a social compact. Here it suffices to note that the latter is an alien conception in our law. After working no little mischief in our constitutional law in the nineteenth century, this idea of natural rights resting upon a social compact and merely declared by constitutions is giving way, and there are signs that we shall return to the true common-law conception of a statement of the rights and duties which the law imposes on or annexes to the relation of ruler and ruled.51

Because of its origin in the general application to new problems of the analogy of the reciprocal rights and duties of lord and man, I have ventured to call this element of our legal tradition "feudal law." 52 Perhaps it should be called the Germanic element. For in comparing Roman law and Germanic law we are struck at once by differences of treatment of the same institution in the two systems, and these differences turn largely upon their respective use of will and of relation as fundamental notions. Compare, for instance, the Roman patria potestas, the power of the head of the household, with the corresponding Germanic institution of the mundium. The Roman institution is legally quite one-sided. The paterfamilias is legally supreme within the household. He has rights. But whatever duties he may owe are owed without the household, not within.53 On the other hand the Germanic institution is conceived of as a relation of protection and subjection. But the subjection is not because of a right of the house-father. It is a subjection because of the relation and for the purposes of the protection which the relation involves. Also the right of the house-father grows out of the relation and is a right against the world to exercise his duty of protection.54 Indeed there is some warrant for the view that Tacitus indicates this idea of relation as a characteristic Germanic institution.55 At any rate it became the fundamental legal idea in the feudal social organization. Accordingly in Anglo-American law it is a generalization from the results of judicial working out of one problem after

51 See the observations of Winslow, C. J., in Borgnis v. Falk Co., 147 Wis. 327, 348-50, 133 N. W. 209 (1911).

52 Pound, "A Feudal Principle in Modern Law," 15 INT. J. OF ETHICS, I, 20.

MOS. ET ROM. LEG. COLL. IV, 8; GAIUS, I, §§ 117-18, II, § 87, IV, § 75; PAulus, SENTENTIAE, V, 1, § 1; DIG. XLIV, 7, 9; COD. VIII, 46, 10.

I HEUSLER, INSTITUTIONEN DES DEUTSCHEN PRIVATRECHTS, §§ 20, 23, 24.

5 GERMANIA, caps. XIII, XIV, XXV, See SCHRÖDER, LEHRBUCH DER DEUTSCHEN RECHTSGESCHICHTE, 4 ed., 32-35.

another by the analogy of the institution with which courts were most familiar and had most to do in the formative period of English law, namely, the relation of lord and tenant.

In the nineteenth century the feudal contribution to the common law was in disfavor. Jurists thought of individuals and contracts rather than of groups and relations. The conception of the abstract individual ruled in legal philosophy. The medieval guilds were gone and the legal position of trade unions and a legal theory of collective bargaining had not yet become problems for the lawyer. Hence the nineteenth-century lawyer thought ill of anything that had the look of the archaic institution of status. The Romanist idea of contract became the popular juristic instrument, and attempt was made to Romanize more than one department of AngloAmerican law by taking for the central idea the Roman doctrine of a legal giving effect to the individual will.56 This tendency was in part the result of the confident attempt of the age of enlightenment to explain all things by the light of unaided reason, and so is to be classed with the tendency to invent apocryphal reasons for legal doctrines instead of criticizing them, which marks the decadence of \the philosophical method in the last century. But after the historical school had turned the light of history upon legal institutions they kept for some time the color given them by the eighteenth-century light of reason. System in the common law was but beginning. Of necessity those who sought for systematic ideas turned to the Continental treatises on Roman law. The resulting tendency to Roman

56 "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 human life implies, or, rather, is, the continual fulfilment of contracts." I PARSONS, CONTRACTS *3 (1853). Compare also the tendency to Romanize the law of bailments on "the hasty assumption" that the principles of the modern Roman law were universal, referred to by Mr. Justice Holmes, COMMON LAW, Lect. 5.

Another example may be seen in the law of carriers. The nineteenth century books derived this branch of the law from the law of bailment, thinking of the duties of the carrier as "implied terms" of the contract, in Roman fashion. In many law schools even now "Bailments and Carriers” is the title of a course. But this contract-theory of the carrier's obligation has thoroughly broken down. To-day we speak rather of the law of public service and derive the carrier's duties from the general obligations of a public calling in one type of which he is engaged.

As to partnership, see PARSONS, PRINCIPLES OF PARTNERSHIP, §§ 1, 3; Pepper, "What Constitutes a Partnership,” 46 Aм. L. REG. 137, 142.

ize the theory of Anglo-American law was furthered both in England and in the United States by the general acceptance of Maine's theory of legal progress. But Maine's generalization as it is commonly understood shows only the course of evolution of Roman law.57 It has no basis in Anglo-American legal history, and the whole course of English and American law today is belying it unless, indeed, we are progressing backward.58 If it be said that statutes restricting freedom of contract between employer and employee are a legislative phenomenon, and out of the right line of growth of the common law, one may point to the law of public-service companies or to the law of insurance or to the law of surety companies. In each case, and these are relatively recent judicial developments in our law, the common-law idea of relation and of the rights, duties and liabilities involved therein, has prevailed at the expense of the idea of contract.59 It is significant that progress in our law of publicservice companies has taken the form of abandonment of nineteenth-century conceptions for doctrines which may be found in the Year Books.60

Even more significant is the legislative development whereby duties and liabilities are imposed on the employer in the relation of employer and employee, not because he has so willed, not because he is at fault, but because the nature of the relation is deemed to call for it. Such is the settled tendency of the present, and it is but a return to the common-law conception of the relation of master and

57 Perhaps the current view of Maine's doctrine is not wholly just to its author. He expressly limits the meaning of status so as to exclude relations arising from contract. See note 31, ante. But the two last paragraphs of chapter 5 of Ancient Law seem fairly to justify the usual interpretation of his theory.

58 Note the difficulties which Miller felt as early as 1884 in attempting to square with this theory legislation which "has apparently reversed the natural order of the growth of legal forms." It must be explained, he says, "on the ground that the persons legislated for are so weak and helpless that they cannot realize their true freedom, or maintain it against others who are so strong or so unjust as to encroach on their rights. One of the first results of a consciousness of freedom will be a demand for the repeal of statutes which restrain this power of self-legislation a demand for freedom of contract." LECTURES ON THE PHILOSOPHY OF LAW, 73. A generation has passed without any abatement in restrictions upon freedom of contract in the relation of master and servant or any sign of the reaction so confidently predicted.

59 See Pound, "The End of Law as Developed in Legal Rules and Doctrines," 27 HARV. L. REV. 195, 225.

60 WYMAN, PUBLIC SERVICE CORPORATIONS, §§ 1-14, 20, 27, 34-42. Cf. HOLMES, COMMON LAW, Lect. 5. But see Adler, "Business Jurisprudence," 28 HARV. L. REV. 135, 147 f.

servant with reciprocal rights and duties and with liabilities imposed in view of the exigencies of the relation. These statutes have put jurists to much trouble when they have sought to find a place for them in the legal system. Some have said that modern labor legislation creates a status of being a laborer, and this has frightened more than one court. For status is felt to be an archaic legal institution which we have outgrown. Hence courts have felt bound to inquire what warrant could be found for imposing disabilities upon one whom nature had given a sound mind, disposing judgment and years of discretion.61 Others have said that the duties and liabilities involved in workmen's compensation were quasi-contractual, which means only that the author did not know what to call them or where to place them.62 What is clear is that they are not contractual and that they do not accord with the modern principles of the law of torts. Is there, then, an irreconcilable opposition between this legislation and the modern law of torts, so that one or the other must give way? If so, and if we are to adhere to Maine's generalization as furnishing a guide to legal progress, it may go hard with this legislation in the judicial working out of its consequences. But a sounder view of history, taking account of the history of our own law, will show that the common law has a place for it and that it is perfectly possible, without disturbance of our legal system, to administer these statutes and to give them the sympathetic judicial development which all statutes require in order to be effective. For it is not out of line with the common law to deal with causes where the relation of master and servant exists differently from causes where there is no such relation. It is not out of line to deal with such causes by determining the duties and the liabilities which shall flow from the relation. On the contrary, the nineteenth century was out of line with the common law when it sought to treat the relation of master and servant in any other way. In administering these acts the common law may employ its oldest and most fertile legal conception.

63

Much of the nineteenth-century criticism of the common law as "feudal" wholly misses the point. Austin grafted a Romanist 61 State v. Haun, 61 Kan. 146, 161, 59 Pac. 340 (1899); State v. Loomis, 115 Mo. 307, 315, 22 S. W. 350 (1893).

62 SALMOND, TORTS, 4 ed., 113. Compare POLLOCK, TORTS, 9 ed., 110.

63 See Smith, "Sequel to Workmen's Compensation Acts," 27 HARV. L. REV. 235,

analysis, learned in Germany, upon the political ideas of Hobbes and the ethical ideas of Bentham. Maine's interpretation of legal history was derived from the phenomena of Roman law considered from the standpoint of Savigny. Thus both of the schools of AngloAmerican jurists were Romanized. The Romanist idea of a legal transaction, which the nineteenth century sought to apply to all possible situations, was regarded as the institution of the maturity of law. But the conception of the legal transaction regards individuals only. In the pioneer agricultural societies of nineteenth-century America such a conception sufficed. In the industrial and urban society of today classes and groups and relations must be taken account of no less than individuals. Happily the nineteenth century did not wholly lose for us the contribution of the feudal law to our legal tradition. If we cast aside the Romanist prejudices of the nineteenth-century historical school, we may perceive that in the idea of relation, in the characteristic common-law mode of treating legal problems which we derived from the analogy of the incidents of feudal tenure, we have an institution of capital importance for the law of the future, a means of making our received legal tradition a living force for justice in the society of today and of tomorrow.

In truth the nineteenth-century historical school was not historical. It was metaphysical. The reconciliation of the historical with the metaphysical, which was current at the end of the century, may be found in Hegel. Each was heir to the law-of-nature theories of the eighteenth century. Each sought a universal, unchangeable fundamental principle. One studied the unfolding thereof in human experience as manifested in legal institutions and legal doctrines. The other verified the same process a priori and unfolded the principle logically. Hence the juristic pessimism of the metaphysical school was fully shared by the historical school.65

64 "I maintain that the sequence in the systems of philosophy in history is similar to the sequence in the logical deduction of the notion-determinations in the idea. I maintain that if the fundamental conceptions of the systems appearing in the history of philosophy be entirely divested of what regards their outward form the various stages in the determination of the idea are found in their logical notion. Conversely in the logical progression taken for itself there is, so far as its principal elements are concerned, the progression of historical manifestations. . . . This succession undoubtedly separates itself, on the one hand, into the sequence in time of history, and on the other, into succession in the order of ideas." I HEGEL, HISTORY OF PHILOSOPHY (transl. by Haldane), 30.

65 "It was in no attitude of investigation and reflection . . . that the Hegelian