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    The Common Law
    The Common Law
    The Common Law
    Ebook568 pages12 hours

    The Common Law

    By Oliver Wendell Holmes

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    Oliver Wendell Holmes, Jr. (1841–1935) is generally considered one of the two greatest justices of the United States Supreme Court, Chief Justice John Marshall being the other. In more than 2000 opinions, he delineated an impressive legal philosophy that profoundly influenced American jurisprudence, particularly in the area of civil liberties and judicial restraint. At the same time, his abilities as a prose stylist earned him a position among the literary elite.
    In The Common Law, derived from a series of lectures delivered at the Lowell Institute in Boston, Holmes systematized his early legal doctrines. The result was an enduring classic of legal philosophy that continues to be read and consulted over a century later. Beginning with historical forms of liability (thought to have originated in the desire for vengeance in ancient Roman and Germanic blood feuds), the book goes on to discuss criminal law, torts, bails, possession and ownership, contracts, successions, and many other aspects of civil and criminal law.
    Encompassing Holmes's profound, wide-ranging knowledge of the law in its historical aspects, yet written in a manner easily accessible to the layman, The Common Law provoked this observation from another famed jurist; "The book is a classic in the sense that its stock of ideas has been absorbed and become part of common juristic thought … they placed law in a perspective which legal scholarship ever since has merely confirmed." — Felix Frankfurter, Of Law and Men.
    Now the influential ideas and judicial theory of Oliver Wendell Holmes, Jr. can be studied and appreciated in this superb edition — the only one in print — of his magnum opus. This edition also features a new introduction by Professor Sheldon M. Novick, author of Honorable Justice: The Life of Oliver Wendell Holmes. First published in 1881, this book is still indispensable reading for lawyers, political scientists, historians, general readers — anyone interested in the origins, development, and continuing evolution of the laws that govern human society.
    LanguageEnglish
    PublisherDover Publications
    Release dateFeb 6, 2013
    ISBN9780486121222
    The Common Law
    Author

    Oliver Wendell Holmes

    Oliver Wendell Holmes was an American physician, poet, and polymath based in Boston. A member of the Fireside Poets, he was acclaimed by his peers as one of the best writers of the day. His most famous prose works are the “Breakfast Table” series, which began with The Autocrat of the Breakfast Table.

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    • 4/5
      Holmes spent the first ten years of his service on the Supreme Court known as "The Dissenter", and for most of the chamber discussion was literally holding his head in his hands in utter despondency. As for "Negligence", he reminds us that "like ownership, [it] is "a complex conception". [115] Importantly, he finds the element of "public policy" in the concept. In other words, liability flows not merely from breach of a standard of care of the tortfeasor (fault), but upon public policy. 115. A "stricter rule" applies if damage is caused "by a pistol, in view of the danger to the public". 116. In other words, we analyze the burden on the victim in light of the benefit to the public. As Justice Traynor suggested, the necessity of "spreading the burden among those who benefit", arises from this public policy analysis. Unfortunately, jurors today (and in spite of Holmes and Traynor's best efforts) still find little help for applying this leg of liability.

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    The Common Law - Oliver Wendell Holmes

    DOVER BOOKS ON HISTORY, POLITICAL AND SOCIAL SCIENCE

    SIX-GUNS AND SADDLE LEATHER: A BIBLIOGRAPHY OF BOOKS AND PAMHLETS ON WESTERN OUTLAWS AND GUNMEN, Ramon F. Adams. (0-486-40035-2)

    THE GIFT TO BE SIMPLE, Edward D. Andrews. (0-486-20022-1)

    THE PEOPLE CALLED SHAKERS, Edward D. Andrews. (0-486-21081-2)

    GOD AND THE STATE, Michael Bakunin. (0-486-22483-X)

    THE STORY OF MAPS, Lloyd A. Brown. (0-486-23873-3)

    THE DWELLERS ON THE NILE, E. A. Wallis Budge. (0-486-23501-7)

    THE BOOK OF THE SWORD, Sir Richard F. Burton. (0-486-25434-8)

    HISTORY OF THE LATER ROMAN EMPIRE, John B. Bury. (0-486-20398-0, 0-486-20399-9) Two-volume set.

    THE DISCOVERY OF THE TOMB OF TUTANKHAMEN, Howard Carter and A. C. Mace. (O-486-23500-9)

    ESSENTIAL WORKS OF LENIN, Henry M. Christman (ed.). (0-486-25333-3)

    THE MEDIEVAL TOURNAMENT, R. Coltman Clephan. (0-486-28620-7)

    BUFFALO BILL’S LIFE STORY: AN AUTOBIOGRAPHY, W. F. Cody. (0-486-40038-7)

    THE WORLD’S GREAT SPEECHES: FOURTH ENLARGED EDITION, Lewis Copeland, Lawrence W. Lamm, and Stephen J. McKenna (eds.). (0-486-40903-1)

    THE MEDIEVAL VILLAGE, G. G. Coulton. (0-486-26002-X)

    THE EXERCISE OF ARMES: ALL 117 ENGRAVINGS FROM THE CLASSIC 17TH-CENTURY MILITARY MANUAL, Jacob De Gheyn. (0-486-40442-0)

    My BONDAGE AND MY FREEDOM, Frederick Douglass. (0-486-22457-0)

    AN ENCYCLOPEDIA OF BATTLES, David Eggenberger. (0-486-24913-1)

    LIFE IN ANCIENT EGYPT, Adolf Erman. (0-486-22632-8)

    GREAT NEWS PHOTOS AND THE STORIES BEHIND THEM, John Faber. (0-486-23667-6)

    THE ARMOURER AND HIS CRAFT, Charles ffoulkes. (O-486-25851-3)

    AUTOBIOGRAPHY: THE STORY OF MY EXPERIMENTS WITH TRUTH, Mohandas K. Gandhi. (0-486-24593-4)

    WOODROW WILSON AND COLONEL HOUSE: A PERSONALITY STUDY, Alexander L. and Juliette L. George. (0-486-21144-4)

    ANARCHISM AND OTHER ESSAYS, Emma Goldman. (0-486-22484-8)

    LIVING MY LIFE, Emma Goldman. (0-486-22543-7, 0-486-22544-5) Two-volume set.

    THE DESCRIPTION OF ENGLAND, William Harrison. (0-486-28275-9)

    UTOPIAN COMMUNITIES IN AMERICA, 1680-1880, Mark Holloway. (0-486-21593-8)

    THE COMMON LAW, Oliver Wendell Holmes, Jr. (0-486-26746-6)

    THE WANING OF THE MIDDLE AGES, Johan Huizinga. (0-486-40443-9)

    THE TRIALS OF OSCAR WILDE, H. Montgomery Hyde. (0-486-20216-X)

    AUTOBIOGRAPHY OF THOMAS JEFFERSON, Thomas Jefferson. (0-486-44289-6)

    NOSTRADAMUS AND HIS PROPHECIES, Edgar Leoni. (0-486-41468-X)

    Introduction copyright © 1991 by Sheldon M. Novick.

    All rights reserved under Pan American and International Copyright Conventions.

    This Dover edition, first published in 1991, is an unabridged republication of the first edition of The Common Law, originally published by Little, Brown, and Company, Boston, in 1881. The table of Year Books and Early Cases on pp. xxxv-xxxvi has been taken from the thirty-first printing of 1938, and incorporates corrections to the original table.

    This edition also contains a new Introduction prepared especially for this reprint by Sheldon M. Novick.

    Manufactured in the United States of America

    Dover Publications, Inc., 31 East 2nd Street, Mineola, N.Y. 11501

    Library of Congress Cataloging-in-Publication Data

    Holmes, Oliver Wendell, 1841-1935.

    The common law / Oliver Wendell Holmes, Jr.

    p. cm.

    Reprint. Originally published: Boston: Little, Brown, 1881. Includes index.

    9780486121222

    1. Common law. I. Title.

    K588.H65 1991

    340.5’7-dc20

    91-2580

    CIP

    INTRODUCTION TO THE DOVER EDITION

    BY

    SHELDON M. NOVICK

    OLIVER WENDELL HOLMES’S The Common Law has been called the greatest work of American legal scholarship and one of the great intellectual achievements of nineteenth-century America. The Common Law had a considerable impact on tort and contract law in both the United States and Great Britain; more broadly, The Common Law was one of the foundation stones, perhaps the cornerstone, of the sociological and realist schools of jurisprudence which dominated legal scholarship and teaching in the twentieth century; and Holmes consequently was considered a leader of his generation’s revolt against formalism, the great upheaval of scientific and critical thought in the Victorian era in America.

    What is perhaps more important to us now, the system of thought Holmes developed for his book was the basis of his own later work on the Supreme Court, and especially marked those constitutional opinions which most shaped the law of the future.

    The Common Law was a work of depth and originality in its day, but it was written somewhat hastily, while Holmes was still struggling with its fundamental ideas. The book therefore is often difficult to follow, and it is helpful to restate Holmes’s principal arguments in modern language, with some explanation of the context in which he was writing.

    It is particularly useful, I think, to keep in mind Holmes’s personal history. The continuity of his thought and work are remarkable — important elements of The Common Law can be traced to his college days. He went on worrying at a few ideas that he thought indisputable, trying to construct a philosophical system from them all his life, and The Common Law often reads like a partial draft of a long work in progress. In Holmes’s own copy he made numerous comments and emendations, as if still revising; from the handwriting it appears that some of these additions were made years after publication. The Common Law is not the final word of a life of scholarship, it is a more interesting thing, the thought of a man who throws it down before you still wriggling with life.

    1. OLIVER WENDELL HOLMES

    Oliver Wendell Holmes was born in Boston, Massachusetts, to a family of moderate means. His father, for whom he was named, was a physician and littérateur who supplemented an income from a Boston medical practice with lectures on anatomy at the Harvard Medical School and lectures on literary subjects to general audiences. Doctor Holmes was a gifted conversationalist and a compulsive writer of light verse; when his son was just entering college, in 1856, the doctor began writing a series of essays and poems collectively titled The Autocrat of the Breakfast-Table, for The Atlantic Monthly, that became immensely popular in Great Britain and the United States. Like the doctor, Wendell Holmes was intensely talkative, with a light, combative manner, and a knack for verse rhythms and imagery.

    Mrs. Holmes, born Amelia Lee Jackson, the daughter of prominent Boston lawyer and judge Charles Jackson, married late and devoted herself to her husband and three children, of whom the future Supreme Court justice was the first. Wendell — tall, thin, lantern-jawed — resembled his mother more than his short, round-faced father, and was deeply affected by her. He was her confident favorite. He received from his mother a powerful Puritanical sense of duty and with this sense of duty came an unyielding adherence to the factual, a sharp skepticism for all but the self-evident and a near-mystical acceptance of whatever in life withstood the cynical acid of skepticism and so seemed irrevocably given.

    Holmes attended private schools and Harvard College, but the principal influences on his intellectual development were outside the classroom. He acquired early, as an article of faith, belief in a pre-Darwinian doctrine of evolution compounded of Malthus and German Romanticism. In later life, Holmes said that the great figures of his youth — after his father — were Ruskin, Carlyle and Emerson. He probably knew their ideas as much from conversation in his father’s house, where Emerson and other literary figures were occasional callers, as from his reading. Emerson passed on to Holmes the ferment of philosophical inquiry, partly by encouraging his combative independence of mind. Holmes’s first published essay, Books, is an emulation of Emerson’s essay of the same title.

    In 1860, while still an undergraduate, Holmes published essays on Dürer’s engravings and Plato’s philosophy The Dürer essay was a graceful homage to Emerson, but the essay on Plato was an attack based on Holmes’s belief that science had demonstrated the truth of materialism and evolution, so that Plato‘s — and Emerson’s — idealism was proved wrong.

    Holmes did not read Darwin until he was past sixty, but as he said, evolution was in the air. Holmes’s hard-minded version of evolutionism was partly inspired by R. A. Vaughan’s Hours with the Mystics, which he read while working on the Plato essay. Vaughan gave an historical, evolutionary account of religion.

    In his Emersonian essay on Dürer, Holmes announced the need for a rational explanation of duty, a sort of scientific substitute for religion. Like others of his generation he thought that science, especially evolutionary science, would explain and justify human institutions, and so he sought in evolution a scientific justification of duty.

    The other great influence on his youth was the revival of chivalry then sweeping over the United States and Great Britain, partly inspired by Tennyson and Sir Walter Scott. Again like many of his contemporaries, Holmes acquired a lifelong commitment to courtly ideals and conduct. Chivalry was the code of duty for which he sought — and ultimately believed he had found — scientific justification.

    Holmes enlisted in the Federal army in July 1861, shortly after the Civil War had broken out, obtained a commission as a lieutenant and served for two years in the Twentieth Massachusetts Volunteer Infantry He was in the Battle of Ball’s Bluff and the Peninsular Campaign, and fought at Antietam Creek. In those two years he was wounded three times, twice near fatally, and suffered from dysentery Exhausted, and reluctant to assume command of his regiment, in the winter of 1863—64 Holmes accepted a post as aide to General Wright (and then to General Sedgwick) of the Sixth Corps. In the relative leisure of winter quarters he turned to philosophical writing, in notebooks he later destroyed, developing his combat experience into a materialist, evolutionary philosophy rooted in the warfare of rival nations and races, governed by the rules of chivalry

    He served through the Wilderness Campaign and the siege of Vicksburg, and then, exhausted and telling himself that his duty lay in pursuing his philosophy, he left the army before the war’s end and returned home to Boston.

    Holmes attended Harvard Law School and in the summer of 1866, to complete his education, traveled to Great Britain and the Continent. He made a sort of debut in London polite society, was invited to a great many homes and made lasting friendships. One of the most important to him was with Leslie Stephen, who shared and encouraged Holmes’s interest in rationalist philosophy, evolution and chivalry Holmes returned to London whenever he could, and kept up a very energetic and extensive correspondence with British friends between visits, especially with young married women who were more open to the traditions of courtly love than their Boston counterparts.

    On his return to Boston, Holmes entered a brief clerkship and was admitted to the bar in 1867. For a while thereafter he gave up practice and attempted a career as an independent scholar, editing the twelfth edition of Chancellor James Kent’s Commentaries on American Law (1873), writing dozens of brief articles and reviews for the newly formed American Law Review and writing occasional poetry. An important early article was Codes, and the Arrangement of the Law (1870). Elements of his later thought were formed in these years but he did not put them into coherent form.

    In 1872 he married a childhood friend, Fanny Dixwell, and joined a Boston law firm, Shattuck, Holmes, and Munroe, with a busy commercial and admiralty practice. He gradually returned to scholarly work in spare hours, and in 1876, with Primitive Notions in Modern Law, he began a new series of essays in The American Law Review that presented a systematic analysis of the common law He completed the series, somewhat hastily, and gave them as the Lowell Lectures in November—December 1880, and published them as a book, The Common Law, in 1881, a few days before his fortieth birthday. (He had a superstition that if a man was going to do anything he would have to make his mark by the time he was forty.)

    Holmes’s first biographer, Mark DeWolfe Howe, who unfortunately did not live to finish his work, remarked of The Common Law that it had to be read as philosophy, not law — which undoubtedly was so. In this book Holmes tried to harmonize evolution and duty. But we must follow him through his legal materials to see the argument.

    2. DUTY, AND THE ARRANGEMENT OF THE LAW

    At the time Holmes wrote, the analytical school, founded by the Utilitarian philosopher Jeremy Bentham and in Holmes’s youth identified with the writings of John Austin, dominated legal scholarship. It was a Liberal, reformist doctrine, which the English liked to believe was founded on common sense, as contrasted with the idealist theories of Continental jurisprudence. Austin’s pronouncement, echoing Hobbes, was that law was the command of the sovereign (meaning the government). The proper purpose of government was to secure the greatest good of the greatest number, and laws therefore secured the rights of the community. The analytical school followed the quasi-mathematical logic of this scheme, and divided the law into a taxonomy based on rights. Benthamite reformers like James Fitzjames Stephen and their followers in the United States wanted to replace the tangled mass of the common law with a clearly stated codification, organized on these logical principles.

    Much of The Common Law must be read as an attack on this dominant philosophy. Its principal argument is that law evolves in response to changing conceptions of public policy, and therefore cannot be captured by a purely logical scheme. But the book is an assemblage of work done over a period of years, and the dominant insights were arrived at rather late. The form of organization of the book therefore follows Holmes’s earliest thinking — his struggle to understand the system of duties — which by 1880 had become superfluous to his main line of argument.

    Holmes’s first law articles, as we have seen, emerged from his solitary effort at independent scholarship, before he had yet practiced law for any extended time. He had begun by accepting the terms of discussion in the scholarly literature. In his first efforts to bring order into the common law, a series of articles beginning with Codes, and the Arrangement of the Law (1870), and finishing with The Arrangement of the Law — Privity (1872), written in connection with his edition of Kent’s Commentaries, he prepared an analytical scheme based on duties, rather than on rights, but otherwise similar to the Benthamite taxonomy.

    In The Common Law, Holmes followed this logical taxonomy — which is visible in the chapter headings and the organization of material — based on duties, which he argued were prior to rights both logically and historically. After the introductory chapter, which set out Holmes’s general argument, the chapters that followed were organized on a sort of continuum of duties of declining force. First came criminal law, which Holmes called the realm of true duties, the rules of conduct which must be obeyed on pain of punishment. (These corresponded roughly to the first category of duties in his earlier articles, the duties of citizens to the sovereign.)

    The next two chapters, Torts. — Trespass and Negligence, and Fraud, Malice, and Intent. — The Theory of Torts, dealt with private wrongs or tort law. These were the duties of each to all. Holmes argued that torts were not violations of true duties — that is, the law did not have for its object to set up rules of conduct, but only to shift to the defendant’s shoulders the burden of harms that resulted from his or her malicious or negligent behavior.

    The next chapters, The Bailee at Common Law and Possession and Ownership, dealt broadly with the concept of property, and reflected the reciprocal duties of one in possession of something to and from all others. Next, the three chapters on contract law dealt with voluntarily assumed duties between persons. In Holmes’s (much criticized) view, contract law was indifferent as to whether contracts were performed (so long as damages were paid for a breach). Here duty plainly had reached its most abstract and attenuated form.

    Finally, the chapters on Successions attempted to show how duties, which were the result of particular circumstances, might be passed on through sale or inheritance to persons in quite different circumstances. These final chapters also contained Holmes’s most extended discussion of the manner in which the dry, logical forms of the law, embedded in precedent, changed over the centuries.

    Holmes viewed his work as a twofold attack on the analytical school. The Utilitarians, in the tradition of English Liberalism, viewed law as an instrument of government and their definition of law was fundamentally political. To them, law was the command of the sovereign Parliament; this had been the dominant Whig and Liberal view since the days of Hobbes. It seemed self-evident on grounds of common sense that law was simply an instrument for carrying out governmental purposes, and that the principal purpose of government was simply to secure the greatest good of the greatest number.

    Holmes departed from this view in fundamental ways. First, he energetically denied the principle of utility. The various classes and races of which a nation was made were in conflict, and in a world of limited resources and unchecked population, not all would survive. In The Gas Stokers’ Strike, published in 1872, and repeated in various forms throughout his life, Holmes therefore denied the validity of the Utilitarian principle — there was no overall good of the community, but only the conflicting interests of competing groups.

    Holmes also denied the Hobbesian premise that law was the command of the sovereign. He had learned in the Civil War that the ultimate source of power was not a nominal government, but the force that lay behind it; and he argued that judges and courts responded not to the government’s edicts alone, but to the fundamental source of power — the dominant forces of the community — on which the ultimate sanction of force depended. (In letters he later remarked that he had gone beyond the English or Hobbesian view to that of Jean Bodin, the French jurist now known for having drawn a sharp distinction between the state and the nation.) Law was what the courts decided, and their decisions were backed by the sanction of force.

    Furthermore, the purposes of law were not static. Law did not grow from some ideal and logical doctrine of government, but from changing historical circumstances. If Holmes was right, then both the Utilitarian principle and the reformist codification movement founded upon it were proved wrong.

    3. THE EVOLUTIONARY THEORY OF LAW

    The Common Law rested on its own theory of law, its own jurisprudence. In Holmes’s mature view, acquired in his ten years of full-time law practice, judges decided cases first and found reasons afterward. Their actual grounds of decision were based on the felt necessities of their time as much as on precedent or purely logical calculation:

    Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy; most generally, to be sure, under our practice and traditions, the unconscious result of instinctive preferences and inarticulate convictions, but none the less traceable to views of public policy in the last analysis (pp. 35—36).

    Hence the famous declaration on the opening page of The Common Law: The life of the law has not been logic: it has been experience. (This was not only an attack on the Utilitarian school, but also on what Holmes called the humbler error of describing law as a fixed Euclidean system of deductions, as did C. C. Langdell, then Dean of the Harvard Law School.)

    The Common Law was concerned almost entirely with form and method — it laid out scientific principles which had guided the evolution of law. Holmes therefore had very little to say about the content of law, or of the public policies it embodied. Holmes identified public policy with considerations of what is expedient for the community concerned, and described such policies only in the most general terms. The law of primitive societies was based on a policy of satisfying the instinct of revenge peacefully, through the processes of law, instead of through personal violence. The most highly evolved society, that of the English-speaking world, in addition to keeping the peace had adopted a policy, suitable for a more complex culture, of allowing the greatest degree of personal freedom consistent with avoiding unjustified harm to others. (This latter is similar to J. S. Mill’s argument in On Liberty, but it should be borne in mind that Holmes does not advance this as a moral principle, or one he himself espouses, but only as the empirically derived policy he observed operating in the modern common law.) The purpose of allowing such freedom was purely the expedience of the community.

    This was a narrow conception of public policy — it ignored everything except what Holmes viewed as essential and lasting, the policies that determined whether the wielders of force, the dominant class, would retain their power to make and enforce laws. As early as 1872, and until the end of his life, Holmes consistently expressed the opinion that law reflected not the community at large, but the interests of a dominant class. Consciously or unconsciously, judges expressed the wishes of the class from which they were drawn: law . . . expresses the beliefs and wishes of the dominant force of the community, as he put it later. Law was both the instrument and the result of natural selection.

    If law was simply an instrument to accomplish certain material ends, it followed that the law should concern itself solely with external behavior; the merely moral or subjective should be stripped away by the process of evolution. Holmes argued that he could discern in the developing common law a trend toward complete reliance on external standards of behavior, rather than on subjective states of mind or personal culpability. This was the principal conclusion of The Common Law.

    Holmes accordingly focused his attention on the material, objective consequences of law. The correct attitude to take in its study, he later famously proclaimed, was that of a bad man who does not care for morality. Holmes believed that he was lifting the study of law to the realm of the scientific by viewing it in these evolutionary terms. In his early writings he repeatedly compared the study of law to natural science, and said that a proper codification would resemble a modern manual of botany, in which individual specimens were assigned to species and genera, and these classifications in turn were related to the evolutionary or historical principles from which they had arisen.

    The Common Law was meant to be the first such treatise of law. The opening chapter stated the general principle, that law evolves in response to unconscious perceptions of public policy, of what was to the advantage of the community from which the judges were drawn. Beginning with an article in 1876, Primitive Notions in Modern Law, which formed the basis for the introductory chapter of The Common Law, Holmes had argued that these purposes were not necessarily conscious or rational, and that in early primitive societies (Holmes coolly referred to classical Greece as a primitive society, echoing his undergraduate essay on Plato) law expressed an irrational impulse to seek vengeance, even on inanimate objects. As society evolved into higher and more complex forms, the purposes of the law became more rational, and the impulse to vengeance ultimately gave way to more refined and conscious purposes. Similarly, the territorial instinct gave rise to refined modern notions of property, and the unconscious identification of the son with his deceased father developed into modern forms of inheritance and succession.

    This was not so much a completed system as a sketch of a method for restating the law in scientific terms. It was fundamentally what we would now call a structuralist method — Holmes sought to trace legal ideas to unconscious elements implicit in the very language and institutions of the law, which he believed were evolving just as the bony skeleton of the mammal had evolved from the more primitive forms of the fish.

    If Holmes’s analytical scheme took off from the dominant utilitarian school, his evolutionary ideas began with a fundamentally Hegelian scheme, transmitted through Ruskin, Carlyle, Emerson and Dr. Holmes. (It is characteristic of Holmes that much of the argument of the book proceeds by attacking the modern practitioners of that tradition, just as he had earlier given homage to Emerson by attacking his philosophy.) In Holmes’s scheme, dominant ideas were somehow identified with dominant classes or racial groups, so that the triumph of one meant the victory of the other. Holmes sometimes seemed to speak as if ideas were contending directly among themselves for survival; but he was a thorough materialist and seemed to believe that races somehow functioned as corporate organisms, with unconscious ideas or purposes; in letters he occasionally referred to a collective will that received its expression in law. To the extent that a dominant group’s purpose or will was correctly framed to ensure its survival, the law would come to reflect it.

    This looks anything but scientific now, but it must be borne in mind that when Holmes was writing The Common Law laws of genetics had not yet been established, and that a large part of what we would now refer to as culture was believed to be inherited. It was a commonplace in Holmes’s day to refer to a working class group, for instance, as a race distinct from their employers. In a novel by Holmes’s good friend Henry James, The American, published two years before The Common Law, one finds a similar and undoubtedly independent account of modern history as a clash among the differing moral principles represented by different racial groups.

    4. THE PRINCIPLE OF LIABILITY

    Holmes therefore stands among the small group of people who refashioned the thought of their time along the lines of scientific evolutionism. To this general philosophical argument Holmes added a truly original insight. Law writers, including Holmes up through the very year of his Lowell Lectures, had tried and failed to make sense out of the multitudinous rules of conduct that courts seemed to recognize and enforce. A landowner had a duty to guests, but not to trespassers; railroad companies had complex duties toward their passengers and the owners of their freight, still others to pedestrians crossing their tracks. Holmes had labored unsuccessfully, like his predecessors, to make sense of this tangled mass of duties and correlative rights. In 1880, however, he seemed to have suddenly seen a new organizing principle. The question in every case, Holmes realized, was whether liability would be imposed. His great stroke was to examine not the rules themselves, but the circumstances under which a breach of the rule would be punished. By looking at the circumstances in which liability was imposed, and ignoring rationalizations about duty and rules of conduct, Holmes for the first time was able to make general statements about law and its relation to society. His general organizing principle then became clear: liability would be imposed for injuries that an ordinary person would have foreseen.

    This stroke seemed to reveal the fundamental policy determining the shape of modern law — to allow the greatest personal freedom while avoiding unjustified harms to others — and seemed to unify all the disparate branches of law around a single principle.

    Holmes did not further develop the general policy expressed in the common law beyond this global and somewhat opaque statement. The discussion in The Common Law suggests that judges slowly translate this general principle into specific rules of conduct; he gave examples at the close of the chapter on Torts. — Trespass and Negligence. Holmes seemed not to have anticipated that his new method of analyzing law by studying the circumstances under which liability was imposed would eventually make possible a detailed economic analysis of the common law. The Common Law must also be counted among the founding documents of the law and economics school.

    But Holmes was not concerned with economic consequences of law. He thought that law had still deeper roots. In The Common Law he argued that law had evolved from more primitive origins toward the still partly unconscious, external standard of liability, as a means of substituting the peaceful rule of law for the ancient regime of violence. In the process, it had become a self-conscious instrument of social purposes. He believed that law would continue to evolve into consciousness, and that the law students of the future, like other scientists, would be part of the evolving social organism’s self-awareness. Holmes’s book itself, presumably, was an important step in this evolution toward self-awareness.

    5. SEQUEL

    The sense of incompleteness which The Common Law gives is in part due to its failure to achieve what Holmes had first set out to do, to give a rational, scientific explanation of the system of duties. Indeed, by the time the work was finished the superstructure of classification by duties had become superfluous, and the moral content of the law seemed to be an anachronism. But the task was not abandoned, and Holmes plainly felt that his essays on the common law were a step forward toward its completion.

    But it was not until three years later, when Holmes had assumed the perspective of a judge, that he was able to begin stating his completed philosophy. Emulating Emerson, he presented his philosophical ideas in a series of public addresses that began with his famous Memorial Day address in 1884. In that and following talks he said, in substance, that the lawyer and the soldier, dutifully representing their causes, were advancing truth — not because their own cause was right in any absolute sense but because they were advancing the greater cause of progress through evolution. By 1896, he expressly had abandoned any talk of duty in the law applied to the mass of mankind. Duty was a matter for the gentleperson: the lawyer, officer and judge. Through them, the code of fairness in fight, and of willingness to sacrifice oneself for that code — the code of chivalry in which Holmes had been raised — served the evolutionary progress of the human race. Or so ultimately it seemed to Holmes; but this resolution came later.

    After publication of The Common Law, Holmes taught for a single semester at the Harvard Law School, and then was appointed to the Massachusetts Supreme Judicial Court. In roughly one thousand opinions written for that court, Holmes inscribed the theory of his book into the law of Massachusetts, fulfilling his own prophecy that the law would become more self-aware and more conscious of its purposes.

    In the 1890s, Holmes made one last major addition to the system of ideas in The Common Law. In Privilege, Malice, and Intent, published in 1894, Holmes discussed libel and slander cases in which liability was based, at least in part, on the defendant’s state of mind — actual malice — rather than on an external standard of foreseeable harm. In these cases, Holmes argued, a common-law privilege to do harm — like the privilege accorded to truthful speech — was based on a social policy favoring freedom of speech, but the privilege would be withdrawn when used intentionally to do harm. Holmes maintained that a general policy of avoiding unjustified harms was the basis of the privilege as well as the reason for denying it in cases where the defendant intended harm. Injuries were simply more likely to happen when consciously intended or recklessly ignored. The cases concerning actual malice accordingly were consistent with the thesis of The Common Law, although they seemed to depart from the external standard on which liability was ordinarily based. With these modest additions, The Common Law remained the framework for Holmes’s thinking through a long, productive and profoundly influential life. In 1896, he applied his theory of privilege in a dissenting opinion, in which he argued that a privilege should be extended to trade unions to organize and picket peacefully, so long as these activities were carried on without malice. He would later incorporate this same theory into his opinions on the First Amendment.

    In 1899 Holmes became Chief Justice of Massachusetts. In 1902, President Theodore Roosevelt appointed Holmes to serve on the United States Supreme Court, where he remained until 1932. In his years on the Supreme Court, as in Massachusetts, The Common Law was the bedrock of his jurisprudence.

    Holmes died on March 6, 1934. His great work The Common Law, still in print after more than a century, is one of the treasured documents that hold the secret keys to American intellectual history.

    PREFACE.

    THIS book is written in pursuance of a plan which I have long had in mind. I had taken a first step in publishing a number of articles in the American Law Review, but I should hardly have attempted the task of writing a connected treatise at the present time, had it not been for the invitation to deliver a course of Lectures at the Lowell Institute in Boston. That invitation encouraged me to do what was in my power to accomplish my wish. The necessity of preparing for the Lectures made it easier to go farther, and to prepare for printing, and accordingly I did so. I have made such use as I thought fit of my articles in the Law Review, but much of what has been taken from that source has been rearranged, rewritten, and enlarged, and the greater part of the work is new. The Lectures as actually delivered were a good deal simplifies, and were twelve in number. The twelfth, however, was a summary of the foregoing eleven, and has been omitted, as not necessary for a reader with the book before him.

    The limits of such an undertaking as the present must necessarily be more or less arbitrary. Those to which I have confined myself have been fixed in part by the limits of the course for which the Lectures were written. I have therefore not attempted to deal with Equity, and have even excluded those subjects, like Bills and Notes, or Partnership, which would naturally require an isolated treatment, and which do not promise to throw light on general theory. If, within the bounds which I have set myself, any one should feel inclined to reproach me for a want of greater detail, I can only quote the words of Lehuërou, Nous faisons une théorie et non un spicilège.

    O. W. HOLMES, JR.

    BOSTON, February 8, 1881.

    Table of Contents

    DOVER BOOKS ON HISTORY, POLITICAL AND SOCIAL SCIENCE

    Title Page

    Copyright Page

    INTRODUCTION TO THE DOVER EDITION

    PREFACE.

    LECTURE I. - EARLY FORMS OF LIABILITY.

    LECTURE II. - THE CRIMINAL LAW.

    LECTURE III. - TORTS. — TRESPASS AND NEGLIGENCE.

    LECTURE IV. - FRAUD, MALICE, AND INTENT. — THE THEORY OF TORTS.

    LECTURE V. - THE BAILEE AT COMMON LAW.

    LECTURE VI. - POSSESSION.

    LECTURE VII. - CONTRACT. — I. HISTORY.

    LECTURE VIII. - CONTRACT. — II. ELEMENTS.

    LECTURE IX. - CONTRACT. — III. VOID AND VOIDABLE.

    LECTURE X. - SUCCESSIONS. — I. AFTER DEATH. — II. INTER VIVOS.

    LECTURE XI. - SUCCESSIONS. — II. INTER VIVOS.

    INDEX.

    A CATALOG OF SELECTED DOVER BOOKS IN ALL FIELDS OF INTEREST

    LECTURE I.

    EARLY FORMS OF LIABILITY.

    THE object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. The life of the law has not been logic : it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.

    In Massachusetts to-day, while, on the one hand, there are a great many rules which are quite sufficiently accounted for by their manifest good sense, on the other, there are some which can only be understood by reference to the infancy of procedure among the German tribes, or to the social condition of Rome under the Decemvirs.

    I shall use the history of our law so far as it is necessary to explain a conception or to interpret a rule, but no further. In doing so there are two errors equally to be avoided both by writer and reader. One is that of supposing, because an idea seems very familiar and natural to us, that it has always been so. Many things which we take for granted have had to be laboriously fought out or thought out in past times. The other mistake is the opposite one of asking too much of history. We start with man full grown. It may be assumed that the earliest barbarian whose practices are to be considered, had a good many of the same feelings and passions as ourselves.

    The first subject to be discussed is the general theory of liability civil and criminal. The Common Law has changed a good deal since the beginning of our series of reports, and the search after a theory which may now be said to prevail is very much a study of tendencies. I believe that it will be instructive to go back to the early forms of liability, and to start from them.

    It is commonly known that the early forms of legal procedure were grounded in vengeance. Modern writers have thought that the Roman law started from the blood feud, and all the authorities agree that the German law begun in that way. The feud led to the composition, at first optional, then compulsory, by which the feud was bought off. The gradual encroachment of the composition may be traced in the Anglo-Saxon laws,¹ and the feud was pretty well broken up, though not extinguished, by the time of William the Conqueror. The killings and house-burnings of an earlier day became the appeals of mayhem and arson. The appeals de pace et plagis and of mayhem became, or rather were in substance, the action of trespass which is still familiar to lawyers.² But as the compensation recovered in the appeal was the alternative of vengeance, we might expect to find its scope limited to the scope of vengeance. Vengeance imports a feeling of blame, and an opinion, however distorted by passion, that a wrong has been done. It can hardly go very far beyond the case of a harm intentionally inflicted : even a dog distinguishes between being stumbled over and being kicked.

    Whether for this cause or another, the early English appeals for personal violence seem to have been confined to intentional wrongs. Glanvill ³ mentions mêlées, blows, and wounds, — all forms of intentional violence. In the fuller description of such appeals given by Bracton ⁴ it is made quite clear that they were based on intentional assaults. The appeal de pace et plagis laid an intentional assault, described the nature of the arms used, and the length and depth of the wound. The appellor also had to show that he immediately raised the hue and cry. So when Bracton speaks of the lesser offences, which were not sued by way of appeal, he instances only intentional wrongs, such as blows with the fist, flogging, wounding, insults, and so forth.⁵ The cause of action in the cases of trespass reported in the earlier Year Books and in the Abbreviatio Placitorum is always an intentional wrong. It was only at a later day, and after argument, that trespass was extended so as to embrace harms which were foreseen, but which were not the intended consequence of the defendant’s act.⁶ Thence again it extended to unforeseen injuries.⁷

    It will be seen that this order of development is not quite consistent with an opinion which has been held, that it was a characteristic of early law not to penetrate beyond the external visible fact, the damnum corpore corpori datum. It has been thought that an inquiry into the internal condition of the defendant, his culpability or innocence, implies a refinement of juridical conception equally foreign to Rome before the Lex Aquilia, and to England when trespass took its shape. I do not know any very satisfactory evidence that a man was generally held liable either in Rome ⁸ or England for the accidental consequences even of his own act. But whatever may have been the early law, the foregoing account shows the starting-point of the system with which we have to deal. Our system of private liability for the consequences of a man’s own acts, that is, for his trespasses, started from the notion of actual intent and actual personal culpability.

    The original principles of liability for harm inflicted by another person or thing have been less carefully considered hitherto than those which governed trespass, and I shall therefore devote the rest of this Lecture to discussing them. I shall try to show that this liability also had its root in the passion of revenge, and to point out the changes by which it reached its present form. But I shall not confine myself strictly to what is needful for that purpose, because it is not only most interesting to trace the transformation throughout its whole extent, but the story will also afford an instructive example of the mode in which the law has grown, without a break, from barbarism to civilization. Furthermore, it will throw much light upon some important and peculiar doctrines which cannot be returned to later.

    A very common phenomenon, and one very familiar to the student of history, is this. The customs, beliefs, or needs of a primitive time establish a rule or a formula. In the course of centuries the custom, belief, or necessity disappears, but the rule remains. The reason which gave rise to the rule has been forgotten, and ingenious minds set themselves to inquire how it is to be accounted for. Some ground of policy is thought of, which seems to explain it and to reconcile it with the present state of things ; and then the rule adapts itself to the new reasons which have been found for it, and enters on a new career. The old form receives a new content, and in time even the form modifies itself to fit the meaning which it has received. The subject under consideration illustrates this course of events very clearly.

    I will begin by taking a medley of examples embodying as many distinct rules, each with its plausible and seemingly sufficient ground of policy to explain it.

    A man has an animal of known ferocious habits, which escapes and does his neighbor damage. He can prove that the animal escaped through no negligence of his, but still he is held liable. Why? It is, says the analytical jurist, because, although he was not negligent at the moment of escape, he was guilty of remote heedlessness, or negligence, or fault, in having such a creature at all. And one by whose fault damage is done ought to pay for it.

    A baker’s man, while driving his master’s cart to deliver hot rolls of a morning, runs another man down. The master has to pay for it. And when he has asked why he should have to pay for the wrongful act of an independent and responsible being, he has been answered from the time of Ulpian to that of Austin, that it is because he was to blame for employing an improper person. If he answers, that he used the greatest possible care in choosing his driver, he is told that that is no excuse; and then perhaps the reason is shifted,

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