the other, neutrals were left with practically no rights which belligerents felt bound to respect, especially after the last great neutral, the United States, was drawn into the conflict. As far as sea law is concerned, the present situation might be said to be a blank sheet of paper. The seas have become the exclusive dominion in war time of nations which are at war, and whoever passes over the ocean highways in time of war does so only on the conditions imposed by the power whose fleets are dominant. England, with her mighty navy, has been practically the only nation in the last century which, while others were fighting and she was a neutral, could fully enforce sea law and protect her commerce on every ocean from lawless belligerents.

A sea law in the future based only on the precedents established in the war that has just closed could mean nothing but a reign of force on the high seas during war periods. Future naval belligerents would find the practices of the sea supporting them in everything of consequence relating to neutral commerce, contraband, visit and search, blockade, war zones, mine fields and the like. Small nations at war, however, could never dominate neutrals of greater naval strength. England, with her great fleets, would more than ever dominate neutrals when at war herself, under the new precedents. But if England were a neutral and a great war in progress, then England would dominate the belligerents on the seas. Neutral England, as so often in the past, would say to weaker belligerents: "Release that British ship you have captured!" or "Raise the blockade you have proclaimed!" Belligerents would have to yield to neutral England in such circumstances. As for the law, it could only be the will of the nation with the most powerful fleets. That would mean nothing but a reign of force.

Out of that situation would grow a desperate race between the important maritime nations for naval supremacy. If force is to be the law-giver on the seas when a war breaks out, a powerful fleet becomes a necessary investment for commercial nations. Under the reign of force, therefore, the United States and Great Britain could hardly escape naval competition. And the world knows by this time where competition of armaments leads.

By Hon. Ernst Freund, Professor of Jurisprudence in the University of Chicago.

As the formal expression of the prevailing economic constitution of society, private law has necessarily a strong individualistic cast. The two systems which have exerted the most powerful influence on legal history, the law of Rome and the law of England, have also been the most individualistic, while German jurists of the school, whose foremost representative is Professor von Gierke, take considerable satisfaction in pointing to the manifestations of a superior social spirit which they find in Germanic private law, and which they desire to strengthen against the influences of a Romanizing jurisprudence.

The individualistic spirit of the private law is epitomized in the right of ownership, the jus utendi abutendi consumendi, a right divorced from any obligation, intolerant of restraints upon alienation, and suffering the servitude of easements only within narrow bounds. In recognizing a free power of testamentary disposition, unrestrained by duty portions, an executor's administration practically exempt from official control, and a marital property right of the husband unqualified by community claims of the wife, the common law has carried the right of ownership to extremes from which in part at least it has been found necessary to recede, but the modifications are slight as compared with the power that remains.

The law of contracts breathes a similar spirit. It has been pointed out before how chary the common law is in implying obligations in connection with the principal contractual relations: seller and purchaser, landlord and tenant, master and servant, creditor and debtor. The principle caveat emptor, the paucity of tenant's rights, the rules of employer's liability, testify to the reluctance of the common law to carry obligations beyond what has been stipulated and assumed explicitly. Expressed in procedural terms in which the older law reveals itself most clearly, individualism means the favored position of the defendant who relies upon his possession or upon the letter of his bond.

In the promises of the Great Charter the procedural principles of the common law assumed the character of guaranties, and the thirtyninth clause, the main precursor of our fundamental rights, is a defendant's charter. To transform a right into a guaranty means to protect it, not merely against invasion by private third parties, but against

official invasion under the guise of authority. Procedural guaranties could be thus created because they were conceived as guaranties against royal action. That is to say, the administration of justice was part of the royal prerogative. Parliament, when it became a powerful organ of government, was content to leave it on the whole to custom and tradition, and was supposed to be watchful only that the royal power should not create dangerous innovations. Hence the early remonstrances against the jurisdiction of the Chancellor; and while eventually this jurisdiction was acquiesced in as a necessary complement to the common law, the abrogation of the Star Chamber by act of Parliament may justly be regarded as an insistence upon the carrying out of the promise of the Great Charter that the Crown would not exercise punitive powers except in accordance with the law of the land.

The idea that private right should be protected, not merely against private wrong, but against public and authoritative encroachment, was not confined to the province of procedure, but extended wherever authority was conceived as subject to law. Thus royal power was again met by common-law liberty when the attempt was made to exercise the prerogative by the grant of monopolies, and the struggle for freedom of private action terminated successfully in the beginning of the seventeenth century, first by the judicial and then by the legislative declaration of the illegality of monoplies under the principles of the common law.

The general civil liberty of the individual to enter into legal relations with other individuals, which underlies all private law, is perhaps the vaguest of all rights; like the air around us, it is so abundant and so little likely to be disputed or invaded by others that it does not normally stand in need of protection, and until the advent of constitutional limitations it had hardly any recognized legal status. It is all the more instructive that we can construe a common-law theory even with reference to this general liberty.

For from times immemorial this liberty was subject to local regulation by corporate by-laws which extended, not only to the preservation of local order, but to the enforcement of standards of honesty and quality in manufacture and trade. Since, in the absence of special custom, no corporation could make any by-law contrary to the common law or common right and yet was allowed to regulate the exercise of rights, it follows that the common-law concept of civil liberty was by no means repugnant to regulation in the public interest, but

recognized such regulation as a proper and ordinary incident and qualification. It was regulation imposed by royal authority which Parliament in course of time came to consider as a violation of its own legislative prerogative; but this is far from saying that regulation in itself was considered as contrary to the common law.

However, the common law admitted of regulation only within certain limits: a corporate by-law transcending those limits was treated as void. This was particularly true of by-laws in restraint of trade, which created trade monopolies or restrictions not looking solely to "the good of the commodity" (Tailors of Ipswich, 11 Reports 53a). They were said to be against common right. Put in other words, the common law treated a certain quantum of liberty as protected from corporate regulation. Here, then, we have realized the idea of economic liberty secured against governmental action, a common-law right of civil liberty as against unreasonable regulation.

From the fifteenth century on subordinate powers of regulation declined in England; the making of corporate by-laws was in important respects restricted,1 and the function of trade regulation was assumed by Parliament; and the royal power to regulate by ordinance or proclamation gradually came to be considered as unconstitutional. Regulation and restraint of individual liberty henceforward proceeded from the legislative power of Parliament exclusively. It is true that toward the end of the seventeenth century a long period set in during which economic and social regulation was sparingly used (except so far as external "commerce" was concerned), and incisive interference with the conduct of private business revived only with the new factory legislation at the beginning of the nineteenth century.

The transfer of practically all regulative power to Parliament had the effect of removing from the English law the concept of a sphere of individual immunity from regulation as a legal right. That happened at the very time when Continental jurists began to claim for natural law a positive force and status. They not only now developed the theory of vested rights, which has remained foreign to the technical terminology of the English law, but contended that laws violating the natural limitations of sovereign power were null and void, and in Germany territorial statutes were questioned on that ground in the imperial court as denials of justice, just as they are attacked in America as violating due process of law.

1 Kyd on Corporations, II, 107-9.

It is true that in England Locke argued for the inviolability of property and a consequent limitation of sovereign power;2 but he appears to have thought of natural as contrasted with legal rights, and he conceived of a power superior to the legislative only by way of revolution;3 there is nothing comparable in English literature to the full elaboration of a doctrine of ves ed rights by German and Dutch jurists, and it is characteristic that Mr. Thayer, in introducing his chapter on "Eminent Domain" in his Cases on Constitutional Law, quotes from the writings of these jurists exclusively.

The English state of mind is easily understood. The great revolutions-religious and political-of the sixteenth and seventeenth centuries had assumed the forms of acts of Parliament; it was therefore natural that English lawyers should believe in parliamentary omnipotence. If there was a common right against corporate or royal regulation, and in this sense a common-law guaranty of individual liberty, a similar guaranty against parliamentary regulation was unthinkable. The subjection to the laws, i. e., to acts of Parliament, is assumed as a necessary qualification of every right, not merely of political or civil liberty, but also of the vested right of property. The compensation paid in the exercise of eminent domain is treated by Blackstone as a firmly-established parliamentary practice, not as a legal right. The idea of rights which the state is bound to respect, with which German writers not uncommonly operate, is foreign to English jurisprudence. Strong as is or was the conviction in England that the male adult person should not be interfered with in his economic arrangements, even the most individualistic of English thinkers do not hint at possible limitations of a legal character upon Parliament; the idea of a legal right to freedom from economic or social regulation has disappeared.

The American state of mind was different from the beginning. The circumstances of the settlement of the colonies made it natural and almost inevitable that political and legal ideas which in England after the seventeenth century were relegated to the domain of philosophical speculation should appear as having practical effect and operation. The establishment of self-government on a new soil realized the idea of the people as the source of political power as it had not been realized in historic times; the primitive conditions of life and the opportunities afforded by a virgin continent justified a belief 2 Second Treatise Concerning Government. Sec. 138.

3 Ibid. Sec. 149.