another without his consent; all lawful government is founded on the consent of those who are subject to it. Such consent was given with a view to ensure and to increase the happiness of the governed above what they could enjoy in an independent and unconnected state of nature" (38).

§ 17. The origin of the compact theory. The source of power of the Roman emperor is worthy of remark. "That which seems good to the emperor has also the force of law; for the people, by the lex regia, which was passed to confer on him his power, make over to him their whole power and authority" (39). Gaius puts it thus: "A constitution of the emperor is, etc.; ever been a doubt as to this having the force of a lex, since it is by a lex that the emperor himself receives his authority" (40).

nor has there

This expression of Gaius differs from the idea of the divine right of kings; but the doctrine promulgated by Justinian that the people had surrendered, or made over to the emperor, all the power of the Roman people, the summi imperium, is very similar to what is called the original-compact theory of sovereignty (41); yet it recognizes compact as the true source of positive law (42),compact of submission, it is true.

88 2 Wilson's Works, 507. Compare this with the second clause of the Declaration of Independence.

39 Inst. 1-2-6.

40 Gaius, 1-4.

41 Inst. 1-2-6, Sandars' note.

42 Inst. 1-2-11. See also 1 Blk. Com., p. 237.

Spence, in his Equitable Jurisdiction, speaks of the origin of the theory of sovereignty as follows: "The reverence for the Roman law, which had been traditionally handed down through the clergy, independently of express adoption, must have operated to facilitate its being so largely resorted to when its stores were opened. The most remarkable feature is that it was taken as of imposing, if not of governing, authority, even on constitutional points. Glanville in his preface which is in part taken almost literally from that prefixed by Justinian to his Institutes, notices and explains the principle 'Quod principi placet legis habet vigorem,' as if he were commenting on the terms of an act of the English legislature. Bracton follows exactly the same course, fortifying the qualifications he introduces, not from national sources, but chiefly by references to other passages from the imperial laws. To this, namely, a reference to the Lex Legia and other imperial doctrines, says Mr. Allen (on Prerogative, p. 166), we may trace the old doctrines of absolute sovereignty and transcendent dominion which still disfigure our law books"(43).

§ 18. Feudalism is in theory based on compact (44). Feudalism as a political system was the successor of the Roman System and in as much as it became almost universal throughout Europe and was based upon an idea differing essentially from that of the Roman Law, and because further it has left indubitable traces upon our law, especially the law of land, it is important to all stu

481 Spence Eq. Jur. *128.

44 Consult Maine's Ancient Law, ch. IX, p. 365.

dents of our system that the fundamental ideas of feudalism be understood and it is not so difficult to understand if it is remembered that the warriors who followed the distinguished leaders in the inroads upon the Roman Empire and who subjugated it, were regarded as free men whom no leader however powerful, whether his name be Agamemnon or Attila, would have attempted, much less have succeeded in despoiling. It is this free spirit of individual liberty which is the characteristic feature of feudal civilization. It is the actual existence of the independent spirit which gives color to the forms of all political documents adjusting the relations between men in society. They take the form as they partook of the character of agreements between free-men. It should be remembered that the vassal was in truth a free man and that the peers of the realm were vassals. In the feudal political society, the basic idea of Right and Law takes on a new form. We have seen that in the Roman State, it was through the form of a public Law, the Lex Regia, that the people en masse made over to the Emperor their rights. It will be observed that the individual does not act in the individual capacity. In the feudal state, in fact and in form, the individual right is never lost sight of, the contract, the binding word is pronounced by the man to the Sovereign. The charters are signed by the Sovereign and run to individuals, though at times including classes. It is said by a recent writer, "That this contract idea is indeed to all the varying forms and transformations of the feudal age, the one thing which is permanent and distinctive, the one constantly controlling element."

"Mr. Maitland admits, as fully as anywhere, the introduction at the Conquest of a contractual element which was lacking in Saxon days, but he is not disposed to see in this a matter of any importance. I shall not presume to dispute the opinion of so able a lawyer that as a matter of law the presence or absence of the contractual element is merely of theoretical and not of practical importance, that at most it is a question of legal logic, though I may be surprised that it should be so considered. But in the field of institutional history certainly the case is different. There the one vital fact is that at the beginning of English constitutional history, the public law of the state was brought under the controlling influence of private contract, that public duties were, as I have already said, transformed into private obligations. It was upon this idea that feudalism took its stand for selfdefence against the attack of a powerful monarchy begun, indirectly and in ways not easily felt to be dangerous, by Henry II., continued more openly, so that the drift of things was more plain but not in reality more dangerous, by John. Forced into new prominence in this way as the principle of resistance, the idea of contract became the leading element in a new growth, the growth of the constitution, as I endeavored to show, too briefly, in an earlier volume of this review. (Vol. 5, p. 643-658.)

Nor is this idea of contract a late idea, brought in as a theory to explain already existing facts. It goes back as a characteristic and controlling fact to days even before the origin of feudalism in one at least of the earlier in

stitutions out of which the feudal system grew, the patrocinium; and it is only less prominent in the other, the precarium. In the patrocinium, which is the source of the personal side of feudalism, it was made especially emphatic (45). . This contract idea is, indeed, through all the varying forms and transformations of the feudal age the one thing which is permanent and distinctive, the one constantly controlling element" (46).

§ 19. Limitation upon the freedom of contract essential to liberty. The student of politics will observe that this untrammeled right of contract led not only to extravagant political inequality but permitted individual servitude in no way distinguishable from slavery. Pollock & Maitland in their history of the Common Law say: "We have been laying stress on the late growth of a law of contract, so, for one moment, we must glance at another side of the picture. The master who taught us that 'the movement of the progressive societies has hitherto been a movement from status to contract' was quick to add that feudal society was governed by the law of contract. There is no paradox here. In the really feudal centuries, men could do by a contract, by the formal contract of vassalage or commendation, many things that cannot be done nowadays. They could contract to stand by each other in warfare 'against all men who can live and die;' they could (as Domesday Book says) 'go with their land' to any lord whom they pleased; they could make the relation be

45 G. B. Adams in. Am. Hist. Rev. vol. VII, p. 30. See also Maine's Anc. Law, ch. 169 and ch. IX, p. 365.

46 Id. p. 32.