Era of Rationalism.— Philosophy in the 18th century had become a rationalistic ideal ism. Every philosopher, moreover, was dupli cated as a publicist, seeking new principles on which to base a reconstituted social order. Man, in a state of nature, was imagined to have lived under conditions of almost absolute liberty. Society was assumed by Rousseau to have been established through a con tract° whereby each individual surrendered only so much of his complete freedom as was necessary to the enjoyment of the equal right of every other individual to perfect liberty of action. To ensure this equality was con sidered the only function of government. This was the theory; what were the facts? The political condition of France was that of a feudal aristocracy, succeeded, when the Revo lution had been accomplished, by an imperial despotism with a limited elective franchise. The population was largely agricultural; the burgesses were mostly engaged in petty indus try. Land was burdened with feudal charges and movable property practically Legal relations between persons were few and well-defined, and were wholly individualistic. Unrestricted private ownership was considered the basic principle of private law. The prop ertyless worlcingmen were disunited and ignored. was understood to mean political equality. During the whole revolutionary pe riod legislation was regarded the only right source of law. Legislators, however, were not expected to weigh the morality of each indi vidual action; if the law secured a maximum of liberty to each, that was sufficient. Every body favored a code — the economist-philoso phers because it tended toward a desired har mony and universality of legal principles, not because they believed a perfect system could be created at one stroke. They were rather partial to the costumes, which they deemed to reflect present social needs more nearly than the jar civilis. But when the radicals had ob tained supremacy in the convention all previous legislation was pronounced barbarous and un civilized. C,ambaceres and a legislative commis sion were directed, in 1793, to prepare a brief code. The first draft was rejected as too com nlicated. The second effort of Cambaceres, Code of Nature, Sanctioned by Reason and Guaranteed by Liberty,') was criticised as a mere table of contents. It was under the Consulate that codification was finally accom plished. Tradition had reasserted its power; it was agreed to retain what was good from the past; land was to be unburdened of feudal obligations and no inequalities growing out of personal status could be tolerated; but, other wise, the code prepared under the supervision of Portalis was a compromise between the cus tomary and civil laws.• The was to be regarded as a book of institutes, rather than as a book of laws. In the report accompany ing the draft, Portalis remarks, that it is im possible to provide for everything in advance; much must be left to usage, the discussion of learned jurists and the decision of judges. The function of a statute is to fix, in broad lines, the general maxims and to establish principles that will be fertile in consequences; to descend in detail to every question that might possibly arise would not be conducive to the required simplicity and lucidity. The liberty of the in dividual — who is assumed, with respect to his priVate affairs, to act in his own interest and not the interests of the public — remained the ideal. The absolute right of private ownership and freedom of contract were the cornerstones of the edifice. In England the first effect of the French Revolution was reactionary and quiescent. The Combination Act of 1800 out lawed workingmen's associations, transitory or permanent, which had for their object the in crease of wages or other regulations of the terms of employment. Any person offering to assist in the maintenance of a strike might be proceeded against summarily before a peace officer. The Health and Morals Act of 1802, though an emergency law called forth by an epidemic, may be regarded as the beginning of factory legislation. The slave trade was pro hibited in 1806; the whipping of women at the pillory for misdemeanors was abolished in 1820, and in 1822 the first law for the preven tion of cruelty to animals was passed. The era of individualistic and utilitarian law reform (1825-70) was ushered in by the writings of Jeremy Bentham and was dominated by his ideas. According to Bentham, legislation is a science; its aim is to carry out the principle of utility, hence the proper end of every law is the greatest happiness to the greatest number. Every person is, in the main, the best judge of his own happiness; hence, all restrictions on free individual action, which are not necessary to the security of like freedom to other per sons, should be removed. Maine's aphorism that, "modern law substitutes contract for status,° embodies the fundamental conception of the Benthamite Liberals, who regarded the unrestricted exercise of the right of contract as the most satisfactory way of disposing of the whole body of antiquated legal institutions. The British utilitarians, like the French ration alists, fell short of the conception that posses sion and ownership might impose legal duties as well as give legal rights, and that it may be a function of the law to protect individuals — even mature normal men — from their own weakness, as well as to ensure to the strong freedom in the exercise of their legal powers.
Modern Development.— American legisla tion did not become fecund until 50 years after the adoption of the Constitution, receiving its impetus from the great moral movements anti-slavery, woman's rights and prohibition. The legal right of married women to own and dispose of property separately from their hus bands was generally recognized by statutes en acted before the 19th century had passed its meridian. After the Civil War came other moral and social movements, resulting in laws for the benefit of labor and for the suppres sion of trusts. Peaceful strikes have ceased to be criminal conspiracies. The principals underlying the anti-trust laws are as old as the early English statutes against combinations in restraint of trade and price-fixing agree ments. The law restricting woman and child labor and the minimum wage laws, however, are limitations upon the liberty of contract, and they are among the few in which the right of the state to restrict this freedom is recog nized. The compensation laws transfer the burden of insuring against industrial accidents from the workingmen themselves to the indus tries in which they are employed. The regu lation of injunctions in labor &spines gives expression to the thought somewhere enter tained that judge-made law is more "aristo cratic° than that made by democratic legislators. The provisions of the constitutions of North Carolina, Missouri and Oklahoma, that men have "a natural right to enjoy the fruits of their own labor," are less broad than those of the fundamental laws of most of the States respecting the sanctity of private property. But the interdiction by the Federal Constitution of State laws impairing the obligation of con tracts is a safeguard against radical departures from conventional rules — though prohibition laws and police and health regulations, confis catory in their effect, have passed the test of constitutionality. The jurists of Continental Europe have been more receptive to advanced ideas in legislation than those of Great Britain or America. The Code Civil protects spend thrifts from their own weakness by preventing them from squandering their fortunes. Why, it is asked, should not the law also protect those who possess nothing but their physical strength, from squandering all they have by making improvident bargains under compulsion of necessity? This thought lies at the bottom of a whole mass of modern social legislation. There has been a complete transformation of ideas with respect to the proposition that the state can impose no affirmative obligation upon the individual beyond the payment of taxes, —in money, in kind or in blood—nor any negative obligation except that of respecting the rights of his neighbor. It is asserted that restraint may be put on the interest of the individual in himself, or in that which he owns. No person, for instance, has the legal right to commit suicide. Property is not to be re garded as a subjective right; ownership is a *social function. The argument runs thus: every individual is under obligation to per form a function in the community; the pos sessor of wealth, by reason of his possession, is enabled to accomplish certain work which others cannot accomplish; he alone can increase the general stock by putting his capital to use. For social reasons, therefore, he is under a duty to perform this work, and society will protect him only if he accomplishes it and in accord with the measure of his accomplish ment. This juridical idea has found legislative expression in laws obliging owners to cultivate their land and in the taxation of unearned increment. The misuse of property, says the Swiss Code, is unlawful and one who clearly misuses his right will not 'be protected. Of course, the rule . might be extended, beyond the misuse of ownership, to the unsocial use of anything, aptitudes or even of mere physical capacity for work. A code thus motivated would be a body of laws to enforce duties, rather than to enforce rights. Morality and legislation would have become one.
Jas. B., 'Lectures on Legal History' (Cambridge, Mass., 1913); Austin, John, 'Jurisprudence or the Philosophy of Positive Law' (5th ed., London 1885) ; Bentham, Jeremy, 'Principles of Morals and Legislation' (Clarenden Press 1879) ; Dicey, A. V., 'Law and Public Opinion' (London 1905) ; Gaius, 'Institutes' (Engl., by E. Poste, Oxford 1890) ; Ihering, Rud. v., 'Law as a Means to an End' (tr. by I. Husik., Boston 1913) ; same, 'Law in Daily Life' (tr. .by H.
Goudy, Oxford 1904) ' • same, 'Struggle for Law' (tr. by J. W. Lalor, Chicago 1879) ; Lee, Guy Carleton, 'Historical Jurisprudence' (New York 1900) ; Maine, Henry Sumner, 'Ancient Law' (New York 1888; London 1906) ; Montesquieu, Charles Louis de, 'Spirit of the Law' (1st ed., Paris 1748) ; Pollok and Mait land, 'History of Law in England' (2d ed., Boston 1899) ; Savigny, Fr. Carl v., 'Jural Relations> (2d ed., book of the of Modern Roman Law,' tr. by W. H. Rattigan, London 1884) ; Stimson, Fred. J., 'Popular Law Making' (New York 1910) ; Continental Legal History Series, published under auspices of Association of American Law Schools (11 vols., Boston 1912-18; Vol. I, General Survey; Vol. II, Progress in the 19th Century).