Front Page Titles (by Subject) A SURVEY OF THE CENTURY 1 - The Collected Papers of Frederic William Maitland, vol. 3
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A SURVEY OF THE CENTURY 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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A SURVEY OF THE CENTURY1
The century which has just come to an end, the century which lies between the Code civil des Français and the Bürgerliches Gesetzbuch of the German Empire, is likely to be memorable in the history of law. When its exploits in the field of jurisprudence are surveyed from a great distance, the most valuable and permanent part of its work will, perhaps, be found partly in a vast extension of the territorial dominion of civilized law, and partly in a grand simplification of the legal map of the world. The provincial customs have disappeared from France; the laws of the several German states are falling into a secondary and subordinate place. Unified and codified French law rules a compact domain, and has been a model for all people who speak versions of the Latin language, to say nothing of Turks and Japanese and Dutchmen. If it has of late been expelled from Elsass and Baden, and other parts of Western Germany, it may plausibly claim to have materially modified the new code of the victors, though a Prussian can proudly remember that not Napoleon, but Frederick the Great was the first of the modern codifiers. The unifying of law has gone hand in hand with the making or re-making of great nations, and, at least for the moment, the future fate of jurisprudence seems to be involved in the future fate of a few, a very few, national systems.
Among these is the English. The system which in 1601 prevailed in the southern half of a small island has thence spread outwards until it has become the greatest system that the world has known. This we may say if we think of square miles or if we count heads; but, after a little seemly hesitation, we may say it also when we have distinguished greatness from mere bigness, and have refused to call a legal system great merely because it governs the actions of many men in many lands, or merely because it is our own. For a moment, however, we dwell on size. If the eighteenth century as it neared its end had in a some what bellicose fashion prepared in divers quarters of the globe a way for the destined expansion of English law, still for the nineteenth century (which, when all has been seen of its quarrelsomeness, will appear to students of its predecessors as reasonably pacific) remained the task of filling with law the void that arms had made. And now courts which are administering what is in origin and inmost texture the Common law of England are, to use the old phrase, “speaking right and deeming doom,” not only throughout by far the greater part of those countries of which Queen Victoria is the sovereign lady, but also throughout the whole or nearly the whole of one immense country into which her writ will not run.
The important exceptions that must be made before we can identify the territorial sphere of the English legal system with the lands that are subject of our Queen are full of past and future history. Scotland has every right to be tenacious of its law. At a critical time Scotchmen showed themselves to be in legal as in other matters more willing than Englishmen were to listen to foreign teaching, and the age was one in which foreigners had much that was good to teach. Since then Scotland, besides sending many an able son to administer English Law in England and elsewhere, has on more than one occasion served as the instructor of the southern kingdom. Lately also we heard a voice from Louisiana protesting that some clear French ideas of legal relationships ought not to be overwhelmed by the advancing flood of indefinite Englishry. To such protests, whether they come from New Orleans or from Edinburgh, we shall always do well to listen. Perhaps the most beneficial trait of an arrangement which brings to the parts of Westminster appeals from all the ends of the earth is that it compels a certain number of English lawyers and judges to make the acquaintance of law that is not of English origin, and, it may be, to doubt whether our insular jurisprudence is just that perfection of wisdom which it sometimes seems to those to whom it has brought both fame and riches. At all events for the present, it is for the good of the whole British Commonwealth that a code modelled after the French code should prevail in the province of Quebec, that the French code should prevail in Mauritius, and that what is called Roman-Dutch law, extinct in Holland, should be extant in British South Africa. The time has not yet come when we should desire to thrust some parts of our law, and notably of our cumbrous and antiquated land law, upon countries which have hitherto escaped its sway. But still better is it that numerous legislatures—in all, about a hundred, if to our own commonwealth we add the United States—should be freely building upon one and the same traditional foundation. The science of legislation will for a long time be an experimental science, and it is plain already that plenteous and daring experiments will be made by English-speaking men before the twentieth century is very old. By success, or by failure, New Zealand, for example, will soon be teaching us much about the good and ill of social-democracy. In its capacity to assimilate new material and thus to meet new needs, we may find the justification for our statement that the English system is not merely big but great. It is seriously doubtful whether any other body of law has ever shown a greater power of rapid but peacefully continuous development. At the beginning of the century Jeremy Bentham was advising the Americans “to shut their ports against the common law as they would against the plague.” At the end of the century we see that a loyal and well-nigh romantic devotion to this same common law has been no hindrance to marvelous progress, and if we look to American legislatures for novelties, we now look to American law-schools for antiquities.
But, despite the sterling good that lies in experimentation and local variation, the demand for uniformity will come. It may come very quickly, as the size of the world, when measured in time, grows rapidly less. Merchants are likely to feel always more keenly the evils of a multitude of differing laws, and the number of those inhabitants of this island who have material interests elsewhere will be yearly augmented. Already we may see that a well-devised statement of the law of England about bills of exchange or the sale of goods or partnership will be speedily adopted by British legislatures all the world over. Uniformity in the law about bills of exchange, a uniformity to be secured by the voluntary adoption of a single set of rules by many independent legislatures, this was the utmost legal unity that Germans could secure in 1847. From that point outwards the movement spread, until first a Commercial, and ultimately, after more than twenty years of assiduous labour and minute discussion, a Civil Code had been fashioned and enacted. Already the penal code which Macaulay drew for India has been showing its adaptability to other countries, and we may feel fairly sure that a penal code which was drawn for England by Sir J. F. Stephen, and revised by Lord Blackburn, will not always lie useless in the pigeon-holes of an office. The century that is opening may end in something very great, greater than the French codes and the German; even in an accurate and artistic statement of the English system, though in what quarter of the globe the work will be done we cannot guess. A toilsome task it will be, but hardly more arduous than that which Germany has lately achieved. The ideal may be distant, but unless it be kept in view, there is a serious danger that one of the strongest bonds that hitherto have kept together all parts of the English-speaking race will be weakened.
Meanwhile, there is much to be done, but no cause for despair. The century that we are leaving behind us was in the field of law a busy time. Distant, indeed, from us seem the days when the reforming and conservative forces were embodied in the persons of Jeremy Bentham and Lord Eldon, the days when trial by battle was legally possible, when procedure was encumbered by countless fictions, when fines were being levied and recoveries were being suffered, when John Doe and Richard Roe were, or seemed to be, alive. Distant even seem the days when law and equity were separately administered, and the suitor was bandied from court to court in search of a remedy. That short reign of William IV, when the reforming tide was in flood, will stand out in our legal annals with all the distinctness that marks an age that is truly great. It swept away much useless and pernicious lumber, the scarcely intelligible relics of bygone times. Since then good work of many sorts and kinds has been done, destructive and constructive. Not that there has yet been enough destruction. Far from it. Englishmen who are quick to remove patent grievances are slow to perceive the latent but real and deep seated mischief that is being done by the retention of out-worn theories and obsolescent ideas. On more than one occasion in recent years our Parliament has turned out work that was inexcusably bad, and this because it had not the courage of its opinions, and tried to tinker the untinkerable. There is a great deal in our so-called law of real property which is thoroughly unworthy of a new century, and which no rational lecturer can teach without a blush or a sigh. We have never fairly cleared up that great medieval muddle which passes under the name of feudalism, and until that be done, English law cannot be stated in terms that would befit the modern code of a self-respecting nation. That clearness must be effected, and the sooner that the various legislatures fairly face the problem, the greater is the likelihood of its being solved deliberately, and not under the stress of some revolutionary impulse. If the mother-country will not take the lead, she will some day have to sit at the feet of one of her own daughters.
How in some yet distant age men will see or fancy that they see the time in which we live, is a question that even the most ignorant of us should not readily answer. But we may believe that in the universal history of law a century which struck out from all moderately civilized law books, all chapters on slavery and on serfage will not seem idle. We can imagine also that something in its praise will be said on the score of an endeavour to protect the weak against the strong. It may be noted, too, that strenuous endeavors to improve the law were not impeded, but forwarded by a zealous study of legal history. If at one time it seemed likely that the historical spirit (the spirit which strove to understand the classical jurisprudence of Rome and the Twelve Tables, and the Lex Salica, and law of all ages and climes) was fatalistic and inimical to reform, that time already lies in the past. Men, who were profoundly versed in history bore a willing and helpful hand in the unification of German law. Now-a-days we may see the office of historical research as that of explaining, and therefore lightening, the pressure that the past must exercise upon the present, and the present upon the future. To-day we study the day before yesterday, in order that yesterday may not paralyse to-day, and to-day may not paralyse to-morrow.
The Twentieth Century, Jan. 1901.