SOCIOLOGICAL JURISPRUDENCE derived by title-deed from the universal creator of all things and attested by uni versal intuition. " 1 The highest court of one of the states tells us in eloquent words that the right to take property by will is an absolute and inherent right, not depend ing upon legislation.2 But the steady pro gress of the law is in another direction. Ihering lays down this as the difference between the new and the old: "Formerly high valuing of property, lower valuing of the person; now, lower valuing of property, higher valuing of the person."3 He says the line of legal growth of the future is "weakening of the sense of property, strengthening of the feeling of honor."4 And that this is true for our law in America, the continual complaints that modern legis lation deprives men of the power to regu late their own affairs and to manage their own property bear abundant witness. The progress of law away from the older individualism is not confined to property rights. A passing of ultra-individualist phases of common-law doctrines on every hand, both through legislation and through judicial decision, is sufficiently obvious. Let us note a few cases. One of the socalled natural rights, which is still insisted upon, is freedom of contract, the right of each man to say for himself what engage ments he will undertake and to settle the details thereof for himself. But modern legislation is constantly abridging this right by creating classes of persons and classes of subjects, with respect to which rights and obligations are defined by law "and made conclusive upon the parties, irrespec tive of stipulations attempting to set them aside;"6 and such statutes are now held constitutional within wide limits. Nor is this tendency confined to legislation. The 1 Smith, Personal Property, Sec. 33. 1 Nunnemacher v. State, 108 N. W. 627.
- Ihering, Scherz und Ernst in der Jurisprudenz (9 ed.) 418.
4 Ihering, Scherz und Ernst in der Jurisprudenz (9 ed.) 429. • Freund, Police Power, Sec. 503.
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contract of insurance has been so dealt with by the courts that it is no longer an ordinary contract, to be judged as such, but the law of insurance has become a specialized body of doctrine.1 The older decisions were extremely strict in insisting upon the right of a surety to make his own contract in every respect. The slightest deviations, which had the effect of varying in some degree the obligation for which he engaged to become answerable, sufficed to relieve him. He and he alone could determine for what he would bind himself, and he could do so as arbitrarily as he chose, for it was his affair.2 But the advent of the surety company has already pro duced a change. It was felt that the right of every person to make his own contracts for himself must give way to a public demand for enforcement of con tracts of insurance unless some substantial injury to the insurer appeared, and this feel ing has led to a line of judicial decisions with respect to contracts of surety companies that cannot well be reconciled with the settled course of adjudication as to natural persons.3 Professor Gray has noted a simi lar phenomenon in the matter of spend thrift trusts.4 The common law insisted rigorously on individual responsibility. It was not possible for a debtor through any device to enjoy the whole substantial benefit of property free from claims of his creditors. The American decisions which permit such trusts are, as he points out, at clear variance with the spirit of the common law. They are another sign of the drift toward equality in the satisfac1 Wambaugh, Cases on Insurance, preface. • Hence if the king died, surety for the peace was released "for 'tis to observe his peace, and when he is dead, 'tis not his peace." Anony mous. Brook's New Cas. 172. A typical modern case is U. S. v. Boecker, 21 Wall. 652. ■ See for instance, American Bonding Co. v. City of Ottumwa, 137 Fed. 572, Segari v. Mazzei (La.) 41 So. 24s. 4 Gray, Restraints on the Alienation of Prop erty (2 ed.) viii-x.
