where the field of legally enforceable promises
had ceased to be bounded by a narrow fence of Roman historical
categories. Thus they had no call to rationalize dogmas of not
enforcing promises made as business transactions. Those who accepted
the political interpretation saw freedom as a civil or political idea
realizing itself in a progress from _status_ to contract in which
men's duties and liabilities came more and more to flow from willed
action instead of from the accident of social position recognized by
law. The English historical jurists might well have asked how far
English rules as to consideration were consonant with the implications
of such a theory, and whether they must not be expected to give way as
the idea unfolded more completely in experience of popular action and
judicial decision. But the leader of this school was not a common-law
lawyer and the American historical jurists devoted their energies to
devising a historical-analytical theory of consideration rather than
to the wider question of what promises should be enforced and why.

Here as in other places the historical jurist and the utilitarian were
in agreement as to results although they differed widely as to the
mode of reaching them. The former saw in contract a realization of the
idea of liberty. The latter saw in it a means of promoting that
maximum of individual free self-assertion which he took to be human
happiness. Hence the former called for freedom of contract and should
have called for wide general enforcement of promises. The latter held
to a doctrine of unshackling men and allowing them to act as freely
as possible, which involved the complementary position of extending
the sphere and enforcing the obligation of contract. The difference
between these ways of thinking and those of the end of the eighteenth
century is brought out if we compare Blackstone (1765) with a dictum
of Sir George Jessel a century later (1875). The former says that the
public is "in nothing so essentially interested as in securing to
every individual his private rights." The latter, discussing a
question of what agreements are against public policy and therefore
unenforceable, says: "If there is one thing more than another which
public policy requires it is that men of full age and competent
understanding shall have the utmost liberty of contracting and that
such contracts shall be enforced by courts of justice." But the
utilitarians put the emphasis upon the