under the
medieval scheme of the claims and duties involved in the relation of
king to tenants in chief, out of which the judges had developed the
immemorial rights of Englishmen, and enabled the common-law rights of
Englishmen to become the natural rights of man, intrenched as such in
our bills of rights. Thus it served as a needed check upon the
exuberance of growth stimulated by the theory of natural law. It kept
a certain needed rigidity in a time when law threatened to become
wholly fluid. And this steadying influence was strengthened from
another quarter. The Roman jurisconsult was teacher, philosopher and
practitioner in one. As a lawyer he had the exigencies of the general
security ever before him in that he felt the imperative need of being
able to advise with assurance what tribunals would do on a given state
of facts. The seventeenth- and eighteenth-century jurists were chiefly
teachers and philosophers. Happily they had been trained to accept
the Roman law as something of paramount authority and so were able to
give natural law a content by assuming its identity with an ideal form
of the law which they knew and in which they had been trained. As the
Roman jurisconsult built in the image of the old law of the city, they
built on idealized Roman lines. If Roman law could no longer claim to
be embodied authority, they assumed that, corrected in its details by
a juristic-philosophical critique, it was embodied reason.

Both of these ideas, natural rights and an ideal form of the actual
law of the time and place as the jural order of nature, were handed
down to and put to new uses in the nineteenth century. In the growing
law of the seventeenth and eighteenth centuries they were but guides
to lead growth into definite channels and insure continuity and
permanence in the development of rules and doctrines. Whether natural
rights were conceived as qualities of the natural man or as deductions
from a compact which expressed the nature of man, the point was, not
that the jurist should keep his hands off lest by devising some new
precept or in reshaping some old doctrine he infringe a fundamental
right, but that he should use his hand freely and skilfully to shape
rules and doctrines and institutions that they might be instruments of
achieving the ideal of human existence in a "state of nature." For the
state of nature, let us remember, was a state which expressed the
ideal of man as a rational creature. If a reactio