expropriation of private property, and also for the protection of every kind of property right. It was no longer possible to meet the needs of the time by an interpretation of the Roman texts in the light of the theory of the law of nature. When the jurists of the twelfth century first began to discuss the relation of ruler to subject the position was comparatively simple. To them the Emperor of the day was the successor of the Roman Princeps upon whom the Imperium had been conferred by the Populus in the Lex Regia. All communities within the Empire were simply subordinate universitates to which the Roman texts on corporations were applicable. With the decay of the Imperial power in the fourteenth century Bartolus introduced a distinction between universitates non recognoscentes superiorem and other universitates, and gradually the jurists began to attribute to the former many of the powers, such as the powers of legislating and taxing, formerly reserved to the Emperor. It is soon laid down as a general principle that these independent universitates may exercise within their territory the plenitudo potestatis ascribed to the Kaiser within the Empire.2 Indeed the power of expropriation, formerly a "reserved right," seems to have been recognised as belonging to every universitas, independent or not; and in the principle that acquired rights are not to be prejudiced by decisions of the majority of the members of the universitas the ius quaesitum had already made its appearance.3

These ideas could be invoked in support of the claims of a centralised monarchy like France, or of

1 Gierke, D.G.R., III. 199.

2 Gierke, Political Theories, 97; D.G.R., III. 381. Here as elsewhere the town provided the model for the slowly developing State. 3 Gierke, D.G.R., III. 299, 387, 389.

4 Or England, where Richard II. declared himself to be entier emperour de son roialme. Stubbs, Constit. Hist. II. 515.

the powerful cities of Lombardy, but elsewhere on the Continent the individual was face to face with a territorial magnate who was trying to found a kingdom by concentrating in his own hands a number of variegated rights, each based on a special title,-imperial grant, long enjoyment, or purchase. The relation between ruler and subject was a matter of private law. Every demand on the subject required a special title and might be met by proof that the subject had acquired a corresponding right, a privilege or immunity based on a contract with the ruler or a grant from the Emperor. Here again is the ius quaesitum.1

Gradually the king or prince began to look upon his conglomeration of powers as inherent in his position of superiority or sovereignty over a definite territory. But even to Bodin, writing in 1586, Souverainété or Majestas is no more than a collection of rights (iura maiestatis) some of which are so important that they are essential to the summa potestas, and cannot be claimed by a mere magistrate or subject. Amongst these propria iura are the powers of legislating for all within the territory, of making war, or levying taxes. The advance made by Bodin was in his doctrine that the possessor of the iura maiestatis is not only supreme within the territory, but owes obedience to no man outside it. But the conception of sovereignty as a property of the State as such rather than of a person or body of persons within the State is a later development.2

1 Gierke, D.G.R., I. 535. Mayer, Deutsches Verwaltungsrecht, (3rd ed.) I. 26-30.

2 See Rehm, Geschichte der Staatsrechtswissenschaft, 220-225, and passages there cited. The summa potestas to which the iura propria are essential is itself treated as a necessary element of the State; but these iura belong to persons (princeps populusque), not to the State. The idea is that of a kind of personified office. Even Bodin considers the summa potestas bound by the laws of God and of nature; it is legibus soluta not legibus omnibus soluta. Another French jurist, Loyseau, went further. Seigneurie is puissance en propriété and Souverainété is la propre Seigneurie de l'Etat. Traité des Seigneuries (ed. 1701), 3-8.

In Germany also the jurists, influenced like Bodin by the Italian doctrine of the independent universitas, were attributing to the princes in the States which were springing up, a collection of powers (regalia) declared to be indispensable to every ruler of a State1: and here too the conception of sovereignty began to make headway-the corporative principle receding before the notion of a public power vested in the ruler by virtue of his position of "superiority," and exercisable for the common weal. The path was being prepared for a doctrine of the inviolable, inalienable, natural rights of the ruler, which was to have considerable influence upon the transformation of the "territory" into the absolute State.

From the time of Grotius the dominium eminens is always included amongst the essential powers of the ruler. Pufendorf mentions it as the third of the three principal iura summorum imperantium.3 Grotius probably meant by the expression no more than the state's general power of expropriation, for he couples it with confiscation of property for crime, and includes amongst "acquired" rights those arising out of contract. He was driven by the ideas of his time to clothe this power in proprietary garb. His dominium eminens is nearer to the protectio et jurisdictio of Bulgarus than to the simple dominium of Martinus. The expression however soon fell into disfavour with those who regarded property as based on the will of the individual rather than on the will of

1 Gierke, D.G.R., III. 691, 695; and Rehm, op. cit., p. 205, quoting the De Regalibus of Regner Sixtinus (1602): Regalia sunt iura ei qui superiorem non recognoscit competentia ad rempublicam tuendam .. sine regalibus rem publicam nullam consistere posse. Also Schröder, Deutsche Rechtsgeschichte (6th ed.), 938.

2 Cf. Pollock and Maitland, Hist. of Eng. Law, I. 512. "Prerogativity is exceptionality.”

3 De Officio Hominis, II., c. 15 §4.

4 The intermediate step between Martinus and Grotius seems to be the dominium "quodammodo” or “minus pingue” of Ockham. Gierke, Pol. Theories, 178, n. 271.

the State, and with the growing acceptance of the doctrine of the general sovereignty of the State it was superseded by ius eminens and later by "right of expropriation" simply.1 In the same way the eminent domain of the law of the United States is no longer regarded as a "reserved right attached to every man's land," but as a power "which belongs to every free government and which is incident to sovereignty." It has been held that the Fifth Amendment is not the source of this power but merely a limitation on its exercise. In England, on the other hand, the emphasis has been placed rather on the sanctity of property than on the maxim Salus populi suprema lex; but here the central authority has not had to struggle arduously for one power after another. Blackstone, following Locke, who does not mention eminent domain, says that so great is the regard of the law for private property that it will not authorise the least violation of it; no, not even for the general good of the whole community." To him the power of expropriation is simply an outcome of the legislative omnipotence, which enables Parliament to order a compulsory sale. Yet in England the expression "eminent domain" has some historical and logical basis, for by the Common Law of England the absolute ownership of all land is in the Crown alone.1

The powers gradually and painfully acquired by the modern State have come to be regarded as its

1 See Meyer, Recht der Expropriation, 125-130.

2 Burdick, Law of the American Constitution, 419. It cannot be renounced, ib. 550; cf. the English case Ayr Harbour Trustees v. Oswald, (1883) 8 App. Ca. 623.

3 Comm. I. 139. And in Att. Gen. v. De Keyser's Royal Hotel, [1920] A.C. 508, the Crown was unable to show that land had ever been taken by virtue of the Royal prerogative without compensation being paid for it.

4 The recent abolition of the doctrine of escheat seems to have deprived the principle of tenure of all practical importance. The Virginian Declaration of 1776 makes no mention of the power of expropriation; and it was inserted in the French Declaration of 1789 only at the last moment.

natural or inherent rights1; whilst the individual's former "natural" right to property has been resolved into a multitude of acquired rights. And what is guaranteed by the modern State is not the right to property in the condition in which it is held but to its capital value, i.e. to compensation on being deprived of it. The question of compensation has been most keenly debated in connection with general enactments abolishing the remains of the old feudal and patrimonial systems, and the "acquired” or "vested" right which was designed as a shield against arbitrary authority has, under the name of "vested interest,' come to be associated with attempts to stay the march of social progress. Slave-owners, owners of rotten boroughs, holders of sinecures, have at one time or another successfully demanded compensation for loss of " acquired rights."4

3

Therefore, in place of the principle of the inviolability of property was substituted the old doctrine of the universitas, that it is unjust to impose on one member of the community a burden to which all should equally be subject. On the other hand, personal freedom, though liable to limitation for the fulfilment of the State's purpose, was conceived to be inalienable. In the eighteenth century "innate are distinguished from "acquired" rights; the ius

1 But see Burlamaqui, Principles of Natural Law (trans. 1763), P. 73, "Sovereignty or the right of commanding a society of men is a right acquired.'

2 See Chafee, Freedom of Speech, 4; Ihering, Zweck im Recht (English trans.), I. 319.

See Lassalle Das System der erworbenen Rechte (1861) I, esp. 193 ff. 4 Halévy, History of the English People in 1815 (English trans.) shows the advantages and evils resulting from the principle of the protection of acquired rights. "Offices were vested rights and a check to the Crown's power Even in the departments where, as head of the Executive, we might have expected to find him absolute, King George was no sovereign, but merely an overlord" (14, 15). Loyseau's Puissance en propriété! For an instance of compensation for disfranchisement of rotten boroughs see ib. 106.