Front Page Titles (by Subject) LAW AT THE UNIVERSITIES 1 - The Collected Papers of Frederic William Maitland, vol. 3
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LAW AT THE UNIVERSITIES 1 - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 3 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 3.
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LAW AT THE UNIVERSITIES1
The Cambridge Law Club was founded in 1888, and in the summer of 1889 I was appointed its Secretary: in other words it has existed for 14 years and during nearly the whole of that time I have been its only officer. This afternoon I am going to place my resignation in your hands, with thanks to you for your kindly toleration of the least business-like secretary that any club ever had. Even if there were no circumstances of the particular case I should be inclined to decide that thirteen years is by at least three years too long a time for anyone to manage such affairs as we have, and that the aged should make room for the young: but as you are aware there are some circumstances of the particular case which make my retirement necessary. A secretary in paribus infidelium is of little use to you, and if the spirit is willing the flesh is weak.
In those spacious days when conveyancers were paid by length and no self-respecting person was allowed to leave the world until he had set his hand to a handsome array of common law folios it was usual to make a testator say that though weak in body he has of a whole and disposing mind. It is, so I hope, with a whole and disposing mind that I make and publish my last will and testament in manner following (that is to say):—
I observe with penitence that a Club which began by meeting twice a term in accordance with its rules now meets but once a term, against the form of the statue in that case made and provided. I acknowledge my fault. At the same time I should like to observe that the competition for the honour of reading a paper to the Club has not been keen: members bearing essays in their hands have not had to shoulder each other out of the way that leads to the Secretary’s rooms. I hope that my successor’s ardor and vigor will after a little while bring back the Club into the old path of constitutional duty. For I believe (and this is what I have to say this afternoon) that the Club has a useful function to perform.
I think it a matter of importance that all those who are engaged in teaching law at Cambridge should meet each other in what I may call socially pleasant circumstances. I will not dwell on the mere pleasantness except by saying this:—Cambridge is a curious place. We all live so much under the influence of time tables that it is very possible for a man to reside here and to take a fairly active part in university affairs and yet hardly ever to see some other men whom he would be very glad to meet. On most days I go to the University Library at about the same hour. As I go and return I daily see the same men at about the same places, while other men (whom perhaps I like much better) I never see at all. They go out earlier or they go out later. You know what I mean and I will not enlarge upon it.
Nor upon the mere pleasantness of our meetings will I dwell. Only this I will say that having had a little experience of two Special Boards of Studies besides the Law Board I think we law men may congratulate ourselves upon the pleasantness of our intercourse and the despitefulness of our official organ. Jealous critics may ascribe this to our laziness or to the vis inertia of the law. I am disposed to attribute some little influence to our Club. I do not want to fall into platitude, still I think it true as a general rule that the more men see of each other, the better they understand each other, and the better they understand each other the better they like each other. I hope that this is not an unduly optimistic creed.
Majora canamus. I have used the phrase our official organ, meaning thereby the Special Board for Law, and you will not suppose for one moment that I am in revolt against that august body if I say that I like to think of our Law Club as our unofficial organ—the unofficial moot of the lawman de Centering. I do not undervalue the pleasure or the profit that has accrued to us by some very interesting papers that we have heard: papers on legal problems and legal history—but I am going to suggest that a little new blood might be introduced into a body that I can hardly call full-blooded and that in course of time the number of meetings might be raised to the constitutional standard if it was understood among us that the most acceptable subject for a paper is some question affecting the teaching of law in Cambridge. Each of us has his own study—it may be Roman law, it may be Indian law or what not, each of us is necessarily a bit of a specialist and I can well understand that each of us is a little unwilling to put some bit of specialism into a paper for the Club. He must be brief, he is by no means certain that he will really be interesting or intelligible to more than two or three of his hearers, and he does not think that the few remarks that his paper will evoke are likely to be of very high value to himself. On the other hand there is one subject in which we all are interested—the study of law at Cambridge: and I think that we ought to have a good deal to say to each other about it.
Before I go further let me make two or three remarks about the Law Board. I hope that it is a representative body. Still it cannot comprise all the men who are teaching law in Cambridge, and in particular it cannot comprise all the younger men. Now it is I am sure no conventional untruth that I utter when I say that the opinions of the young are highly valued by the old. If for the moment I make myself the spokesman of the aged I would say that we are well aware of the always widening gulf that separates us from the undergraduates, and we are well aware that any schemes for improvement, any adaptations of our machinery to the new wants of new times will fail unless the opinions of the young are attentively considered. Then again, the Law Board is a business body, and I think that I may call it a business-like body. We all feel—at least I feel—that the Board Room is not the place where abstract questions can be pleasantly and profitably discussed. Now I think that one of us may often have something to say that would be of great interest to his fellows though he is not prepared to end with a motion which, if carried, would aim at the alternation of some statute or ordinance of the University. What is more, having some half-formed project in his head he may well be desirous of ascertaining the opinions of other people and seeing how the land lies—and I think that, in such a case, this Club might provide the occasion for discussions and conversations of a most useful kind.
Let me read from the book the minutes of what I thought at the time a very profitable meeting. . .
You will understand that I have not read these minutes as a precedent for confining our discussions to proposals for changes in Examinations; far from it. I think that there are many other matters of a somewhat similar character that might be debated. In a hasty way I will name two or three.
Can we get more money? That sounds like a selfish and a vulgar question. But in my opinion it is vital in the interests of English jurisprudence. I think that we might with some confidence ask the question—What has been done for law in England by professors and other endowed teachers of law. I will not go back to Blackstone’s commentaries and I will spare your blushes by saying nothing of Cambridge. But take the men who are or lately have been teaching law at Oxford and take the books that they have written—are not those books among the very best books about law that modern England has produced, and would they have been written if there had been no endowments? I think that a question that we may ask with great confidence. As matters now stand an endowed office is almost the only reward that can attract a man from the beaten and lucrative paths of practice and induce him to write about law something that will not be of direct use to legal practitioners. I have spoken of professorships and readerships and the like as rewards and I am now going to say something that will sound to you extremely selfish—but as it seems to me to be true I will say it all the same. I think that as matters now stand in England there would be a great need of professorships as prizes even if the professor when appointed generally fell at once into his dotage. To take by way of example a matter in which just at present I am much interested. How am I as literary director of the Selden Society (such is my title) to induce young men to learn enough about the law of the fourteenth century to enable them to edit the Year Books. I live in terror lest the Savigny Stift or the École des Chartes should undertake an edition. But there, I am only saying what you all must feel in the studies that you have made your own—and the question whether there is any hope of improvement is just one of those questions that the Club might advantageously discuss. Heaven forbid that the Club should become a trade union, still that dirty economic factor unfortunately is a factor that we cannot eliminate. To be concrete—I have long thought that we ought to have a readership in Roman Law and Jurisprudence. Could we get one?
Our position as regards this and similar matters is beset by difficulties. In the present state of the finances of the University a plea for more money is not likely to meet with much attention unless those who urge it can say that more teaching is requisite and that the teachers will have numerous hearers. And unfortunately that is not what we can say with any great confidence. If the number of candidates for the Law Tripos is increasing at all it is not increasing very rapidly. What is more (and here I am expressing a difficulty of my own) I am not sure that we ought to wish for any great increase. When I try to take an impartial view of the matter and ask myself whether if I had a son at Cambridge I should wish him to read for the Law Tripos—I find myself saying that the answer would depend upon my hypothetical income. Place that income at either end of the scale I might answer Yes. I might say—My son is to be a solicitor—it is highly important that he should get to work at once and for this reason I think that the amount of law that he can learn at Cambridge will be decidedly more valuable to him that an equivalent amount of history, natural science or the like. And then at the other end of the scale I might be saying—my son is not going to work for his living, he will be a country gentleman, sit on the county bench, go into parliament perhaps, and some knowledge of law is likely to be as useful as any other kind of knowledge that he will acquire at the University. But then I must confess to you that if the boy was a bright boy looking forward to a career at the bar and there was no great hurry for his first few guineas, I might be inclined to say, Well you are going to work at law all your life, you had better take a look round at something else before you make your plunge into the oceanus iuris—in particular (so I should say) a look at history or at ethics and political economy. So you see that I—and some of you may feel yourselves in the same position—can hardly bring myself to preach the virtues of the Law Tripos with that penetrating and unquavering voice which might gain an audience in a place where everyone is calling aloud for coin. And then on the other hand what I feel in my own mind to be the real want is not one which will be felt by the University or the world at large. I want to see a great deal done that is not being done in the way of unremunerative work—work done for the history of law and for the theory of law—and it is only I think with the aid and stimulus of endowments that such work will be done at all.
It is not an easy case to argue—and in particular it is not an easy case to argue before the rulers of the Inns of Court. What can be made intelligible in that august quarter is that there ought to be a bar examination and that teaching which leads to that examination should be provided. Now so far as I can learn this part of their duty is upon the whole satisfactorily performed. I do not think that we are in a position to demand a really severe examination, indeed I think that to demand that would be a mistake. There is, as we all know, a great difference at this point between the two professions of law and medicine—the layman chooses his own medical adviser and the State may well be right in insisting that the medical student shall have been examined many times over before he obtains a licence to practise. On the other hand, the barrister is selected by one who himself is an expert: and really I cannot say with any certainty that the work done by barristers would be better done if the bar examination were severer. Moreover—and this remark comprises both branches of the profession—the qualities desirable in a lawyer are to a very large extent qualities that cannot be tested by written questions and answers. So I think that in honesty we have to make the admission that the people who control legal education in London do fairly well what they are likely to regard as the whole of their duty. And I should be ungrateful if I did not add that (owing largely to the efforts of certain judges of whom Cambridge is proud) three of the Inns of Court have subsidized the Selden Society. More than this it is difficult to expect. If anything is said about the provision of higher teaching—the teaching that will not fill rooms—a natural answer is that this is work for the Universities.
I have heard it said to me by well-disposed persons—Now you at the Universities teach the theory—then we in London will see to a working knowledge of English law. That sounds plausibly, and I think it very possible that there are among us here some who think that a sort of theory of law—the generalia of jurisprudence—can be profitably taught to those who as yet know nothing of any concrete system. Now that is just one of the questions which might promote a fruitful discussion in our Club. My own opinion is that we get our men too young for us to be able to deal with them in the manner that is thus suggested. I won’t say but that a man who has seen a little of the world and taken in law through the pores might not intelligently read what we call general jurisprudence before he studied the law of Rome or England or Germany. Our freshmen are too ignorant of life. When I lecture to them I adjure them to read the newspapers, more especially the Times. If I could have quite my own way with them I would plunge them at once into Dr Kenny’s Case Book of Criminal Law. All this I know to be a disputable point, but you will see how my opinion about it affects my opinion about some other matters. To a very large extent our Tripos must be an elementary examination in very concrete English law and therefore we are obliged to keep a good deal of our teaching on a pretty low level. Still I am not sure that we are doing all that might be done towards meeting that opinion which would assign to the Universities the office of teaching theory and to the Inns of Court the office of teaching practice. I have never concealed my opinion that the distribution of papers between the two parts of the Law Tripos is not quite that which I should myself have proposed. I should like to see English Criminal Law and Jurisprudence changing places. My main reason is this—that on the one hand we try to teach some legal theory to those whose heads are as yet so empty of concrete rules that, though they may be able to repeat what they have been taught, they are in no position to understand it, and that on the other hand when a youth is beginning to know some concrete rules and to perceive their play in practical life then we in effect say to him—Don’t bother yourself about theories any more; they are for children; you have put aside childish things; leave your rules and work your problems.
All this has been said before. But it seems to me that two events have lately happened which go far towards the removal of certain difficulties, which have hitherto stood in the way of the sort of change which I should like to see. In the first place, we have come by two books on English Criminal Law which (as I think) have made it as good a subject for beginners as any subject could possibly be. I will say this in Dr Kenny’s presence for I would say it in his absence:—I cannot imagine two books better fitted to give a freshman his first ideas about law. And then, in the second place, we have Mr Salmond’s new volume. I don’t want to jump at it at once—before I recommended it I should like to hear the opinions of all members of the Law Club—but it is the sort of book for which I have long been looking, a book which would give our Second Part men a liberal and liberating interest in their study of English law. However I must not wander down this bye-path.
Then there is the question whether the colleges or any of them could be induced to do more than they are doing. Now as mere prizes for our young men I would very rarely ask for fellowships—and indeed I don’t know that I would ever ask for them. But of course the fact that our Tripos is not a high road to fellowships hurts us in a good many ways, and (so I fear) is destined to hurt us more and more. The competition of the history school is becoming severe, and I think will become severer, especially if a certain important college continues the course that it has of late pursued. Not the least among the good deeds of the late Lord Acton was this, that he raised history by many degrees in the estimation of those whose opinions are influential in the college aforesaid—and we are seeing the result. It would be hard, however, for any man to do as much for law, for I do not think that law is a subject about which young men are likely to write dissertations which will, if I may so say, bear their excellence on their outside. However I think that here again we have one of those matters to which our attention ought to be directed in friendly converse, and if we could agree upon any plan of missionary endeavour something might come of it. We are few and don’t count for many on a division in the Senate House, but Cambridge is a place in which men are willing to listen, and if we can’t get all that we want we may get part of it. I betray no secret in saying that the Squire Law Library came of asking. If we had not been urging the demand for a Library for some time past, the liberality of the testatrix would have found another channel. If these History men had not been so perversely modest, if they had not deserted us and turned their backs in the day of battle they might now have room enough for Lord Acton’s books.
Also (to bring this paper to an end) I want to see some more prizes like the Yorke Prize and some more Scholarships like the Whewell Scholarships now that the tenure of the Whewell Scholarships has been amended. What I want above all things is to provide some stimulus and reward for men who are no longer undergraduates which will set them to work at law but a little outside the beaten path that leads to briefs and fees. I have often wished and wish still that the George Long Prize and the Chancellor’s Medal were prizes for dissertations, open to men for two or three years after the first degree. That is the time when a young man may be saved from success on the one hand and disappointment on the other and be made a happy man for life by an interest in what can be the most enthralling of all studies.
But I have said enough and too much. I hope that under the guidance of a more vigorous secretary the Club will have these and similar matters debated—especially by the younger of its members—and will become a centre of organized opinion.
A paper read to the Cambridge Law Club, 1901.