MY TOP SHELF – 40 – Maitland


[These are serialised extracts of all the fifty books referred to in a book published in 2015 called ‘The Top Shelf, or What Used to be Called a Liberal Education’.  The extracts are as originally published, and they come in the same order.]


Sir Geoffrey Elton (1985)

Weidenfeld and Nicolson, London, 1985; cloth bound in pale grey, with silver titles on spine; white slip case with photo of portrait of subject on front.

I have not for many years past believed in what calls itself historical jurisprudence.  The only direct utility of legal history (I say nothing of its thrilling interest) lies in the lesson that each generation has an enormous power of shaping its own law.  I don’t think that the study of legal history should make men fatalists; I doubt it should make them conservatives. I am sure it would free them from superstitions and teach them that they have free hands.

Frederick Maitland comes down to us a kind of saint of scholarship.  He is at least entitled to be remembered as the scholar’s scholar, if not the historian’s historian.

Maitland came from a family of service.  He went from Eton to Trinity College, Cambridge, where he gained a running blue.  He was smart enough to be elected to the ‘Apostles’ and smart enough not to let it ruin him – it was a self-important group of intellectuals that does not seem to have done anything for the humility or sexual stability of most of its members.  He married Florence Fisher, a niece of Leslie Stephen.  He did not succeed greatly at the bar, but he discovered early that his interest was in history.  He would say that he dissented from all churches.

He subscribed to the view that ‘history involves comparison’ and that an ‘orthodox history seems to me to be a contradiction in terms….If we try to make history the handmaid of dogma she will soon cease to be history’.  Maitland was in love with his job, but not at the cost of subjecting his work to the test of a ruthless common sense.  In the result, as Elton remarked, ‘Criticizing Elton is a dangerous game; so often one finds that he has been here first, and he wrote so much that it is far too easy to miss something.’  His lectures on the refined subject of equity were made into a text-book which has never been surpassed for style – or for anything else.

Since very few who are reading this will have any interest in my chosen discipline of legal history – which is why this book is here – I will just refer to Sir Geoffrey Elton on the style of Maitland.

…..Maitland testifies to the truth that the style is the man.  Those usually short, often vibrating, sentences, the avoidance of learned circumlocutions and even long words as such; the manner in which the royal ‘we’ gathers the reader into the company of the writer; the constant illumination of abstract or general notions by anchoring them in the experience of real people; the frequent (possibly unconscious) echoes from a whole cultural reservoir filled with, among other things, the Bible; the wit which, because it grows naturally from the discourse, remains funny to this day; and the courtesy which renders the not infrequent stabs of the stiletto painless: all these compass Maitland the man, a man both wise and artless.  It seems that Maitland was in no sense a conscious stylist, a careful and particular carpenter of words and architect of sentences: nobody who wrote so much so fast could have been…..whether speaking or writing, he was always talking to the reader as much as to a listener.

In an essay headed ‘English Prose’, Sir Lewis Namier quoted from Tristram Shandy: ‘Writing, when properly managed …is but a different name for conversation.’  You might say that a tip that comes with that level of endorsement is worth following – if so, we would agree with you.

Maitland was to become one of the creators of English history, and the father of English legal history.  He brought order out of chaos and he knew that to understand the laws of a community is to understand its ideas and motives.  He constantly warned of looking at the past through the eyes of today. He produced the monumental History of English Law with Pollock.  Although Pollock contributed very little, Maitland put his name on the title page, and with first billing.

His work-rate was unbelievable.  His attachment to history did not preclude him from trying to rid the law of anachronism:  ‘accidents will happen in the best regulated museums’.  But he told Pollock ‘I have no use for modern kings’.   He saw keenly the difference between the lawyer and the historian.  ‘What the lawyer wants is authority and the newer the better; what the historian wants is evidence and the older the better.’  He thought Maine was too prone to make large statements detached from detailed evidence.

His affection for the Germans could have got the better of him.  He named his children Ermengard and Fredegond, and he liked Wagner.  But Florence was strong too.  They had had a Victorian courtship – it was an occasion to celebrate when they were ‘allowed to go about without a keeper’.  Florence did not relate to the wives of other dons, and she did not relish visits from Pollock.  She was a refined pianist – she played for Tchaikovsky before pinning a flower on his lapel when he was awarded an honorary doctorate.

Maitland suffered bad health all his life. He said he was buffeted by ‘the messenger of Satan’.  He was an appalling subject for photographers, and looks like a haunted version of Wittgenstein.  He had to winter every year in the Canaries and he died there early last century after he caught pneumonia.

He comes down to us now as a truly saintly man, a modest scholar who cast light on our past. It is a measure of his greatness that when we read Macaulay now, we ask – where is the law? Maitland was one of those Englishmen in whom history and literature are fused in life. He was, surely, as true and loyal a chronicler and celebrant of his nation as it has produced.

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