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ON F. W. MAITLAND'S DEATH *
ONE is almost ashamed to praise a dead master for what he did in a field where he was acknowledged to be supreme. When his work is finished it is too late for praise to give the encouragement which all need, and of which the successful get too little. Still, there is a pleasure in bearing one's testimony even at that late time, and thus in justifying the imagination of posthumous power on which all idealists and men not seeking the immediate rewards of success must live. That imagination, if Mr. Maitland was not, as I fear, too modest to get much joy from it, will be realized, I am sure. His profound knowledge of the sources of English law equipped him, as perhaps no other was equipped, to illustrate and explain the present. His knowledge was only a tool to his good sense. His good sense and insight were illuminated and made vivid by his power of statement and gift of narrative, so that any reasonably prepared reader of his writings, even those dealing with what one would have expected to be dry details, is sure to become interested, absorbed, and charmed. His last work, the Life of Sir Leslie Stephen, was a no less successful excursion into new fields, and showed the same gifts, coupled with an unconscious spirituality, which did not surprise, but which found freer scope for expression there. To elaborate an estimate of Mr. Maitland's achievements would require time which my occupations do not permit me to give. But I would not willingly miss the chance to say what I believe about him, and to lay a wreath, if only of dry leaves, upon his grave.
* Law Quarterly Review (1907).
THE study of English law has been slow to feel the impulse of science. But during the last thirty years, alongside of the practitioners to whom the law is a ragbag from which they pick out the piece and color that they want, there have been some students who have striven to make their knowledge organic. A brilliant result of that effort was Pollock and Maitland's history. Mr. Holdsworth is giving us another. The first dealt mainly with the embryology of the subject. The present work intends to deal with it in its maturity as well; and the two volumes just published trace its development through the Year Books to the point where we begin to recognize its adult form. A development is hard to describe. Mr. Holdsworth is to be complimented on the skill with which he has done it, although it would be difficult to give an account of his book, precisely because of his skill. One is made to feel the complex antecedents — Saxon tradition, Norman practice, the Roman law, the character of kings, the rise of Parliament, the varying economic needs and aims — out of which the plant has grown, and one is made to see the growth. The reading leaves the conviction that one has received the most important of object lessons in the birth and life of ideas. The difficulty in remembering the details is the difficulty of marking the steps of an organic process. One sees that the embryo has taken form, gained size and coherence, more readily than one marks the moments of the change.
* A Aistory of English Law. By W. S. Holdsworth, D.C.L. London: Methuen & Co., 1909. 8vo. Vol. II., xxxi, and 572 pp.; Vol. III., viii, and 532 pp. Law Qua rly Review (1909).
The line between antiquarianism and knowledge of practical importance is kept with tact. Enough is told to gratify disinterested philosophic curiosity, yet not more than should be read by any one who desires to understand his art. No doubt Mr. Holdsworth is right in saying that "We cannot date the beginnings of the common law much earlier than the first half of the twelfth century.” For that reason he properly does not spend much time on what he calls AngloSaxon antiquities, but what he says tells, and makes a proper beginning. The Church and the Roman law are other secondary influences, and those again are delicately and judiciously expounded. They are shown strengthening the royal power; impelling the first attempt at systematizing the new corpus that is to be; tending to qualify the old principle of liability (stated somewhat strongly perhaps in the proposition that a man acted at his peril); introducing the last will and also the book for land grants, which fostered free alienation; suggesting new remedies and the exceptio in pleading; and in short, in various ways by their foreign atmosphere forcing the growth of the native plant, especially through their influence on the King's Court. Much, perhaps most, of what we are told has been told before, and the author is frank in his reference to previous work, but it is told here in continuous form, with proportion, and so as to bring out the story of the birth and life of the common law.
Attention has been called before now to the struggle for life carried on among ideas; to the result that some perish and others put on the livery of the conqueror; and to the fact that law only ends with a theory, but begins with a concrete case. But so far as I know these considerations have not been much attended to heretofore. Mr. Holdsworth illustrates them with more or less definite reference to this mode of approach. A slight example is that twenty-one, the time of coming of age for the knight, prevails over fifteen, the time for the socman. But the best instance is that of contract. We are shown how there are brought under that head matters that earlier were thought of in terms of grant, or like bailment formed a head by themselves. The surety, from a hostage, becomes a covenantor. We are given many illustrations of the persistence of the fides facta and the oath as older competitors of the real and formal contracts that finally got the power. Ecclesiastical penalties for perjury in the breach of a promissory oath continue to a late period,' and although the opinion has been controverted, I think that there are signs that ecclesiastical chancellors hesitated before they denied a remedy for breach of faith.
1 In Chaucer's Frere's Tale the Archdeacon “dide execucioun In punisshinge of .. diffamacioun and of testaments, Of contractes, and of lakke of sacraments,” etc.