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SIX: Promotion of Free Self-Assertion 1. The Sixteenth to the Eighteenth Century - Roscoe Pound, The Ideal Element in Law [1958]

Edition used:

The Ideal Element in Law, ed. Stephen Presser (Indianapolis: Liberty Fund 2002).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


SIX

Promotion of Free Self-Assertion

1. The Sixteenth to the Eighteenth Century

In an exposition of the radical change in juristic thought, beginning in the sixteenth-century jurists everywhere, of the ideal of a society promoting and assuring a maximum of free individual self-assertion instead of the idea which had been developed in Greek philosophy and Roman law and had governed in the Middle Ages, three points have to be noted at the outset: (1) One is the setting free of philosophy from theology and from the formal logical method of the scholastic theologian-jurists, and consequent primacy of reason and scientific inquiry. (2) Next there is the paramountcy of the positive law of the state as an agency of social control after the rise of the centralized national state in the sixteenth century. (3) Third, and as men think today, we must see chiefly behind the phenomena of legal and of political thinking another profound change in adaptation to the economic conditions of an era of individual opportunity upon the breakdown of the closed relational society of the Middle Ages. The discovery of the new world created new opportunities everywhere. Men were eager to take advantage of these opportunities and sought to be free to do so rather than to be secure in what they had under the closed relational social organization and restricted system of duties in feudal society. Rights came to be insisted on rather than duties. Freedom of competitive acquisition got the emphasis instead of reciprocal duties of protection and service.

Appeal to reason in support of authority led to appeal to reason against authority, and that helped toward a new conception in philosophy, in theology, in politics and ultimately in juristic theory. As a result the legal order came to be regarded as existing to secure a maximum of free individual self-assertion. This movement went along with the social, political, and economic changes which mark the transition to the modern world. It develops along with the revival of learning and resulting faith in reason to become faith in individual reason. It develops along with the emancipation of philosophy and rise of what became the sciences of today with the consequences of consciousness of the powers of the free inquiring mind. It goes along with the rise of nations, Spain, France, England, Austria, leading to ideas of national or local laws to be developed with reference to local situations instead of universal enactments of a universal authority. In the era of discovery and colonization it is fostered by pioneer adventurous individualism. With the rise of trade and commerce and consequent breakdown of local economic restrictions it develops competition where a relationally organized society had relied on relational division of labor. With the dissolution of the rational system it develops faith in individual free activity. The movement culminates in the nineteenth century. But the beginnings of the change are a long way back in philosophy in Erigena’s doctrine that reason enabled the fathers of the church to discover what they laid down with authority1 and in the attempt of Anselm to prove to the unbeliever by reason, as if there had been no revelation, the truth of the Scriptures and writings of the fathers of the church.2

Another factor was introduced by the revival of natural law and the consequent appeal to a divinely ordained fundamental law against the positive law.3 Parallel with the theological-philosophical version of natural law an idea of a fundamental law developed as a political-legal doctrine. Historically it is an idea of Germanic law.4 Throughout the Germanic law books in the Middle Ages, says Heusler, there runs the idea that law is “a quest of the creature for the justice and truth of his Creator.”5 It rejected all notion of arbitrary will. The doctrine that the will of the sovereign had the force of a law came from Justinian’s law books.6 It came into Continental public law with the rise of the centralized royal government in France in the sixteenth century7 and spread to general legal theory along with the reception of Roman law. The Germanic conception was instead the one expressed in the phrase attributed to Bracton—that the King ought not to be under any man, but under God and the law.8

The Germanic polity postulated a fundamental law above and beyond mere will. It conceived that those who wielded authority should be held to account for the conformity of their acts to that fundamental law. For example, in the Salic law where a creditor has duly appealed to the count for justice and the count, with no sufficient reason fails to act, he has to answer with his life or redeem himself with his wergeld, that is, he is liable to a feud, a feud may lawfully be waged against him, or must buy it off with the legally fixed value of his life. But if he does act pursuant to the appeal and goes beyond enforcement of what is due, again, he must answer with his life or redeem himself with his wergeld.9 It is only in England that this conception developed as the basis of public law; and this development has been pushed to the furthest point in American constitutional law. In England three things led to the common-law doctrine of the supremacy of law: (1) The establishment in the thirteenth century of strong central courts, purporting to administer the common custom of the whole realm, (2) the strong central administrative power of the king and the central organization and authority of the common-law courts administering justice in his name, and (3) the medieval formulation of the feudal duties of the king toward his tenants-in-chief.10 These afforded an opportunity for the evolution of a legal doctrine of the legal duties and responsibilities of those who wield governmental powers. Taken up by Coke in the seventeenth-century controversies between the courts and the crown, this doctrine was fused with the conception of natural law in American constitutional law in the eighteenth century. Juristic thought of the seventeenth and eighteenth centuries derives from the medieval theological-philosophical natural law. But both the revived natural law of the later Middle Ages and the Germanic fundamental law served to undermine the received Greek-Roman ideal of maintaining the social status quo. Where that had been used to criticize legal institutions and doctrines and precepts, now the ideal itself was subjected to the scrutiny of reason or to critique in terms of the fundamental higher law. Where men had thought in terms of authority and duties they began to think in terms of liberty and rights.

Maintaining the stability of social institutions had for its basic ideas authority and duty—the authority of those who had the function of upholding the social order and the duty of those over whom the authority is imposed by the social order. The downfall of authority begins when reason is employed to prop it up and is assured when reason assumes to take its place entirely under the eighteenth-century law-of-nature school. Superseding of authority by reason began with the Protestant jurist-theologian who, however, still taught maintaining the social status quo as the end of law. In the feudal mode of thought there were reciprocal duties of lord and man, of ruler and ruled. When the idea of liberty grew strong with the emancipation of the individual from the restrictions of feudal relation society, the idea of reciprocal duties gave way to one of duties as correlative not to other duties but to rights. The beginnings of this were the work of the Spanish jurist-theologians.11

Just as Comte, in a period of conspicuous development of the physical sciences, thought of the universe as governed by the principles of mathematics and of physics, and the nineteenth-century sociologists, in the period of Darwin’s influence, thought of it as governed by the principles of biology, the Catholic writers of the counter reformation thought of it as governed by the principles of the then rising science of jurisprudence. A theological-philosophical jurisprudence had been taught in the universities alongside of the teaching of law since the twelfth century. Moreover, a generation before the Spanish jurist-theologians wrote, the Humanists, the French School at Bourges, had applied the spirit of the Renaissance to the study of Roman law.12 Accordingly, in insisting upon the Roman idea of universality the jurists of the Counter Reformation did so in a new way and upon a new basis. The organization of the church, its system of church law and its penitential system, had tended in the hands of clerical writers to give a legal color to both ethics and politics. The spread of Roman law over Continental Europe had in fact made law all but universal. A Catholic jurist, therefore, was predisposed to a legal view of the world, as Thomas Aquinas had taken a legal view of the universe,13 and a Romanist could vouch everyday fact for a universal view of law. But neither of these views could be maintained longer upon mere authority. Moreover, the separateness of states was no less a fact than the universality of Roman law. It was necessary, therefore, to reconcile the general authority of Roman and canon law, as the common law of Christendom, with the independence and equality of separate states. To effect this reconciliation, the Spanish writers turned to the idea of natural law and sought to join to a theory of independent, equal states a theory of natural law from which all rules of justice of every description derive their binding force and of which Roman law and canon law are but expressions within their respective fields.

To the Spanish jurist-theologians the law of each state was not an isolated phenomenon, it was a phase of a universal principle by which all things were governed. This appears particularly in the treatise of Suarez on laws and on God as a legislator. Thus he says: “For it appears that the reason of every one has the force of law at least to the extent of the dictates of natural law. Therefore, at least in natural law it is not a necessary condition that it be enacted by public authority.”14 Again he says: “It is of the reason and essence of law that it prescribes what is just. The assertion is not only certain in religion but clear in natural reason.”15 In his treatise there is at first sight no practical distinction between natural law and positive law. Legalist ethics and ethical law go hand in hand. The actual Spanish law, doctrines of the Roman law which he thinks should be, although they are not, in force in Spain, practical morality and the dictates of reason and conscience combine in a universal system. Yet Suarez saw the insufficiency of reason to demonstrate to each man all the rules required for organized society and hence laid down that society might supply the deficiency by declaratory legislation and by customs not in contravention of nature.16 The identification of law and morals is obviously an incident of the period of infusion of morals into the strict law which was in full vigor at the moment. But the new version of universality was an original contribution of the first magnitude. For one thing it made international law possible. If international law was the work of the law-of-nature school after Grotius, it had its roots in the latter part of the century before and the Catholic jurists of the Counter Reformation were first among its forerunners. Our chief concern, however, is with their relation to the abstract individualist idea of legal justice which began to develop in the seventeenth century and culminated in the nineteenth century.

A foundation of a new science of law was laid by reconciling the modern and the medieval, by recognizing the political fact of national law and adjusting it to the medieval ideals of unity and the Germanic conception of law as an eternal verity. The skillful combination of modern ideas with conservatism which characterizes the work of the Jesuit jurists enabled them to effect this reconciliation. Law was eternal. Only it was not eternal because of the authority which imposed it (i.e., the academically postulated empire) or by which it imposed itself, but because it expressed eternal principles of justice.17 The old and the new were fitted to this conception. Recognizing the facts of the political world of their time, they conceived of individual states, and thence ultimately of individual men, as equal (in this departing from Aristotle), since states and men were able to direct themselves to conscious ends and thus their equality was a principle of justice. To a Spanish writer after the centralized absolutism achieved by Charles V, the analogy of state and individual man was palpable.18 Holding to the idea of the unity and universality of law as a body of eternal principles, they were led to the conception of restraints by which this equality was maintained and in which it might be expressed. Two types of such restraints suggested themselves, restraints upon states and restraints upon individuals, and in an age of absolute personal sovereigns these types were taken to be generically one. The restraints upon states, limitations upon their activities which they might not overpass, since they were imposed by eternal principles, might fix (1) the limits of the activities of sovereigns in their relations with each other,19 giving us what we now call international law, or (2) the limits of the activities of sovereigns in their relations with their subjects, giving us political theory.20 The restraints upon individuals had the same basis in eternal principles of universal law and were of the same nature. They (3) fixed the limits of individual activity in the relations of individuals with each other, giving us juristic theory.21 Accordingly in the next two centuries these three subjects are always taken up together. The treatises on the law of nature and of nations, characteristic of the seventeenth and eighteenth centuries, are treatises on international law, on politics, and on philosophical jurisprudence. The three were not separated until the nineteenth century.

Comparing the juristic theory so developed with the juristic theory of antiquity, it will be perceived that the conception of the end of law has undergone a fundamental change. The theory of antiquity thought of the legal order as a limiting of the activities of men in order to keep each in his appointed place and preserve the social order as it stands. The theory which begins with the Spanish jurist-theologians thinks, instead of a limiting of men’s activities in the interest of other men’s activities because all men have freedom of will and ability to direct themselves to conscious ends and so are equal. Thus instead of a regime of maintaining a status quo, the legal order begins to be thought of as a regime of maintaining a natural (i.e.,ideal) equality. But it is an equality of action not of condition.

We pass now to the seventeenth century.22 It is usual to fix the date of a new era in the science of law by the appearance of the great work of Grotius in 1625. That book marks the beginning of the law-of-nature school of jurists which was dominant until the metaphysical jurisprudence following Kant. Such certainly has been the prevailing opinion. In almost all accounts of the history of jurisprudence Grotius stands out as marking a turning point.

But in recent years many have discounted that prevailing opinion. It is true that Grotius had notable forerunners in the theory of international law and that as one looks into the matter attentively he seems to have added little. It is true also that the divorce of jurisprudence from theology had been achieved before him. Likewise the theory of natural law which has gone by his name was almost if not quite full fledged before him. It is said that he did little more than state clearly and convincingly what was already at the very least in the air. Likewise in recent times even those who are of a liberal juristic creed and urge a renewed faith in creative legal science question the whole attitude and work of seventeenth- and eighteenth-century natural law and in consequence disparage Grotius. In part this is involved in the reaction against formal logical methods of jurisprudence and conceptions through which the legal science of the nineteenth-century maturity of law gave the law in action so many of the unhappy features of the strict law. In part also it has gone along with the renewed quest of individualization in the administration of justice involved in the bigness of things in an urban industrial society. That quest leads to a search for just results through magisterial feelings of right and justice and the individual conscience of the judge. Also the functional attitude characteristic of modern legal science has produced impatience of abstract formulas of justice, distrust of speculation as to the abstract justice of legal precepts, and suspicion of rationalist methods in every connection. In consequence both the right and the left of modern jurisprudence have little use for Grotius. The orthodox historical analytical jurisprudence regards the law of nature as definitely buried. The newer functional science of law thinks of a psychological natural law or a natural law grounded in the social sciences. But a book which has so long, so widely, and so profoundly affected both juristic thinking and the dogmatic law must have much more intrinsic quality than recent critics of Grotius have been willing to acknowledge. It is rather the alien spirit in the revolt against juristic logic as it was developed in the nineteenth-century maturity of law and the reaction from a rational development of legal dogma which has dictated the attitude of recent critics. Leaving international law wholly out of account Grotius was dominant in the literature of natural law well into the nineteenth century. In English exposition of the subject he is recognized as the chief authority from Blackstone (1765) to Lorimer (1860). He was one of the chief authorities recognized by the founders of our American polity, and his ideas are to be found everywhere in American books on public and constitutional law. Through Kent and Story his book entered into much of our thinking in more than one feature of equity and of commercial law. His theory of rights held the ground in one form or another until the middle of the nineteenth century, and however much seventeenth- and eighteenth-century natural law may have been repudiated by historical jurists of the nineteenth century, the Grotian theory was an ingredient of the first importance of what is still the orthodox theory of legal rights.23

As Grotius expounded the new doctrine it had two sides. On the one hand, there was a theory of limitations upon human activities, imposed by reason in view of human nature. On the other hand, there was a theory of moral qualities inherent in human nature, or natural rights, demonstrated by reason as deductions, from human nature, i.e., from the ideal of a man. The first had been propounded already by his forerunners. But whereas in Suarez the divine lawmaker has established the eternal and universal principles, Grotius makes reason a sufficient measure of all obligation and basis of all limitations.24 In part this follows from the definite breaking with theology in which he carries forward the ideas of the Protestant jurists of the Reformation. In part it is an echo of the Renaissance. As Westlake puts it, “the boundless intellectual confidence of that time” led the men of the Renaissance “to regard the dictates of natural law as capable of clear and exhaustive enumeration.”25 In part also it is a phase of the infusion of morals into law in the stage of equity and natural law. The main current of seventeenth-century thought followed Grotius, and in the eighteenth century Blackstone made his ideas familiar in England and America with important consequences for Anglo-American juristic and political thinking. For at the very time that the common law under the leadership of Coke had established its doctrine of the supremacy of law and had turned the feudal duties of the paramount landlord toward his tenants into something very like legal duties of the crown toward the subject, a juristic theory of fundamental limitations upon the activities of states, of rulers, and of individuals, dictated by eternal reason, had grown up to furnish the scientific explanation.

As has been said, Grotius and his followers made reason the sufficient basis of obligation. They held that the object for which the law exists is to produce conformity to the nature of rational creatures. His words are: “That is unjust which is contrary to the nature of rational creatures.”26 Note that “nature” is not used here in a psychological sense, such as it bears today when we speak of “human nature” nor in the biological sense to which the doctrine of evolution has made us accustomed. Here the “nature” of a thing means the rationally conceived ideal of it. The ideally perfect thing is taken to be “natural.” But Grotius had not thought this out with much precision. He had broken with authority as authority. Yet in the main he accepted the Roman law as embodied reason, and beyond a few bold assertions, such as his famous one that he could conceive of natural law even if there were no God,27 he ventured little that did not have authority behind it. Hence he and his followers accepted the Roman maxim, not to injure another and to give to every one his own, that is, respect for personality and respect for acquired rights, as a formula of conformity to the nature of rational creatures. This, however, raised obvious problems: What is injury to another? What is it that constitutes anything one’s own? Grotius and his successors sought to answer these questions by a theory of what we came to call natural rights, not merely natural law as heretofore; not merely principles of eternal validity, but certain qualities inherent in persons and demonstrated by reason, recognized by natural law, to which, therefore, the national law ought to give effect. Thus again, at the very time that the victory of the common-law courts in their contests with the Stuart Kings had established that there were fundamental common-law rights of Englishmen which Englishmen might maintain in court and in which courts would secure them even against the king or his ministers and agents, a juristic theory of fundamental natural rights, independent of and running back of all states, which states might secure and ought to secure but could not alter or abridge, had sprung up independently and was at hand to furnish a philosophical basis when political conditions at and after the American Revolution made it expedient to claim them as men rather than as Englishmen. By a natural transition, the common-law limitations upon royal authority became natural limitations upon all authority and the common-law rights of Englishmen became the natural rights of men.28 According to the Grotian definition a right is: “A moral quality of a person whereby it is fit that he have something or do something.”29 His English exposition puts it thus: “That quality in a person which makes it just or right for him either to possess certain things or to do certain actions.”30 The medieval idea was that law exists to maintain those powers of control over things and those powers of action which the social system has awarded or attributed to each man. The Grotian idea was that law exists to maintain and give effect to certain inherent moral qualities in every man, discovered for us by reason, by virtue of which he ought to have powers of control over things (property) or powers of action—capacity for legal transactions and liberties of action free from aggression. Thus, under the influence of the theory of natural law we get the theory of natural rights. A legal right is an institution of the legal order. But according to the theory of the law-of-nature jurists what ought to be law was regarded as law for that all-sufficient reason. No precept could stand as law except as it ought to be, and conversely to show that it ought to be law was to show that it was law. Hence what ought to be a legal right became decisive of what was a legal right.

There was a good side to all this. The insistence on what ought to be as the measure of what is, liberalized and modernized the actual law of the European states through the juristic testing of every doctrine and every category with reference to its basis in reason. But it had a bad side. It led to a confusion between the interests which it is conceived the law ought to secure and the rights by which the law secures interests when recognized, which has been the bane of jurisprudence ever since. It led to confusion of extra-legal ideals with the ideal element in the positive law and of both with the precept element. It led to absolute notions of an ideal development of received legal ideas as the jural order of nature, which more than once have brought legal thought and popular political thought into an obstinate conflict.

Since Jhering’s treatment of the subject we have perceived that “natural rights” mean only interests which we hold ought to be secured. It is true that neither the law nor the state creates these interests. But it is destructive of sound thinking to treat the de facto interest, before or apart from recognition and delimitation by the legal order, as a legal conception. Rights in the legal sense are among the devices of the legal order to secure these interests so far as they are recognized and as they are delimited by law. Legal rights are the creatures of law, although the interests secured, or which ought to be secured, by legal rights are independent of law and state. Hence we did not get much further immediately when in the seventeenth century justice (in the sense of the end of law) came to be regarded as a securing of natural rights. What were natural rights was determined chiefly from ideas drawn from the existing social order. Presently the natural rights of men became as tyrannous as had been the divine rights of kings and rulers.

Although the theory of natural rights led ultimately in America to a hard-and-fast scheme of individual interests, beyond the reach of the state, which the state was bound to secure by law, it had important consequences in broadening the conception of justice and inducing more liberal views as to the end of the law. It soon became apparent that the theory of inherent moral qualities, while it would serve for interests of personality—for claims to be secured in one’s body and life and the interests immediately related thereto—would not serve for the suum cuique element of the Roman formula of justice or, as we put it today, for interests of substance. None of the jurists of that time questioned the existing social order. They assumed a natural right of property, with all the incidents of dominium in Roman law, as beyond question.31 They conceived that security of acquisitions, including what one had acquired through the existing social order, was a chief end.32 At the same time they could not but see a difference between this natural right and such natural rights as those to the integrity of one’s body, to free choice of location, and to freedom from coercion. Accordingly jurists turned for an explanation to the idea of contract, already given currency in political thought during the medieval contests between the church and temporal rulers.33

It must be remembered that “contract” in this connection has reference to the civil-law conception of what I have been calling a legal transaction (negotium, acte juridique, Rechtsgeschäft), an act intended to have legal consequences to which the law attributes the intended result.34 In the seventeenth and eighteenth centuries this became the staple legal analogy. The idea of the legal transaction was one of the most important of the civilian contributions to systematizing the body of authoritative legal precepts, and in an age when trade and commerce were expanding the law of such transactions was becoming the living part of the law. The juristic problem of the time was to reconcile the needs of business and the ethical ideas of good faith which accompanied the infusion of morals into the law with the traditional categories of contract in Roman law. Naturally contract loomed large in juristic thought for two centuries. How thoroughly this analogy took possession of juristic thought is well shown by a statement in a well-known text book which was still in use by both practicing lawyers and law students when I was studying law. The author said:

“The law of contracts, in its widest extent, may be regarded as including nearly all the law which regulates the relations of human life. Indeed it may be looked upon as the basis of human society. All social life presumes it and rests upon it, for out of contracts, express or implied, declared or understood, grow all rights, all duties, all obligations, and all law. Almost the whole procedure of modern life implies or rather is the fulfillment of contracts.”35

Obviously this does not use “contract” as we now use the term in Anglo-American law. It refers to a social interest in the fulfilling of reasonable expectations; to good faith as a jural postulate of our civilization.

Moreover, the central point in the theory of a legal transaction was will—the will to produce a possible and legally permissible result. But the central idea in the theory of the law of nature and natural rights was conformity to the nature of reasoning creatures possessed of wills. So the question, how could such creatures acquire rights against one another, seemed easy to answer. How, indeed, could this be except by contract, through a legal transaction? Thus the foundation of the natural rights of property (interests of substance) which the law, it was held, existed to maintain, was taken to be a legal transaction, a compact of all men with all men, by virtue of which rights and corresponding duties were created. When property was once established, it was held that the ius disponendi, postulated as a corollary of property, perpetuated it. Justice, therefore, consisted in respecting and observing the terms of this compact, and the business of jurist and lawmaker was to discover and interpret its terms.

This resting of rights upon contract had strong followers among seventeenth-century writers on jurisprudence, politics, and ethics. Thus, Pufendorf says: “It must be observed that the concession of God by which He gives men the use of terrestrial things is not the immediate cause of ownership. . . but it [ownership] presupposes a human act and an agreement, express or implied.”36 So Hobbes: “. . . Where no covenant hath proceeded, there hath no right been transferred, and every man has right to everything, and consequently no action can be unjust. But when a covenant is made, then to break it is unjust; and the definition of injustice is no other than the non-performance of covenant. . . . So that the nature of justice consists in the keeping of valid covenants but the validity of covenants begins not but with the constitution of a civil power sufficient to compel men to keep them; and then it is also that property begins.”37 Likewise, Spinoza: “Again in the state of nature no one is by common consent master of anything, nor is there anything in nature which can be said to belong to one man rather than another. Hence in the state of nature we can conceive no wish to render to every man his own or to deprive a man of that which belongs to him; in other words, there is nothing in the state of nature answering to justice and injustice. Such ideas are only possible in a social state, when it is decreed by common consent what belongs to one man and what to another.”38

While at first theories of natural rights and of a social contract were used to justify and to preserve the social status quo, they invited inquiry as to the foundation of that status quo. They led men to ask, how far does it express the terms of the social compact? How far does it depart from a true interpretation thereof? It is manifest that such juristic theories might become very important for political thought. But their chief importance for our present purpose is to be found in their relation to the abstract individualism that long characterized Anglo-American legal thought. In themselves the theories are thoroughly abstract individualist. The natural rights which are the measure of all law, are the rights of individuals who have entered into a contract. Apart from this contract, and so apart from the individual consent involved therein, there would and could be no law and nothing for the law to secure. Individualism of this sort, beginning with the Reformation and growing with the emancipation of the middle class,39 obtained throughout Europe from the seventeenth century. Five circumstances reinforced this tendency: (1) Puritanism, with its doctrine of “consociation but not subordination”40 and its putting of individual conscience and individual judgment in the first place;41 (2) the victory of the courts in the contests between courts and crown in seventeenth-century England, which seemed to establish that the law was something which stood between the individual and politically organized society and secured his natural rights; (3) political theory in the eighteenth century culminating in the Virginia Bill of Rights in 1776, the prototype of the Bill of Rights in the American federal Constitution, and of the bills of rights in all American state constitutions; (4) the classical political economy; and (5) the philosophy of law in the nineteenth century with its different modes of demonstrating Kant’s formula of justice. All these successively developed and reinforced the tendency to abstract individualism. Thus in England, and even more in America, there came to be an ultra-individualism in legal thought which persisted in the United States to and even beyond the end of the nineteenth century.

Putting the matter in modern phrase, according to the seventeenth century, law, in all of its three meanings, exists to maintain and protect individual interests—the reasonable expectations of individual men, elevated to the position of legal rights, because they were natural rights. This goes forward in the eighteenth century.42

Seventeenth-century theory had taken two directions. On the one hand, it conceived of rights as the outgrowth of a social contract. It held that there would be none without the social organization and that there would be no justice or law without the political organization. From Hobbes and Spinoza this idea passes to Bentham, and thence in the nineteenth century to the English analytical jurists whose theory is in the right line of descent therefrom. On the other hand, there was the Grotian idea of rights as qualities inhering in persons. This put rights above civil society and justice outside of and above civil society as permanent, absolute realities which civil society was organized to protect. It was not that there were justice and right because there was an organized society. There was organized society because there were justice and rights to protect and secure. Historically the latter theory is connected with the Germanic idea that the state is bound to govern by law; the notion of Rechtsstaat, the state as subject to legal limitations and legal rules of general and independent validity. It is curious that in England, where the Germanic idea became thoroughly established, except as to Parliament after 1688, the idea that all rights and all justice, flowed from organized society prevailed in juristic thought, while on the Continent, where the Roman idea prevailed in public law, the Germanic idea got the upper hand in juristic thought. But the latter had apparent warrant in the Roman ius naturale. In the eighteenth century the second of the two ideas definitely prevailed. But a reconciliation was sought. The social contract was not the source of rights. It was made for the better securing of pre-existing natural rights. Thus Burlamaqui says: “But how great soever the change may be which government and sovereignty make in the state of nature, yet we must not imagine that the civil state properly subverts all natural society or that it destroys the essential relations which men have among themselves. . . . Government is so far from subverting this first order that it has been rather established with a view to give it a new degree of force and consistency. It was intended to enable us the better to discharge the duties prescribed by natural laws.”43 Both theories are thoroughly abstract individualist.

Eighteenth-century juristic theory, down to Kant, holds to four propositions: (1) There are natural rights demonstrable by reason. These rights are eternal and absolute. They are valid for all men in all times and in all places.44 (2) Natural law is a body of precepts, ascertainable by reason, which perfectly secures all of these natural rights.45 (3) Politically organized society exists only to secure men in these natural rights.46 (4) Positive law is the means by which politically organized society performs this function, and it is obligatory only so far as it conforms to natural law.47 The appeal is to individual reason. Hence every individual is a judge of this conformity. Also, on this theory natural rights alone are legal rights, except as to certain matters morally indifferent, for law is only a means of securing them.

Pushed to its logical limits, this leads straight to anarchy, and, indeed, the philosophical anarchist of the nineteenth century argued on this very basis.48 But the eighteenth-century writers, who taught that every man’s conscience was the measure of the obligatory force of legal precepts, assumed a sort of standard conscience, a standard man’s or conscientious man’s conscience, an abstract conscience of an abstract man, analogous to the prudence of the reasonable man in the Anglo-American law of torts. They assumed that if John Doe or Richard Roe asserted that his conscience did not sustain the precepts which the philosophical jurist deduced from the nature (ideal) of a moral being, either he did not know the dictates of his own conscience or he was misrepresenting them. It was only in this way that the social interest in the general security could be maintained effectively under the reign of the abstract individualist natural law. But this meant in practice that the philosophical jurist made his personal ethical views the test of the validity of rules of the positive law, and that the practicing lawyer took an ideal form of the settled legal principles in which he had been trained to be fundamental and eternal. Thus as late as the last decade of the nineteenth century a teacher of law in a leading American law school could write: “The very first and indispensable requisite in legal education. . . is the acquisition of a clear and accurate perception. . . of those unchangeable principles of the common law which underlie and permeate its whole structure and which control all its details, its consequences, its application to human affairs.”49 What such an attitude may lead to in the courts is brought out in the American cases of the formative era (from the American Revolution to the Civil War) holding that legislation could not add new categories of jurisdiction over crimes but must be held fast forever to the territorial theory of the common law. Thus in a case in which as a result of a felonious assault and battery in New York the victim of the attack died in New Jersey, the judge delivering the opinion of the court said: “But I cannot make myself believe that the legislature. . . intended to embrace cases where the injury was inflicted in a foreign jurisdiction. . . . Such an enactment upon general principles would necessarily be void. . . . An act to be criminal must be alleged to be against the sovereignty of the government. This is of the very essence of crime punishable by human law.”50

The eighteenth-century philosophical method was of service in jurisprudence in that it led each jurist to work out ideals which could serve as a critique of the positive law and to formulate the ideal element in the law so as to make it effective in an era of growth. On the other hand, it was a hindrance to jurisprudence in America in that it seemed to afford a scientific basis for the lawyer’s faith in the finality of the common law. The common law had grown up about an idea that reason, not arbitrary will, should be the measure of action and decision.51 The eighteenth century, however, was sure that it had the one key to reason, and was fond of laying out philosophical and political charts by which men were to be guided for all time. The lawyer believed that he had this key in the traditional principles of Anglo-American common law and drew his charts accordingly.

There were two sides to the general juristic doctrine of the law-of-nature school, a side making for change, a creative side, and a side making for stability, a systematizing, organizing side. Throughout the hegemony of that school in the seventeenth and eighteenth centuries, the two sides clearly stand out, on the one hand the law of nature as an instrument of change, as a weapon in the attack on the authoritarianism of the Middle Ages and on the restrictions on individual freedom of action involved in the feudal relational organization, and on the other hand, as an insurer of stability, as a protection from the personal justice and arbitrary administration in an era in which the old authoritative restraints were giving way and absolute governments were being established.

In the formative era of American law after independence, when a law had to be found for the new world and bodies of law had to be worked out by legislatures, judges, and jurists, in statutes, reported decisions, and law text books, for the new commonwealths which grow up so fast in the expansion of the United States across the continent, the creative side of the law-of-nature school served well. Lord Eldon’s work of systematizing equity was still to be done and the reception of the law merchant was not yet complete. Lord Mansfield’s creative work was going on during and after the American Revolution. Much of the seventeenth-century English law which was received in America was in the condition in which it had come down from the Middle Ages. The English criminal law of Blackstone’s time, on which we in America had to build was full of archaisms and the penal system had hardly been touched by the humane ideas of the classical penologists. Indeed, the legislative reform movement which we associate with the name of Bentham,52 begins in actual legislation in America rather than in England.53 American courts had to complete the development of equity and taking over of the law merchant concurrently with the English courts. Legislatures and courts and doctrinal writers had to test the English common law at every point, with respect to its applicability to America. Judges and doctrinal writers had to develop an American common law, a body of judicially declared or doctrinally approved precepts suitable to America, out of the old English cases and the old English statutes. Those who did this work, and did it well in the seventy-five years before the American Civil War, were deeply read in the writings of the law-of-nature school. However much the last generation may have railed at that school, nothing which that generation achieved will compare with it.

There came to be a combination of history and philosophy along with the rise of historical thinking in the nineteenth century. It is observable in Kent and well marked in Story. With Kent natural rights have a historical content and the theoretical basis is in transition from natural law to history.54 In Story’s writings the transition is complete from a contract basis of rights and a contract basis of government to a historical basis, confirmed by a constitution, which declares natural rights with a historical content.55 The stabilizing work of the eighteenth-century law of nature was taken over by history after history had for a time propped up reason, as reason in the later Middle Ages had bolstered up authority. In the later eighteenth century the creative force of the law of nature was coming to be spent. There was a tendency to stagnation of thought till at the end of the century, as Kent put it, philosophy awoke from a dogmatic slumber. There is nothing of consequence in the English eighteenth-century text, Rutherforth’s Institutes of Natural Law, which is not in Grotius. Bentham’s utilitarianism has nothing in it that was not in the law-of-nature utilitarianism that went before him except his calculus of pains and pleasures. The proposition that the end sought by man is happiness, as a proposition of natural law demonstrated by reason, goes back to Pufendorf and may be found in Rutherforth, Burlamaqui, and Vattel.56

A political idea, that what every one agrees to is declaratory of natural law, is to be found in the writings of James Wilson, member of the convention which framed the constitution of the United States, one of the justices of the Supreme Court of the United States in the beginning, and one of the first juristic expositors of general legal theory in America.57 As Kent and Story in the passing of the law-of-nature school turned to history, Wilson turns to a democratic version of the contract idea, a consensual law of nature, demonstrated by the customary course of popular action. But this idea, reminiscent of the Roman juristic identification of the ius gentium with ius naturale, may be found in Grotius. He says, in effect, that whatever cannot be deduced from certain principles by a sure process of reasoning, and yet is clearly observed everywhere, must have a natural origin in consent,58 for men were morally, ideally, and so legally bound by their free consent. Here was a restraining law of nature which could be invoked to stay institutional waste in times of revolutionary upheaval.

If we ask what were the results of the dominance of the law-of-nature school in American juristic thought in the three generations after independence in which it held the field almost undisputed in America, we must put on the bad side of the account its effect on American attempts at codification in the nineteenth century. Over-confidence in the power of pure reason to discover the one right rule for every problem of the legal order led to neglect of history, that is, neglect of experience, and to expecting too much of a single codifier.59 But most of all we must put on this side the absolute idea of law which prevailed so largely in America in the nineteenth century and the wide gulf between popular thought and lawyers’ thought to which it led. That idea came to America from Grotius in two ways. On the one hand, it came through Blackstone, whose section “on the nature of laws in general” is founded on Grotius and Pufendorf.60 On the other hand, it comes through American jurists of the eighteenth and fore part of the nineteenth centuries who followed the Dutch and French publicists and civilians. Wilson’s Law Lectures (1791) and Story on the Constitution (1833) abound in references to Grotius, Pufendorf, Burlamaqui, Vattel, and Rutherforth.

Indeed these books and those following them were the staple of American legal education from the beginning and throughout the formative era.

After the American Civil War historical and analytical jurisprudence supplanted philosophical jurisprudence in American legal thinking. The last quarter of the nineteenth century in the United States and the last half of the century on the Continent called for organization and system and stability in law much more than for creation and change. In England the influence of Bentham and rise of analytical jurisprudence crowded philosophical jurisprudence out until the present century. Discredit of the law-of-nature philosophy in the present generation in America is due chiefly to its effects in constitutional law. In the last of its phases it led to an idea of the constitution as declaratory of an ideal of the common law; as in its main lines and characteristic doctrines an embodiment of universal precepts of absolute validity. In consequence, as was said in a preceding lecture, certain common-law doctrines and traditionally received ideals of the profession were made into a super-constitution by which the social legislation of the last decade of the nineteenth century and of the first decade of the present century was to be judged.61

On the other side of the account, the ideas of the eighteenth-century law-of-nature school gave the American lawyers of the formative era a belief in the efficacy of effort which emboldened them to do much of outstanding worth. Application of reason to the received common law made the work of the legislative reform movement of enduring value. As has been said heretofore, some of its best achievements were authoritative formulations of what men had reasoned out in the seventeenth and eighteenth centuries.

But what led to abandonment of the juristic theory of natural rights was its extreme abstract individualism. It was, as I have pointed out in another connection, thoroughly abstract individualist in both of its aspects. As a theory of inherent moral qualities of persons it was based on deduction from an ideal of the abstract isolated individual. As a theory of rights based upon a social compact, it thought of natural rights as the rights of the individuals who had made the compact and had thereby set up the social and political order to secure them. In either view the end of the law is to maintain and protect individual interests. This fitted so perfectly the legal theory of the common-law rights of Englishmen that the founders of American political, legal, and judicial systems, who were studying Coke and Blackstone on the one hand and the French and Dutch publicists on the other hand, had no doubt they were reading about the same things. Hence Americans of the end of the eighteenth century argued for either or for both. The Declaration of Rights of the Continental Congress in 1774 asserted the legal rights of Englishmen. The Declaration of Independence two years later asserted the natural rights of man. Yet each claimed the same things.62

From this identifying of common-law rights with natural rights it followed that the common law was taken to be a system of giving effect to individual natural rights.63 It was taken to exist in order to secure individual interests not merely against aggression by other individuals but even more against arbitrary invasion by state or society.64 The bills of rights were declaratory both of natural rights and of the common law.65 This idea is prominent in American judicial decisions in the nineteenth century, when the ideas of the eighteenth century had become classical. Thus one court told us that natural persons did not derive their right to contract from the law. Hence whatever the state might do in limiting the power of a corporation to make certain contracts, because a corporation got its power from the state, it might not limit the contractual capacity of natural persons who got their right to contract from nature, so that nature alone could remove it.66 Another court, in passing adversely upon labor legislation infringing liberty of contract, said that any classification was arbitrary and unconstitutional unless it proceeded on the “natural capacity of persons to contract.”67 Another court in a similar connection denied that contractual capacity could be restricted except for physical or mental disabilities.68 It all came to a proposition that the common-law categories of disability were final and that legislation could not add new ones. The bills of rights and the fourteenth amendment to the federal constitution were treated as only declaring a natural liberty which was also a common-law liberty. Hence an abridgment not known to the common law was thought to go counter to their fair construction, if not to the letter.

In the last quarter of the nineteenth century and first quarter of the present century these ideas led to a bitter controversy between courts and legislatures in America which went on long after the basic idea had given way before the critique of Immanuel Kant. Kant’s Critique of Pure Reason struck at the root of the whole doctrine of the law-of-nature school. If natural rights were inherent moral qualities to be ascertained by reason, granted that reason could deduce with assurance from given premises, how could reason give us the premises? If, on the other hand, natural rights rested on a social contract, how could the details or the implied terms of a contract of a generation far in the past bind the men of today? The fiction of representation, the doctrine taught by Blackstone, that we were represented when our remote forefathers made the contract and so are bound, was obviously founded on British political theory in which all consent to acts of Parliament through the representatives sent to Westminster to act for them. It would not bear examination. He saw that the legal order could not carry out a plan of assuring complete exercise of all the claims or securing all the expectations which reason was asserting as natural rights. He saw as the ultimate problem the reconciling of conflicting free wills. The principle by which their reconciliation was to be effected was equality in freedom of will, the application of a universal rule to each act which would enable the free will of the actor to co-exist along with the like free will of every one else. In his own words: “Every action is right which in itself, or in the maxim on which it proceeds, is such that it can co-exist along with the freedom of each and all in action according to a universal law.”69 The whole course of juristic theory in the nineteenth century was determined by this theory of justice. Kant marks an epoch in philosophical jurisprudence no less than Grotius.

Summarily stated, to the eighteenth-century justice, the end of law, the ideal by which values were to be measured, the idea by which choice of starting points for legal reasoning was to be governed, by which legal precepts were to be interpreted and applied, and by which legislation was to be directed, was the securing of absolute, eternal, universal rights of individuals, determined with reference to the abstract individual man. Kant, on the other hand, held it to mean the securing of freedom of will to every one so far as consistent with freedom of all other wills. Thus the transition was complete from the idea of justice as a maintaining of the social status quo to an idea of justice as the securing of a maximum of free self-assertion.

[1. ]Joannes Scotus Erigena (d. 875) De divisione naturae, I, 69.

[2. ]St. Anselm (d. 1109) Cur Deus homo, preface.

[3. ]“A law of nature is a rule of reason; wherefore a human law partakes of the reason of law in so far as it is derived from a law of nature. And if they disagree in anything, there is no law, but a corruption of law.” R. Suarez, Repetitiones (1558) 272–73.

[4. ]Perhaps I ought to explain that by ‘Germanic’ they refer to non-Roman legal and political ideas and legal precepts in the Middle Ages.

[5. ]Heusler, Institutionen des deutschen Privatrechts (1885) § 1.

[6. ]Quod principi placuit legis habet vigorem, Inst. i, 2, 6; Dig. i, 4, 1. Note however that the word is lex, rule of law, not ius, which is right-and-law.

[7. ]See Brissaud, History of French Public Law (transl. by Garner, 1915) § 346.

[8. ]Bracton, De legibus et consuetudinibus Angliae, fol. 74, quoted by Coke in Prohibitions del Roy, 12 Co. 63 (1612). Bracton’s treatise was written between 1250 and 1258. As to the authenticity of the passage quoted, see Maitland, Bracton’s Notebook (1887) 29, 33; McIlwain, The High Court of Parliament (1910) 101, 103.

[9. ]Salic Law, tit. 50, § 3.

[10. ]Adams, The Origin of the English Constitution (1905) chap. 12; Pound, The Spirit of the Common Law (1921) 25–26.

[11. ]Figgis, Studies of Political Thought from Gerson to Grotius (1907) lect. 6; Westlake, Chapters on the Principles of International Law (1894) 25–28; Scott, On the Spanish Origin of International Law (1928).

Sources: Soto, De iustitia et iure (1589); Suarez, De legibus ac Deo legislatore (1619).

[12. ]1 Continental Legal History Series,General Survey (1913) 147, 154, 252–59.

[13. ]E.g., the lex aeterna, the reason of the divine wisdom governing the whole universe. Summa Theologica, i, 2, qq. 92–95.

[14. ]Suarez, De legibus ac Deo legislatore, i, 8, § 1.

[15. ]Ibid. i, 9, § 2.

[16. ]Ibid. ii, 19, § 9, i, 8, § 2, xii, 13. See Westlake, Chapters on the History of International Law (1899) 25–28.

[17. ]Soto, De iustitia et iure (1589) i. q. 5, a. 2.

[18. ]See Pound, Philosophical Theory and International Law (1923) 1 Bibliotheca Visseriana, 75, 76–80.

[19. ]1 Franciscus de Victoria, Relectiones theologicae (1557) 375 ff. Cf. 1id. 359 ff.

[20. ]Soto, De iustitia et iure, III, q. 3, a. 2; Suarez, De legibus, iii, 35, § 8; iii, 9, § 4; iii, 11. The argument for separation of powers in the passage last cited is noteworthy.

[21. ]Suarez, De legibus (1612) ii, 12.

[22. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) §§ 25–27; 2 Stintzing, Geschichte der deutschen Rechtswissenschaft (1880–83) 1–111; Hinrichs, Geschichte der Rechts- und Staatsprincipien seit der Reformation (1848–52) I, 60–274, II, III, 1–318; Duff, Spinoza’s Political and Ethical Philosophy (1903) chap. 22.

Sources: Grotius, De iure belli ac pacis, especially i, 1, 3–6, and 8–11 (1625); Pufendorf, De iure naturae et gentium, especially i, 7, §§ 6–17 (1672); Hobbes, Leviathan, chap. 15 (1651), id. De cive, especially tit. libertas (1642); Spinoza, Tractatus theologico-politicus, especially chap. 16 (1670); id. Tractatus politicus, especially chaps. 2, 4 (1678); id. Ethica, especially pt. V (1677); 1 Rutherforth, Institutes of Natural Law, 2 § 5 (1754).

[23. ]See Pound, Grotius in the Science of Law (1925) 19 American Journal of International Law, 685.

[24. ]Prolegomena, §§ 8–16.

[25. ]Westlake, Chapters on the Principles of International Law (1894) 28.

[26. ]i, 1, 3, § 1.

[27. ]Prolegomena, § 11.

[28. ]I have discussed this at length in The Spirit of the Common Law (1921) lect. 4.

[29. ]i, 1, 4.

[30. ]1 Rutherforth, Institutes of Natural Law (1754) 2, § 3.

[31. ]Pufendorf, De iure naturae et gentium (1672) iv, 4.

[32. ]Grotius, ii, 1, 1; ii, 1, 11; ii, 10, 1; ii, 17, 2, § 1.

[33. ]See Figgis, Studies of Political Thought from Gerson to Grotius (1907) 148–51.

[34. ]See Isaacs, John Marshall on Contracts, A Study in Early American Juristic Theory, 7 Virginia Law Review, 413 (1921); Ferson, The Rational Basis of Contracts (1949).

[35. ]1 Parsons, Contracts (1855) 3.

[36. ]Pufendorf, De iure naturae et gentium (1672) iv, 4, § 4.

[37. ]Hobbes, Leviathan (1651) cap. 15.

[38. ]Spinoza, Ethica, iv, pr. 37, n. § 2 (1677).

[39. ]The relation of the development of individual rights and the emancipation and hegemony of the middle class is considered elaborately by Berolzheimer in his view of the maturity and downfall of the law-of-nature school; 2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) chap. 5.

[40. ]Lord Acton, Lectures on Modern History (1906) 200. See Pound, The Spirit of the Common Law (1921) 57–59.

[41. ]Lord Acton, Lectures on Modern History (1906) 10.

[42. ]2 Berolzheimer, System der Rechts- und Wirtschaftsphilosophie (1905) § 29; Jellinek, Die Erklärung der Menschen- und Bürgerrechte (3 ed. 1919), English transl. of 1 ed. by Farrand as The Declaration of the Rights of Men and of Citizens (1901); Boutmy, La déclaration des droits de l’homme et du citoyen de Mr. Jellinek, Etudes politiques (1907); Ritchie, Natural Rights (1895) chap. 3; Sauter, Die philosophischen Grundlagen des Naturrechts (1932) 151–96. Pound, The Formative Era of American Law (1938) lect. 1.

Sources: Montesquieu, L’esprit des lois (1749) liv. I; Rousseau, Le contrat social (1762) liv. ii, chaps. 6, 9; Burlamaqui, Principes du droit de la nature et des gens, i, 1, chap. 5, § 10 and chap. 10, §§ 1–7; Wolff, Institutiones iuris naturae et gentium (1754) §§ 74–102; Vattel, Le droit des gens (1758) liv. i, chap. 2, §§ 15–17; Rutherforth, Institutes of Natural Law (1754) bk. ii, chap. 5, §§ 1–3.

[43. ]Burlamaqui, Principes du droit de la nature et des gens, i, 2, chap. 6, § 2 (1766). Cf. Vattel, liv. i, chap. 13, § 158 (1758). This was repeated by lawyers who were brought up on the books of the law-of-nature jurists down to the present century. “Organized society is created to secure antecedent rights of individuals or groups of individuals.” Baldwin in Two Centuries Growth of American Law (1901) 45.

[44. ]Burlamaqui, i, 1, chap. 7, § 4; Wolff, Institutiones iuris naturae et gentium, §§ 68–69.

[45. ]Burlamaqui, i, 2, chap. 4.

[46. ]Ibid. ii, 1, chap. 3; Wolff, § 972.

[47. ]Burlamaqui, ii, 3, chap. 1, § 6; Wolff, § 1069; Vattel, liv. i, chap. 13, § 159; 1 Blackstone, Commentaries on the Laws of England (1765) 41.

[48. ]Brown, The Underlying Principles of Modern Legislation (1912) 7 ff.; Ritchie, Natural Rights (1895) 65 ff.

[49. ]Phelps, Methods of Legal Education (1892) 1 Yale Law Journal, 139, 140.

[50. ]State v. Carter, 27 N.J. Law, 499, 501 (1859). To the same effect; State v. Knight, Taylor (N.C.) 65 (1799) s.c. 2 Hayw. (N.C.) 109 (1799); Campbell, J., in Tyler v. People, 8 Mich. 320, 341 (1860).

[51. ]Glanvill, preface, ix, 8 (1187); Magna Carta, cc. 4, 7, 14, 20, 28 (1215); Stonore, C.J., in Langbridge’s Case, Y.B. 19 Ed. 3, 375 (1345); Littleton, Tenures, Epilogue (1481); Doctor and Student (1523) chap. 5; Coke, Commentary on Littleton (1628) 11a, 11b, 97b, 394a –395a; Coke, C.J., in Prohibitions del Roy, 12 Co. 63 (1612); Finch, Law (1627) bk. i, chap. 3.

[52. ]“The age of law reform and the age of Bentham are one and the same.” 2 Brougham’s Speeches (1838) 287–88.

[53. ]Compare the legislation in New York on corporations, wills and administration, descent and distribution, marriage and divorce, executions against real property, and criminal law between 1811 and 1832, as shown in New York Revised Statutes (2 ed. 1836)—vol. I, 591 (1819), 741 (1827), 713 (1828); vol. II, 2 (1827), 27 (1823), 32 (1828), 74 (1830), 288 (1828), 373 (1832), 545 (1828); III, 220 (1811)—with the dates in Odgers (and others), A Century of Law Reform (1901).

[54. ]2 Kent, Commentaries on American Law (1827), 1–11.

[55. ]1 Story, Commentaries on the Constitution of the United States (1833) bk. 2, chap. 3, especially §§ 340, 348, 356.

[56. ]Pufendorf, De iure naturae et gentium (1672) cap. xiii; Rutherforth, Institutes of Natural Law (1754) bk. i, chap. 1, § 7; Burlamaqui, Principes du droit naturel (1747) pt. 1, chap. 5, § 4; Vattel, Les droit des gens, préliminaires, 5 (1758).

[57. ]1 Wilson’s Works, Andrews’ ed. 57, 74. Lectures delivered in 1790.

[58. ]De iure belli ac pacis, i, 1, 12.

[59. ]The Civil Code of Georgia, provided for by statute in 1858 and put in effect in 1860, the Field draft codes in New York, and to some extent the Negotiable Instruments Law, the first of the Uniform State Laws under the auspices of the National Conference on Uniform State Laws bring this out. See Carter, Law: Its Origin, Growth and Function (1907); Dillon, Laws and Jurisprudence of England and America (1894) 177–87; Hoadley, Annual Address Before the American Bar Association (1889) 11 Rep. Am. Bar Assn. 219; Ames, The Negotiable Instruments Law (1902) 14 Harvard Law Review, 442.

[60. ]1 Blackstone, Commentaries on the Laws of England (1765) 38–61.

[61. ]See Lecture II, note 79.

[62. ]See Pound and Plucknett, Readings on the History and System of the Common Law (3 ed. 1927) 309.

[63. ]Fletcher v. Peck. 6 Cranch (U.S.) 87, 134 (1810); Story, Commentaries on the Constitution of the United States (1833) § 1399; Cooley, Constitutional Limitations (1868) 358–83. Cf. 1 Wilson, Works, Andrews’ ed. 566, lectures delivered in 1790.

[64. ]“With those judges who assert the omnipotence of the legislature in all cases where the constitution has not interposed an explicit restraint, I cannot agree. Should there exist. . . a case of direct infringement of vested rights too palpable to be questioned and too unjust to admit of vindication, I could not avoid considering it as a violation of the social compact, and within the control of the judiciary.” Hosmer, C.J., in Goshen v. Stonington, 4 Conn. 209, 225 (1822).

[65. ]“The usual Anglo-Saxon bill of rights, as contained in our state constitutions, is in fact nothing more or less than the written expression of a previously existing but silent limitation upon the power of legislators which is imposed without the writing.” Abbot, Justice and the Modern Law (1913) 47. On this theory there might be constitutionally adopted but unconstitutional amendment to the constitution. See Miller, J., in Loan Association v. Topeka, 20 Wall. 655, 662 (1874). Compensation in eminent domain was said to be “a settled principle of universal law reaching back of all constitutional provisions.” Harlan, J., in Chicago B. & Q.R. Co. v. Chicago, 166 U.S. 226, 237–38 (1897). Police regulations are valid unless they infringe a constitutional provision ‘or a natural right.’ Field, J., in Butcher’s Union Co. v. Crescent City Co., 111 U.S. 746, 762 (1884).

[66. ]Leep v. Railway Co., 58 Ark. 407 (1893).

[67. ]State v. Loomis, 115 Mo. 307 (1893). See Pound and Plucknett, Readings on the History and System of the Common Law (3 ed. 1927) 309.

[68. ]State v. Fire Creek Coal & Coke Co., 33 W.Va. 188 (1889).

[69. ]Kant, Metaphysische Anfangsgründe der Rechtslehre (2 ed. 1798) xxv.