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.