revealed a whole library of theological books as invalid: it controverted the Anglican legend of the Reformation, which had been espoused by Stubbs, by showing that English ecclesiastical courts had regarded papal law as authoritative and had failed to observe it in practice only because of state intervention. [seeCanon Law.]
Comparative law . To discover the interplay between English common law and Roman law before the fourteenth century, Maitland examined in minute detail, in Select Passages From the Works of Bracton and Azo (1895), how much the English judge was indebted to the jurist of Bologna. At Cambridge in his Rede lecture,English Law and the Renaissance (1901), he looked again at the influence of Roman law, this time in Tudor England. To support his distinction between the concept of the trust and what was known abroad as the legal corporation, he translated part of the third volume of Otto Friedrich von Gierke’s Das deutsche Genossenschaftsrecht under the title of Political Theories of the Middle Age (1900)[seeGierke].
The history of Parliament . Although unappreciated at the time, it is now beyond question that Maitland’s introduction to the parliament rolls of 1305, printed as Records of the Parliament Holden at Westminster (1893), abandoned the long-hallowed belief that the early parliament was a “national assembly of estates” and introduced the modern conception that it was essentially “the king’s council” in one of its many forms. Maitland here achieved another breakthrough, another destruction of old habits of thought, and his brilliant essay has formed the starting point of a whole series of parliamentary studies, still vigorously pursued.
Literary style . As an artist in words, Maitland followed no conventions and is himself inimitable. The severity of the subject matter and the vast erudition needed to cope with it did not prevent him from attaining a beautiful clarity in exposition. He seems to take the reader into his confidence and to converse with him, charming him with his exquisite sense of the perfect word and phrase, his happy epigrams, his gay humor. Yet he has been termed the “historian’s historian,” and it is true that it was not simply literary merit that made him known to a wide circle: he probed deep below the surface in his preoccupation with analysis and rarely committed himself to writing narrative, although he did this with felicity in his chapter, “The Anglican Settlement and the Scottish Reformation” (1903).
Recognition . In the range of his interests, the fineness of his intellect, and the considerable bulk of what he wrote in barely twenty-five years, Maitland has no match among English historians. He was honored in his lifetime with doctorates from Cambridge (at the age of 41, while still serving that university), Oxford, Glasgow, Moscow, and Cracow; he was one of the first fellows of the British Academy; he was elected an honorary fellow of Trinity College, Cambridge, and a bencher of Lincoln’s Inn; he was awarded the James Barr Ames medal by the Harvard law faculty. So highly was he revered that after his death, notes of his lectures were reassembled and published as The Constitutional History of England (1908), Equity (1909a), and The Forms of Action at Common Law (1909b).
Not all his views have been beyond dispute— for example, those on the garrison theory of borough origins, the superficiality of Bracton’s knowledge of Roman law, the nature of corporations, the stability of the common law at the time of the Renaissance, and the Elizabethan religious settlement. Nevertheless, his reputation has increased, not dwindled, during the last sixty years: a historian can be paid no higher compliment.
G. O. Sayles
1884 Great britain, curia REGIS Pleas of the Crown for the County of Gloucester Before the Abbot of Reading ...1221. Edited by Frederic W. Maitland. London: Macmillan. → Text in Latin.
1885 Justice and Police. London: Macmillan.
1887 Great britain, courtsBracton’s Note Book. Edited by Frederic W. Maitland, 3 vols. London: Clay. → A collection of cases decided in the reign of Henry III, annotated by a lawyer of that time, seemingly Henri de Bracton. Text in Latin.
1888 Great britain, curia regisSelect Pleas of the Crown. Volume 1: A.D. 1200–1225. Edited for the Selden Society by Frederic W. Maitland. London: Quaritch. → Latin text and English translation on opposite pages.
1889 Maitland, frederic w. (editor)Select Pleas in Manorial and Other Seignorial Courts. Volume 1: Reigns of Henry III. and Edward I. Edited for the Selden Society. London: Quaritch. → Latin text and English translation on opposite pages.
189la Maitland, frederic w.; and Baildon, william P. (editors) The Court Baron: Being Precedents for Use in Seignorial and Other Local Courts ... Edited for the Selden Society. London: Quaritch.
1891b Great britain, curia regisThree Rolls of the King’s Court in the Reign of King Richard the First: A.D. 1194–1195. Pipe Roll Society, London, Publications, vol. 14. With an introduction and notes by Frederic W. Maitland. London: Wyman.
(1893) 1964 Great britain, parliamentRecords of the Parliament Holden at Westminster on the Twenty-eighth Day of February, in the Thirty-third Year of the Reign of King Edward the First (A.D. 1305). Edited by Frederic W. Maitland. New York: Kraus. 1895 Introduction. In Andrew Horn, The Mirror of Justices. London: Quaritch.
(1895) 1952 Pollock, frederick; and maitland, frederic w.The History of English Law Before the Time of Edward I. 2 vols., 2d ed. Boston: Little.
1895 Bracton, henri de; and Azzo OF BolognaSelect Passages From the Works of Bracton and Azo. Edited for the Selden Society by Frederic W. Maitland. London: Quaritch.
1897 Domesday Book and Beyond: Three Essays on the Early History of England. Cambridge Univ. Press.
1898a Township and Borough. Cambridge Univ. Press.
1898b Roman Canon Law in the Church of England: Six Essays. London: Methuen.
(1900) 1958 Introduction. In Otto von Gierke, Political Theories of the Middle Age. Translated with an introduction by Frederic W. Maitland. Cambridge Univ. Press. → Gierke’s work was first published in 1881 as “Die publicistischen Lehren des Mittelalters,” a section of Volume 3 of Gierke’s Das deutsche Genossenschaftsrecht.
190la Cambridge (england), chartersThe Charters of the Borough of Cambridge. Edited by Frederic W. Maitland and Mary Bateson. Cambridge Univ. Press.
(1901b) 1957 English Law and the Renaissance. Pages 135–151 in Frederic W. Maitland, Selected Historical Essays. Cambridge Univ. Press.
(1903) 1934 The Anglican Settlement and the Scottish Reformation. Pages 550–598 in Cambridge Modern History. Volume 2: The Reformation. New York: Macmillan.
1903–1951 Great britain, year books, 1307–1327 Year Books of Edward II. 24 vols. Edited for the Selden Society. London: Quaritch. → Volumes 1-3 were edited by Frederic W. Maitland, Volume 4 by F. W. Mait-land and G. J. Turner, and Volumes 5 and 7 by W. C. Bolland, F. W. Maitland, and L. W. Vernon Harcourt.
1906 The Life and Letters of Leslie Stephen. London: Duckworth.
1908 The Constitutional History of England. Cambridge Univ. Press.
(1909a) 1936 Equity. Cambridge Univ. Press.
(1909Zb) 1936 The Forms of Action at Common Law. Cambridge Univ. Press.
The Collected Papers of Frederic William Maitland. 3 vols. Edited by H. A. L. Fisher. Cambridge Univ. Press, 1911.
The Letters of Frederic William Maitland. Edited by C. H. S. Fifoot. Cambridge, Mass.: Harvard Univ. Press, 1965.
Selected Essays. Edited by H. D. Hazeltine, G. Lapsley, and P. H. Winfield. Cambridge Univ. Press, 1936. Selected Historical Essays. Chosen and introduced by Helen M. Cam. Cambridge Univ. Press, 1957.
Bell, H. E. 1965 Maitland: A Critical Examination and Assessment. London: Black; Cambridge, Mass.: Harvard Univ. Press.
Bracton, henri DE (1569) 1915–1942 De legibus et consuetudinibus Angliae. 2 vols. New Haven: Yale Univ. Press.
Delany, vincent T. H. (editor) 1957 Frederic William Maitland Reader. Dobbs Ferry, N.Y.: Oceana.
Fisher, herbert A. L. 1910 Frederic William Maitland, Downing Professor of Laws of England: A Biographical Sketch. Cambridge Univ. Press.
Maitland, samuel R. 1832 Facts and Documents Illustrative of the History, Doctrine and Rites of the Ancient Albigenses and Waldenses. London: Rivington.
Plucknett, T. F. T. 1958 Early English Legal Literature. Cambridge Univ. Press. → See especially “Maitland’s View of Law and History” on pages 1-18.
Reeves, john (1783–1829) 1880 Reeves’ History of the English Law, From the Time of the Romans to the End of the Reign of Elizabeth . 5 vols. Philadelphia: Murphy.
Schuyler, robert L. 1952 The Historical Spirit Incarnate: Frederic William Maitland. American Historical Review 57:303–322.
Smith, arthur lionel 1908 Frederic William Maitland. Oxford: Clarendon.
Frederic William Maitland
Frederic William Maitland
Historian, lawyer, and legal scholar Frederic William Maitland (1850-1906) was the first major English historian to break with the classic Whiggish interpretation of English legal and constitutional history.
Frederic William Maitland was born in London on May 28, 1850, the son of John Gorham and Emma Daniell Maitland. He was prepared in a number of fortuitous ways for his extraordinary scholarly career. Perhaps most important, the early deaths of both his parents placed him in the care of an aunt who provided him with a series of German governesses from whom he learned the language so well that the whole range of 19th-century German historical scholarship was opened to him at a time when that scholarly tradition was at its peak. Educated at Eton and Trinity College, Cambridge, where he took a degree in moral sciences (philosophy) in 1872, he afterward enrolled at Lincoln's Inn and was called to the bar in 1876.
The year 1879 saw the publication of Maitland's first learned article, which marked the beginning of an extraordinarily productive scholarly career. His work, although specialized, was characterized by a subtle perception and a style of writing so clear and supple that it has never ceased to awe and charm scholars, a circumstance which helps to account for his great reputation as a historian's historian. The most important works of his extensive personal bibliography are History of English Law before the Time of Edward I, with Sir Frederick Pollock (1895; rev. ed. 1898); Domesday Book and Beyond (1897); Township and Borough (1898); Canon Law in England (1898); and English Law and the Renaissance (1901).
Maitland's originality of outlook and his ability to comprehend the essential nature of a scholarly problem made it possible for him to break through the deeply rooted assumptions of English historiography, which had been so widely accepted by 19th-century historical scholarship. He realized that the past had to be understood in its own terms and not in the light of later developments or 19th-century scholarly presuppositions. He tried to see the world of the past through the eyes of men who had lived it. This imaginative transposition sufficed to make his scholarship both original and seminal in its influence upon others.
For Maitland, history was a product of human thoughts and actions which create uncertainties, paradoxes, and confusions that cannot always be resolved by imposing the sometimes false clarity of scholarly analysis. He raised questions and suggested hypotheses within a new context which may be said to have profoundly altered Englishmen's views of their medieval past and to have significantly influenced the whole nature of historical inquiry throughout the English-speaking world. If his specific findings in certain areas of study—parliamentary origins, for example—do not always square with the researches of a later generation, still he suggested the right lines of inquiry. His profound intelligence, his thoroughly Victorian habits of intellectual labor, and the firmness of will which kept him at work in the face of a long illness that forced him to live in a warmer climate during much of his last years all combined to make him "a man of notable goodness and nobility of character and of singularly attractive personality." He died in the Canary Islands on Dec. 19, 1906.
Studies of Maitland include H. A. L. Fisher, Frederic William Maitland: Downing Professor of the Laws of England (1910); A. L. Smith, Frederic William Maitland: Two Lectures and a Bibliography (1908); James R. Cameron, Fredrick William Maitland and the History of English Law (1961); and H. E. Bell, Maitland: A Critical Examination and Assessment (1965).
Cameron, James Reese, Frederick William Maitland and the history of English law, Westport, Conn.: Greenwood Press, 1977, 1961.
Maitland, Frederic William
MAITLAND, FREDERIC WILLIAM
Frederic William Maitland pioneered the study of early English legal history. A talented and prolific scholar, Maitland imaginatively reconstructed the world of Anglo-Saxon law.
Maitland was born May 28, 1850, in London, England. He graduated from Cambridge University and then studied law at Lincoln's Inn. He joined the bar in 1876 and soon proved himself a skilled attorney. Maitland's interests subsequently shifted to the history of english law. He set as his goal the writing of a scientific and philosophical history of English law that took into account its interaction with the social, economic, and cultural life of the English people. His first book, Pleas of the Crown for the County of Gloucester, was published to acclaim in 1884. In that year he left his law practice and became a reader in English law at Cambridge. In 1888 he was named a professor of law at Cambridge.
Between 1885 and 1906, Maitland published many volumes of English history, including Justice and Police (1885), The History of English Law before the Time of Edward I (with sir frederick pollock, 1895), and Domesday Book and Beyond (1897). He also helped form the selden society, an association devoted to the preservation and analysis of Old English legal history. Maitland contributed many introductions to society publications, which mainly consisted of reprints of primary legal documents. Finally, Maitland was a popular lecturer. His published lectures include Constitutional History of England (1908), Equity (1909), and The Forms of Action (1909).
As a historian, Maitland has been praised for his ability to grasp and articulate the great central themes underlying the development of the common law, and his ability to penetrate and render the inner meaning of words. He enjoyed being a historical detective, sifting through masses of often contradictory and confusing sources to find historical truth. Despite his respect for the English common-law tradition, Maitland was not an antiquarian. He actively supported the major law reform efforts of his day.
Maitland's historiography was not based on ideology or theory. History, to Maitland, was not the product of impersonal social or economic forces, but something more complex. Therefore, in the world described in his writings, individual personalities, particular events, cultural traditions, and the peculiarity of language play significant roles. Running through his work is a deep respect for the toughness, resiliency, and vitality of English common law. Common-law lawyers and judges are intellectual and moral heroes in his evocation of medieval England.
"The history of law must be a history of ideas."
Though many of Maitland's claims have been qualified or refuted by later research and
scholarship, he is recognized as a seminal figure in the study of English legal history.
Maitland, Frederick William
J. A. Cannon