etween sovereigns
and subjects. While the world was full of maxims setting forth with
the utmost positiveness the claims of kings to implicit
obedience--maxims which pretended to have had their origin in the New
Testament, but which were really derived from indelible recollections
of the Caesarian despotism--the consciousness of correlative rights
possessed by the governed would have been entirely without the means
of expression if the Roman law of Obligation had not supplied a
language capable of shadowing forth an idea which was as yet
imperfectly developed. The antagonism between the privileges of kings
and their duties to their subjects was never, I believe, lost sight of
since Western history began, but it had interest for few except
speculative writers so long as feudalism continued in vigour, for
feudalism effectually controlled by express customs the exorbitant
theoretical pretensions of most European sovereigns. It is notorious,
however, that as soon as the decay of the Feudal System had thrown the
mediaeval constitutions out of working order, and when the Reformation
had discredited the authority of the Pope, the doctrine of the divine
right of Kings rose immediately into an importance which had never
before attended it. The vogue which it obtained entailed still more
constant resort to the phraseology of Roman law, and a controversy
which had originally worn a theological aspect assumed more and more
the air of a legal disputation. A phenomenon then appeared which has
repeatedly shown itself in the history of opinion. Just when the
argument for monarchical authority rounded itself into the definite
doctrine of Filmer, the phraseology, borrowed from the Law of
Contract, which had been used in defence of the rights of subjects,
crystallised into the theory of an actual original compact between
king and people, a theory which, first in English and afterwards, and
more particularly, in French hands, expanded into a comprehensive
explanation of all the phenomena of society and law. But the only real
connection between political and legal science had consisted in the
last giving to the first the benefit of its peculiarly plastic
terminology. The Roman jurisprudence of Contract had performed for the
relation of sovereign and subject precisely the same service which, in
a humbler sphere, it rendered to the relation of persons bound
together by an obligation of "quasi-contract." It had furnished a body
of words and ph