Frederick William Maitland. Fisher Herbert Albert Laurens
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."
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 Court9. 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
For a good instance of Maitland's trained insight see
Maitland once conducted an argument before Jessel, M. R. Re Morton v. Hallett (Feb. & May, 1880, Ch. 15, D. 143).