One of the principal subjects which engaged Maitland's mind during
these years was the history of the Corporation. Problems connected with
the growth and definition of the Corporate idea had furnished the theme
of the Ford Lectures and a course upon the Corporation in English law
was delivered in Cambridge in the Autumn Term of 1899. It was a subject
from which Maitland derived deep and peculiar delight. It brought into
play the full range of his faculties, for it was at once metaphysical,
legal and historical. It was associated with the enquiries which he had
already been making into municipal origins, and into the law of the
medieval Church, while, at the same time, it was connected with some
living and familiar developments of modern law, with those corporate
groups which, during the later half of the nineteenth century "had
been multiplying all the world over at a rate far outstripping the
increase of natural persons." Trades unions and joint-stock companies,
chartered boroughs and medieval universities, village communities and
townships, merchant guilds and crafts, every form of association known
to medieval or modern life came within his view, as illustrating the
way in which Englishmen attempted "to distinguish and reconcile the
manyness of the members and the oneness of the body." An enquiry
of this kind was something entirely new in England. Here lawyers
had accepted from the Canonists the view that the Corporation was a
fiction of the law created by the authoritative act of the State. A
mindless thing, "incapable of knowing, intending, willing, acting,
distinct from the living corporators who are called its members,"
the Corporation is and must be the creature of the State. "Into its
nostrils the State must breathe the breath of fictitious life, for
otherwise it would be no animated body but individualistic dust."
_Solus princeps fingit quod in rei veritate non est._ Such a theory
was, as Maitland pointed out, likely to play into the hands of the
paternal despot. The Corporation so conceived--and this is how not only
Savigny but Blackstone also conceived it--was no subject for liberties
and franchises and rights of self-government. It was but "a wheel in
the State machinery." And yet in England, where the Concession theory
of the Corporation was received without challenge, there had certainly
not been less of autonomy and free grouping in guilds and fellowships
than elsewhere. The secret of this apparent contradiction, between a
theory which made corporateness the creature of a sovereign authority
and a practice which enabled permanent groups to be freely formed
without such authority, was to be found in a legal conception peculiar
to England, the conception of the Trust. "Behind the screen of trustees
and concealed from the direct scrutiny of legal theories, all manner of
groups can flourish: Lincoln's Inn, or Lloyds, or the Stock Exchange,
or the Jockey Club, a whole presbyterian system or even the Church of
Rome with the Pope at its head...." Even a large company, trading with
a joint-stock with vendible shares and a handsome measure of "limited
liability," could be constructed by means of a trust deed without any
incorporation. Aided by this "loose trust-concept," under the shelter
of which organic groups of the most various kinds could live and
prosper, English lawyers were not vitally concerned with the theory
of the Corporation. The law of the Corporation was only one part, and
probably not the most important part, of the English fellowship-law,
but in Germany, where no such convenient shelter had been provided for
the "unincorporate body," the case was different, and active discussion
had raged round the nature of the Corporation. The fiction theory
invented by Sinibald Fieschi, who became Pope Innocent IV in 1243, and
developed and expounded by Savigny, had proved itself inadequate in an
age of joint-stock companies and railway collisions; and in the rising
tide of German nationalism men were prone to question the validity
of a conception derived from the alien jurisprudence of Rome. A new
school of thinkers arose preaching the theory of the Genossenschaft or
Fellowship. They held that the German Fellowship was neither fictitious
nor State-made, that it was "a living organism, and a real person
with body and members and will of its own," a group-person with a
group-will. The most important representative of this new school of
German realists was Dr Gierke, whose work Maitland introduced to the
British public after his first winter exile in Grand Canary.
Maitland had followed with unflagging interest and steady enthusiasm
the great outburst of legal literature in Germany which preceded the
construction of the German Civil Code. Of the Code itself he wrote that
"it was the most carefully considered statement of a nation's law that
the world has ever seen"; while he found in the legal debate of the
Germanist and Romanist schools work which sometimes showed "a delicacy
of touch and a subtlety of historical perception," of which Englishmen,
"having no pressing need for comparison," could know little. For the
purpose which Maitland had in view, the explanation of the way in which
Englishmen had conceived of group life in its various embodiments,
this subtle and delicate treatment of the forms of legal thought, this
"ideal morphology" of the Germans, was no less full of suggestion than
the ample historical science with which it was supported. It provided
tests, and suggested those points of analogy and contrast between
English and German development, which give to Maitland's treatment
of the Corporate and Unincorporate Body the quality of an original
discourse upon the legal and political theory of Western Europe.
Nor was the interest of the subject merely speculative. Maitland
was a practical lawyer with a genius for detecting the source of
bad law and bad administration in confused modes of thinking about
ultimate questions. Looking for the moment at the English law
concerning Corporations through the spectacles of a German realist,
he detected as the principal offence against jurisprudence "a certain
half-heartedness in our treatment of unincorporate groups." We were
unwilling to recognise trades-unions for example as persons, while
we made fairly adequate provision for their continuous life. The
consequence of this half-heartedness was felt in the domain of public
administration as well as in the domain of private law. Englishmen had
accepted "a bad and foreign theory, which coupling corporateness with
princely privilege refused to recognise and call forth into vigour the
bodiliness that was immanent in every township." The Americans had
been less pedantic and had permitted the New England town to develop
its inherent corporateness. We, on the contrary, influenced by the
Concession theory of the Corporation, had shrunk from declaring the
village to be a legal person, the subject of rights and the object
of gifts. The consequences of this fatal blunder were not measurable
merely in terms of administrative symmetry; but so measured they were
very great. No one knew better than Maitland the "appalling mess"
of English local government. He had described its broader features
in _Justice and Police_; he analysed certain underlying sources of
confusion in _Township and Borough_. In his Introduction to Gierke's
_Political Theories of the Middle Ages_ he was disposed to ascribe no
small part of this confusion to the timidity "tardily redressed by
the invention of Parish Councils" which had stood between the English
village and legal personality.
Other defects of loose and imperfect thinking upon the Corporation
were pointed out to the readers of the _Law Quarterly Review_ in the
articles entitled the "Corporation Sole and the Crown as Corporation."
The American State has private rights; it has power to sue: English
law, on the other hand, had never yet formally admitted that the
Corporate realm, besides being the wielder of public power, might also
be the subject of private rights, the owner of lands and chattels.
Our habit is to speak of the Sovereign as a corporation sole, and to
refuse to recognise him as the head of a complex and highly organised
"corporation aggregate of many." Such modes of thought, however well
they may have fitted the designs of Tudor despotism, were neither
appropriate to the needs of a free community nor adjusted to the
conditions of modern life. The talk about "Kings who do not die, who
are never under age, who are ubiquitous, who do no wrong and think no
wrong" had "not been innocuous"; and other practical inconveniences
were involved in the identification of the Common-wealth with the
person of the Sovereign and in the failure to discriminate between
the natural and official aspects of the Sovereign's personality.
Special legislation, for instance, had been required to secure private
estates for Kings. For these insular peculiarities there were, of
course, assignable historical reasons, and one of these reasons,
which Maitland was the first to suggest, is certainly very curious.
The idea of treating the King of England as a corporation sole had
occurred to Coke, or some other lawyer of Coke's day, because the
parson had already been treated as a corporation sole. Why, when and
how the parson came so to be treated furnishes matter for a very
pretty piece of historical investigation. Who would have imagined that
an unfortunate analogy, striking across the mind of a Tudor lawyer,
would have helped to give to the legal aspect of the English State a
peculiar colour--a colour different from that which it has received,
for instance, in America. Without a superb knowledge of the Year Books,
who could have fixed the offence upon Richard Broke or upon one of
Richard Broke's contemporaries? And how many men, having mastered the
recondite knowledge of the Year Books, would have retained a sense of
the large perspectives of history sufficiently strong and vivid as to
apprehend the successive legal and political forces which gave support
to a "juristic abortion" through three and a half centuries of national
life?
Apart from their interest for the professional student of legal
antiquities, Maitland's papers upon Trust and Corporation possess an
enduring value by reason of the fine touches of legal and historical
perception which are scattered so freely through them. A collection of
acute and brilliant observations might without difficulty be made from
this as from any other portion of his historical work. "All that we
English people mean by religious liberty has been intimately connected
with the making of Trusts. Persons who can never be in the wrong are
useless in a Court of law. The making of grand theories has never been
our strong point. The theory which lies upon the surface is sometimes a
borrowed theory which has never penetrated far, while the really vital
principles must be sought for in out of the way places. A dogma is of
no importance unless and until there is some great desire within it.
_Quasi_ is one of the few Latin words that English lawyers really love.
English history can never be an elementary subject. We are not logical
enough to be elementary." Such phrases, even if detached from their
context, have a life of their own, but they cannot be so detached
without the loss of the greater part of their significance. An epigram
may be an extraneous flourish as irrelevant to all substantial purpose
as the ornament of the bad architect. Maitland's wit was seldom otiose;
it was a shining segment in the solid masonry of argument.
In the summer of 1907 Maitland delivered the Rede Lecture at
Cambridge, choosing for his theme English Law and the Renaissance. It
was his object to show how, when Humanism was reviving the study of
Roman law, when Roman law was expelling German law from Germany and
winning victories over the relics of Anglo-Norman custom in Scotland,
England succeeded in preserving her medieval law books despite their
bad Latin and their worse French. The secret was to be found in an
institution peculiar to this country, in the existence of the Inns
of Court. "Unchartered, unprivileged, unendowed, without remembered
founders, these groups of lawyers formed themselves, and in course of
time evolved a scheme of legal education; an academic scheme of the
medieval sort, oral and disputatious.... We may well doubt whether
aught else would have saved English law in the age of the Reception."
But the lecture, though based upon minute enquiries, was not purely
historical. After pointing out that a hundred legislatures were now
building on that foundation of English law--"the work which was
not submerged"--Maitland surveyed the prospects for the future and
pronounced that the unity of English law was precarious. Queensland
had made her own penal code in 1895; other colonies might follow
in the same way. The Germans, "by a mighty effort of science and
forbearance," had unified their law upon a national and historical
basis. Might not the British Parliament endeavour to put out work which
would be a model for the British world? "To make law that is worthy of
acceptance for free communities that are not bound to accept it, this
would be no mean ambition. _Nihil aptius, nihil efficacius ad plures
provincias sub uno imperio retinendas et fovendas._ But it is hardly to
Parliament that one's hopes must turn in the first instance." Certain
ancient and honourable societies, proud of a past that is unique in the
history of the world, may become fully conscious of the heavy weight
of responsibility that was assumed when English law schools saved, but
isolated, English law in the days of the Reception. "In that case the
glory of Bruges, the glory of Bologna, the glory of Harvard, may yet
be theirs." The lecturer paused, and then surveying the crowded Senate
House added, with an effect which those who heard him cannot forget,
certain words which have not been printed. "But," he concluded, "I see,
Mr Vice-Chancellor, that strangers are present."