The Online Library of Liberty

A project of Liberty Fund, Inc.

• Preface to the Tenth Edition.
• Preface to the Fifth Edition.
• Preface to the Third Edition.
• Preface to the First Edition.
• Introduction.
• Ancient Law.
• Chapter I.: Ancient Codes.
• Chapter II.: Legal Fictions.
• Chapter III.: Law of Nature and Equity.
• Chapter IV.: The Modern History of the Law of Nature.
• Chapter V.: Primitive Society and Ancient Law.
• Chapter VI.: The Early History of Testamentary Succession.
• Chapter VII.: Ancient and Modern Ideas Respecting Wills and Successions.
• Chapter VIII.: The Early History of Property.
• Chapter IX.: The Early History of Contract.
• Chapter X.: The Early History of Delict and Crime.
• Appendix Notes
• Chapter I. Page 1.
• Note A.: Antiquity of Roman Law.
• Note B.: Customary Law In Homer.
• Note C.: Early Forms of Law: “written” and “unwritten” Law: Early Codes.
• Chapter II. Page 20.
• Note D.: English Case-law and Fiction.
• Chapter III. Page 42.
• Note E.: the Law of Nature and “ius Gentium.”
• Note F.: Equity.
• Chapter IV. Page 70.
• Note G.: Medieval and Modern Treatment of the Law of Nature: Bracton: French Publicists.
• Note H.: the Origins of the Modern Law of Nations.
• Chapter V. Page 109.
• Note I.: Montesquieu, Bentham, and Historical Method.
• Note K.: the Patriarchal Theory.
• Note L.: Status and Contract.
• Chapter VI. Page 166.
• Note M.: Testamentary Succession.
• Chapter VII. Page 209.
• Note N.: Primogeniture.
• Chapter VIII. Page 237.
• Note O.: Capture, Occupation, Possession.
• Note P.: the Indian Village Community.
• Note Q.: Res Mancipi; Alienation In Early Law.
• Chapter IX. Page 295.
• Note R.: Contract In Early Law.
• Chapter X. Page 355.
• Note S.: Archaic Procedure.

NOTE L.

STATUS AND CONTRACT.

Maine’s now celebrated dictum as to the movement from Status to Contract in progressive societies is perhaps to be understood as limited to the law of Property, taking that term in its widest sense as inclusive of whatever has a value measurable in exchange. With that limitation the statement is certainly just, and has not ceased to be significant. The movement is not yet complete, for example, in England, where the emancipation of married women’s property has been proceeding in a piecemeal fashion for more than a generation, and is at present in a transitional state capable not only of raising hard questions but of producing, within a few years, decisions not easy to reconcile. As regards the actual definition of different personal conditions, and the more personal relations incidental to them, it does not seem that a movement from Status to Contract can be asserted with any generality. For example, the tendency of modern legislation has been to make the dissolution of marriage less difficult, and in some jurisdictions this has gone very far. But it has nowhere been enacted, and I do not think any legislator has yet seriously proposed, that the parties shall be free to settle for themselves, by the terms of the marriage contract, whether the marriage shall be dissoluble or not, and if so, on what grounds. Assimilation of marriage, as a personal relation, to partnership is not within the scope of practical jurisprudence. Again, a minor who has attained years of discretion cannot advance or postpone the date of his full age by contract with his parent or guardian, and we do not hear of any one proposing to confer such a power. The test which Maine suggests as alone justifying the preservation of disabilities—that the persons concerned do not possess the faculty of forming a judgment on their own interests—will hardly be received as adequate for either of the cases just put. In fact, the interests which these rules of law regard are not those of the parties alone. Paramount considerations of the stability of society, or the general convenience of third persons, override the freedom usually left to parties in their own affairs. The law of persons may be and has been cut short; but, so long as we recognise any differences at all among persons, we cannot allow their existence and nature to be treated merely as matter of bargain. Status may yield ground to Contract, but cannot itself be reduced to Contract. On the other hand Contract has made attacks on Property which have been repulsed. There was a time in the thirteenth century in which it seemed as if there was no rule of tenure that could not be modified by the agreement of parties. Our settled rules that only certain defined forms of interest in property can be created by private acts, our rule against perpetuities, are the answer of the Common Law to attempts to bring everything under private bargain and control. The importance of Contract in the feudal scheme of society is pointed out by Maine himself in this book, ch. ix ad fin. (cp. Pollock and Maitland, “H.E.L.” ii. 230).

One department of the law of Persons is increasing, not diminishing, in importance, namely the law of corporations or “moral persons.” We are beginning to find that the law cannot afford to ignore collective personality—that of a trade union, for example—where fact and usage have conferred a substantially corporate character on a more or less permanent social group. Modern company law is largely, no doubt, a law of contract; but of contract whose action is regulated and modified at every turn by the fact that one of the chief parts is borne by a corporate and not an individual person.

Maine guarded his position, however, to a considerable extent in the final words of this chapter, for he seems not to include Marriage—at all events marriage among Western nations, which is preceded by and results from agreement of the parties—under the head of Status. And, if the term is thus restricted, the gravest apparent exception to Maine’s dictum is removed. This, of course, involves a sensible narrowing of the term Status, a much discussed term which, according to the best modern expositions, includes the sum total of a man’s personal rights and duties (Salmond, “Jurisprudence,” 1902, pp. 253-7), or, to be verbally accurate, of his capacity for rights and duties (Holland, “Jurisprudence,” 9th ed. p. 88). It is curious that the word “estate,” which is nothing but the French form of “status,” should have come to stand over against it in an almost opposite category. A man’s estate is his measurable property; what we call his status is his position as a lawful man, a voter, and so forth. The liability of every citizen to pay rates and taxes is a matter of status; what a given citizen has to pay depends on his estate, or portions of it assigned as the measures of particular imposts. We have, too, an “estate,” in land, which so far preserves the original associations of “status,” that, as we have just noted, contract may not alter its incidents or nature. Again, as Professor Maitland has pointed out (Introduction to Gierke’s “Political Theories of the Middle Age,” Camb. 1900, p. xxv), the Roman Status has also become the State of modern public law, and in that form has refused to be reduced to a species of contract by the ingenious efforts of individualist philosophers, notwithstanding the widespread acceptance of the Social Contract for a century or more.

It is not clear how far Maine regarded the movement of which he spoke as a phase of the larger political individualism which prevailed in the eighteenth century and great part of the nineteenth, or what he would have thought of the reaction against this doctrine which we are now witnessing. At all events the questions at issue between publicists of various schools as to the proper limit of State interference with trade, or of State and municipal enterprise, do not seem to have much to do with simplifying the tenure and transfer of property, nor with removing obsolete personal disabilities.

Professor Dicey says indeed (“Law and Public Opinion in England,” p. 283) that “the rights of workmen in regard to compensation for accidents have become a matter not of contract, but of status.” But many other kinds of contracts have long had incidents attached to them by law, and those incidents are not always subject to be varied at the will of the parties. A mortgagor cannot enter into an agreement with the mortgagee which has the effect of making the mortgage irredeemable, or even tends that way by “clogging the equity of redemption.” It would be a strong thing to say that this peculiar doctrine of English courts of equity has created a status of mortgagors.

Chapter VI. Page 166.