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 COLLECTED 
 
 BY 
 
 OLIVER WENDELL HOLMES 
 
 2-\^ 
 
 LEGAL PAPERS h^^ 
 
 NEW YORK 
 
 HARCOURT, BRACE AND HOWE 
 
 1920
 
 COPYRIGHT, 1920, BY 
 HARCOURT, BRACE AND HOWE, INC. 
 
 T 
 
 THE FLIUPTOM PRESS 
 NORWOOD'MASS-D-S'A
 
 PREFACE 
 
 This collection has been made by the kindness of 
 a friend, Mr. Harold J. Laski, and I owe him thanks 
 for gathering these little fragments of my fleece that 
 I have left upon the hedges of life. They are printed 
 as they appeared and I have been unable to do more 
 than run my eye over them, but I am glad to see 
 them put together in a book, as they offer some views 
 of law and life that I have not expressed elsewhere 
 so fully. The place of original publication is given 
 at the head of each paper, and I thank the several 
 publishers for their assent to the reprint. 
 
 A later generation has carried on the work that I 
 began nearly half a century ago, and it is a great 
 pleasure to an old warrior who cannot expect to bear 
 arms much longer, that the brilliant young soldiers 
 still give him a place in their councils of war. 
 
 Oliver Wendell Holmes 
 
 Jxine 15, 1920 
 Washington, D.C. 
 
 649728 
 CAW
 
 CONTENTS 
 
 PAGE 
 
 Early English Equity, 1885 i 
 
 The Law. Speech, 1885 25 
 
 The Profession of the Law. Part of an Address, 
 
 1886 29 
 
 On Receiving the Degree of LL.D. Speech, 1886. . . ;^^ 
 
 The Use of Law Schools. Oration, 1886 35 
 
 Agency, 1891 
 
 1 49 
 
 n 81 
 
 Privilege, Malice and Intent, 1894 117 
 
 Learning and Science. Speech, 1895 13^' 
 
 Executors, 1895 141 
 
 The Bar as a Profession, 1896 153 
 
 Speech at Brown University, 1897 164 
 
 The Path of the Law, 1897 167 
 
 Legal Interpretation, 1899 203 
 
 Law in Science and Science in Law. Address, 1889 210 
 
 Speech at Bar Association Dinner, 1900 244 
 
 Montesquieu, 1900 250 
 
 John Marshall. From the Bench, February 4, 1901 266 
 Address at Northwestern University Law School, 
 
 1902 272 
 
 Economic Elements, 1904 279 
 
 Maitland, 1907 283 
 
 Holdsworth's English Law, 1909 285 
 
 Law and the Court. Speech, 1913 296 
 
 Introduction to Continental Legal Historical 
 
 Series, 1913 298 
 
 Ideals and Doubts, 1915 303 
 
 Bracton, 1915 308 
 
 Natural Law, 1918 310 
 
 vii
 
 COLLECTED LEGAL PAPERS
 
 EARLY ENGLISH EQUITY* 
 
 I. Uses 
 
 At the end of the reign of Henry V. the Court of 
 Chancery was one of the established courts of the 
 realm. I think we may assume that it had already 
 borrowed the procedure of the Canon law, which 
 had been developed into a perfected system at the 
 beginning of the thirteenth century, at about the 
 same time that the Chancellor became the most im- 
 portant member of the King's Council. It had the 
 "Examination and oath of the parties according to 
 the form of the civil law and the law of Holy Church 
 in subversion of the common law."^ It had the sub- 
 poena, which also it did not invent,^ and it had a 
 form of decree requiring personal obedience.^ 
 
 * Law Quarterly Revkw, Vol. i, p. 162. (1885.) 
 
 1 Rot. Pari. 84 (3 Hen. V. pt. 2. 46, No. 23). 
 
 2 See writ addressed to sheriff, Rot. Claus. 16 Hen. HI. m. 2 dorso 
 in I Royal Letters, Hen. IH (Rolls ed.), 523. Proc. Privy Council 
 (Nicholas) passim. Stat. 20 Ed. Ill, c. 5. The penalty was usually 
 money, but might be life and limb; i Proc. Priv. Counc. (21 R. H. 
 A.D. 1397). The citation of Rot. Pari. 14 Ed. Ill, in i Roll. Abr. 372, 
 which misleads Spence (i Eq. 338n.) and earlier and later writers, 
 should be 14 Ed. IV. (6 Rot. Pari. 143), as pointed out already by 
 Blackstone, 3 Comm. 52 n. We also find the writ Quihusdam certzs de 
 causis, a writ in the form of the subpoena except that it omitted the 
 penalty; Palgrave, King's Council, pp. 131, 132, note X; Scaldewell v. 
 Stormesworth, i Cal. Ch. 5. 
 
 3 See Audeley v. Audeley, Rot. Claus. 40 Ed. Ill, "sur peine de sys
 
 2 COLLECTED LEGAL PAPERS 
 
 Down to the end of the same reign (Henry V.) 
 there is no evidence of the Chancery having known 
 or enforced any substantive doctrines different from 
 those which were recognized in the other courts ex- 
 cept two. One of them, a pecuHar view of contract, 
 has left no traces in modern law. But the other is 
 the greatest contribution to the substantive law 
 which has ever been set down to the credit of the 
 Chancery. I refer to Uses, the parent of our modern 
 trusts. I propose to discuss these two doctrines in 
 a summary way as the first step toward answering 
 the question of the part which Equity has played in 
 the development of English law. 
 
 As a preliminary, I ought to state that I assume 
 without discussion that the references to aequitas in 
 Glanvill, Bracton, and some of the early statutes 
 passed before the existence of a Chancery, have no 
 bearing on that question." I ought also to say that 
 the matters of grace and favour which came before 
 the Council and afterwards before the Chancellor 
 do not appear to have been matters in which the sub- 
 stantive rules of the common law needed to be or 
 
 mill livres au paier au roy," cited Palg. King's Council, 67, 68; 2 Cal. 
 Ch. X. See prayer in 3 Rot. Pari. 61 (2 R. II. 26). Imprisonment for 
 contempt again is older than the Chancery, e.g. Mem. in Scacc. 27 (M. 
 22 Ed. I) in Maynard's Y. B., part i. 
 
 * Glanvill, Prologus, Bracton, fol. 23b; ib. 3b, "Aequitas quasi 
 aequalitas." Fleta, II. C. 55, § 9. Petition of Barons, C. 27 (a.d. 1258), 
 in Annals of Burton (Rolls ed.), 443, and Stubbs, Select Charters, for 
 remedy ex aequitate juris by writ of entry or otherwise. Dictum de 
 Kenilworth, pr. (a.d. 1266) Stat, of Realm, 51 Hen. Ill, and Stubbs, 
 Select Charters; Close Rolls of Hen. Ill, cited in Hardy, Int. to Close 
 Rolls, xxviii. n. s (8vo. ed. p. III>. So "right and equite," letter missive 
 of Hen. V. to Chancellor, I Cal. Ch. xvi.
 
 EARLY ENGLISH EQUITY 3 
 
 were modified by new principles, but were simply 
 cases which, being for some reason without the juris- 
 diction of the King's ordinary courts, either were 
 brought within that jurisdiction by special order, or 
 were adjudged directly by the Council or the Chan- 
 cellor according to the principles of the ordinary 
 courts/ 
 
 I agree with the late Mr. Adams^ that the most 
 
 5 Supervisory powers of Council over the Court, I. Gesta Hen. II. 
 (Ben. Abbas, Rolls ed.), 207, 208; Assize of Northampton, §7, ib. 110; 
 and in Stubbs, Select Charters. Jurisdiction of Curia Regis over pleas 
 of land, not coming there as a matter of course, acquired by special 
 order: "Quod debeat vel dominus Rex velit in curia sua deduci" ; Glanv. 
 I. C. 5. Jurisdiction of actions of contract de gratia; Bracton, fol. 100 
 a; Case referred by Chancellor to Curia Regis, 38 Ed. III., Hardy Int. 
 to Close Rolls, xxi.x (8vo. ed. 113 n). Grants of jurisdiction de gratia 
 in the form of Special Commissions of oyer and terminer complained 
 of Palgr. King's Council, §§ 12, 13, pp. 27-33; Stat. Westm. ii (13 Ed. 
 I), Ch. 29; I Rot. Pari. 290 (8 Ed. II. No. 8); Stat. Northampton 
 (2 Ed. III.), C. 7; 2 Rot. Pari. 286, 38 Ed. III. 14, No. VI; 3 Rot. 
 Pari. 161 (7 R. II. No. 43). 
 
 As to cases terminated before the Council, see Rot. Claus. 8 Ed, I. m. 
 6 dorso, in Ryley, Plac. Pari. 442, and in 2 Stubbs, Const. Hist. 263. n. 
 i; 2 Rot. Pari. 228 (25 Ed. III. No. 16; cf. No. 19). 3 Rot, 
 Pari. 44 (3 R. II. No. 49) seems mistranslated by Parkes, Hist. Ct. of 
 Ch. 39, 40. Matters at common law and of grace to be pursued before 
 the Chancellor; Rot. Claus. 22 Ed. III. p. 2, m. 2 dorso, cited Hardy, 
 Int. to Close Rolls, xxviii. (8vo. Ed. no), and Parkes, Hist. 
 Court of Ch. 35, 36 n. See Stat. 27 Ed. III. st. i, C. i; Stat. 36 
 Ed. III. St. I, C. 9. All the reported cases in Chancery through Henry 
 v., with the exceptions which have been mentioned, are trespasses, dis- 
 seisins, and the like. And the want of remedy at law is generally due 
 to maintenance and the power of the defendant, or in one instance 
 to the technical inability of the plaintiff to sue the defendant (2 Cal. 
 Ch, viii). not to the nature of the right invoked. The object of the 
 repeated prayers of the Commons from Richard II. to Henry VI, 
 directed against the Council and the Chancellor, was that common 
 law cases should be tried in the regular courts, not that the ancient 
 doctrine might prevail over a younger and rival system. See Adams, 
 Equity, Introduction, xxxiii-xxxv. 
 
 ^ Adams, Equity, Introd. xxxv.
 
 4 COLLECTED LEGAL PAPERS 
 
 important contribution of the Chancery has been its 
 (borrowed) procedure. But I wish to controvert the 
 error that its substantive law is merely the product 
 of the procedure. And, on the other hand, I wish to 
 show that the Chancery, in its first establishment 
 at least, did not appear as embodying the superior 
 ethical standards of a comparatively modern state 
 of society correcting the defects of a more archaic 
 system. With these objects in view, I proceed to 
 consider the two peculiar doctrines which I have 
 mentioned. 
 
 First, as to Uses. The feoffee to uses of the early 
 English law corresponds point by point to the salman 
 of the early German law, as described by Beseler 
 fifty years ago." The salman, like the feoffee, was a 
 person to whom land was transferred in order that 
 he might make a conveyance according to his grant- 
 or's directions.^ Most frequently the conveyance 
 
 ' Beseler, Erbvertragen, I § i6, pp. 277 et seq., 283, 271. 
 
 8 Beseler, I. §§ 15, 16; Heusler, Gewere, 478. Compare 2 Cal Ch. 
 iii; I id. xviii. and passim. "Pernancy of profits, execution of estates, 
 and defence of the land, are the three points of the trust" or use. 
 Bacon, Reading on Stat, of Uses, Works (ed. Spedding), VII. p. 401; 
 I Cruise, Dig. Title XI., Ch. 2, § 6; see Tit. XII., Ch. i, § 3; Ch. 4, 
 § I. Some of the first feoffments to the use (ad opus) of another than 
 the feoffee which I have found mentioned by that name seem to have 
 been a means of conveying property to the cestui que use in his absence, 
 very like the earliest employment of the salman. But as the con- 
 veyances are supposed to be made to servants of private persons (Bract, 
 fol. 193 b) or officers of the king, it may be doubtful whether any infer- 
 ence can be drawn from them; i Royal Letters, Henry III. pp. 122, 
 420; cf. 421 (a.d. 1220, 1223). Compare Provisions of Oxford (Oath 
 of guardians of king's castles) in Annals of Burton (Rolls ed.), 448, and 
 Stubbs, Select Charters; it seems doubtful whether the ex- 
 pression ad opus was used at first in a technical sense, e.g. "castellum 
 Dofris — ad opus meum te facturum," Eadmer (Rolls ed.), 7. "Ad
 
 EARLY ENGLISH EQUITY 5 
 
 was to be made after the grantor's death, the 
 grantor reserving the use of the land to himself dur- 
 ing his life." To meet the chance of the Salman's 
 death before the time for conveyance was over, it 
 was common to employ more than one," and persons 
 of importance were selected for the office/' The 
 essence of the relation was the fiducia or trust re- 
 posed in the fidelis manus,^^ who sometimes con- 
 firmed his obligation by an oath or covenant.'^ 
 
 This likeness between the salman and the feoffee 
 to uses would be enough, without more, to satisfy 
 me that the latter was the former transplanted. But 
 there is a further and peculiar mark which, I think, 
 must convince every one, irrespective of any general 
 views as to the origin of the common law. 
 
 Beseler has shown that the executor of the early 
 German will was simply a salman whose duty it 
 
 opus ejusdem mulieris," 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 160, 
 161 ; Y. B. 3 Ed. III. S pi. 13 ; 2 Rot. Pari. 286 (38 Ed. III. 14 No. vi). 
 But as early as 22 Ass. pi. 72, fol. loi, in the case of a gift alleged 
 to be fraudulent, we find the court inquiring who took the profits, and 
 on the inquest answering that the donor did, Thorp declares that the 
 gift only made the donee guardian of the chattels to the use of the 
 donor. See further St. 7 R. II., Ch, 12. 
 
 9 Beseler, I., § 16, pp. 277 et seq.; Heusler, supra. Nearly every 
 feoffment mentioned in the Calendars of Proceedings in Chancery down 
 to the end of Henry VI. is for the purpose of distribution, after death. 
 I Cal. Ch. xxi, xxxv, xliii, liv, Iv, Ivi; 2 id., iii, xLx, xx, xxi, 
 xxii, xxxiii, xxxvi, etc. Abbrev. Plac. 179, col. 2, Norht rot. 15 do.; ib. 
 272, H. 9 Ed. I., Suff. rot. 17. Fitz. Abr. Subpena, pi. 22, 23; Littleton, 
 § 462. 
 
 10 Beseler, I., p. 283 ; 2 Cal. Ch. iii. 
 
 11 Beseler, I., p. 271. 
 
 12 Beseler, I., p. 267: "Fidei suae committens," ib. 286. Compare 
 the references to good faith in all the bills in Cal. Ch. 
 
 13 Beseler, I, pp. 265-267; 2 Cal. Ch. iii, xxviii; i id. Iv.
 
 6 COLLECTED LEGAL PAPERS 
 
 was to see legacies and so forth paid if the heirs re- 
 fused. The heres institutus being unknown, the 
 foreign law which introduced wills laid hold of the 
 native institution as a means of carrying them 
 into effect. Under the influence of the foreign law 
 an actual transfer of the property ceased to be re- 
 quired. It was enough that the testator designated 
 the executors and that they accepted the trust; and 
 thus it was that their appointment did not make the 
 will irrevocable, as a gift with actual delivery for 
 distribution after the donor's death would have 
 been." 
 
 There can be no doubt of the identity of the con- 
 tinental executor and the officer of the same name 
 described by Glanvill; and thus the connection be- 
 tween the English and the German law is made cer- 
 tain. The executor described by Glanvill was not 
 a universal successor. Indeed, as I have shown in 
 my book on the Common Law, the executor had not 
 come to be so regarded, nor taken the place of the 
 heir in the King's courts even as late as Bracton. 
 To save space I do not copy Glanvill's words, but 
 it will be seen on reading that the function of the 
 executor was not to pay debts — that was the heir's 
 business," but to cause to stand the reasonable divi- 
 sion of the testator as against the heirs." The mean- 
 ly Bcseler, Erbvertragen, I., pp. 284-288; Brunner in I Holtzen- 
 dorff, Encyclop. (3rd ed.), 216; cf. Littleton, § 168, Hob. 348, Dyer, 
 314 pi., 97, Finch, Law 33. 
 
 15 Glanv. VII., C. 8; see XIII. C. iS; Dial, de Scaccario, II., 18; 
 Regiam Majestatem, II., C. 39. 
 " Glanv. VII., C. 6-8.
 
 EARLY ENGLISH EQUITY 7 
 
 ing of this function will be further explained when 
 I come to deal with the rights of the cestui que use.^'' 
 The executor had already got his peculiar name 
 in Glanvill's time, and it would rather seem that 
 already it had ceased to be necessary for the testa- 
 tor to give him possession or seizin. But, however 
 this may be, it is certain that when the testator's 
 tenements were devisable by custom, the executor 
 was put in possession either by the testator in his 
 lifetime or else immediately after the testator's death. 
 As late as Edward I. "it seemed to the court as to 
 tenements in cities and boroughs which are left by 
 will {que legata sunt) and concerning which there 
 should be no proceeding in the King's Court, because 
 it belongs to the ecclesiastical forum," that first 
 
 1^ As to the functions of the executor in the time of Bracton, see 
 The Common Law, 348, 349, and further, Bracton, fol. 407b, "Et 
 sicut dantur haeredibus contra debitores et non executoribus Ha dantur 
 actiones creditoribus contra haeredes et non contra executores." Ibid. 
 fol. 98a, loia, 113b; Stat. 3 Ed. I., Ch. 19. The change of the execu- 
 tor to universal sucessor upon the obvious analogy of the haeres was 
 inevitable, and took place shortly after Bracton wrote. It was held 
 that debt lay against and for executors; Y. B. 20 & 21 Ed. I, 374; 
 30 Ed. I., 238. See further, Stat. Westm. II. 13 Ed. I., C. 19, 23, 
 (A.D. 128S); Fleta, n. C. 62, §§ 8-13; C. 70, § S; and C. 57, 
 §§ 13, 14, copying, but modifying. Bract, fol. 6ia, b, 407b supra. As to 
 covenant, see Y. B. 48 Ed. III., i, 2, pi. 4. The heir ceased to be bound 
 unless named; Fleta, II. C. 62, § 10; The Common Law, 34S; cf. 
 Fitz. Abr. Dett, pi. 139 (P. 13 Ed. III.). Finally, Doctor and Student, 
 i. c. 19, ad finem, speaks of "the heir which in the law of England is 
 called the executor." In early English, as in early German law, neither 
 heir (Y. B. 32 & 33 Exl. I., 507, 508) nor executor was liable for the 
 parol debts of ancestor or testator (Y, B. 22, Ed. I., 456; 41 Ed. III., 
 13, pi. 3; II Hen. VII. 26; 12 Hen. VIIL 11, pi. 3; Dr. and Stud. II, 
 Ch. 24), because not knowing the facts they could not wage their law: 
 Y. B. 22 Ed. I., 456; Laband, Vermogensrechtlichen Klagen, pp. 15, 16. 
 
 18 Cf. Bract., fol. 407b.
 
 S COLLECTED LEGAL PAPERS 
 
 after the death of the testator the will should be 
 proved before the ordinary, and the will having been 
 proved, the mayor and bailiffs of the city ought to 
 deliver seizin of the devised and devisable tenements 
 {de tenementis legatis et que sunt legabilia) to the 
 executors of the will saving the rights of every one."^' 
 A little later the executor ceased to intervene at all, 
 and the devisees might enter directly, or if the heir 
 held them out, might have the writ Ex gravi 
 querela. ^° 
 
 If, as I think, it is sufficiently clear that in the 
 reign of Edward I. the distinction between an execu- 
 tor and a feoffee to uses was still in embryo, it is 
 unnecessary to search the English books for evidence 
 of the first stage when the testator transferred posses- 
 sion in his own lifetime. A case in 55 Henry III. 
 shows executors seized for the purpose of applying 
 the land to pious uses under a last will, and defending 
 their seizin in their official capacity, but does not dis- 
 close how they obtained possession."^ A little earlier 
 
 19 Abbr, Plac. 284, 285 (H. 19 Ed. I. Devon, rot. 51). Note the 
 likening of such tenements to chattels, Bract. 407b; 40 Ass. pi. 41; Co. 
 Lit, ma, 
 
 20 39 Ass. pi, 6, fol. 232, 233, where there is no question of the 
 executor, but special custom determines whether the devisee shall enter, 
 be put in by the bailiff, or have the writ. In Littleton's time the 
 devisee's right of entry was general: § 167; Co. Lit. iii. As to the 
 writ, see 40 Ass. pi. 41. fol. 250; F. N. B. 198 L. et seq; Co. Lit. iii. 
 The only writ mentioned by Glanvill seems to be given to the execu- 
 tor, or if there is no executor to the propinqui; lib. VII., C. 6, 7. Of 
 course I am not speaking of cases where the executors were also the 
 devisees, although even in such cases there was a tendency to deny them 
 any estate, if there was a trust; 39 Ass. pi, 17; Litt. § 169, 
 
 21 Abbrev. Plac. 179, col. 2; Norht, rot, 15 in dorso.
 
 EARLY ENGLISH EQUITY 9 
 
 still Matthew Paris speaks of one who, being too 
 weak to make a last will, makes a friend expressorem 
 et executor em. '^ It is a little hard to distinguish 
 between such a transaction and a feoffment to uses 
 by a few words spoken on a death-bed, such as is 
 recorded in the reign of Henry VL" But the most 
 striking evidence of the persistence of ancient cus- 
 tom was furnished by King Edward III. in person, 
 who enfeoffed his executors, manifestly for the pur- 
 pose of making such distribution after his death as 
 he should direct; but because he declared no trust 
 at the time, and did not give his directions until 
 afterwards, the judges in Parliament declared that 
 the executors were not bound, or, as it was then put, 
 that there was no condition."* 
 
 Gifts inter vivos for distribution after death re- 
 mained in use till later times.^^ And it may be acci- 
 dent, or it may be a reminiscence of ancient tradition, 
 when, under Edward IV., the Court, in holding that 
 executors cannot have account against one to whom 
 the testator has given money to dispose of for the 
 good of his soul, says that as to that money the 
 donee is the executor ."° 
 
 22 4 Matt. Paris, Chron. Maj. (Rolls ed.), 605, a.d. 1247. 
 
 23 I Cal. Ch. xliii; S. C. Digby, Hist. Law of Real Prop. (2nd ed.) 
 301, 302. Cf Heusler, Gewere, 478, citing Meichelbeck (i Hist. Fris. 
 Pars instrumentaria), No. 300; "Valida egritudine depressus traditionem 
 in manus proximorum suorum posuit, eo modo, si ipse ea egritudine 
 obisset, ut vice illius traditionem perfecissent." 
 
 2* 3 Rot. Pari. 60, 61 (2R. II Nos. 25, 26). 
 
 25 Babington v. Gull, I Cal. Ch. Ivi, Mayhewe v. Gardener, i Cal. 
 Ch. xcix, c. 
 
 26 Y. B. 8 Ed. IV, 5, pi. 12. In Mayhewe v. Gardener, i Cal. Ch.
 
 10 COLLECTED LEGAL PAPERS 
 
 At all events, from an early date, if not in Glan- 
 vill's time, the necessity of a formal delivery of de- 
 vised land to the executor was got rid of in Eng- 
 land as Beseler says that it was on the Continent. 
 The law of England did in general follow its conti- 
 nental original in requiring the two elements of 
 traditio and investitura for a perfect conveyance." 
 But the Church complained of the secular courts for 
 requiring a change of possession when there was a 
 deed.^* And it was perhaps because wills belonged 
 to the spiritual jurisdiction that the requirement was 
 relaxed in the case of executors. As has been shown 
 above, in the reign of Edward I. possession was not 
 delivered until after the testator's death, and in that 
 of Edward III. it had ceased to be delivered to them 
 at all. Possibly, however, a trace of the fact that 
 originally they took by conveyance may be found in 
 the notion that executors take directly from the will 
 even before probate, still repeated as a distinction 
 between executors and administrators."^ 
 
 It is now time to consider the position of the 
 cestui que use. The situations of the feoffor or 
 
 xcix, c. the defendant, who has received all the properly of a deceased 
 person by gift in trust to pay debts, etc., was decreed to pay dilapida- 
 tions for which the deceased was liable. 
 
 27 Glanv. vii., Ch. i, § 3; Annals of Burton (Rolls ed.), 421 (a.d. 
 1258); Bracton, fols. 38a, b, 39b, 169b, 194b, 213b, § 3, 214b; Abbr. 
 Plac. 272 (H. 9 Ed. I), Suff. rot. 17; i Cal. Ch. liv, Iv; Beseler, 
 Erbvertragen, I. § 15, p. 261; § 16, pp. 277 et seq.; Heusler, Gewere, 
 pp. I, 2; Sohm. Ehschliessung, p. 82; Schulte, Lehrb. d. Deutsch. R.u. 
 Rechtsgesch, § 148 (Sth ed.), pp. 480 et seq. 
 
 28 Annals of Burton (Rolls ed.), 421 (a.d. 1258). 
 
 29 Graysbrook v. Fox, Plowd, 275, 280, 281.
 
 EARLY ENGLISH EQUITY ii 
 
 donor and of the ultimate beneficiaries were differ- 
 ent, and must be treated separately. First, as to the 
 former. In England, as on the Continent, upon the 
 usual feoffment to convey after the feoffor's death, 
 the feoffor remained on the land and took the profits 
 during his life. Feoffors to uses are commonly called 
 pernors of profits in the earliest English statutes 
 and are shown in possession by the earliest cases. ^° 
 As Lord Bacon says in a passage cited above, per- 
 nancy of the profits was one of the three points of a 
 use. It was the main point on the part of the 
 feoffor, as to make an estate, or convey as directed, 
 was the main duty on the side of the feoffee. But 
 all the German authorities agree that the pernancy 
 of the profits also made the gewere, or protected 
 possession, of early German law.^^ And in this, as 
 in other particulars, the English law gave proof of 
 its origin. In our real actions the mode of alleging 
 seizin was to allege a taking of the esplees or profits.^^ 
 If the remedies of the ancient popular courts had 
 been preserved in England, it may be conjectured 
 that a cestui que use in possession would have been 
 
 30 Stat, so Ed. III., Ch. 6; i R. II., Ch. 9 ad fin.; 2 R. II. Stat. 2, 
 Ch. 3; IS R. II., Ch. s; 4 Hen. IV., Ch. 7; 11 Hen. VI., Ch. 3, S; i Hen. 
 VII., Ch. i; 19 Hen. VII., Ch. iS; Rothenhale v. Wychingham, 2 Cal. 
 Ch. 3. (Hen. V.); Y. B. 27 Hen. VIII. 8; Plowden, 3S2; Litt. §§ 462, 
 464; Co. Lit. 272b So I Cruise, Dig. Tit. 12, Ch. 4, § 9: "if the 
 trustee be in the actual possession of the estate (which scarce ever 
 happens) ." 
 
 31 Heusler, Gewere, si. 52, S9; Brunner, Schwurgerichte, 169, 170; 
 Laband Vermogensrechtlichen Klagen, 160; i Franken, Franzos. 
 Pfandrecht, 6. 
 
 32 Jackson, Real Actions, 348 and passim. See Statutes last 
 cited, and Stat. 32 Hen. VIII, Ch. 9, § 4.
 
 12 COLLECTED I.EGAL PAPERS 
 
 protected by the common law.^^ He was not, be- 
 cause at an early date the common law was cut down 
 to that portion of the ancient customs which was 
 enforced in the courts of the King. The recogni- 
 tions (assizes), which were characteristic of the royal 
 tribunals, were only granted to persons who stood in 
 a feudal relation to the King,^* and to create such 
 a relation by the tenure of land, something more was 
 needed than de facto possession or pernancy of 
 profits. In course of time the fact that the new 
 system of remedies did not extend itself to all the 
 rights which were known to the old law became 
 equivalent to a denial of the existence of the rights 
 thus disregarded. The meaning of the word "seizin" 
 was limited to possession protected by the assizes,^" 
 and a possession which was not protected by them 
 was not protected at all. It will be remembered, 
 however, that a series of statutes more and more 
 likened the pernancy of the profits to a legal estate 
 in respect of liability and power, until at last the 
 statute of Henry VHI. brought back uses to the 
 courts of common law.^^ 
 
 It is not necessary to consider whether the denial 
 of the assizes to a cestui que use in possession was 
 peremptory and universal from the beginning, be- 
 cause the feoffor had another protection in the cove- 
 nants which, in England as on the Continent, it was 
 
 S3 Franken, Franzos. Pfandr., 6. 
 34 Heusler, Gewere, 126, 423, 424, 
 3-^ Heusler, Gewere, 424. 
 
 36 See statutes before cited, p. 11 n. 30, and i R. III. Ch. i; 27 
 Hen. Vm., Ch. 10.
 
 EARLY ENGLISH EQUITY 13 
 
 usual for him to take." For a considerable time the 
 Anglo-Norman law adhered to the ancient Prankish 
 tradition in not distinguishing between contract and 
 title as a ground for specific recovery, and allowed 
 land to be recovered in an action of covenant, so that 
 it would seem that one way or another feoffors 
 were tolerably safe.^* 
 
 But cestuis que use in remainder were strangers 
 both to the covenant and the possession. There was 
 an obvious difficulty in finding a ground upon which 
 they could compel a conveyance. The ultimate 
 beneficiaries seem to have been as helpless against 
 the salman in the popular courts on the Continent 
 as they were against the feoffee in the Curia Regis. 
 Under these circumstances the Church, which was 
 apt to be the beneficiary in question, lent its aid. 
 Heusler thinks that the early history of these gifts 
 shows that they were fostered by the spiritual power 
 in its own interest, and that they were established in 
 
 37 E. g. Rothenhale v. Wychingham, 2 Cal. Ch. 3. 
 
 38 The Common Law, 400. See further, LI. Gul. I., Ch. 23; 
 Statutum Walliae, 12 Ed. I, "Breve de conventione, per quod petuntur 
 aliquando mobilia, aliquando immobilia" ; "Per breve de conventione 
 aliquando petitur liberum tenementum." Fleta, II. Ch. 65, § 12; Y. B. 
 22 Ed. I., 494, 496, 598, 600; 18 Ed. II. (Maynard), 602, 603; Fitz. 
 Abr. Covenant, passim. This effect of covenant was preserv^ed in the 
 case of fines until a recent date; 2 Bl. Coram. 349, 350, and App. IV., 
 § I. As to a term of years, see Bract, fol. 220a, § i ; Y. B. 20 Ed. I., 
 254; 47 Ed. III., 24 (cf. 38 Ed. III., 24); F. N. B, 145 M; Andrews' 
 Case, Cro. Eliz. 214; S. C. 2 Leon, 104; and as to chattels, see Y. B. 
 27 Hen. VIII., 16. As to the later raising of uses by way of covenant, 
 see Y. B. 27 Hen. VIII, 16; Bro. Abr. Feoffments al Uses, pi. 16; 
 Dyer, 55 (3) ; ib. 96 (40) ; ib. 162 (48) ; Sharington v. Strotton, Plowd. 
 298, 309.
 
 14 COLLECTED LEGAL PAPERS 
 
 the face of a popular struggle to maintain the ancient 
 rights of heirs in the family property, which was 
 inalienable without their consent.^^ In view of 
 the effort which the Church kept up for so long a 
 time to assert jurisdiction in all matters of jidei 
 laesio, it would seem that a ground for its interfer- 
 ence might have been found in the fiducia which, as 
 has been said, was of the essence of the relation, 
 and which we find referred to in the earliest bills 
 printed in the Chancery Calendars. 
 
 This is conjecture. But it seems clear that on 
 some ground the original forum for devisees was the 
 Ecclesiastical Court. Glanvill states that it belongs 
 to the ecclesiastical courts to pass on the reasonable- 
 ness of testamentary dispositions,''" and, while he 
 shows that the executor had the King's writ against 
 the heir, gives no hint of any similar right of legatees 
 or devisees against the executor. The Decretals of 
 Gregory disclose that a little later the Church com- 
 pelled executors to carry out their testator's will," 
 and Bracton says in terms that legatees and devisees 
 of houses in town or of an usufruct could sue in the 
 ecclesiastical courts."^ As we have seen, in the case 
 of houses in town the executor ceased to intervene, 
 the ecclesiastical remedy against him became super- 
 fluous and devisees obtained a remedy directly 
 
 39 Heusler, Gewere, 479 et seq. See Glanv. VII., Ch. 9, where the 
 Church is shown to have the settlement of the question whether the 
 will was reasonably made. Cf. ib. Ch. 1., § 3. 
 
 « Glanv. VII, Ch. 6 and 8. 
 
 *i Decret. Greg. III. Tit. 26, cap. ig. a.d. 1235. 
 
 *2 Bract, fol. 407b, 6ia, b.
 
 EARLY ENGLISH EQUITY 15 
 
 against deforciants in the King's courts. But with 
 regard to legacies, although after a time the Chancery 
 became a competing, and finally, by St. 20 & 21 
 Vict. Ch. 77, s. 23, the exclusive jurisdiction, as late 
 as James I. "the Lord Chancellor Egerton would say, 
 the Ecclesiastical Courts were more proper for Lega- 
 cies, and sometimes would send them thither." ^^ 
 
 These courts were unable to deal with uses in the 
 fulness of their later development. But the chief 
 instances of feoffment upon trust, other than to the 
 uses of a last will or for distribution after death, 
 of which there is any record until sometime after 
 the Chancery had become a separate court under 
 Edward III. were for the various fraudulent pur- 
 poses detailed in the successive petitions and statutes 
 which have come down to us."** It should be men- 
 tioned too, that there are some traces of an attempt 
 by cestuis que use who were strangers to the feoff- 
 ment to enforce the trust by way of a condition in 
 their favor, and it seems to have been put that way 
 sometimes in the conveyances. ''^ 
 
 For a considerable time, then, it would seem that 
 both feoffors and other cestuis que use were well 
 
 *3 Nurse v. Bormes, Choyce Cases in Ch. 48. See further Glen v. 
 Webster, 2 Lee, 31. As to common law, see Deeks v Strutt, s T.R. 690; 
 Atkins V. Hill, Cowper, 284, and cases cited. 
 
 ** Petition of Barons, C. 25 (Hen. IH. a.d. 1258), Annals of Burton 
 (Rolls ed.), 422; id. Stubbs, Select Charters; Irish Stat, of Kilkenny, 
 3 Ed. n., Ch. 4; Stat, so Ed. HI., Ch. 6; i R. H., Ch. 9; 2 R. 
 II., Stat. 2, Ch. 3; 7 R. II, Ch. 12; 15 R. II., Ch. 5 ; 4 Hen. IV., 
 Ch. 7. See also Statute of Marlebridge, 52 Hen. III., Ch. 6. 
 
 «« 2 Rot. Pari. 79 (3 R. II., Nos. 24, 25); ib. 60, 61 (2 R. II. Nos. 
 25, 26).
 
 1 6 COLLECTED LEGAL PAPERS 
 
 enough protected. The first complaint we hear is 
 •under Henry IV. It is of the want of a remedy- 
 when property is conveyed by way of affiance to 
 perform the will of the grantors and feoffors and 
 the feoffees make wrongful conveyances.*^ As soon 
 as the need was felt, the means of supplying it was 
 at hand. Nothing was easier than for the ecclesias- 
 tics who presided in Chancery to carry out there, 
 as secular judges, the principles which their prede- 
 cessors had striven to enforce in their own tribunals 
 under the rival authority of the Church. As Chan- 
 cellors they were free from these restrictions which 
 confined them as churchmen to suits concerning mat- 
 rimony and wills. Under Henry V. we find that 
 cestuis que use had begun to resort to equity,*^ 
 whereas under Richard II. the executors and feoffees 
 of Edward III. had brought their bill for instruc- 
 tions before the Judges in Parliament.''^ In the 
 next reign (Henry VI.) bills by cestuis que use be- 
 come common. The foundations of the claim is the 
 fides, the trust reposed and the obligation of good 
 faith, and that circumstance remains as a mark at 
 once of the Teutonic source of the right and the 
 ecclesiastical origin of the jurisdiction. 
 
 If the foregoing argument is sound, it will be seen 
 that the doctrine of uses is as little the creation of 
 the subpoena, or of decrees requiring personal obedi- 
 
 *s 3 Rot. Pari. 511 (4 Hen. IV., No. 112, a.d. 1402). 
 ^'^ Dodd V. Browning, i Cal., Ch. xiii; Rothenhale v. Wychingham, 
 2 Cal. Ch. iii. 
 
 *8 2 Rot. Pari. 60, 61 (2 R. II., Nos. 25, 26).
 
 EARLY ENGLISH EQUITY 17 
 
 ence, as it is an improvement invented in a relatively 
 high state of civilization which the common law was 
 too archaic to deal with. It is true, however, that 
 the form of the remedy reacted powerfully upon the 
 conception of the right. When the executor ceased 
 to intervene between testator and devisee the connec- 
 tion between devises and uses was lost sight of 
 And the common law courts having refused to pro- 
 tect even actual pernors of profits, as has been ex- 
 plained, the only place where uses were recognized 
 by that name was the Chancery. Then, by an identi- 
 fication of substantive and remedial rights familiar 
 to students, a use came to be regarded as merely 
 a right to a subpoena. It lost all character of a 
 jus in rem, and passed into the category of choses 
 in action. ^^ I have shown elsewhere the effect of 
 this view in hampering the transfer of either the 
 benefit or burden of uses and trusts.^" 
 
 II. Contract 
 
 I must now say a few words of the only other 
 substantive doctrine of which I have discovered any 
 trace in the first period of English Equity. This is 
 a view of Contract, singularly contradicting the 
 
 *^ Co. Lit. 272b; Bacon, Reading on Stat, of Uses, Works (ed. Sped- 
 ding), VII., p. 398. 
 
 5° The Common Law, ch. ii; see especially pp. 39g, 407-409, and, 
 in addition to the books cited on p. 408, notes i and 2 ; Fitz. Abr. 
 Subpena, pi. 22; Dalamere v. Barnard, Plowden, 346, 352; Pawlett v. 
 Attorney-General, Hardres, 465, 469; Co. Lit. 272b; W. Jones, 127,
 
 1 8 COLLECTED LEGAL PAPERS 
 
 popular notion that the common law borrowed Con- 
 sideration from the Chancery. The requirement of 
 consideration in all parol contracts is simply a modi- 
 fied generalization of the requirement of quid pro quo 
 to raise a debt by parol. The latter, in certain cases 
 at least, is very ancient, and seems to be continuous 
 with the similar doctrine of the early Norman and 
 other continental sources which have been much dis- 
 cussed in Germany." 
 
 I may remark by way of parenthesis that this 
 requirement did not extend to the case of a surety, 
 who obviously did not receive a quid pro quo in the 
 sense of the older books and yet could bind himself 
 by parol from the time of the Somma to Edward III, 
 
 51 Somma, II., C. 26, ?§ 2, 3, in 7 Ludewig, Reliq. Manuscript. 
 PP- Z'^Z, 314; Grand Coustumier, C. 88 and 90; Statutum Walliae, 12 
 Ed. I; "Si vero Debitor venerit, necesse habet Actor exprimere peti- 
 tionem, et rationem sue petitionis, videlict, quod tenetur ei in centum 
 marcis, quas sibi accomodavit, cujus solutionis dies preteriit, vel pro terra 
 vel pro equo, vel pro aliis rebus seu catallis quibuscunque sibi venditis, 
 vel pro arreragiis redditus ?ion provenientis de tenementis, vel de aliis 
 contractibus," etc. Y. B, 39 Ed. III., 17, 18, "issint il est quid pro quo" ; 
 3 Hen. VI. 36, pi. 33; 7 Hen. VI. i, pi. 3 ; 9 Hen. VI. 52, pi. 35; 
 II Hen. VI. 35, pi. 30 at fol. 38; 37 Hen. VI. 8, pi. 18. See also 
 "Justa debendi causa" in Glanv. X. C. 3 ; Dial, de Scacc. ii., C. i and 9 ; 
 Fitz. Abr. Dett, pi. 139; Y. B. 43 Ed. III. 11, pi. i. Form of Count 
 given by i Britton (ed. Nichols), 161, 162, pi. 12; Y. B. 20 & 21 Ed. I. 
 App. 488, "Marchandise" ground of debt. Sohm, Eheschliessung, p. 24; 
 I Franken, Franzos. Pfandr., § 4, p. 43 ; Schulte, Reichs- u. Rechtsgesch. 
 § 156 (4th ed.), p. 497. Consideration is first mentioned in equity 
 in 31 Hen. VI., Fitz., Abr. Subpena, pi. 23; Y. B. 37 Hen. VI. 13, pi. 
 3, and by the name qtiid pro quo. So in substance as to assumpsit; 
 Y. B. 3 Hen. VI. 36, pi. 33- 
 
 The interpretation of Fleta, II, C. 60, § 25 by the present writer 
 in The Common Law, 266, is rightly criticised in Pollock, Contr. (3rd 
 ed.), 266, as appear by comparing the more guarded language of Brac- 
 ton, isb.
 
 EARLY ENGLISH EQUITY 19 
 
 and even later where the custom of various cities kept 
 up the ancient law." Sohm has collected evidence 
 that suretyship was a formal contract in the time of 
 the folk laws, in aid of his theory that the early law 
 knew only two contracts; the real, springing from 
 sale or barter and requiring a quid pro quo; and the 
 formal, developed from the real at an early date by 
 a process which has been variously figured." I do 
 not attempt to weigh the evidence of the continental 
 sources, but in view of the clear descent of surety- 
 ship from the giving of hostages, and the fact that 
 it appears as a formless contract in the early Norman 
 and Anglo-Norman Law, I find it hard to believe that 
 it owed its origin to form any more than to quid^ pro 
 quo. Tacitus says that the Germans would gamble 
 their personal liberty and pay with their persons if 
 they lost.^* The analogy seems to me suggestive. I 
 know no warrant for supposing that the festuca was 
 necessary to a bet. 
 
 ^2 Somma, I., C. 62, II. C. 24; 7 Ludewig, 264, 309; Grand 
 Coustum. C. 89 (cf. Bract, fol. 149b, § 6) ; The Common Law, 
 260, 264. See, besides authorities there cited, F. N. B. 122 K; ib. 
 
 1 in marg., 137 C; Y. B. 43 Ed. Ill, 11, pi. i ; 9 Hen. V. 14, pi. 23. 
 Car. M. Cap. Langob, a.d. 813, ch. 12, "Si quis pro alterius debito 
 se pecuniam suam promiserit redditurum in ipsa promissione est retinen- 
 dus," cited Loning, Vetragsbruch, 62, n. i. 
 
 In 2 Gesta Hen. II. (Ben. Abbas, Rolls ed.), 136, sureties make oath 
 to surrender themselves if the agreement is broken. Sohm, Eheschlies- 
 sung, 48, goes so far as to argue that the oath was simply one 
 substitute for the Salic formal contract. But I find no evidence that 
 the oath was necessary in England unless for ecclesiastical jurisdiction. 
 
 2 Gesta Hen. II., p. 137. 
 
 ^3 See, e.g., i Franken Franzos. Pfandr. § 16, pp. 209-216; 
 § 18, pp. 241 et seq.; ib., 261-266. 
 °* Germ. 24.
 
 20 COLLECTED LEGAL PAPERS 
 
 I go one step further, and venture hesitatingly to 
 suggest that cases which would now be generalized 
 as contract may have arisen independently of each 
 other from different sources, and have persisted side 
 by side for a long time before the need of generaliza- 
 tion was felt or they were perceived to tend to estab- 
 lish inconsistent principles. Out of barter and sale 
 grew the real contract, and if the principle of that 
 transaction was to be declared universal, every con- 
 tract would need a quid pro quo. Out of the giving 
 of hostages, familiar in Caesar's time, grew the 
 guaranty of another's obligation, and if this was to 
 furnish the governing analogy, every promise pur- 
 porting to be seriously made would bind. But the 
 two familiar contracts kept along together very 
 peaceably until logic, that great destroyer of tradi- 
 tion, pushed suretyship into the domain of covenant, 
 and the more frequent and important real contract 
 succeeded in dividing the realm of debt with instru- 
 ments under seal.''^ 
 
 To return to Equity. In the Diversity of Courts 
 {Chancery) it is said that "a man shall have remedy 
 in Chancery for covenants made without specialty, 
 if the party have sufficient witness to prove the cove- 
 rs y. B. i8 Ed. III., 13, pi. 7; 44 Ed. III. 21, pi 23; 43 
 Ed. Ill, II pi. I. So warranty, which had been merely an incident of 
 a sale {Lex Salica, C. 47; Glanv. X., C. 15 and 17), came to be 
 looked at as a covenant, Y. B. 44 Ed. III. 27, pi. i ; and at a later date 
 bailment was translated into contract. As a further illustration, I may 
 add that in modem times Consideration has still been dealt with by 
 way of remuneration (see e.g. 2 Bl. Coram., 444; I Tidd's Practice, 
 C. I, as to assumpsit), and only very recently has been resolved into 
 a detriment to the promisee, in all cases.
 
 EARLY ENGLISH EQUITY 21 
 
 nants, and yet he is without remedy at the common 
 law." This was in 1525, under Henry VIII., and 
 soon afterwards the contrary was decided.^^ But the 
 fact that a decision was necessary confirms the testi- 
 mony of the passage quoted as to what had been the 
 tradition of the Chancery. I do not propose to con- 
 sider whether thus broadly stated it corresponded to 
 any doctrine of early law, or whether any other cases 
 could be found, besides that of the surety, in which 
 a man could bind himself by simply saying that he 
 was bound. For although the meaning of the tradi- 
 tion had been lost in the time of Henry VIII. , when 
 the text-book spoke of covenants generally, the 
 promise with which Equity had dealt was a promise 
 per fidem. Thus, under Edward IV," a subpoena 
 was sued in the Chancery alleging that the defend- 
 ant had made the plaintiff the procurator of his bene- 
 fice and promised him per fidem to hold him harm- 
 less for the occupation, and then showing a breach. 
 The Chancellor (Stillington) said that "in that he 
 is damaged by the non-performance of the promise 
 he shall have his remedy here." And to go back to 
 the period to which this article is devoted, we find 
 in the reign of Richard II. a bill brought upon a 
 promise to grant the reversion of certain lands to 
 the plaintiff, setting forth that the plaintiff had come 
 to London and spent money relying upon the affiance 
 of the defendant, and that as he had no specialty, 
 and nothing in writing of the aforesaid covenant, he 
 
 58 Cary, Rep. in Ch. j, Choyce Cases in Ch. 49. 
 57 Y, B. 8 Ed., W., 4, pi. 2 ; Fitz, Abr. Subpena, pi. 7.
 
 2 2 COLLECTED LEGAL PAPERS 
 
 had no action at the common law.^* This is all the 
 direct evidence, but slight as it is, it is sufficient to 
 prove an ancient genealogy, as I shall try to show. 
 
 Two centuries after the Conquest there were three 
 well-known ways of making a binding promise: 
 Faith, Oath, and Writing.'" The plighting of one's 
 faith or troth here mentioned has been shown by 
 Sohm and others to be a descendant of the Salic 
 Fides facta, and I do not repeat their argument."" 
 It still survives in that repertory of antiquities, the 
 marriage ceremony, and is often mentioned in the 
 old books.'' 
 
 Whether this plighting of faith {fides data, fides 
 facta) was a formal contract or not in the time of 
 the Plantagenets, and whether or not it was ever 
 
 58 Whalen v. Huchyndin, 2 Cal. Ch. ii. 
 
 59 Compare Letter of Gregory IX. to Henry III., Jan. 10, 1233, 
 in I Royal Letters, Henry III. (Rolls ed.), p. 551, "Possessiones 
 . . . fide ac juramentis a te praestitis de non revocandis eisdem, 
 sub Utterarum tuarunt testimoniis concessisti," with Sententia Rudolfi 
 Regis, A.D. 1277, Pertz, Monumenta, Leges II, p. 412: "Quaesivimus 
 . . . utrunt is qui se datione fidei vel juramento corporaliter prestito, 
 vel patentibus suis litteris, ad obstagium vel solutionem alicujus debiti 
 ad certum terminum obligavit, nee in ipso termino adimplevit ad quod 
 taliter se adstrinxit de jure posset . . . per iulicium occupari? Et 
 promulgatum extitit communiter ab omnibus, quod is, qui modo pre- 
 dicto . . . promisso non paruit, valeat, ubicumque inveniatur, auc- 
 toritate iudiciaria conveniri." 
 
 60 Lex Salica (Merkel), Ch. 50; Lex Ripuaria, Ch. 58 (60), § 21; 
 Sohni, Eheschliessung, 48, 49, notes; I. Franken Franzos. Pfandr. 264, 
 n, 2. 
 
 «i Eadmer (Rolls ed.), 7, 8, 25; Dial, de Scacc, II. C. 19; 2 
 Gesta Hen. II. (Ben. Abbas), 134-137; 3 Roger Hoved. (Rolls ed.), 
 14s; Glanv. VII., C. 18; X., C. 12; i Royal Letters, Henry III. 
 (Rolls ed.), 308; Bract, 179b. Cf. id. i7Sa, 406b, etc.; Reg. Majest. 
 n., C. 48, § 10; C. 57, § 10; Abbrev. Plac. 31, col. i (2 Job. 
 Norf. rot. 21) ; 22 Ass. pi. 70, fol, loi.
 
 EARLY ENGLISH EQUITY 23 
 
 proceeded upon in the King's courts, it sufficiently 
 appears from Glanvill and Bracton that the royal 
 remedies were only conceded de gratia if ever.®^ 
 The royal remedies were afforded at first only by 
 way of privilege and exception, and, as I have 
 already shown, never extended to all the ancient 
 customs which prevailed in the popular tribunals. 
 But if the King failed the Church stood ready. 
 For a long time, and with varying success, it claimed 
 a general jurisdiction in case of laesio fidei.^^ What- 
 ever the limit of this vague and dangerous claim 
 it clearly extended to breach of fides data. And 
 even after the Church had been finally cut down to 
 marriages and wills, as shown in the last note, it 
 retained jurisdiction over contracts incident to such 
 matters for breach of faith, and, it seems, might 
 proceed by way of spiritual censure and penance 
 even in other cas'es.^* 
 
 «2 Glanv. X., C. 8; Bract. looa. 
 
 63 The fluctuations of the struggle may be traced in the following 
 passages: "Item generaliter omnes de fidei laesione vel juramenti trans- 
 gressione quaestiones in foro ecclesiastico tractabantur." a.d. 1190. 
 2 Diceto (Rolls ed.), 87; 2 Matt. Paris, Chron. Maj. (Rolls ed.), 368. 
 "Placita de debitis quae fide interposita debentur vel absque inter- 
 positione fidei sint in justitia Regis." Const. Clarend. C. iS; Glanv. 
 X., C. 12; Letter of Thomas a Becket to the Pope, a. d. 1167, i Rog. 
 Hoved. (Rolls ed.), 254. Agreement between Richard and the Nor- 
 man clergy in 1190, Diceto and Matt. Par. ubi supra. As to suits for 
 breach of faith, outside of debts, in the Courts Christian, circa 1200, 
 Abbrev. Plac, 31, col. i (2 Joh.), Norf. rot. 21. "Prohibetur ecclesi- 
 asticus judex tracture omnes causas contra laicos, nisi sint de matrimonio 
 vel testamento." a.d. 1247, 4 Matt. Paris (Rolls ed.), 614. Resistance 
 to this, Annals of Burton (Rolls ed.), 417, 423; cf. ib. 256. But this 
 prohibition fixed the boundaries of ecclesiastical jurisdiction. 
 
 «* 32 Lib. Ass., pi. 70, fol. loi. Cf. Glanv. VII., C. 18, "propter
 
 24 COLLECTED LEGAL PAPERS 
 
 Thus the old contracts lingered along mto the 
 reign of Edward III. until the common law had 
 attained a tolerably definite theory which excluded 
 them on substantive grounds, and the Chancery had 
 become a separate Court. The clerical Chancellors 
 seem for a time to have asserted successfully in a 
 different tribunal the power of which they had been 
 shorn as ecclesiastics, to give a remedy for contracts 
 for which the ordinary King's Courts afforded none. 
 But, I think, I have now proved that in so doing they 
 were not making reforms or introducing new doc- 
 trines, but were simply retaining some relics of an- 
 cient custom which had been dropped by the common 
 law, but had been kept alive by the Church. 
 
 mutuant affidationem quae fieri solet" Bract, fol. i7Sa, 406b, 407, 
 412b; Y. B. 38 Hen. VI. 29, pi. 2. But covenant was the only remedy 
 if the contract had been put in writing; Y. B. 45 Ed. III. 24, pi. 30.
 
 THE LAW 
 
 suffolk bar association dinner, 
 february 5, i 885* 
 
 Mr. Chairman and Gentlemen of the Bar: 
 
 The Court and the Bar are too old acquaintances 
 to speak much to each other of themselves, or of 
 their mutual relations. I hope I may say we are 
 too old friends to need to do it. If you did not 
 believe it already, it would be useless for me to 
 affirm that, in the judges' half of our common work, 
 the will at least is not wanting to do every duty of 
 their noble office; that every interest, every faculty, 
 every energy, almost every waking hour, is filled with 
 their work ; that they give their lives to it, more than 
 which they cannot do. But if not of the Bench, 
 shall I speak of the Bar? Shall I ask what a court 
 would be, unaided? The law is made by the Bar, 
 even more than by the Bench; yet do I need to 
 speak of the learning and varied gifts that have 
 given the Bar of this State a reputation throughout 
 the whole domain of the common law? I think I 
 need not, nor of its high and scrupulous honor. The 
 world has its fling at lawyers sometimes, but its very 
 denial is an admission. It feels, what I believe to 
 be the truth, that of all secular professions this has 
 the highest standards. 
 
 ♦ From Speeches (1913), printed by Little, Brown & Co. 
 25
 
 26 COLLECTED LEGAL PAPERS 
 
 And what a profession it is! No doubt every- 
 thing is interesting when it is understood and seen 
 in its connection with the rest of things. Every 
 caUing is great when greatly pursued. But what 
 other gives such scope to realize the spontaneous 
 energy of one's soul? In what other does one plunge 
 so deep in the stream of life — so share its passions, 
 its battles, its despair, its triumphs, both as wit- 
 ness and actor? 
 
 But that is not all. What a subject is this in 
 which we are united — this abstraction called the 
 Law, wherein, as in a magic mirror, we see reflected, 
 not only our own lives, but the lives of all men that 
 have been! When I think on this majestic theme, 
 my eyes dazzle. If we are to speak of the law as 
 our mistress, we who are here know that she is a 
 mistress only to be wooed with sustained and lonely 
 passion — only to be won by straining all the facul- 
 ties by which rdan is likest to a god. Those who, 
 having begun the pursuit, turn away uncharmed, do 
 so either because they have not been vouchsafed the 
 sight of her divine figure, or because they have not 
 the heart for so great a struggle. To the lover of 
 the law, how small a thing seem the novelist's tales 
 of the loves and fates of Daphnis and Chloe! How 
 pale a phantom even the Circe of poetry, transforrti- 
 ing mankind with intoxicating dreams of fiery ether, 
 and the foam of summer seas, and glowing green- 
 sward, and the white arms of women! For him no 
 less a history will suffice than that of the moral 
 life of his race. For him every text that he de-
 
 THE LAW 27 
 
 ciphers, every aoubt that he resolves, adds a new 
 feature to the unfolding panorama of man's destiny 
 upon this earth. Nor will his task be done until, by 
 the farthest stretch of human imagination, he has 
 seen as with his eyes the birth and growth of society, 
 and by the farthest stretch of reason he has under- 
 stood the philosophy of its being. When I think 
 thus of the law, I see a princess mightier than she 
 who once wrought at Bayeux, eternally weaving into 
 her web dim figures of the ever-lengthening past — 
 figures too dim to be noticed by the idle, too symbolic 
 to be interpreted except by her pupils, but to the 
 discerning eye disclosing every painful step and every 
 world-shaking contest by which mankind has worked 
 and fought its way from savage isolation to organic 
 social life. 
 
 But we who are here know the Law even better 
 in another aspect. We see her daily, not as an- 
 thropologists, not as students and philosophers, but 
 as actors in a drama of which she is the providence 
 and overruling power. When I think of the Law 
 as we know her in the courthouse and the market, 
 she seems to me a woman sitting by the wayside, 
 beneath whose overshadowing hood every man shall 
 see the countenance of his deserts or needs. The 
 timid and overborne gain heart from her protecting 
 smile. Fair combatants, manfully standing to their 
 rights, see her keeping the lists with the stern and 
 discriminating eye of even justice. The wretch who 
 has defied her most sacred commands, and has 
 thought to creep through ways where she was not.
 
 28 COLLECTED LEGAL PAPERS 
 
 finds that his path ends with her, and beholds be- 
 neath her hood the inexorable face of death. 
 
 Gentlemen, I shall say no more. This is not the 
 moment for disquisitions. But when for the first 
 time I was called to speak on such an occasion as this, 
 the only thought that could come into my mind, the 
 only feeling that could fill my heart, the only words 
 that could spring to my lips, were a hymn to her in 
 whose name we are met here to-night — to our mis- 
 tress, the Law.
 
 THE PROFESSION OF THE LAW 
 
 CONCLUSION OF A LECTURE DELIVERED TO UNDER- 
 GRADUATES OF HARVARD UNIVERSITY, 
 ON FEBRUARY I7, 1886 * 
 
 And now, perhaps, I ought to have done. But I 
 know that some spirit of fire will feel that his main 
 question has not been answered. He will ask. What 
 is all this to my soul? You do not bid me sell 
 my birthright for a mess of pottage ; what have you 
 said to show that I can reach my own spiritual pos- 
 sibilities through such a door as this? How can the 
 laborious study of a dry and technical system, the 
 greedy watch for clients and practice of shopkeepers' 
 arts, the mannerless conflicts over often sordid inter- 
 ests, make out a life? Gentlemen, I admit at once 
 that these questions are not futile, that they may 
 prove unanswerable, that they have often seemed 
 to me unanswerable. And yet I believe there is an 
 answer. They are the same questions that meet 
 you in any form of practical life. If a man has 
 the soul of Sancho Panza, the world to him will be 
 Sancho Panza's world; but if he has the soul of an 
 idealist, he will make — I do not say find — his 
 world ideal. Of course, the law is not the place 
 for the artist or the poet. The law is the calling of 
 
 * From Speeches (1913), printed by Little, Brown & Co. 
 39
 
 30 COLLECTED LEGAL PAPERS 
 
 thinkers. But to those who believe with me that 
 not the least godlike of man's activities is the large 
 survey of causes, that to know is not less than to 
 feel, I say — and I say no longer with any doubt — 
 that a man may live greatly in the law as well as 
 elsewhere; that there as well as elsewhere his thought 
 may find its unity in an infinite perspective; that 
 there as well as elsewhere he may wreak himself 
 upon life, may drink the bitter cup of heroism, may 
 wear his heart out after the unattainable. All that 
 life offers any man from which to start his thinking 
 or his striving is a fact. And if this universe is 
 one universe, if it, is so far thinkable that you can 
 pass in reason from one part if it to another, it does 
 not matter very much what that fact is. For every 
 fact leads to every other by the path of the air. 
 Only men do not yet see how, always. And your 
 business as thinkers is to make plainer the way from 
 some thing to the whole of things; to show the 
 rational connection between your fact and the frame 
 of the universe. If your subject is law, the roads 
 are plain to anthropology, the science of man, to 
 political economy, the theory of legislation, ethics, 
 and thus by several paths to your final view of life. 
 It would be equally true of any subject. The only 
 difference is in the ease of seeing the way. To be 
 master of any branch of knowledge, you must master 
 those which lie next to it; and thus to know any- 
 thing you must know all. 
 
 Perhaps I speak too much the language of intellec- 
 tual ambition. I cannot but think that the scope
 
 THE PROFESSION OF THE LAW 31 
 
 for intellectual, as for physical adventure, is narrow- 
 ing. I look for a future in which the ideal will be 
 content and dignified acceptance of life, rather than 
 aspiration and the passion for achievement. I see 
 already that surveys and railroads have set limits 
 to our intellectual wildernesses — that the lion and 
 the bison are disappearing from them, as from 
 Africa and the no longer boundless West. But that 
 undelightful day which I anticipate has not yet come. 
 The human race has not changed, I imagine, so much 
 between my generation and yours but that you still 
 have the barbaric thirst for conquest, and there is 
 still something left to conquer. There are fields still 
 open for occupation in the law, and there are roads 
 from them that will lead you where you will. 
 
 But do not think I am pointing you to flowery 
 paths and beds of roses — to a place where brilliant 
 results, attend your work, which shall be at once 
 easy and new. No result is easy which is worth 
 having. Your education begins when what is called 
 your education is over — when you no longer are 
 stringing together the pregnant thoughts, the "jewels 
 five-words-long," which great men have given their 
 lives to cut from the raw material, but have begun 
 yourselves to work upon the raw material for results 
 which you do not see, cannot predict, and which may 
 be long in coming — when you take the fact which 
 life offers you for your appointed task. No man 
 has earned the right to intellectual ambition until 
 he has learned to lay his course by a star which he 
 has never seen — to dig by the divining rod for
 
 32 COLLECTED LEGAL PAPERS 
 
 springs which he may never reach. In saying this, 
 I point to that which will make your study heroic. 
 For I say to you in all sadness of conviction, that 
 to think great thoughts you must be heroes as well 
 as idealists. Only when you have worked alone — 
 when you have felt around you a black gulf of soli- 
 tude more isolating than that which surrounds the 
 dying man, and in hope and in despair have trusted 
 to your own unshaken will — then only will you have 
 achieved. Thus only can you gain the secret iso- 
 lated joy of the thinker, who knows that, a hundred 
 years after he is dead and forgotten, men who never 
 heard of him will be moving to the measure of his 
 thought — the subtile rapture of a postponed power, 
 which the world knows not because it has no external 
 trappings, but which to his prophetic vision is more 
 real than that which commands an army. And if 
 this joy should not be yours, still it is only thus that 
 you can know that you have done what it lay in 
 you to do — can say that you have lived, and be 
 ready for the end.
 
 ON RECEIVING THE DEGREE OF 
 DOCTOR OF LAWS 
 
 YALE UNIVERSITY COMMENCEMENT, 
 JUNE 30, 1886 * 
 
 Mr. President and Gentlemen: 
 
 I KNOW of no mark of honor which this country 
 has to offer that I should value so highly as this 
 which you have conferred upon me. I accept it 
 proudly as an accolade, like the little blow upon the 
 shoulder from the sword of a master of war which 
 in ancient days adjudged that a soldier had won his 
 spurs and pledged his life to decline no combat in 
 the future. 
 
 The power of honor to bind men's lives is not less 
 now than it was in the Middle Ages. Now as then 
 it is the breath of our nostrils; it is that for which 
 we live, for which, if need be, we are willing to die. 
 It is that which makes the man whose gift is the 
 power to gain riches sacrifice health and even life 
 to the pursuit. It is that which makes the scholar 
 feel that he cannot afford to be rich. 
 
 One would sometimes think, from the speech of 
 young men, that things had changed recently, and 
 that indifference was now the virtue to be cultivated. 
 I never heard any one profess indifference to a boat 
 race. Why should you row a boat race? Why 
 
 ♦ From Speeches (1913), printed by Little, Brown & Co. 
 33
 
 34 COLLECTED LEGAL PAPERS 
 
 endure long months of pain in preparation for a fierce 
 half-hour that will leave you all but dead? Does 
 any one ask the question? Is there any one who 
 would not go through all its costs, and more, for the 
 moment when anguish breaks into triumph — or 
 even for the glory of having nobly lost? Is life less 
 than a boat race? If a man will give all the blood 
 in his body to win the one, will he not spend all the 
 might of his soul to prevail in the other? 
 
 I know, Mr. President, that there is a motive above 
 even honor which may govern men's lives. I know 
 that there are some rare spirits who find the inspira- 
 tion of every moment, the aim of every act, in holi- 
 ness. I am enough of a Puritan, I think, to conceive 
 the exalted joy of those who look upon themselves 
 only as instruments in the hands of a higher power to 
 work out its designs. But I think that most men do 
 and must reach the same result under the illusion of 
 self-seeking. If the love of honor is a form of that 
 illusion, it is no ignoble one. If it does not lift a 
 man on wings to the sky, at least it carries him above 
 the earth and teaches him those high and secret 
 pathways across the branches of the forest the 
 travellers on which are only less than winged. 
 
 Not the least service of this great University and 
 its sister from which I come is, that by their separate 
 teaching and by their mutual rivalry they have 
 fostered that lofty feeling among their graduates. 
 You have done all that a university can do to fan 
 the spark in me. I will try to maintain the honor 
 you have bestowed.
 
 THE USE OF LAW SCHOOLS* 
 
 ORATION BEFORE THE HARVARD LAW SCHOOL ASSOCI- 
 ATION, AT CAMBRIDGE, NOVEMBER 5, 1 886, ON 
 THE 25OTH ANNIVERSARY OF HARVARD 
 UNIVERSITY 
 
 It is not wonderful that the graduates of the Law 
 School of Harvard College should wish to keep alive 
 their connection with it. About three quarters of 
 a century ago it began with a Chief Justice of the 
 Supreme Court of Massachusetts for its Royall Pro- 
 fessor. A little later, one of the most illustrious 
 judges who ever sat on the United States Supreme 
 Bench — Mr. Justice Story — accepted a professor- 
 ship in it created for him by Nathan Dane. And 
 from that time to this it has had the services of great 
 and famous lawyers; it has been the source of a 
 large part of the most important legal literature 
 which the country has produced; it has furnished a 
 world-renowned model in its modes of instruction; 
 and it has had among its students future chief jus- 
 tices and justices, and leaders of state bars and of 
 the national bar too numerous for me to thrill you 
 with the mention of their names. 
 
 It has not taught great lawyers only. Many who 
 have won fame in other fields began their studies 
 
 ♦ From Speeches (1913), printed by Little, Brown & Co. 
 35
 
 36 COLLECTED LEGAL PAPERS 
 
 here. Sumner and Phillips were among the Bach- 
 elors of 1834. The orator whom we shall hear in a 
 day or two appears in the list of 1840 alongside of 
 William Story, of the Chief Justice of this State, and 
 of one of the Associate Justices, who is himself not 
 less known as a soldier and as an orator than he is 
 as a judge. Perhaps, without revealing family 
 secrets, I may whisper that next Monday's poet also 
 tasted our masculine diet before seeking more easily 
 digested, if not more nutritious, food elsewhere. 
 Enough. Of course we are proud of the Harvard 
 Law School. Of course we love every limb of Har- 
 vard College. Of course we rejoice to manifest our 
 brotherhood by the symbol of this Association. 
 
 I will say no more for the reasons of our coming 
 together. But by your leave I will say a few words 
 about the use and meaning of law schools, especially 
 of our law school, and about its methods of instruc- 
 tion, as they appear to one who has had some occa- 
 sion to consider them. 
 
 A law school does not undertake to teach success. 
 That combination of tact and will which gives a man 
 immediate prominence among his fellows comes from 
 nature, not from instruction ; and if it can be helped 
 at all by advice, such advice is not offered here. It 
 might be expected that I should say, by way of 
 natural antithesis, that what a law school does under- 
 take to teach is law. But I am not ready to say 
 even that, without a qualification. It seems to me 
 that nearly all the education which men can get from 
 others is moral, not intellectual. The main part
 
 THE USE OF LAW SCHOOLS 37 
 
 of intellectual education is not the acquisition of 
 facts, but learning how to make facts live. Culture, 
 in the sense of fruitless knowledge, I for one abhor. 
 The mark of a master is, that facts which before 
 lay scattered in an inorganic mass, when he shoots 
 through them the magnetic current of his thought, 
 leap into an organic order, and live and bear fruit. 
 But you cannot make a master by teaching. He 
 makes himself by aid of his natural gifts. 
 
 Education, other than self-education, lies mainly 
 in the shaping of men's interests and aims. If you 
 convince a man that another way of looking at things 
 is more profound, another form of pleasure more 
 subtile than that to which he has been accustomed 
 — if you make him really see it — the very nature 
 of man is such that he will desire the profounder 
 thought and the subtiler joy. So I say the business 
 of a law school is not sufficiently described when 
 you merely say that it is to teach law, or to make 
 lawyers. It is to teach law in the grand manner, 
 and to make great lawyers. 
 
 Our country needs such teaching very much. I 
 think we should all agree that the passion for 
 equality has passed far beyond the political or even 
 the social sphere. We are not only unwilling to 
 admit that any class or society is better than that 
 in which we move, but our customary attitude 
 towards every one in authority of any kind is that 
 he is only the lucky recipient of honor or salary 
 above the average, which any average man might as 
 well receive as he. When the effervescence of demo-
 
 38 COLLECTED LEGAL PAPERS 
 
 cratic negation extends its workings beyond the 
 abolition of external distinctions of rank to spiritual 
 things — when the passion for equality is not content 
 with founding social intercourse upon universal 
 human sympathy, and a community of interests in 
 which all may share, but attacks the lines of Nature 
 which establish orders and degrees among the souls 
 of men — they are not only wrong, but ignobly 
 wrong. Modesty and reverence are no less virtues 
 of freemen than the democratic feeling which will 
 submit neither to arrogance nor to servility. 
 
 To inculcate those virtues, to correct the ignoble 
 excess of a noble feeling to which I have referred, 
 I know of no teachers so powerful and persuasive 
 as the little army of specialists. They carry no ban- 
 ners, they beat no drums; but where they are, men 
 learn that bustle and push are not the equals of 
 quiet genius and serene mastery. They compel 
 others who need their help, or who are enlightened 
 by their teaching, to obedience and respect. They 
 set the examples themselves; for they furnish in the 
 intellectual world a perfect type of the union of 
 democracy with discipline. They bow to no one who 
 seeks to impose his authority by foreign aid; they 
 hold that science like courage is never beyond the 
 necessity of proof, but must always be ready to prove 
 itself against all challengers. But to one who has 
 shown himself a master, they pay the proud rever- 
 ence of men who know what valiant combat means, 
 and who reserve the right to combat against their 
 leader even, if he should seem to waver in the service 
 of Truth, their only queen.
 
 THE USE OF LAW SCHOOLS 39 
 
 In the army of which I speak, the lawyers are 
 not the least important corps. For all lawyers are 
 specialists. Not in the narrow sense in which we 
 sometimes use the word in the profession — of per- 
 sons who confine themselves to a particular branch 
 of practice, such as conveyancing or patents — but 
 specialists who have taken all law to be their prov- 
 ince; specialists because they have undertaken 
 to master a special branch of human knowledge 
 — a branch, I may add, which is more immediately 
 connected with all the highest interests of man than 
 any other which deals with practical affairs. 
 
 Lawyers, too, were among the first specialists to 
 be needed and to appear in America. And I believe 
 it would be hard to exaggerate the goodness of their 
 influence in favor of sane and orderly thinking. 
 But lawyers feel the spirit of the times like other 
 people. They, like others, are forever trying to dis- 
 cover cheap and agreeable substitutes for real things. 
 I fear that the bar has done its full share to exalt 
 that most hateful of American words and ideals, 
 "smartness," as against dignity of moral feeling and 
 profundity of knowledge. It is from within the bar, 
 not from outside, that I have heard the new gospel 
 that learning is out of date, and that the man for 
 the times is no longer the thinker and the scholar, 
 but the smart man, unencumbered with other artillery 
 than the latest edition of the Digest and the latest 
 revision of the Statutes. 
 
 The aim of a law school should be, the aim of 
 the Harvard Law School has been, not to make men
 
 40 COLLECTED LEGAL PAPERS 
 
 smart, but to make them wise in their calling — to 
 start them on a road which will lead them to the 
 abode of the masters. A law school should be at 
 once the workshop and the nursery of specialists in 
 the sense which I have explained. It should obtain 
 for teachers men in each generation who are produc- 
 ing the best work of that generation. Teaching 
 should not stop, but rather should foster, production. 
 The "enthusiasm of the lecture-room," the con- 
 tagious interest of companionship, should make the 
 students partners in their teachers' work. The fer- 
 ment of genius in its creative moment is quickly- 
 imparted. If a man is great, he makes others beheve 
 in greatness ; he makes them incapable of mean ideals 
 and easy self-satisfaction. His pupils will accept no 
 substitute for realities; but at the same time they 
 learn that the only coin with which realities can be 
 bought is life. 
 
 Our School has been such a workshop and such a 
 nursery as I describe. What men it has turned out 
 I have hinted already, and do not need to say; what 
 works it has produced is known to all the world. 
 From ardent cooperation of student and teacher have 
 sprung Greenleaf on Evidence, and Stearns on Real 
 Actions, and Story's epoch-making Commentaries, 
 and Parsons on Contracts, and Washburn on Real 
 Property; and, marking a later epoch, Langdell on 
 Contracts and on Equity Pleading, and Ames on 
 Bills and Notes, and Gray on Perpetuities, and I 
 hope we soon may add Thayer on Evidence. You 
 will notice that these books are very different in
 
 THE USE OF LAW SCHOOLS 41 
 
 character from one another, but you will notice also 
 how many of them have this in common — that they 
 have marked and largely made an epoch. 
 
 There are plenty of men nowadays of not a hun- 
 dredth part of Story's power who could write as 
 good statements of the law as his, or better. And 
 when some mediocre fluent book has been printed, 
 how often have we heard it proclaimed, ^'Lo, here 
 is a greater than Story!" But if you consider the 
 state of legal literature when Story began to write, 
 and from what wells of learning the discursive 
 streams of his speech were fed, I think you will be 
 inclined to agree with me that he has done more than 
 any other English-speaking man in this century to 
 make the law luminous and easy to understand. 
 
 But Story's simple philosophizing has ceased to 
 satisfy men's minds. I think it might be said with 
 safety, that no man of his or of the succeeding genera- 
 tion could have stated the law in a form that de- 
 served to abide, because neither his nor the succeed- 
 ing generation possessed or could have possessed the 
 historical knowledge, had made or could have made 
 the analyses of principles, which are necessary before 
 the cardinal doctrines of the law can be known and 
 understood in their precise contours and in their 
 innermost meanings. 
 
 The new work is now being done. Under the 
 influence of Germany, science is gradually drawing 
 legal history into its sphere. The facts are being 
 scrutinized by eyes microscopic in intensity and 
 panoramic in scope. At the same time, under the
 
 42 COLLECTED LEGAL PAPERS 
 
 influence of our revived interest in philosophical 
 speculation, a thousand heads are analyzing and 
 generalizing the rules of law and the grounds on 
 which they stand. The law has got to be stated 
 over again; and I venture to say that in fifty years 
 we shall have it in a form of which no man could 
 have dreamed fifty years ago. And now I venture 
 to add my hope and my belief, that, when the day 
 comes which I predict, the Professors of the Har- 
 vard Law School will be found to have had a hand 
 in the change not less important than that which 
 Story has had in determining the form of the text- 
 books of the last half-century. 
 
 Corresponding to the change which I say is taking 
 place, there has been another change in the mode 
 of teaching. How far the correspondence is con- 
 scious, I do not stop to inquire. For whatever 
 reason, the Professors of this School have said to 
 themselves more definitely than ever before, We will 
 not be contented to send forth students with nothing 
 but a rag-bag full of general principles — a throng 
 of glittering generalities, like a swarm of little bodi- 
 less cherubs fluttering at the top of one of Correg- 
 gio's pictures. They have said that to make a 
 general principle worth anything you must give 
 it a body; you must show in what way and how 
 far it would be applied actually in an actual system ; 
 you must show how it has gradually emerged as the 
 felt reconciliation of concrete instances no one of 
 which established it in terms. Finally, you must 
 show its historic relations to other principles, often
 
 THE USE OF LAW SCHOOLS 43 
 
 of very different date and origin, and thus set it in 
 the perspective without which its proportions will 
 never be truly judged. 
 
 In pursuance of these views there have been sub- 
 stituted for text-books more and more, so far as 
 practicable, those books of cases which were received 
 at first by many with a somewhat contemptuous 
 smile and pitying contrast of good old days, but 
 which now, after fifteen years, bid fair to revolution- 
 ize the teaching both of this country and of England. 
 
 I pause for a moment to say what I hope it is 
 scarcely necessary for me to say — that in thus giv- 
 ing in my adhesion to the present methods of instruc- 
 tions I am not wanting in grateful and appreciative 
 recollection (alas! it can be only recollection now) 
 of the earlier teachers under whom I studied. In 
 my day the Dean of this School was Professor Parker, 
 the ex-Chief Justice of New Hampshire, who I 
 think was one of the greatest of American judges, 
 and who showed in the chair the same qualities that 
 had made him famous on the bench. His associates 
 were Parsons, almost if not quite a man of genius, 
 and gifted with a power of impressive statement 
 which I do not know that I have ever seen equalled ; 
 and Washburn, who taught us all to realize the 
 meaning of the phrase which I already have quoted 
 from Vangerow, the "enthusiasm of the lecture- 
 room." He did more for me than the learning of 
 Coke and the logic of Fearne could have done with- 
 out his kindly ardor. 
 
 To return, and to say a word more about the
 
 44 COLLECTED LEGAL PAPERS 
 
 theory on which these books of cases are used. It 
 long has seemed to me a striking circumstance, that 
 the ablest of the agitators for codification, Sir James 
 Stephen, and the originator of the present mode of 
 teaching, Mr. Langdell, start from the same premises 
 to reach seemingly opposite conclusions. The num- 
 ber of legal principles is small, says in effect Sir 
 James Stephen, therefore codify them; the number 
 of legal principles is small, says Mr. Langdell, there- 
 fore they may be taught through the cases which 
 have developed and established them. Well, I think 
 there is much force in Sir James Stephen's argument, 
 if you can find competent men and get them to under- 
 take the task; and at any rate I am not now going 
 to express an opinion that he is wrong. But I am 
 certain from my own experience that Mr. Langdell 
 is right; I am certain that when your object is not 
 to make a bouquet of the law for the public, nor 
 to prune and graft it by legislation, but to plant its 
 roots where they will grow, in minds devoted hence- 
 forth to that one end, there is no way to be com- 
 pared to Mr. Langdell's way. Why, look at it 
 simply in the light of human nature. Does not a 
 man remember a concrete instance more vividly 
 than a general principle? And is not a principle 
 more exactly and intimately grasped as the unex- 
 pressed major premise of the half-dozen examples 
 which mark its extent and its limits than it can be 
 in any abstract form of words? Expressed or un- 
 expressed, is it not better known when you have 
 studied its embryology and the lines of its growth
 
 THE USE OF LAW SCHOOLS 45 
 
 than when you merely see it lying dead before you 
 on the printed page? 
 
 I have referred to my own experience. During 
 the short time that I had the honor of teaching in 
 the School, it fell to me, among other things, to 
 instruct the first-year men in Torts. With some mis- 
 givings I plunged a class of beginners straight into 
 Mr. Ames's collection of cases, and we began to dis- 
 cuss them together in Mr. Langdell's method. The 
 result was better than I even hoped it would be. 
 After a week or two, when the first confusing novelty 
 was over, I found that my class examined the ques- 
 tions proposed with an accuracy of view which they 
 never could have learned from text-books, and which 
 often exceeded that to be found in the text-books. 
 I at least, if no one else, gained a good deal from our 
 daily encounters. 
 
 My experience as a judge has confirmed the belief 
 I formed as a professor. Of course a young man 
 cannot try or argue a case as well as one who has 
 had years of experience. Most of you also would 
 probably agree with me that no teaching which a 
 man receives from others at all approaches in im- 
 portance what he does for himself, and that one 
 who simply has been a docile pupil has got but a very 
 little way. But I do think that in the thorough- 
 ness of their training, and in the systematic char- 
 acter of their knowledge, the young men of the 
 present day start better equipped when they begin 
 their practical experience than it was possible for 
 their predecessors to have been. And although no
 
 46 COLLECTED LEGAL PAPERS 
 
 school can boast a monopoly of promising young 
 men, Cambridge, of course, has its full proportion 
 of them at our bar; and I do think that the methods 
 of teaching here bear fruits in their work. 
 
 I sometimes hear a wish expressed by the im- 
 patient, that the teaching here should be more practi- 
 cal. I remember that a very wise and able man said 
 to a friend of mine when he was beginning his pro- 
 fessional life, "Don't know too much law," and I 
 think we all can imagine cases where the warning 
 would be useful. But a far more useful thing is 
 what was said to me as a student by one no less wise 
 and able — afterwards my partner and always my 
 friend — when I was talking as young men do about 
 seeing practice, and all the other things which seemed 
 practical to my inexperience, "The business of a 
 lawyer is to know law." The professors of this Law 
 School mean to make their students know law. 
 They think the most practical teaching is that which 
 takes their students to the bottom of what they seek 
 to know. They therefore mean to make them master 
 the common law and equity as working systems, and 
 think that when that is accomplished they will have 
 no trouble with the improvements of the last half- 
 century. I believe they are entirely right, not only 
 in the end they aim at, but in the way they take 
 to reach that end. 
 
 Yes, this School has been, is, and I hope will be, 
 a centre where great lawyers perfect their achieve- 
 ments, and from which young men, even more in- 
 spired by their example than instructed by their
 
 THE USE OF LAW SCHOOLS 47 
 
 * 
 
 teaching, go forth in their turn, not to imitate what 
 their masters have done, but to Hve their own lives 
 more freely for the ferment imparted to them here. 
 The men trained in this School may not always be 
 the most knowing in the ways of getting on. The 
 noblest of them must often feel that they are com- 
 mitted to lives of proud dependence — the depend- 
 ence of men who command no factitious aids to suc- 
 cess, but rely upon unadvertised knowledge and 
 silent devotion; dependence upon finding an appre- 
 ciation which they cannot seek, but dependence 
 proud in the conviction that the knowledge to which 
 their lives are consecrated is of things which it con- 
 cerns the world to know. It is the dependence of 
 abstract thought, of science, of beauty, of poetry and 
 art, of every flower of civilization, upon finding a 
 soil generous enough to support it. If it does not, 
 it must die. But the world needs the flower more 
 than the flower needs life. 
 
 I said that a law school ought to teach law in the 
 grand manner; that it had something more to do 
 than simply to teach law. I think we may claim for 
 our School that it has not been wanting in greatness. 
 I once heard a Russian say that in the middle class 
 of Russia there were many specialists; in the upper 
 class there were civilized men. Perhaps in America, 
 for reasons which I have mentioned, we need special- 
 ists even more than we do civilized men. Civilized 
 men who are nothing else are a little apt to think 
 that they cannot breathe the American atmosphere. 
 But if a man is a specialist, it is most desirable that
 
 48 COLLECTED LEGAL PAPERS 
 
 he should also be civilized; that he should have laid 
 in the outline of the other sciences, as well as the 
 light and shade of his own ; that he should be reason- 
 able, and see things in their proportion. Nay, more, 
 that he should be passionate, as well as reasonable — 
 that he should be able not only to explain, but to 
 feel; that the ardors of intellectual pursuit should 
 be relieved by the charms of art, should be succeeded 
 by the joy of life become an end in itself. 
 
 At Harvard College is realized in some degree the 
 palpitating manifoldness of a truly civilized life. Its 
 aspirations are concealed because they are chastened 
 and instructed; but I believe in my soul that they 
 are not the less noble that they are silent. The 
 golden light of the University is not confined to the 
 undergraduate department; it is shed over all the 
 schools. He who has once seen it becomes other 
 than he was, forevermore. I have said that the best 
 part of our education is moral. It is the crowning 
 glory of this Law School that it has kindled in many 
 a heart an inextinguishable fire. 
 
 Note. — The orator referred to above was James 
 Russell Lowell ; the poet was Oliver Wendell Holmes.
 
 AGENCY* 
 
 I PROPOSE in these lectures to study the theory of 
 agency at common law, to the end that it may be 
 understood upon evidence, and not merely by con- 
 jecture, and that the value of its principles may be 
 weighed intelligently. I first shall endeavor to show 
 why agency is a proper title in the law. I then shall 
 give some general reasons for believing that the series 
 of anomalies or departures from general rule which are 
 seen wherever agency makes its appearance must be 
 explained by some cause not manifest to common 
 sense alone; that this cause is, in fact, the survival 
 from ancient times of doctrines which in their earlier 
 form embodied certain rights and liabilities of heads 
 of families based on substantive grounds which have 
 disappeared long since, and that in modern days 
 these doctrines have been generalized into a fiction, 
 which, although nothing in the world but a form of 
 words, has reacted upon the law and has tended to 
 carry its anomalies still farther. That fiction is, of 
 course, that, within the scope of the agency, prin- 
 cipal and agent are one. I next shall examine the 
 early law of England upon every branch of the sub- 
 ject — tort, contract, possession, ratification — and 
 show the working of survival or fiction in each. If 
 
 ♦ Harvard Law Review, Vol. IV. (1891). 
 49
 
 so COLLECTED LEGAL PAPERS 
 
 I do not succeed in reducing the law of all these 
 branches to a common term, I shall try to show that 
 at least they all equally depend upon fiction for their 
 present existence. I shall prove incidentally that 
 agency in its narrower sense presents only a special 
 application of the law of master and servant, and 
 that the peculiar doctrines of both are traceable to 
 a common source. ^ Finally I shall give my reasons 
 for thinking that the whole outline of the law is the 
 resultant of a conflict at every point between logic 
 and good sense — the one striving to work fiction out 
 to consistent results, the other restraining and at 
 last overcoming that effort when the results become 
 too manifestly unjust. 
 
 A part of my task has been performed and my 
 general view indicated in my book on the Common 
 Law. It remains to discuss the matter systemat- 
 ically and in detail, giving due weight to the many 
 difficulties or objections which are met with in the 
 process. 
 
 My subject extends to the whole relation of 
 master and servant — it is not confined to any one 
 branch; so that when I choose the title "Agency," 
 I do not use it in the strict sense just referred to, 
 but as embracing everything of which I intend to 
 treat. 
 
 The first question proposed is why agency is a 
 proper title in the law. That is to say, Does agency 
 bring into operation any new and distinct rules of 
 law? Do the facts which constitute agency have at- 
 tached to them legal effects which are peculiar to it,
 
 AGENCY 51 
 
 or is the agency only a dramatic situation to which 
 principles of larger scope are applied? And if 
 agency has rules of its own incapable of being fur- 
 ther generalized, what are they? 
 
 If the law went no farther than to declare a man 
 liable for the consequences of acts specifically com- 
 manded by him with knowledge of circumstances 
 under which those consequences were the natural 
 results of those acts, it would need no explanation 
 and introduce no new principle. There may have 
 been some difficulty in arriving at this conclusion 
 when the intervening agent was a free person and 
 himself responsible. Speaking without special in- 
 vestigation, I do not remember any case in early 
 law in which one could charge himself thus in con- 
 tract or even in tort. Taking the allied case of joint 
 trespassers, although it long has been settled that 
 each wrong-doer is liable for the entire damages, the 
 objection that "the battery of one cannot be the 
 battery of the other" prevailed as late as James I.^ 
 It is very possible that liability even for the com- 
 manded acts of a free person first appeared as an 
 extension of the liability of an owner for similar acts 
 by his slave. 
 
 But however this may be, it is plain good sense 
 to hold people answerable for wrongs which they 
 have intentionally brought to pass, and to recognize 
 that it is just as possible to bring wrongs to pass 
 through free human agents as through slaves, ani- 
 mals, or natural forces. This is the true scope and 
 
 1 Sampson v. Cranfield, I Bustr. 157 (T. 9 Jac).
 
 52 COLLECTED LEGAL PAPERS 
 
 meaning of ''Qtd facit per alium facit per se/' and 
 the English law has recognized that maxim as far 
 back as it is worth while to follow it." So it is only- 
 applying the general theory of tort to hold a man 
 liable if he commands an act of which the natural 
 consequence, under the circumstances known to him, 
 is harm to his neighbor, although he has forbidden 
 the harm. If a trespass results, it is as much the 
 trespass of the principal as if it were the natural, 
 though unwished for, effect of a train of physical 
 causes.^ In such cases there is nothing peculiar to 
 master and servant; similar principles have been 
 applied where independent contractors were em- 
 ployed.* 
 
 No additional explanation is needed for the case 
 of a contract specifically commanded. A difficulty 
 has been raised concerning cases where the agent has 
 a discretion as to the terms of the contract, and it 
 has been called "absurd to maintain that a contract 
 which in its exact shape emanates exclusively from 
 a particular person is not the contract of such person 
 [i.e., the agent], but is the contract of another."^ 
 But I venture to think that the absurdity is the other 
 
 2 In Tort: Y. B. 32 Ed. I., 318, 320 (Harwood) ; 22 Ass. pi. 
 43, fol. 94; II Hen. IV. 90. pi. 47; 9 Hen. VI. 53, pi. 37; 21 Hen. 
 VI., 39; 4 Ed. IV. 36; Dr. and Stud., II., C. 42; Seaman and Brown- 
 ing's Case, 4 Leon. 123, pi. 240 (M. 31 Eliz.). Conveyance: Fitz. Abr. 
 Annuitie, pi. 51 (H. 33, Ed. I.), where the maxim is quoted. Account: 
 4 Inst. 109. 
 
 3 Gregory v. Piper, 9 B. & C. 591. C£, The Common Law, 53, 
 .','4, and Lect. 3 and 4. 
 
 4 Bower v. Peate, i, Q. B. D. 321. 
 
 5 Thol, Handelsrecht, § 70, cited in Wharton Agency, § 6.
 
 AGENCY 53 
 
 way, and that there is no need of any more complex 
 machinery in such a case than where the agent is 
 a mere messenger to express terms settled by his 
 principal in every detail. Suppose that the principal 
 agrees to buy a horse at a price fixed by another. The 
 principal makes the contract, not the referee who 
 settles the price. If the agreement is communicated 
 by messenger, it makes no difference. If the mes- 
 senger is himself the referee, the case is still the same. 
 But that is the case of an agent with discretionary 
 powers, no matter how large they may be. So far as 
 he expresses his principal's assent to be bound to 
 terms to be fixed by the agent, he is a mere messenger; 
 in fixing the terms he is a stranger to the contract, 
 which stands on the same footing as if it had been 
 made before his personal function began. The 
 agent is simply a voice affording the marks provided 
 by the principal's own expression of what he under- 
 takes. Suppose a wager determined in amount as 
 well as event by the spinning of a teetotum, and to 
 be off if numbers are turned up outside certain limits; 
 is it the contract of the teetotum? 
 
 If agency is a proper title of our corpus juris, its 
 peculiarities must be sought in doctrines that go 
 farther than any yet mentioned. Such doctrines are 
 to be found in each of the great departments of the 
 law. In tort, masters are held answerable for con- 
 duct on the part of their servants, which they not 
 only have not authorized, but have forbidden. In 
 contract, an undisclosed principal may bind or may 
 be bound to another, who did not know of his very
 
 54 COLLECTED LEGAL PAPERS 
 
 existence at the time he made the contract. By a 
 few words of ratification a man may make a tres- 
 pass or a contract his own in which he had no part 
 in fact. The possession of a tangible object may be 
 attributed to him although he never saw it, and may 
 be denied to another who has it under his actual 
 custody or control. The existence of these rules is 
 what makes agency a proper title in the law. 
 
 I do not mean to assume in advance that these 
 rules have a common origin because they are clus- 
 tered round the same subject. It would be possible 
 to suggest separate reasons for each, and going 
 farther still, to argue that each was no more than 
 an application, even though a misapplication, of 
 general principles. 
 
 Thus, in torts it is sometimes said that the liability 
 of the master is "in effect for employing a careless 
 servant," repeating the reason offered by the pseudo- 
 philosophy of the Roman jurists for an exceptional 
 rule introduced by the praetor on grounds of public 
 policy.^ This reason is shown to be unsound by the 
 single fact that no amount of care in selection will 
 exonerate the master;^ but still it might be argued 
 that, whether right or wrong, this or some other 
 notion of policy had led to the first of the rules which 
 I selected as a peculiar, and that at most the liability 
 of a master for his servant's torts is only a mistaken 
 conclusion from the general theory of tort. 
 
 6 Parke, B., in Sharrod v. London & N. W. Ry. Co., 4 Exch. 580, 
 58s (1849) ; I Austin, Jurisprudence, Lect. 26, 3d Ed., p. 513. Cf. The 
 Common Law, 15, 16. 
 
 7 Dansey v. Richardson, 3 El. & Bl., 144, 161.
 
 AGENCY 55 
 
 Then with regard to undisclosed principals in con- 
 tract, it might be said that it was no hardship to 
 hold a man bound who had commanded his servant 
 to bind him. And as to the other and more difficult 
 half of the doctrine, the right of an undisclosed 
 principal to sue, it might be observed that it was first 
 asserted in cases of debt,* where the principal's goods 
 were the consideration of the liability, and that the 
 notion thus started was afterwards extended to other 
 cases of simple contract. Whether the objection to 
 the analogy and to the whole rule were duly con- 
 sidered or not, it might be urged, there is no connec- 
 tion other than a purely dramatic one between the 
 law of agency in torts and in contracts, or between 
 the fact of agency and the rule, and here, as there, 
 nothing more is to be found than a possibly wrong 
 conclusion from the general postulates of the depart- 
 ment of law concerned. 
 
 Ratification, again, as admitted by us, the argu- 
 ment would continue, merely shows that the Roman 
 maxim "ratihabitio mandato comparatur" has be- 
 come imbedded in our law, as it has been from the 
 time of Bracton. 
 
 Finally, the theory of possession through servants 
 would be accounted for by the servant's admission 
 of his master's present right to deal with the thing 
 at will, and the absence of any claim or intent to 
 assert a claim on his part, coupled with the presence 
 of such a claim on the part of the master. 
 
 8 Scrimshire v. Alderton, 2 Strange, 1182 (H. 16 G. II). Cf. Gur- 
 ratt V. Cullum (T. 9 Anne, B.R.), stated in Scott v. Surman, Willes, 
 400, at p. 40s (H. 16 G. II.) and in BuUer, N. P. 42.
 
 S6 COLLECTED LEGAL PAPERS 
 
 But the foregoing reasoning is wholly inadequate 
 to justify the various doctrines mentioned, as I have 
 shown in part and as I shall prove in detail hereafter. 
 And assuming the inadequacy to be proved, it can- 
 not but strike one as strange that there should run 
 through all branches of the law a tendency to err 
 in the same direction. If, as soon as the relation of 
 master and servant comes in, we find the limits of 
 liability for, or gain by, others' acts enlarged beyond 
 the scope of the reasons offered or of any general 
 theory, we not only have good ground for treating 
 that relation separately, but we fairly may suspect 
 that it is a cause as well as a concomitant of the ob- 
 served effects. 
 
 Looking at the whole matter analytically it is easy 
 to see that if the law did identify agents with prin- 
 cipals, so far as that identification was carried the 
 principal would have the burden and the benefit of 
 his agent's torts, contracts, or possession. So, fram- 
 ing a historical hypothesis, if the starting-point of the 
 modern law is the patria potestas, a little study will 
 show that the fiction of identity is the natural growth 
 from such a germ. 
 
 There is an antecedent probability that the patria 
 potestas has exerted an influence at least upon exist- 
 ing rules. I have endeavored to prove elsewhere 
 that the unlimited liability of an owner for the torts 
 of his slave grew out of what had been merely a 
 privilege of buying him off from a surrender to the 
 vengeance of the offended party, in both the early 
 Roman and the early German law. I have shown,
 
 AGENCY 57 
 
 also, how the unlimited liability thus established was 
 extended by the praetor in certain cases to the mis- 
 conduct of free servants.'' Of course it is unlikely 
 that the doctrines of our two parent systems should 
 have been without effect upon their offspring, the 
 common law. 
 
 The Roman law, it is true, developed no such 
 universal doctrines of agency as have been worked 
 out in England. Only innkeepers and shipowners 
 (nautae, caupones, stabularii) were made answerable 
 for the misconduct of their free servants by the 
 praetor's edict. It was not generally possible to 
 acquire rights or to incur obligations through the acts 
 of free persons.^" But, so far as rights of property, 
 possession," or contract " could be acquired through 
 others not slaves, the law undoubtedly started from 
 slavery and the patria potestas. 
 
 It will be easy to see how this tended toward a 
 fictitious identification of agent with principal, al- 
 though within the limits to which it confined agency 
 the Roman law had little need and made little use 
 of the fiction. Ulpian says that the act of the family 
 cannot be called the act of the paterfamilias unless 
 it is done by his wish." But as all the family rights 
 and obligations were simply attributes of the per- 
 sona of the family head, the summary expression for 
 the members of the family as means of loss or gain 
 
 » The Common Law, 9, 15-20. 
 10 Inst. 2, 9, § s; D. 44, 7, "; D. 45, i, 126, § 2. 
 " Inst. 2, 9, esp. §§ 4, S- Cf. D. 41, i, 53- 
 " Inst. 3, 17 ; D. 41, 1, S3 ; D. 45, i, 38, § 17. 
 13 D. 43, 16, I., §§11-13.
 
 58 COLLECTED LEGAL PAPERS 
 
 would be that they sustained that persona, pro hac 
 vice. For that purpose they were one with the 
 paterfamilias. Justinian's Institutes tell us that the 
 right of a slave to receive a binding promise is de- 
 rived ex persona domini.^* And with regard to free 
 agents, the commentators said that in such instances 
 two persons were feigned to be one." 
 
 Such a formula, of course, is only derivative. The 
 fiction is merely a convenient way of expressing rules 
 which were arrived at on other grounds. The 
 Roman praetor did not make innkeepers answer- 
 able for their servants because "the act of the serv- 
 ant was the act of the master," any more than be- 
 cause they had been negligent in choosing them. He 
 did so on substantive grounds of policy — because of 
 the special confidence necessarily reposed in inn- 
 keepers. So when it held that a slave's possession 
 was his owner's possession, the practical fact of the 
 master's power was at the bottom of the decision." 
 
 But when such a formula is adopted, it soon 
 acquires an independent standing of its own. In- 
 stead of remaining only a short way of saying that 
 when from policy the law makes a master responsible 
 for his servant, or because of his power gives him the 
 benefit of his slave's possession or contract, it treats 
 him to that extent as the tort-feasor, possessor, or 
 contractee, the formula becomes a reason in itself for 
 
 1* Inst. 3, 17, pr. i8, in the older editions, 
 
 15 D. 4S, I, 38, § 17. Elzevir ed., Gothofred. note 74, C£. D. 44, a, 
 4, note 17. 
 
 ^s The Common Law, 228.
 
 AGENCY 59 
 
 making the master answerable and for giving him 
 rights. If "the act of the servant is the act of the 
 master," or master and servant are ''considered as 
 one person," then the master must pay for the act 
 if it is wrongful, and has the advantage of it if it is 
 right. And the mere habit of using these phrases, 
 where the master is bound or benefited by his ser- 
 vant's act, makes it likely that other cases will be 
 brought within the penumbra of the same thought 
 on no more substantial ground than the way of think- 
 ing which the words have brought about. 
 
 I shall examine successively the English author- 
 ities with regard to agency in tort, contract, ratifi- 
 cation, and possession. But some of those author- 
 ities are of equal importance to every branch of 
 the proposed examination, and will prove in advance 
 that the foregoing remarks are not merely hypothet- 
 ical. I therefore begin with citations sufficient to 
 establish that family headship was recognized as a 
 factor in legal rights and duties; that this notion of 
 headship was extended by analogy so as to cover the 
 relation of a master to freemen filling a servile place 
 for the time being, and that the relations thus em- 
 braced were generalized under the misleading fiction 
 of identity. 
 
 The familia, Bracton says, embraces "those who 
 are regarded in the light of serfs, such as, etc. So, 
 too, as well freemen as serfs, and those over whom 
 one has the power of command." ^^ 
 
 1' "Et etiant famUiae appellatio eos complectitur qui loco servorum 
 habentur, sicut sunt mercenarii et conductitii. Item tarn liberi quam 
 servi, et quibus poterit imperari." Bract., fol. 171b.
 
 6o COLLECTED LEGAL PAPERS 
 
 In West's Symboleography,^^ a work which was 
 published towards the beginning of the reign of 
 James I., and which, though mainly a form book, 
 gives several glimpses of far-reaching insight, we 
 read as follows: 
 
 "The person is he which either agreeth or offend- 
 eth, and beside him none other. 
 
 "And both may be bound either mediately, or 
 immediately. 
 
 "Immediately, if he which is bound doe agree. 
 
 "Mediately, when if he, which by nature differeth 
 from him, but not by law, whereby as by some bond 
 he is fained to be all one person, doth contract, or 
 offend, of which sort in some cases be those which 
 be in our power, as a wife, a bondman, servant, a 
 factor, an Attourney, or Procurator, exceeding their 
 authority." 
 
 Here we see that the patria potestas is the sub- 
 stantive ground, that it is extended to cover free 
 agents, who are not even domestic servants, and 
 that it finds its formal expression in the fiction of 
 identity. 
 
 So, at the beginning of the next reign, it was said 
 that an action for fire, due to the negligence of a 
 wife, or servant, lay "vers patrem familias." " The 
 extension of the liability, as shown by West, is some- 
 times expressed in later books by saying that it is 
 not confined to cases where the party stands in the 
 
 18 Lib. I., § 3, ad fin. "Of the Fact of Man." 
 
 19 Shelley and Barr's Case, I RoU. Abr. 2, pi. 7 (M.I Car.I.).
 
 AGENCY 6i 
 
 relation of paterfamilias to the wrong-doer; ^° but 
 this only means that the rule extends to other ser- 
 vants besides domestic servants, and admits the 
 analogy or starting-point." 
 
 Every one is familiar with the fiction as applied 
 to married women. The early law dealt with mar- 
 ried women on the footing of servants. It called 
 both wives and servants chattels." The wife was 
 said to be in the nature of a servant," and husband 
 and wife were only one person in law."* So far was 
 this identification carried, so far was the persona of 
 the wife swallowed up in and made part of the hus- 
 band's, that whereas, in general, assigns could not 
 vouch upon a warranty unless they were expressly 
 mentioned in it,^'^ a husband always could vouch 
 upon a warranty made to his wife before marriage. 
 By marriage, as was said in Simon Simeon's case 
 "it vested in the person of the husband." That is 
 to say, although what actually happened was that 
 the right to enforce a contract was transferred to a 
 stranger, in theory of law there was no transfer, be- 
 cause the stranger had become the same person as 
 the contractee.*^ 
 
 20 Bac. Abr., Master and Servant, K; Smith's Master and Servant, 
 3d ed, 260. 
 
 21 Laugher v. Pointer, 5 B. & C, 547, SS4 (1826). Cf. Bush v. 
 Steinman, I Bos. & P. 404 (1709). 
 
 22 Y. B. 19 Hen. VI. 31, pi. 59; 2 RoU. Abr. 546 (D). 
 
 23 I Roll. Abr. 2, pi. 7. 
 
 2* Dial, de Scaccario II., Ch. 18.; Bract., fol. 429b; Y. B. 22 Hen. 
 VI. 38, pi. 6; Litt. f§ 168, 191; 3 Salk. 46; Com. Dig. Baron & Feme 
 (D) ; I Bl. Comm. 442. 
 
 25 The Common Law, 37s, n. 2, 401, n. i. 
 
 26 Simon Simeon's Case, Y. B. 30 Ed. III. 14; s.c. ib. 6; 29 Ed.
 
 62 COLLECTED LEGAL PAPERS 
 
 Of course the identification between husband and 
 wife, although by no means absolute, was far more 
 complete than that between master and menial ser- 
 vant, just as in the latter case it went farther than 
 in that of an agent employed for some particular 
 transaction. Even in the case of villeins, while the 
 lord might take advantage of their possession or 
 their title, he could not take advantage of contracts 
 or warranties made to them." But the idea and 
 its historical starting-point were the same through- 
 out. When considering the later cases, the reader 
 will remember that it is incontrovertably established 
 that a wife was on the footing of a servant, that the 
 consequences of the relation were familiarly ex- 
 pressed in terms of the fiction of identity, and, there- 
 fore, that the applicability of this fiction to the 
 domestic relations generally must have been well 
 known to the courts long before the date of the 
 principal decisions, which it will be my task to 
 interpret. 
 
 I now take up the liability of a master for the 
 torts of his servant at common law. This has been 
 supposed in England to have been manufactured out 
 of the whole cloth, and introduced by the decision 
 
 III. 48. I have seen no reason to change the views expressed in The 
 Common Law, Lecture XI., to meet the suggestions of Prof. Ames in 
 3 Harv. Law Rev. 388, n. 6. Undoubtedly the letter of credit was 
 known in the reign of Henry III. i Royal Letters, Hen. III. 315. But 
 the modem theory of contract applied to letters of credit, in my 
 opinion, was not the theory on which assigns got the benefit of a 
 warranty. Norcross v. James, 140 Mass. 188. 
 27 Y. B. 22 Ass. pi. 27, fol. 93; Co. Lit. 117a.
 
 AGENCY 63 
 
 in Michael v. Alestree "^ in the reign of Charles II. 
 In view of the historical antecedents it would be very- 
 extraordinary if such a notion were correct. I ven- 
 ture to think that it is mistaken, and that the prin- 
 ciple has gradually grown to its present form from 
 beginnings of the earliest date. I also doubt whether 
 Michael v. Alestree is an example for the principle 
 in question. It rather seems to me a case in which 
 the damage complained of was the natural conse- 
 quence of the very acts commanded by the master, 
 and which, therefore, as I have said above, needs no 
 special or peculiar doctrine to account for it. It was 
 an action on the case against master and servant; 
 "for that the Defendants in Lincoln' s-Inn Fields, a 
 place where People are always going to and fro about 
 their Business, brought a Coach with two ungovern- 
 able Horses, & eux improvide incaute & absque 
 debita consider atione ineptitudinis loci there drove 
 them to make them tractable and fit them for a 
 Coach; and the Horses, because of their Ferocity, 
 being not to be managed, ran upon the Plaintiff, and 
 . . . wounded him: The master was absent," 
 but both defendants were found guilty. "It was 
 moved in Arrest of Judgment, That no Sciens is here 
 laid of the Horses being unruly, nor any Negligence 
 alledged, but e contra, that the Horses were ungovern- 
 able: Yet judgment was given for the Plaintiff, 
 for it is alledged that it was improvide & absque 
 debita consider atione ineptitudinis loci; and it shall 
 be intended the Master Sent the servant to train the 
 
 28 2 Levinz, 172; B.C. 3 Keble, 650, i Ventris, 295 (T. 28 Car. II).
 
 64 COLLECTED LEGAL PAPERS 
 
 Horses there." '" In other words, although there 
 was no negligence averred in the mode of driving the 
 horses at the instant of the accident, but, e contra, 
 that the horses were ungovernable, which was the 
 scope of the defendant's objection, there was negli- 
 gence in driving ungovernable horses for the pur- 
 pose of breaking them in a public place, and that 
 was averred, and was averred to have been done 
 negligently. Furthermore, it was averred to have 
 been done negligently by the defendant, which was 
 a sufficient allegation on its face, and would be sup- 
 ported by proof that the defendant, knowing the 
 character of the horses, ordered his servant to break 
 them in a public resort. Indeed, the very charac- 
 ter of the command (to break horses) imports suffi- 
 cient knowledge; and when a command is given to 
 do the specified act complained of, it always may be 
 laid as the act of the party giving the order.^° 
 
 When I come to investigate the true history of 
 this part of the law, notwithstanding the likelihood 
 which I have pointed out that it was a continuation 
 and development of what I have traced in one or 
 both of the parent systems, I must admit that I am 
 met with a difficulty. Even in Bracton, who writes 
 under the full influence of the Roman law, I have 
 failed to find any passage which distinctly asserts the 
 civil liability of masters for their servants' torts apart 
 from command or ratification. There is one text, to 
 be sure, which seems corrupt as it stands and which 
 
 29 2 Lev. 172. 
 
 30 Sup., p. SI, 52-
 
 AGENCY 6s 
 
 could be amended by conjecture so as to assert it. 
 But as the best manuscripts in Lincoln's Inn sub- 
 stantially confirm the printed reading, conjecture 
 would be out of place.^^ 
 
 On the other hand, I do find an institution which 
 may or may not have been connected with the Anglo- 
 Saxon laws touching the responsibility of masters, 
 but which, at any rate, equally connects liability of 
 a different sort with family headship. 
 
 At about the time of the Conquest, what was 
 known as the Frithborh, or frankpledge, either was 
 introduced or grew greatly in importance. Among 
 other things, the master was made the pledge of his 
 servants, to hand them over to justice or to pay the 
 fine himself. "Omnes qui servientes habent, eorum 
 sint francplegii" was the requirement of William's 
 laws. Bracton quotes the similar provisions of Ed- 
 ward the Confessor, and also says that in some 
 counties a man is held to answer for the members of 
 his family .^"^ The quasi-criminal liability of master 
 for man is found as late as Edward II. alongside of 
 the other rules of frankpledge, with which this dis- 
 cussion is not concerned. Fitzherbert's Abridg- 
 ment^^ reads as follows: "Note that if the servant 
 (serviens) of any lord while in his service (in servicio 
 suo exist ens) commits a felony and is convicted, 
 although after the felony (the master) has not 
 
 s^ Bract., fol. iija, 
 
 '2 "Tenebitur ille, in quibusdam partibus, de cujus fuerint familia 
 et manupastu." Bract., fol. 124b; i.e., for the persons under his 
 patria potestas. LL. Giil. I., C. 52; LL. Edw. Conf., C. 21 (al. 20). 
 
 33 Corone, pi. 428 (8 Ed. II. It cane).
 
 66 COLLECTED LEGAL PAPERS 
 
 received him, he is to be amerced, and the reason 
 is because he received him 'in bourgh.' " Brac- 
 ton, in Hke manner, says that the master is bound 
 "Emendare" for certain torts of his servant,^"* mean- 
 ing, as I take it, to pay a fine, not damages. 
 
 But true examples of the peculiar law of master 
 and servant are to be found before Edward II. The 
 maxim respondeat superior has been applied to the 
 torts of inferior officers from the time of Edward I. 
 to the present day. Thus that chapter of the Statute 
 of Westminster the Second, ^"^ which regulates dis- 
 tresses by sheriffs or bailiffs, makes the officer dis- 
 regarding its provisions answerable, and then con- 
 tinues, "si non habeat ballivus unde reddat reddat 
 superior suus." So a later chapter of the same stat- 
 ute, after subjecting keepers of jails to an action of 
 debt for escapes in certain cases, provides that if the 
 keeper is not able to pay, his superior, who committed 
 the custody of the jail to him shall be answerable by 
 the same writ.^^ So, again, the eighteenth chapter of 
 the Articuli super Chartas " gives a writ of waste to 
 wards, for waste done in their lands in the king's 
 hands by escheators or sub-escheators, "against the 
 escheator for his act (if he have whereof to answer), 
 and if he have not, his master shall answer ('si 
 respoigne son sovereign') by like pain concerning the 
 
 3* Bract., fol. 158b, 171a, b, 172b. Cf, Ducange, "Emenda." 
 
 35 St. 13 Ed. I., St. I, Ch. 2, § 3. 
 
 38 Ch. II. ad finem. "Et si custos gaole non habeat per quod 
 justicietur vel unde solvat respondeat superior suus qui custodiam 
 hujusmodi gaole sibi commisit per idem breve." 
 
 37 St. 28 Ed. I., Ch. 18.
 
 AGENCY 67 
 
 damages, as is ordained by the statute for them that 
 do waste in wardships." A case of the time of Ed- 
 ward II. interpreting the above statute concerning 
 jailers is given in Fitzherbert's Abridgment/* and 
 later similar cases are referred to in Coke's Fourth 
 Institute.'' 
 
 It may be objected that the foregoing cases are 
 all statutory. But the same principle seems to have 
 been applied apart from any statute except that 
 which gave counties the power to elect coroners, to 
 make the county of Kent answerable to the king for 
 a coroner's default, as well as in other instances 
 which will be mentioned later.'" Moreover, early 
 statutes are as good evidence of prevailing legal con- 
 ceptions as decisions are. 
 
 But again it may be objected that there were 
 special grounds of public policy for requiring those 
 who disposed of public offices of profit to appoint 
 persons "for whom they will answer at their peril," 
 in the words of another similar statute as to clerks 
 in the King's Courts." It might be said with truth 
 
 38 Dette, pi. 172 (M. 11 Ed. II.). 
 
 39 4 Inst. 114; "45 E. 3, 9, 10, Prior datife et removeable suffer 
 eschape, respondeat superior. 14 E. 4, Pur insufficiency del bailie 
 dun libertie respondeat dominus libertatis. Vid. 44 E. 3, 13; 50 E. 
 3, S; 14 H. 4, 22; II H. 6, 52; 30 H. 6, 32." 
 
 40 See the writ of H. 14 Ed. Ill, ex parte, Remem. Regis, rot. 9, in 
 Scacc. in 4 Inst. 114, and less fully in 2 Inst. 175. "Et quia ipse coro- 
 nator electus erat per comitatum juxta jormam statuti, etc., ita quod 
 in defectu ejusdem coronatoris totus comitatus ut elector et superior, 
 etc. {tenetur), habeant regi respondere, praecip. {praeceptum fuit) nunc 
 vie. quod de terris et tenementis {hominum) hujusmodi totius comitatus 
 in balliva sua fieri fac," etc. See the other references in 4 Inst. 114, 
 and further Y. B. 49 Ed. III. 25, 26, pi. 3. 
 
 41 St. 2 Hen. VI., Ch. 10.
 
 68 COLLECTED LEGAL PAPERS 
 
 that the responsibility was greater than in the case 
 of private servants, and it might be asked whether 
 respondeat superior in its strict sense is not an inde- 
 pendent principle which is rather to be deemed one 
 of the causes of the modern law, than a branch from 
 a common stem. It certainly has furnished us with 
 one of the inadequate reasons which have been put 
 forward for the law as it is — that somebody must 
 be held who is able to pay the damages. 
 
 The weight of the evidence seems to me to over- 
 come these objections. I think it most probable 
 that the liability for under-officers was a special 
 application of conceptions drawn from the family 
 and the power of the family head over his servants. 
 Those conceptions were in existence, as I have shown. 
 From a very early date, under-officers are called ser- 
 vants of their superior, as indeed it seems to be 
 implied that they are, by the word ^'sovereign" or 
 even "superior," in the statutes which have been 
 cited. "Sovereign" is used as synonymous with 
 master in Dyer." In the Y. B., II Edward IV. i, 
 pi. I, it is said, "If I make a deputy, I am always 
 officer, and he performs the office in my right and as 
 my servant"; and from that day to this, not only 
 has the same language been repeated,'' but, as I 
 shall show, one of the chosen fields for the express 
 
 *2 Alford V. Eglisfield, Dyer, 230b, pi. S6- The passage will be 
 cited later in dealing with factors. See also Y. B. 27 Hen. VIII. 
 
 24. Pl- 3- 
 
 ♦s Parkes v. Mosse, Cro. Eliz. 181 (E. 32 Eliz.) ; Wheteley v. 
 Stone, 2 Roll. Abr. 556, pl. 14; S. C. Hobart, 180; i Bl. Comm., 
 345, 346-
 
 AGENCY 69 
 
 use of the fiction of identity is the relation of superior 
 and under-officer. 
 
 Under Edward III. it was held that if an abbot has 
 a wardship, and a co-canon commits waste, the abbot 
 shall be charged by it, "for that is adjudged the deed 
 of the abbot." " This expression appears to me not 
 only to apply the rule respondeat superior beyond the 
 case of public officers, but to adopt the fiction of iden- 
 tity as a mode of explaining the rule. 
 
 An earlier record of the same reign, although it 
 turned on the laws of Oleron, shows that the King's 
 Court would in some cases hold masters more strictly 
 accountable for their servants' torts than is even now 
 the case. A ship-master was held liable in trespass 
 de bonis as por talis for goods wrongfully taken by 
 the mariners, and it was said that he was answerable 
 for all trespasses on board his ship.*^ 
 
 A nearly contemporaneous statute is worth men- 
 tioning, although it perhaps is to be construed as 
 referring to the fines which have been mentioned 
 above, or to other forfeitures, and not to civil dam- 
 ages. It reads, "That no merchant nor other, of 
 what condition that he be, shall lose or forfeit his 
 goods nor merchandizes for the trespass and for- 
 feiture of his servant, unless he do it by the command- 
 ment or procurement of his master, or that he hath 
 offended in the office in which his master hath set 
 him, or in other manner, that the master be holden 
 
 ** Y. B. 49 Ed. Ill, 25, 26, pi. 3- 
 
 *^ Brevia Regis in Turr. London, T. 24 Ed. m,, No. 45, Bristol, 
 printed in Molloy, Book 2, Ch. 3, § lo.
 
 70 COLLECTED LEGAL PAPERS 
 
 to answer for the deed of his servant by the law- 
 merchant, as elsewhere is used." '"^ The statute 
 limits a previously existing liabiHty, but leaves it 
 open that the master still shall be holden to answer 
 for the deed of his servant in certain cases, including 
 those of the servant's offending in the office in which 
 the master hath set him. It is dealing with mer- 
 chants, to be sure, but is another evidence that the 
 whole modern law is of ancient extraction. 
 
 It must be remembered, however, that the cases 
 in which the modern doctrines could have been ap- 
 plied in the time of the Year Books were exceedingly 
 few. The torts dealt with by the early law 
 were almost invariably wilful. They were either 
 prompted by actual malevolence, or at least were 
 committed with full foresight of the ensuing dam- 
 age.*^ And as the judges from an early day were 
 familiar with the distinction between acts done by 
 a man on his own behalf and those done in the 
 capacity of servant,*^ it is obvious that they could 
 not have held masters generally answerable for such 
 torts unless they were prepared to go much beyond 
 the point at which their successors have stopped.*^ 
 
 46 St. 27 Ed. III., St. 2, cap. 19. 
 
 ■*^ The Common Law, 3, 4, 101-103. I do not mean as a matter 
 of articulate theory, but as a natural result of the condition of things. 
 As to very early principles of liability see now Dr. B runner's most 
 learned and able discussion in Sitzungsberichte der kon. Preuss. 
 Akademie der Wissensch., XXXV., July 10, 1890. Uber absichtlose 
 Missethat im Altdeutschen Strafrechte. Some of the cases mentioned 
 by him, such as Beowulf, 2435, had come to my notice. 
 
 <8 See, e.g., Gascoigne in Y. B. 7 Hen. IV. 34, 35, pi. i. 
 
 <9 Cf. Dr. and Stud. Dial. 2, Ch. 42 (a.d. 1530).
 
 AGENCY 71 
 
 Apart from frauds^" and intentional trespasses against 
 the master's will ^^ I know of only one other case in 
 the Year Books which is important to this part of 
 my subject. That, however, is very important. It 
 is the case concerning fire," which was the precedent 
 relied on by Lord Holt in deciding Turberville v. 
 Stampe,^^ which in its turn has been the starting- 
 point of the later decisions on master and servant.^* 
 I therefore shall state it at length. 
 
 Beaulieu sued Finglam, alleging that the defend- 
 ant so negligently guarded his fire that for want of 
 due guard of the same the plaintiff's houses and 
 goods were burned. Markham (J.), "A man is held 
 to answer for the act of his servant or of his guest 
 (hosteller) in such case; for if my servant or my 
 guest puts a candle on a beam (en un pariet), and the 
 candle falls in the straw, and burns all my house, 
 and the house of my neighbor also, in this case I 
 shall answer to my neighbor for the damage which 
 he has, quod concedebatur per curiam. Horneby 
 [of counsel]. Then he should have had a writ, 
 Quare domum suam ardebat vel exarsit. Hull [of 
 counsel]. That will be against all reason to put blame 
 or default in a man where there is {il ad) none in 
 
 50 Y. B. 9 Hen. VI. SJ,, pi. 37- 
 
 51 Y. B. 13 Hen. VH. 15, pl. 10. Cf. KeUway, 3b, pl. 7 (M. 12 
 Hen. Vn.) . 
 
 52 Y. B. 2 Hen. IV. 18, pi. 6. 
 
 52 Carthew, 425, shows that the Year Book was cited. And the 
 language of Lord Holt, reported in i Ld, Raym. 264, shows that he 
 had it before his mind. 
 
 54 Brucker v. Fromont, 6 T. R. 659; M'Manus v. Crickett, i East, 
 106; Patten v. Rea, 2 C. B, N. S. 606.
 
 72 COLLECTED LEGAL PAPERS 
 
 him; for negligence of his servants cannot be called 
 his feasance. Thirning [C. J.], If a man kills 
 {tue ou occist) a man by misfortune he will forfeit 
 his goods, and he must have his charter of pardon 
 de grace. Ad quod Curia concordat. Markham, 
 I shall answer to my neighbor for him who enters 
 my house by my leave or my knowledge, or is enter- 
 tained (hoste) by me or by my servant, if he does, 
 or any one of them does such a thing, as with a 
 candle (come de chandel), or other thing, by which 
 feasance the house of my neighbor is burned; but if 
 a man from outside my house, against my will, puts 
 the fire in the straw of my house, or elsewhere, by 
 which my house is burned and also the houses of my 
 neighbors are burned, for that I shall not be held to 
 answer to them, etc., for this cannot be said to be 
 through ill-doing {male) on my part, but against my 
 will." Homeby then said that the defendant would 
 be ruined if this action were maintained against him. 
 Thirning (C. J.), "What is that to us? It is better 
 that he should be undone wholly, than that the law 
 should be changed for him." Then they were at 
 issue that the plaintiff's house was not burned by the 
 defendant's fire." 
 
 The foregoing case affords some ground for the 
 argument which was vainly pressed in Turberville v. 
 Stampe, that the liability was confined to the house.'' 
 Such a limit is not unsupported by analogy. By the 
 old law a servant's custody of his master's things was 
 
 85 Y. B. 2 Hen. IV. i8, pi. 6. 
 
 58 See also I Bl. Comm. 431; Noy's Maxims, Ch. 44.
 
 AGENCY 73 
 
 said to be the master's possession within his house, 
 but the servant's on a journey outside of it." So an 
 innkeeper was liable for all goods within the inn 
 whether he had the custody of them or not/* So ir^ 
 the case which has been mentioned above, a master 
 was said to be responsible for the acts of his servants 
 on board ship. It will be noticed also that the 
 responsibility of a householder seems to be extended 
 to his guests. From that day to this there have been 
 occasional glimpses of a tendency to regard guests 
 as part of the familia for the purposes of the law.^^ 
 And in view of the fact that by earlier law if a guest 
 was allowed to stop in the house three days, he was 
 called hoghenehine or agenhine, that is, own hine or 
 servant of the host, it may be thought that we have 
 here an echo of the frithborh.^^ But with whatever 
 limits and for whatever occult causes, the responsi- 
 bility of the head of the house for his servants was 
 clearly recognized, and, it would seem, the identifica- 
 tion of the two, notwithstanding a statement by 
 counsel, as clear as ever has been made since, of the 
 objections to the doctrine. 
 
 The later cases in the Year Books are of wilful 
 wrongs, as I have said, and I now pass to the subse- 
 quent reports. Under Elizabeth a defendant justi- 
 fied taking sheep for toll under a usage to have toll 
 of strangers' sheep driven through the vill by 
 
 57 Y. B. 21 Hen. VII. 14, pi. 21; The Common Law, 226. 
 
 58 Y. B. 42 Ass. pi. 17, fol. 260; 42 Ed. III. 11, pi. 13. 
 
 59 Y. B. 13 Ed. IV. 10, pi. 5; Southcote v. Stanley, i H. N. 
 247, 250. 
 
 80 Bract., fol. 124b; LL. Gul. I., Ch. 48; LL. Edw. Conf., Ch. 23.
 
 74 COLLECTED LEGAL PAPERS 
 
 strangers, and if he were denied by such stranger 
 driving them, to distrain them. The defendant 
 alleged that the plaintiff, the owner of the sheep, was 
 a stranger, but did not allege that the driver was. 
 But the court sustained the plea, saying, "The driv- 
 ing of the servant is the driving of the master; and 
 if he be a foreigner, that sufficeth." '^^ 
 
 I leave on one side certain cases which often have 
 been cited for the proposition that a master is 
 chargeable for his servant's torts, because they may 
 be explained otherwise and make no mention of it.®^ 
 
 The next evidence of the law to which I refer is 
 the passage from West's Symb oleography which was 
 given in full at the outset, and which gives the 
 modern doctrine of agency as well as the fiction of 
 identity in their full development. There are two 
 nearly contemporaneous cases in which unsuccess- 
 ful attempts were made to hold masters liable for 
 wilful wrongs of their servants, in one for a piracy,^* 
 in the other for a fraud."* They are interesting 
 chiefly as showing that the doctrine under discussion 
 
 61 Smith V. Shepherd, Cro. Eliz., 710; M. 41 & 42 Eliz. B. R. 
 
 62 The most important is Lord North's case, Dyer, i6ia (T. 4 
 & s Phil. & M.) ; but there the master was a bailee bound to 
 return at his peril (cf. The Common Law, 175-179. In Dyer, 238b, 
 pi. 38 (E. 7 Eliz. ), a customer of a port was said to be liable to 
 the penalties for a false return, although he made it through the 
 concealment of his deputy. One or both of these cases are cited in 
 Waltham v. Mulgar, Moore, 776; Southern v. How, Popham, 143; 
 Boson V. Sandford, i Shower, loi ; Lane v. Cotton, 12 Mod. 472, 
 489, etc. 
 
 63 Waltham v. Mulgar, Moore, 776 (P. 3 Jac. i.). 
 
 6* Southern v. How, Cro. Jac. 468; s. c. Popham, 143; 2 Roll, 
 Rep. S, 26; Bridgman, 125, where the special verdict is set forth.
 
 AGENCY 75 
 
 was in the air, but that its hmits were not definitely- 
 fixed. The former sought to carry the rule respon- 
 deat superior to the full extent of the early statutes 
 and cases which have been referred to, and cited the 
 Roman law for its application to public affairs. The 
 latter cites Doctor and Student. West also, it will 
 have been noticed, indicates Roman influence. 
 
 Omitting one or two cases on the liability of the 
 servant, which will be mentioned shortly, I come 
 once more to a line of authorities touching public 
 officers. I have said that although there was a differ- 
 ence in the degree of responsibility, under-officers 
 always have been said to be servants. 
 
 Under Charles II. this difference was recognized, 
 but it was laid down that ''the high sheriff and 
 under-sheriff is one officer," and on that ground the 
 sheriff was held chargeable. *"" Lord Holt expressed 
 the same thought: "What is done by the deputy is 
 done by the principal, and it is the act of the prin- 
 cipal," or, as it is put in the margin of the report, 
 "Act of deputy may forfeit office of principal, be- 
 cause it is quasi his act." *"" Later still, Blackstone 
 repeats from the bench the language of Charles's 
 day. "There is a difference between master and 
 servant, but a sheriff and all his officers are considered 
 in cases like this as one person." So his associate 
 judge, Gould, "I consider [the under-sheriff's clerk] 
 as standing in the place of, and representing the very 
 
 «5 Cremer v. Humberston, 2 Keble, 352 (H. 19 & 20 Car. II.). 
 «6 Lane v. Cotton, i Salk, 17, 18; s.c. i Ld. Raym. 646; Com. 100 
 (P. 12 W. III.).
 
 76 COLLECTED LEGAL PAPERS 
 
 persons of . . . the sheriffs themselves." " Again, 
 the same idea is stated by Lord Mansfield: "For all 
 civil purposes the act of the sheriff's bailiff is the act 
 of the sheriif." ^^ The distinction taken above by 
 Blackstone did not prevent his saying in his Com- 
 mentaries that under-officers are servants of the 
 sheriff; ^^ and in Woodgate v. Knatchbull/° Ashurst, 
 J., after citing the words of Lord Mansfield, adds, 
 "This holds, indeed, in most instances with regard 
 to servants in general"; and Blackstone says the 
 same thing in a passage to be quoted hereafter. 
 
 Having thus followed down the fiction of identity 
 with regard to one class of servants, I must now re- 
 turn once more to Lord Holt's time. In Boson v. 
 Sanford," Eyres, J., says that the master of a ship 
 is no more than a servant, "the power which he hath 
 is by the civil law, Hob. in, and it is plain the act 
 or default of the servant shall charge the owner." 
 Again, in Turberville v. Stampe," Lord Holt, after 
 beginning according to the Roman law that "if my 
 servant throws dirt into the highway I am indictable," 
 continues, "So in this case, if the defendant's servant 
 kindled the fire in the way of husbandry and proper 
 for his employment, though he had no express com- 
 
 ^'^ Saunderson v. Baker, 3 Wilson, 309 s.c. 2 Wm. Bl. 832 ; (T. 12 G. 
 III. 1772). 
 
 «8 Ackworth v. Kempe, Douglas, 40, 42 (M. 19 Geo. III. 1778). 
 
 69 I Bl. Comm. 345, 346. 
 
 70 2 T. R. 148, 154 (1787). 
 
 71 I Shower, 101. 107 (M. 2 Wm. III.). 
 
 72 I Ld. Raym. 264 (M. 9 Wm. III.) ; s. c. 3 id. 250, Carthew, 425, 
 Com. 32, I Salk. 13, Skinner, 681, 12 Mod. 151, Comb. 459, Holt, 9.
 
 AGENCY 77 
 
 mand of his master, yet the master shall be liable 
 to an action for damages done to another by the fire ; 
 for it shall be intended, that the servant had author- 
 ity from his master, it being for his master's benefit." 
 This is the first of a series of cases decided by Lord 
 Holt " which are the usual starting-point of modern 
 decisions, and it will be found to be the chief author- 
 ity relied on by cases which have become leading in 
 their turn/* It therefore is interesting to note that 
 it only applied the principles of Beaulieu v. Finglam, 
 in the Year Book 2 Henry IV., to a fire outside the 
 house, that the illustration taken from the Roman 
 law shows that Lord Holt was thinking of the re- 
 sponsibility of a paterfamilias, and that in another 
 case within three years "^^ he made use of the fiction 
 of identity. 
 
 I may add, by way of confirmation, that Black- 
 stone, in his Commentaries f after comparing the 
 liability of the master who "hath the superintendence 
 and charge of all his household" if any of his family 
 cast anything out of his house into the street, with 
 that of the Roman paterfamilias,''^ further observes 
 that the "master may frequently be answerable for 
 his servant's misbehavior, but never can shelter him- 
 self from punishment by laying the blame on his 
 
 '■3 Jones V. Hart, 2 Salk. 441; s.c. i Ld. Raym. 738, 739 (M. 10 
 Wm. Ill) ; Middleton v. Fowler, i Salk 282 (M. 10 Wm. 
 Ill) ; Hem v. Nichols, i Salk. 289. 
 
 74 Brucker v. Fremont, 6 T.R. 659; M'Manus v. Crickett, i East, 
 106; Patten v. Rea, 2 C.B. N.S. 606 (1857), 
 
 ''^ Lane v. Cotton, i Salk. 17, 18. 
 
 76 See also Noy's Maxims, Ch. 44.
 
 78 COLLECTED LEGAL PAPERS 
 
 agent. The reason of this is still uniform and the 
 same; that the wrong done by the servant is looked 
 upon in law as the wrong of the master himself." " 
 
 There is another line of cases which affords strik- 
 ing and independent evidence that the law of master 
 and servant is a survival from slavery or other insti- 
 tution of like effect for the present purpose, and 
 that the identification of the two parties was carried 
 out in some cases to its logical result. If a servant, 
 although a freeman, was treated for the purposes of 
 the relation as if he were a slave who only sustained 
 the persona of his master, it followed that when the 
 master was liable, the servant was not. There seems 
 to have been a willingness at one time to accept the 
 conclusion. It was said under James and Charles I. 
 that the sheriff only was liable if an under-sheriff 
 made a false return, "for the law doth not take notice 
 of him.^^ So it was held in the latter reign that case 
 does not lie against husband and wife for negli- 
 gently keeping their fire in their house, "because this 
 action lies on the . . . custom . . . against 
 patrem familias and not against a servant or a feme 
 covert who is in the nature of a servant/^ So Rolle 
 says that "if the servant of an innkeeper sells wine 
 which is corrupt, knowing this, action of deceit lies 
 not against the servant, for he did this only as 
 
 '^'^ Bl. Comm. 431, 432. 
 
 ^8 Cremer & Tookley's Case, Godbolt, 385, 389 (Jac. I.) ; Laicock's 
 Case, Latch, 187 (H. 2 Car. I.). 
 
 79 Shelley & Burr, i Roll. Abr. 2, pi. 7 (M. i Car. i). Cf. I Bl. 
 Comm. 431 ; Com. Dig., Action on the case for negligence, A. C.
 
 AGENCY 79 
 
 servant." *" So as to an attorney maliciously acting 
 in a case where he knew there was no cause of action. 
 "For that what he does is only as servant to another, 
 and in the way of his calling and profession." ^^ 
 
 Later this was cut down by Lord Holt to this rule 
 that a servant is not liable for a neglect (i.e. a non- 
 feasance), "for they must consider him only as a 
 servant"; "but for a misfeasance an action will lie 
 against a servant or deputy, but not quatenus a 
 deputy or servant, but as a wrong-doer." *^ That is 
 to say, although it is contrary to theory to allow a 
 servant to be sued for conduct in his capacity as such, 
 he cannot rid himself of his responsibility as a free- 
 man, and may be sued as a free wrong-doer. This, 
 of course, is the law to-day.^^ Yet as late as Black- 
 stone's Commentaries it was said that "if a smith's 
 servant lames a horse while he is shoeing him, an 
 action lies against the master, and not against the 
 servant.^* 
 
 I think I now have traced sufficiently the history 
 of agency in torts. The evidence satisfies me that 
 the common law has started from the patria potestas 
 
 80 Roll. Abr. 95 (T), citing no authority, and adding, "Contra, 
 9 Hen. VI., 53b." The contradiction is doubtful. 
 
 81 Anon., I Mod. 209, 210 (H. 27 & 28, Car II.). Cf. Barker v. 
 Braham, 2 W. Bl. 866, 869. 
 
 82 Lane v. Cotton, 12 Mod. 472, 488, T. 13 W. III. Cf. Mors v. 
 Slew, 3 Keble, 13S (23 & 24 Car. II., 1671, 1672); also Mires v. 
 Solebay, 2 Mod. 242, 244 (T. 29 Car. II.), for an exception by 
 Scroggs, C. J. 
 
 83 Sands v. Childs, 3 Lev. 351, 352; Perkins v. Smith, 3 Wilson, 328 
 (1752). 
 
 8* I Bl. Comm. 431 ; Bac. Abr., Master and Servant, K. It is enough 
 simply to refer to the law as to the liability of married women.
 
 8o COLLECTED LEGAL PAPERS 
 
 and the firthborh, — whether following or simply 
 helped by the Roman law, it does not matter, — and 
 that it has worked itself out to its limits through the 
 formula of identity. It is true that liability for an- 
 other as master or principal is not confined to family 
 relations; but I have shown partly, and shall com- 
 plete the proof later, that the whole doctrine has been 
 worked out in terms of master and servant and on 
 the analogies which those terms suggested.
 
 AGENCY* 
 
 II 
 
 The history of agency as applied to contract is 
 next to be dealt with/ In this branch of the law there 
 is less of anomaly and a smaller field in which to 
 look for traces of fiction than the last. A man is not 
 bound by his servant's contracts unless they are 
 made on his behalf and by his authority, and that 
 he should be bound then is plain common-sense. It 
 is true that in determining how far authority extends, 
 the question is of ostensible authority and not of 
 secret order. But this merely illustrates the general 
 rule which governs a man's responsibility for his 
 acts throughout the law. If, under the circumstances 
 known to him, the obvious consequence of the prin- 
 cipal's own conduct in employing the agent is that 
 the public understand him to have given the agent 
 certain powers, he gives the agent these powers. And 
 he gives them just as truly when he forbids their 
 exercise as when he commands it. It seems always 
 to have been recognized that an agent's ostensible 
 powers were his real powers ! ^ and on the other hand 
 it always has been the law that an agent could not 
 
 ♦ Harvard Law Review. Vol. V. No. i. 
 ^ 4 Harv. Law Rev. 345. 
 
 2 Y. B. 27 Ass., pi. s, fol. 133; Anon,, i Shower, 95; Nickson v. 
 Brohan, 10 Mod. 109, etc. 
 
 81
 
 82 COLLECTED LEGAL PAPERS 
 
 bind his principal beyond the powers actually given in 
 the sense above explained. 
 
 There is, however, one anomaly introduced by 
 agency even into the sphere of contract, — the rule 
 that an undisclosed principal may sue or be sued on 
 a contract made by an agent on his behalf; and this 
 must be examined, although the evidence is painfully 
 meagre. The rule would seem to follow very easily 
 from the identification of agent and principal, as I 
 shall show more fully in a moment. It is there- 
 fore well to observe at the outset that the power of 
 contracting through others, natural as it seems, 
 started from the family relations, and that it has been 
 expressed in the familiar language of identification. 
 
 Generally speaking, by the Roman law contractual 
 rights could not be acquired through free persons 
 who were strangers to the family. But a slave de- 
 rived a standing to accept a promise to his master ex 
 persona domini.^ Bracton says that contracts can be 
 accepted for a principal by his agent; but he starts 
 from the domestic relations in language very like that 
 of the Roman jurisconsults. An obligation may be 
 acquired through slaves or free agents in our power, 
 if they take the contract in the name of their master.* 
 
 It was said under Henry V. that a lease made by 
 
 3 Inst. 3. 17, pr. See Gaius, 3, § § 164-166. 
 
 * "Videndum etiam est per quas personas acquirator obligatio, et 
 sciendum quod per procuratores, et per liberos, quos sub potestate 
 nostra habemus, et per nosmetipsos, et filios nostros et per liberos 
 homines servientes nostros." Bract., fol. 100 b. So, "Etiam dormienti 
 per servum acquiritur, ut per procuratorem, si nomine domini stipule- 
 tur." Bract., fol. 28 b.
 
 AGENCY 83 
 
 the seneschal of a prior should be averred as the lease 
 of the prior,'' and under James I. it was held that an 
 assumpsit to a servant for his master was properly- 
 laid as an assumpsit to the master.^ West's Sym- 
 boleography belongs to the beginnings of the same 
 reign. It will be remembered that the language which 
 has been quoted from that work applies to contracts 
 as well as to torts. A discussion in the Year Book, 
 8 Edward IV., fol. 11, is thus abridged in Popham: 
 "My servant makes a contract, or buys goods to my 
 use; I am liable, and it is my act.'" Baron Parke ex- 
 plains the requirement that a deed executed by an 
 agent should be executed in the name of his princi- 
 pal, in language repeated from Lord Coke: "The at- 
 torney is . . . put in place of the principal and repre- 
 sents his person." ' Finally, Chitty, still speaking of 
 contracts, says, like West, that "In point of law the 
 master and servant, or principal and agent, are con- 
 sidered as one and the same person." ^ 
 
 I have found no early cases turning upon the law 
 of undisclosed principal. It will be remembered that 
 the only action on simple contract before Henry VI., 
 and the chief one for a good while after, was debt, 
 
 5 Y. B, 8 H. v. 4. Pl- 17- 
 
 6 Seignior & Wolmer's Case, Godbolt, 360 (T. 21 Jac). Cf. Jordan's 
 Case, Y. B. 27 H. VIII. 24, pi. 3- 
 
 7 Drope V. Theyar, Popham, 178, 179 (P. 2 Car. I.). 
 
 8 Hunter v. Parker, 7 M. & W. 322, 343 (1840) ; Combes's Case, 9 
 Rep, 75 a, 76 b, Tj (T. 11 Jac). The fiction of identity between prin- 
 ciple and agent was fully stated by Hobbes, who said many keen things 
 about the law. Leviathan, Part I. Ch. 16. "Of Persons, Authors, and 
 things Personated." Also De Homine, I. C. iS- De Homine Fictitio. 
 
 » I Bl. Comm. 429, note.
 
 84 COLLECTED LEGAL PAPERS 
 
 and that this was founded on a quid pro quo received 
 by the debtor. Naturally, therefore, the chief ques- 
 tion of which we hear in the earlier books is whether 
 the goods came to the use of the alleged debtor.'" It 
 is at a much later date, though still in the action of 
 debt, that we find the most extraordinary half of the 
 rule under consideration first expressly recognized. 
 In Scrimshire v. Alderton '' (H. i6 G. II.) a suit was 
 brought by an undisclosed principal against a pur- 
 chaser from a del credere factor. Chief Justice Lee 
 "was of opinion that this new method [i.e., of the 
 factor taking the risk of the debt for a larger com- 
 mission] had not deprived the farmer of his remedy 
 against the buyer." And he was only prevented 
 from carrying out his opinion by the obstinacy of the 
 jury at Guildhall. The language quoted implies that 
 the rule was then well known, and this, coupled with 
 the indications to be found elsewhere, will perhaps 
 warrant the belief that it was known to Lord Holt. 
 
 Scott V. Surman,'^ decided at the same term that 
 Scrimshire v. Alderton was tried, refers to a case of 
 T. 9 Anne, Gurratt v. Cullum,'" in which goods were 
 sold by factors to J. S. without disclosing their prin- 
 cipal. The factors afterwards went into bankruptcy. 
 Their assignee collected the debt, and the principal 
 then sued him for the money. "And this matter being 
 
 10 Fitz. Abr. Dett, pi. 3 (T. 2 R. II.). Cf. Alford v. Eglisfield, Dyer, 
 230 h (T. 6 Eliz.), and notes. 
 '^'^ 2 Strange, 1182. 
 
 12 WUIes, 400, at p. 40s (H. 16 G. II.). 
 
 13 Also reported in Bullerj N. P. 42. Cf. Whitecomb v. Jacob, i 
 Salk. i6o (T. 9 Anne) .
 
 AGENCY 85 
 
 referred by Holt for the opinion of the King's Bench, 
 judgment was given on argument for the plaintiff. 
 Afterwards at Guildhall, before Lord Chief Justice 
 Parker, this case was cited and allowed to be law, 
 because though it was agreed that payment by J. S. 
 to [the factors] with whom the contract was made 
 would be a discharge to J. S. against the principal, 
 yet the debt was not in law due to them, but to the 
 person whose goods they were . . . and being paid 
 to the defendant who had no right to have it, it must 
 be considered in law as paid for the use of him to 
 whom it was due." This explanation seems to show 
 that Chief Justice Parker understood the law in the 
 same way as Chief Justice Lee, and, if it be the true 
 one, would show that Lord Holt did also. I think the 
 inference is somewhat strengthened by other cases 
 from the Salkeld mss. cited in Buller's Nisi Prius.^* 
 Indeed I very readily should believe that at a much 
 earlier date, if one man's goods had come to another 
 man's hand by purchase, the purchaser might have 
 been charged, although he was unknown and had 
 dealt through a servant," and that perhaps he might 
 have been, in the converse case of the goods belong- 
 ing to an undisclosed master.'® 
 
 1* Gonzales v. Sladen: Thorp v. How (H. 13 W. III.) ; Buller, N.P. 
 130. 
 
 15 See Goodbaylie's Case, Dyer, 230 b, pi. 56, n.; Truswell v. Middle- 
 ton, 2 Roll. R. 269, 270. Note, however, the insistence on the servant 
 being known as such in Fitz. Abr. Dett, pi. 3; 27 Ass., pi. 5, fol. 133. 
 
 16 Consider the doubt as to ratifying a distress made "generally not 
 showing his intent nor the cause wherefore he distrained" in Godbolt, 
 109, pi. 129 (M. 28 & 29 Eliz.). Suppose the case had been contract 
 instead of tort, and with actual authority, would the same doubt have 
 been felt?
 
 86 COLLECTED LEGAL PAPERS 
 
 The foregoing cases tend to show, what is quite 
 probable, that the doctrine under discussion began 
 with debt. I do not wish to undervalue the argument 
 that may be drawn from this fact, that the law of un- 
 disclosed principal has no profounder origin than the 
 thought that the defendant, having acquired the 
 plaintiff's goods by way of purchase, fairly might be 
 held to pay for them in an action of contract, and that 
 the rule then laid down has been extended since to 
 other contracts." 
 
 But suppose what I have suggested be true, it does 
 not dispose of the difficulties. If a man buy's B.'s 
 goods of A., thinking A. to be the owner, and B. then 
 sues him for the price, the defendant fairly may ob- 
 ject that the only contract which he has either con- 
 sented or purported to make is a contract with A., 
 and that a stranger, to both the intent and the form 
 of a voluntary obligation cannot sue upon it. If 
 the contract was made with the owner's consent, let 
 the contractee bring his action. If it was made with- 
 out actual or ostensible authority, the owner's right's 
 can be asserted in an action of tort. The general rule 
 in case of a tortious sale is that the owner cannot 
 waive the tort and sue in assumpsit.'^ Why should 
 the fact that the seller was secretly acting in the 
 owner's behalf enlarge the owner's rights as against 
 a third person? The extraordinary character of the 
 doctrine is still clearer when it is held that under a 
 
 17 Sims V. Bond, S B. & Ad. 389, 303 (1833). Cf. Bateraan v. 
 Phillips, I"; East, 272 (1812). 
 
 18 Berkshire Glass Co. v. Wolcott, 2 Allen (Mass.) 227.
 
 AGENCY 87 
 
 contract purporting to be made with the plaintiff and 
 another jointly, the plaintiff may show that the two 
 ostensible joint parties were agents for himself alone, 
 and thus set up a several right in the teeth of the 
 words used and of the ostensible transaction, which 
 gave him only a joint one/° 
 
 Now, if we apply the formula of identification and 
 say that the agent represents the person of the owner, 
 or that the principal adopts the agent's name for the 
 purposes of that contract, we have at once a formal 
 justification of the result. I have shown that the 
 power of contracting through agents started from 
 the family, and that principal and agent were identi- 
 fied in contract as well as in tort. I think, therefore, 
 that the suggested explanation has every probability 
 in its favor. So far as Lord Holt is concerned, I may 
 add that in Gurratt v. Cullum the agent was a factor, 
 that a factor in those days always was spoken of as 
 a servant, and that Lord Holt was familiar with the 
 identification of servant and master. If he was the 
 father of the present doctrine, it is fair to infer that 
 the technical difficulty was consciously or uncon- 
 sciously removed from his mind by the technical fic- 
 tion. And the older we imagine the doctrine to be, 
 the stronger does a similar inference become. For 
 just in proportion as we approach the archaic stage 
 of the law, the greater do we find the technical obsta- 
 cles in the way of any one attempting to enforce a 
 contract except the actual party to it, and the greater 
 
 19 Spurr V. Cass, L. R. s Q. B. 656. See further, Sloan v. Merrill, 13S 
 Mass. 17, 19.
 
 88 COLLECTED LEGAL PAPERS 
 
 therefore must have been the need of a fiction to over- 
 come them." 
 
 The question which I have been considering arises 
 in another form with regard to the admission of oral 
 evidence in favor of or to charge a principal, when a 
 contract has been made in writing, which purports 
 on its face to be made with or by the alleged agent 
 in person. Certainly the argument is strong that 
 such evidence varies the writing, and if the Statute 
 of Frauds applies, that the statute is not satisfied un- 
 less the name of the principal appears. Yet the con- 
 trary has been decided. The step was taken almost 
 sub silentio."^ But when at last a reason was offered, 
 it turned on, or at least was suggested by, the notion 
 of the identity of the parties. It was in substance 
 that the principal "is taken to have adopted the name 
 of the [agent] as his own, for the purpose of such con- 
 tracts," as it was stated by Smith in his Leading 
 Cases, paraphrasing the language of Lord Denman in 
 Trueman v. Loder." 
 
 I gave some evidence at the beginning of this dis- 
 cussion, that notions drawn from the familia were 
 
 20 Cf. The Common Law, Ch. x. and xi. "Unsere heutigen Ans- 
 chauungen . . . konnen sich nur schwer in urspriingliche Rechts- 
 zustande hineinfinden, in welchen . . . bei Contrahirung oder Zahlung 
 einer Schuld die handelnden Subjecte nicht als personae fungibiles 
 galten." Brunner, Zulassigkeit der Anwaltschaft im franzos, etc. Rechte. 
 (Zeitschr. fiir vergleich. Rechtswissenschaft.) Norcross v. James, 140 
 Mass. 188, 189. 
 
 21 Bateman v. Phillips, 15 East, 272 (1812) ; Garrett v. Handley, 4 
 B. & C. 664 (1825) ; Higgins v. Senior, 8 M. & W. 834, 844 (1841). 
 
 22 II Ad. & El. S95; s. c. 3 P. & D. 267, 271 (1840) ; 2 Sm. L. C, 
 8th ed., 408, note to Thompson v. Davenport; Byington v. Simpson, 134 
 Mass. 169, 170.
 
 AGENCY 89 
 
 applied to free servants, and that they were extended 
 beyond the domestic relations. All that I have quoted 
 since tends in the same direction. For when such 
 notions are applied to freemen in a merely contractual 
 state of service it is not to be expected that their in- 
 fluence should be confined to limits which became 
 meaningless when servants ceased to be slaves. The 
 passage quoted from Bracton proved that already 
 in his day the analogies of domestic service were 
 applied to relations of more limited subjection. I 
 have now only to complete the proof that agency in 
 the narrower sense, the law familiar to the higher 
 and more important representatives employed in 
 modern business, is simply a branch of the law of 
 master and servant. 
 
 First of the attorney. The primitive lawsuit was 
 conducted by the parties in person. Counsel, if they 
 may be called so, were very early admitted to con- 
 duct the formal pleadings in the presence of the party 
 who was thus enabled to avoid the loss of his suit, 
 which would have followed a slip on his part in utter- 
 ing the formal words, by disavowing the pleading of 
 his advocate. But the Frankish law very slowly 
 admitted the possibility of giving over the conduct 
 of a suit to another, or of its proceeding in the absence 
 of the principals concerned. Brunner has traced the 
 history of the innovation by which the appointment 
 of an attorney (i.e., loco positus) came generally to 
 be permitted, with his usual ability. It was brought 
 to England with the rest of the Norman law, was 
 known already to Glanvill, and gradually grew to
 
 90 COLLECTED LEGAL PAPERS 
 
 its present proportions. The question which I 
 have to consider, however, is not the story of its in- 
 troduction, but the substantive conception under 
 which it fell when it was introduced. 
 
 If you were thinking of the matter a priori it would 
 seem that no reference to history was necessary, at 
 least to explain the client's being bound in the cause 
 by his attorney's acts. The case presents itself like 
 that of an agent authorized to make a contract in such 
 terms as he may think advisable. But as I have 
 hinted, whatever common-sense would now say, even 
 in the latter case it is probable that the power of con- 
 tracting through others was arrived at in actual fact 
 by extending the analogy of slaves to freemen. And 
 it is at least equally clear that the law had need of 
 some analogy or fiction in order to admit a represen- 
 tation in lawsuits. I have given an illustration from 
 Iceland in my book on the Common Law. There the 
 conduct of a suit was transferred from Thorgier to 
 Mord "as if he were the next of kin." '^ In the 
 Roman law it is well known that the same difficulty 
 was experienced. The English law agreed with the 
 Northern sources in treating attorneys as sustaining 
 the persona of their principal. The result may have 
 been worked out in a different way, but that funda- 
 mental thought they had in common. I do not in- 
 quire into the recondite causes, but simply observe 
 the fact. 
 
 Bracton says that the attorney represents the 
 
 23 The Common Law, 359. See B runner, in i Holtzendorff, Encyc. 
 II, 3, A, I, § 2, 3d ed., p. 166. I Stubbs, Const. Hist. 82.
 
 AGENCY 91 
 
 persona of his principal in nearly everything.^* He 
 was "put in the place of" his principal, loco positus 
 (according to the literal meaning of the word 
 attorney), as every other case in the Abbreviatio 
 Placitorum shows. The essoign de malo lecti had 
 reference to the illness of the attorney as a matter 
 of necessity."^ But, in general, the attorney was dealt 
 with on the footing of a servant, and he is called so as 
 soon as his position is formulated. Such is the lan- 
 guage of the passage in West's Symb oleography 
 which I have quoted above, and the anonymous case 
 which held an attorney is not liable for maliciously 
 acting in a cause which he knew to be unfounded.'" 
 When, therefore, it is said that the "act of the attor- 
 ney is the act of his client," it is simply the familiar 
 fiction concerning servants applied in a new field. On 
 this ground it was held that the client was answer- 
 able in trespass, for assault and false imprisonment, 
 where his attorney had caused the party to be 
 arrested on a void writ, wholly irrespective, it would 
 seem, of any actual command or knowledge on the 
 part of the client;" and in trespass quare clausum, 
 for an officer's breaking a man's house and taking his 
 goods by command of an attorney's agent without the 
 actual knowledge either of the client or the attorney. 
 The court said that the client was "answerable for the 
 
 2-* "Attomatus fere in omnibus personam domini representat." Bract., 
 fol. 342 a. See LL. Hen. I. 42, § 2. 
 
 25 Bract., fol. 342 a. Cf. Glanv. XI., C. 3. 
 
 26 Anon., I Mod. 209, 210 (H. 27 & 28 Car. II.). 
 
 27 Parsons v. Loyd, 3 Wils. 341, 345; s. c. 2 W. Bl. 845 (M. 13 G. 
 III. 1772) ; Barker v. Braham, 2 W. Bl. 866, 868, 869; s. c. 3 Wils. 368.
 
 92 COLLECTED LEGAL PAPERS 
 
 act of his attorney, and that [the attorney] and his 
 agent [were] to be considered as one person." '" 
 
 The only other agent of the higher class that I 
 think it necessary to mention is the factor. I have 
 shown elsewhere that he is always called a servant in 
 the old books.'^ West's language includes factors as 
 well as attorneys. Servant, factor, and attorney are 
 mentioned in one breath and on a common footing 
 in the Year Book, 8 Edward IV., folio ii b. So 
 Dyer,^"* "if a purveyor, factor, or servant make a 
 contract for his sovereign or master." So in trover 
 for money against the plaintiff's "servant and fac- 
 tor." ^' It is curious that in one of the first attempts 
 to make a man liable for the fraud of another, the 
 fraudulent party was a factor. The case was argued 
 in terms of master and servant.'' The first author- 
 ity for holding a master answerable for his servant's 
 fraud is another case of a factor.'^ Nothing is said of 
 master and servant in the short note in Salkeld. But 
 in view of the argument in Southern v. How, just re- 
 ferred to, which must have been before Lord Holt's 
 mind, and the invariable language of the earlier 
 books, including Lord Holt's own when arguing 
 Morse v. Slue ("Factor, who is servant at the master's 
 
 28 Bates V. Pilling, 6 B. & C. 38 (1826). 
 
 29 The Common Law, 228, n. 3, 181. See further generally, 230, 
 and n. 4, 5. 
 
 30 Alford V. Eglisfield, Dyer, 230 b, pi. 56. 
 
 31 Holiday v. Hicks, Cro. Eliz. 638, 661, 746- See further, Malyne's 
 Lex. Merc, Pt. I. Ch. 16; Molloy, Book 3, Ch. 8, § i ; Williams v. MU- 
 lington, I H. Bl. 81, 82. 
 
 32 Southern v. How, Cro, Jac. 468; s. c. Popham, 143. 
 
 33 Hern v. Nichols, i Salk. 289.
 
 AGENCY 93 
 
 dispose"),^* it is safe to assume that he considered the 
 case to one of master and servant, and it always is 
 cited as such.^' 
 
 To conclude this part of the discussion, I repeat 
 from my book on the Common Law ^° that as late 
 as Blackstone agents appear under the general head 
 of servants; that the precedents for the law of agency 
 are cases of master and servant, when the converse is 
 not the case; and that Blackstone 's language on this 
 point is express: "There is yet a fourth species of 
 servants, if they may be so called, being rather in a 
 superior, a ministerial, capacity; such as stewards, 
 factors, and bailiffs; whom, however, the law consid- 
 ers as servants pro tempore, with regard to such of 
 their acts as affect their master's or employer's 
 property." " 
 
 Possession is the third branch of the law in which 
 the peculiar doctrines of agency are to be discovered, 
 and to that I now pass. 
 
 The Roman law held that the possession of a slave 
 was the possession of his master, on the practical 
 ground of the master's power.^^ At first it confined 
 possession through others pretty closely to things 
 in custody of persons under the patria potestas of 
 the possessor (including prisoners bona fide held as 
 slaves). Later the right was extended by a constitu- 
 tion of Severus.^^ The common law in like manner 
 
 3* Mors V. Slew, 3 Keble, 72. 
 35 Smith, Master and Servant, 3d ed., 266. 
 86 P. 228 et seq. s? j bI. Comm. 427. 
 
 38 The Common Law, 228; Gaius, 3, §§ 164-166. 
 30 Inst. 2, 9, §§ 4, S; C. 7. 32. I.
 
 94 COLLECTED LEGAL PAPERS 
 
 allowed lords to appropriate lands and chattels pur- 
 chased by their villeins, and after they had manifested 
 their will to do so, the occupation of the villeins was 
 taken to be the right of their lords/" As at Rome, the 
 analogies of the familia were extended to free agents. 
 Bracton allows possession through free agents, but 
 the possession must be held in the name of the princi- 
 pal;*^ and from that day to this it always has been the 
 law that the custody of the servant is the possession 
 of the master.^^ 
 
 The disappearance of the servant under the persona 
 of his master, of which a trace was discovered in the 
 law of torts, in this instance has remained complete. 
 Servants have no possession of property in their 
 custody as such.*^ The distinction in this regard 
 between servants and all bailees whatsoever ** is fun- 
 damental, although it often has been lost sight of. 
 Hence a servant can commit larceny *^ and cannot 
 maintain trover.'"' A bailee cannot commit larceny *^ 
 
 40 Littleton, § 177. Cf. Bract, fol. 191 a; Y. B. 22 Ass., pi. 37, fol. 
 93; Litt., § 172; Co. Lit. 117 a. 
 
 41 Bract., fol. 28 b, 42 b, 43, etc.; Fleta, IV., C. 3, § i, C. 10, § 7, 
 C. II, § I. 
 
 •*2 Wheteley v. Stone, 2 Roll. Abr. 556, pi. 14; s. c. Hobart, 180; 
 Drope V. Theyar, Popham, 178, 179. 
 
 43 The Common Law, 227. 
 
 44 The Common Law, 174, 211, 221, 243; Hallgarten v. Oldham, 135 
 Mass. I, 9. 
 
 45 Y. B. 13 Ed. rv. 9, 10, pi. S; 21 H. VII. 14, pi. 21. 
 
 46 The Common Law, 227, n. 2. The distinction mentioned above, 
 under torts, between servants in the house and on a journey, led to 
 the servant's being allowed an appeal of robbery, without prejudice to 
 the general principle. Heydon & Smith's Case, 13 Co. Rep. 67, 69; Drope 
 V. Theyar, Popham, 178, 179; Coombs v. Hundred of Bradley, 2 Salk, 
 613, pi. 2; ib., pi. I. 47 2 Bish. Crira. Law, § S33, 7th ed.
 
 AGENCY 95 
 
 and can maintain trover.*** In an indictment for 
 larceny against a third person the property cannot 
 be laid in a servant/* it may be laid in a bailee/*' 
 A servant cannot assert a lien;^^ a bailee, of course, 
 may, even to the exclusion of the owner's right to the 
 possessory actions." 
 
 Here, then, is another case in which effects have 
 survived their causes. But for survival and the fic- 
 tion of identity it would be hard to explain why in this 
 case alone the actual custody of one man should be 
 deemed by the law to be the possession of another 
 and not of himself. 
 
 A word should be added to avoid a misapprehension 
 of which there are signs in the books, and to which 
 I have adverted elsewhere," A man may be a ser- 
 vant for some other purpose, and yet not a servant in 
 his possession. Thus, an auctioneer or a factor is a 
 servant for purposes of sale, but not for purposes 
 of custody. His possession is not that of his princi- 
 pal, but, on the contrary, is adverse to it, and held 
 in his own name, as is shown by his lien. On the 
 other hand, if the fiction of identity is adhered to, 
 there is nothing to hinder a man from constituting 
 another his agent for the sole purpose of maintain- 
 ing his possession, with the same effect as if the agent 
 were a domestic servant, and in that case the princi- 
 pal would have possession and the agent would not. 
 
 48 The Common Law, 174, 243. ^^ 2 East, P. C. 652, 653. 
 
 50 Kelyng, 39. 
 
 51 Bristow V. Whitmore, 4 De G. & J. 325. 334- 
 
 '■'2 Lord V. Price, L. R. q Ex. 54; Owen v. Knight, 4 Bing. N. C. 54 57. 
 53 The Common Law, 233.
 
 96 COLLECTED LEGAL PAPERS 
 
 Agency is comparatively unimportant in its bearing 
 on possession, for reasons connected with procedure. 
 With regard to chattels, because a present right of 
 possession is held enough to maintain the possessory 
 actions, and therefore a bailor, upon a bailment ter- 
 minable at his will, has the same remedies as a master, 
 although he is not one. With regard to real estate, 
 because the royal remedies, the assizes, were con- 
 fined to those who had a feudal seisin, and the 
 party who had the seisin could recover as well when 
 his lands were subject to a term of years as when 
 they were in charge of agents or servants.'^* 
 
 Ratification is the only doctrine of which the his- 
 tory remains to be examined. With regard to this I 
 desire to express myself with great caution, as I shall 
 not attempt to analyze exhaustively the Roman 
 sources from which it was derived. I doubt, however, 
 whether the Romans would have gone the length of 
 the modern English law, which seems to have grown 
 to its present extent on English soil. 
 
 Ulpian said that a previous command to dispossess 
 another would make the act mine, and, although 
 opinion was divided on the subject, he thought that 
 ratification would have the same effect. He agreed 
 with the latitudinarian doctrine of the Sabinians, who 
 compared ratification to a previous command .^^ The 
 Sabinians' "comparison" of ratification to mandate 
 may have been a mere figure of speech to explain 
 the natural conclusion that if one accepts possession 
 
 ^* Bract., fol. 207 a. Cf. ib., 220. Heusler, Gewere, 126. 
 '5 D. 43, 16, I, §§ 12, 14. Cf. D. 46, 3, 12. § 4.
 
 AGENCY 97 
 
 of a thing which has been acquired for him by wrong- 
 ful force, he is answerable for the property in the 
 same way as if he had taken it himself. It therefore 
 is hardly worth while to inquire whether the glos- 
 sators were right in their comment upon this passage, 
 that the taking must have been in the name of the 
 assumed principal, — a condition which is ambigu- 
 ously mentioned elsewhere in the Digest.°'^ 
 
 Bracton copied Ulpian," still, so far„as I have ob- 
 served, not going beyond cases of distress ^* and dis- 
 seisin.^® The first reported cases known to me are 
 again assizes of novel disseisin.^" 
 
 But later decisions went much beyond this point, 
 as may be illustrated by one of them.^^ In trespass 
 de bonis asportatis the defendant justified as bailiff. 
 After charging the inquest Gascoigne said that ^'if 
 the defendant took the chattels claiming property in 
 himself for a heriot, although the lord afterward 
 agreed to that taking for services due him, still he 
 [the defendant] cannot be called his bailiff for that 
 time. But had he taken them without command, 
 for services due the lord, and had the lord afterwards 
 agreed to his taking, he shall be adjudged as bailiff, 
 although he was nowhere his bailiff before that tak- 
 
 56 D. 43, 26, 13. (Pomponius). 67 Bract., fol. 171 b. 
 
 =s Fol. 158 b, 1 59 a. 
 
 5^ Fol. 171. But note that by ratification "suam facit injuriam, et 
 ita tenetur ad utrumque, ad restitutionem, s. [et] ad pcenam." Ibid., b. 
 
 *^^Y. B. 30 Ed. I. 12S (Horwood) (where, however, the modern doc- 
 trine is stated and the Roman maxim is quoted by the judge) ; 3S Ass., 
 pi. 9, fol. 223; s. c. 38 Ed. III. 18; 12 Ed. IV. 9, pi. 23; Plowden, 8 
 ad fin, 27, 31. 
 
 «i Y. B. 7 H. IV. 34, 35, Pl. I-
 
 98 COLLECTED LEGAL PAPERS 
 
 ing." A ratification, according to this, may render 
 lawful ab initio an act which without the necessary- 
 authority is a good cause of action, and for which the 
 authority was wanting at the time that it was done. 
 Such is still the law of England.^" The same prin- 
 ciple is applied in a less startling manner to contract, 
 with the effect of giving rights under them to persons 
 who had none at the moment when the contract 
 purported to be complete .^^ In the case of a tort, it 
 follows, of course, from what has been said, that if 
 it is not justified by the ratification, the principal in 
 whose name and for whose benefit it was done is 
 answerable for it.^* 
 
 Now it may be argued very plausibly that the 
 modern decisions have only enlarged the comparison 
 
 ^2 Godbolt, 109, no, pi. 129; s. c. 2 Leon, 196, pi. 246 (M. 28 & 29 
 Eliz.) ; Hull V. Pickersgill, i Brod. & B. 282 ; Muskett v. Drummond, 10 
 B. & C. iS3, 157; Buron v. Denman, 2 Exch. 167 (1848) ; Secretary of 
 State in Council of India v. Kamachee Boye Sahaba, 13 Moore, P. C. 22 
 (1859), 86; Cheetham v. Mayor of Manchester, L. R. 10 C. P. 249; 
 Wiggins V. United States, 3 Ct. of CI. 412. But see Bro. Abr., Trespass, 
 pi. 86; Fitz, Abr., Bayllie, pi. 4. 
 
 63 Wolff V. Homcastle, i Bos. & P. 316 (1798). See further, Spittle 
 V. Lavender, 2 Brod, & B. 452 (1821). 
 
 6* Bract. 159 a, i7i b; Bro., Trespass, pi. 113; Bishop v. Montague, 
 Cro. Eliz. 824 ; Gibson's Case, Lane, 90 ; Com. Dig., Trespass, c. i ; 
 Sanderson v. Baker, 2 Bl. 832; s. c. 3 VVils. 309; Barker v. Braham, 2 
 Bl. 866, 868; s. c. 3 Wils. 368; Badkin v. Powell, Cowper, 476, 479; 
 Wilson V. Tumman, 6 Man. & Gr, 236, 242 ; Lewis v. Read, 13 M. & W. 
 834; Buron v. Denman, 2 Exch. 167, 188; Bird v. Brown, 4 Exch. 786, 
 799; Eastern Counties Ry. v. Broom, 6 Exch, 314, 326, 327; Roe v. 
 Birkenhead, Lancashire, & Cheshire Junction Ry., 7 Exch. 36, 44; 
 Ancona v. Marks, 7 H. & N. 686, 69s; Perley v. Georgetown, 7 Gray, 
 464; Gondii V. Baldwin, 21 N. Y. 219, 225; Exum v. Brister, 35 Miss. 
 391 ; G. H. & S. A. Ry. v. Donahoe, 56 Tex. 162 ; Murray v. Lovejoy, 
 2 CUff. 191, 195. (See 3 Wall, i, 9.)
 
 AGENCY 99 
 
 of the Sabinians into a rule of law, and carried it to 
 its logical consequences. The comparatur of Ulpian 
 has become the aequiparatur of Lord Coke/'" it might 
 be said; ratification has been made equivalent to 
 command, and that is all. But it will be seen that this 
 is a very great step. It is a long way from holding 
 a man liable as a wrongful disseizor when he has ac- 
 cepted the wrongfully-obtained possession, to allow- 
 ing him to make justifiable an act which was without 
 justification when it was done, and, if that is material, 
 which was followed by no possession on the part of 
 the alleged principal."'' For such a purpose why should 
 ratification be equivalent to a previous command? 
 Why should my saying that I adopt or approve of a 
 trespass in any form of words make me responsible 
 for a past act? The act was not mine, and I cannot 
 make it so. Neither can it be undone or in any wise 
 affected by what I may say.""^ 
 
 But if the act was done by one who affected to 
 personate me, new considerations come in. If a man 
 assumes the status of my servant pro hac vice, it lies 
 between him and me whether he shall have it or not. 
 And if that status is fixed upon him by my subsequent 
 assent, it seems to bear with it the usual consequence 
 
 65 Co. Lit. 207 a; 4 Inst. 317. It is comparatur in 30 Ed. I. 128; 
 Bract. 171 6. 
 
 66 Buron v. Denman, 2 Exch. 167 (1848). 
 
 67 Ratification had a meaning, of course, when the usual remedy for 
 wrongs was a blood-feud, and the head of the house had a choice 
 whether he would maintain his man or leave him to the vengeance of 
 the other party. See the story of Howard the Halt, i Saga Library, 
 p. so, Ch. 14, end. Compare "although he has not received him" in 
 Fitz. Abr., Corone, pi. 428, cited 4 Harv. Law Rev. 355.
 
 100 COLLECTED LEGAL PAPERS 
 
 as incident that his acts within the scope of his em- 
 ployment are my acts. Such jugghng with words of 
 course does not remove the substantive objections to 
 the doctrine under consideration, but it does for- 
 mally reconcile it with the general framework of 
 legal ideas. 
 
 From this point of view it becomes important to 
 notice that, however it may have been in the Roman 
 law, from the time of the glossators and of the canon 
 law it always has been required that the act should 
 have been done in the name or as agent of the per- 
 son assuming to ratify it. "Ratum quis habere non 
 potest quod ipsius nomine non est gestum." ^^ In the 
 language of Baron Parke in Buron v. Denman,^^ "a 
 subsequent ratification of an act done as agent is 
 equal to a prior authority." And all the cases from 
 that before Gascoigne downwards have asserted the 
 same limitation.'" I think we may well doubt 
 whether ratification would ever have been held 
 equivalent to command in the only cases in which 
 that fiction is of the least importance had it not been 
 for the further circumstance that the actor had 
 assumed the position of a servant for the time being. 
 The grounds for the doubt become stronger if it be 
 true that the liability even for commanded acts 
 started from the case of owner and slave. 
 
 ^8 Sext. Dec. 5. 12. de Reg. Jur. (Reg. 9). It made the difference 
 between excommunication and a mere sin in case of an assault upon 
 one of the clergy. Ibid. 5, 11, 23. 
 
 e» 2 Exch. 167. 
 
 ''^ Supra. See also Fuller & Trimwell's Case, 2 Leon, 215, 216; 
 New England Dredging Co. v. Rockport Granite Co., 149 Mass. 381, 
 382; Bract., fol. 28 b, 100 b.
 
 AGENCY loi 
 
 In any event, ratification like the rest of the law 
 of agency reposes on a fiction, and whether the same 
 fiction or another, it will be interesting in the conclu- 
 sion to study limits which have been set to its work- 
 ings by practical experience. 
 
 What more I have to say concerning the history 
 of agency will appear in my treatment of the last 
 proposition which I undertook to maintain. I said that 
 finally I should endeavor to show that the whole out- 
 line of the law, as it stands to-day, is the resultant 
 of a conflict between logic and good sense — the one 
 striving to carry fictions out to consistent results, the 
 other restraining and at last overcoming that effort 
 when the results become too manifestly unjust. To 
 that task I now address myself. 
 
 I assume that common-sense is opposed to making 
 one man pay for another man's wrong, unless he 
 actually has brought the wrong to pass according to 
 the ordinary canons of legal responsibility, — unless, 
 that is to say, he has induced the immediate wrong- 
 doer to do acts of which the wrong, or, at least, wrong, 
 was the natural consequence under the circumstances 
 known to the defendant. I assume that common- 
 sense is opposed to allowing a stranger to my overt 
 acts and to my intentions, a man of whom I have 
 never heard, to set up a contract against me which I 
 had supposed I was making with my personal friend. 
 I assume that common-sense is opposed to the denial 
 of possession to a servant and the assertion of it 
 for a depositary, when the only difference between 
 the two lies in the name by which the custodian is
 
 102 COLLECTED LEGAL PAPERS 
 
 called. And I assume that the opposition of com- 
 mon-sense is intensified when the foregoing doctrines 
 are complicated by the additional absurdities intro- 
 duced by ratification. I therefore assume that com- 
 mon sense is opposed to the fundamental theory of 
 agency, although I have no doubt that the possible 
 explanations of its various rules which I suggested 
 at the beginning of this chapter, together with the 
 fact that the most flagrant of them now-a-days often 
 presents itself as a seemingly wholesome check on the 
 indifference and negligence of great corporations, 
 have done much to reconcile men's minds to that 
 theory. What remains to be said I believe will 
 justify my assumption. 
 
 I begin with the constitution of the relation of 
 master and servant, and with the distinction that an 
 employer is not liable for the torts of an independent 
 contractor, or, in other words, that an independent 
 contractor is not a servant. And here I hardly know 
 whether to say that common-sense and tradition are 
 in conflict, or that they are for once harmonious. On 
 the one side it may be urged that when you have ad- 
 mitted that an agency may exist outside the family 
 relations, the question arises where you are to stop, 
 and why, if a man who is working for another in one 
 case is called his servant, he should not be called so 
 in all. And it might be said that the only limit is 
 found, not in theory, but in common-sense, which 
 steps in and declares that if the employment is well 
 recognized as very distinct, and all the circumstances 
 are such as to show that it would be mere folly to
 
 AGENCY 103 
 
 pretend that the employer could exercise control in 
 any practical sense, then the fiction is at an end. 
 An evidence of the want of any more profound or 
 logical reason might be sought in the different cir- 
 cumstances that have been laid hold of as tests, the 
 objections that might be found to each, and in the 
 fact that doubtful cases are now left to the jury/' 
 
 On the other hand, it might be said that the master 
 is made answerable for the consequences of the 
 negligent acts "of those whom the law denominates 
 his servants, because," in the language of that judg- 
 
 71 Among the facts upon which stress has been laid are the follow- 
 ing: I. Choice. Kelly v. Mayor of New York, 11 N. Y. 432, 436. See 
 Walcott V. Swampscott, i Allen, loi, 103. But although it is true 
 that the employer has not generally the choice of the contractor's ser- 
 vants, he has the choice of the contractor, yet he is no more liable for 
 the contractor's negligence than for that of his servant. 2. Control. 
 Sadler v. Henlock, 4 EI. & Bl. 570, 578 (1855). Yet there was control 
 in the leading case of Quarman v. Burnett, 6 M. & W. 499 (1840), 
 where the employee was held not to be the defendant's servant. Cf. 
 Steel V. Lester, 3 C. P. D. 121 (1877), 3. A round sum paid. But this 
 was true in Sadler v. Henlock, sup., where the employee was held to be 
 a servant. 4. Power to discharge. Burke v. Norwich & W. R.R., 34 
 Conn. 474 (1867). See Lane v. Cotton, 12 Mod. 472, 488, 489. But 
 apart from the fact that this can only be important as to persons re- 
 moved two stages from the alleged master, and not to determine whether 
 a person directly employed by him is a servant or contractor, the power 
 to discharge a contractor's servants may be given to the contractee with- 
 out making him their master. Reedie v. London & Northwestern Ry. 
 Co., 4 Exch. 244, 258. Robinson v. Webb, 11 Bush (Ky.), 464-5. 
 Notoriously distinct calling. Milligan v. Wedge, 12 Ad. & E. 737 (1840) ; 
 Linton v. Smith, 8 Gray (Mass.), 47. This is a practical distinction, 
 based on common-sense, not directly on a logical working out of the 
 theory of agency. Moreover, it is only a partial test. It does not 
 apply to all the cases. 
 
 In doubtful cases the matter seems to be left to the jury, that ever- 
 ready sword for the cutting of Gordian knots, as difficult questions of 
 law generally are.
 
 104 COLLECTED LEGAL PAPERS 
 
 ment which settled the distinction under considera- 
 tion/" "such servants represent the master himself, 
 and their acts stand upon the same footing as his 
 own." That although the limits of this identifica- 
 tion are necessarily more or less vague, yet all the pro- 
 posed tests go to show that the distinction rests on 
 the remoteness of personal connection between the 
 parties, and that as the connection grows slighter, the 
 likeness to the original case of menials grows less. 
 That a contractor acts in his own name and on his 
 own behalf, and that although the precise point at 
 which the line is drawn may be somewhat arbitrary, 
 the same is true of all legal distinctions, and that they 
 are none the worse for it, and that wherever the line 
 is drawn it is a necessary one, and required by the 
 very definition of agency. I suppose this is the pre- 
 vailing opinion. 
 
 I come next to the limit of liability when the re- 
 lation of master and servant is admitted to exist. 
 The theory of agency as applied to free servants no 
 doubt requires that if the servant commits a wilful 
 trespass or any other wrong, when employed about 
 his own business, the master should not be liable. No 
 free man is servant all the time. But the cases which 
 exonerate the master could never have been decided 
 as the result of that theory alone. They rather repre- 
 sent the revolt of common-sense from the whole 
 doctrine when its application is pushed far enough 
 to become noticeable. 
 
 72 Littledale, J., in Laugher v. Pointer, s B. & C, S47i 553 (T. 7 G. IV. 
 
 1826).
 
 AGENCY 105 
 
 For example, it has been held that it was beyond 
 the scope of a servant's employment to go to the fur- 
 ther side of a boundary ditch, upon a neighbor's land, 
 and to cut bushes there for the purpose of clearing 
 out the ditch, although the right management of 
 the master's farm required that the ditch should 
 be cleaned, and although the servant only did what 
 he thought necessary to that end, and although the 
 master relied wholly upon his servant's judgment in 
 the entire management of the premises." 
 
 Mr. Justice Keating said, the powers given to the 
 servant "were no doubt very wide, but I do not see 
 how they could authorize a wrongful act on another 
 person's land or render his employers liable for a 
 wilful act of trespass." It is true that the act could 
 not be authorized in the sense of being made lawful, 
 but the same is true of every wrongful act for which 
 the principal is held. As to the act being wilful, there 
 was no evidence that it was so in any other sense than 
 that which every trespass might be said to be, and 
 as the judge below directed a verdict for the defen- 
 dant, there were no presumptions adverse to the 
 plaintiff in the case. Moreover, it has been said else- 
 where that even a wilful act in furtherance of the 
 master's business might charge him.^* 
 
 Mr. Justice Grove attempted to draw the line in 
 another way. He said, "There are some things which 
 
 73 Bolingbroke v. Swindon Local Board, L. R. 9 C. P. 575 (1874). Cf. 
 Lewis V. Read, 13 M. & W. 834; Haseler v. Lemoyne, s C. B. n. s. 530. 
 
 ■'^ Howe V. Newmarch, 12 Allen, 49 (1866). See also cases as to 
 fraud, inf., and cf. Craker v. Chicago & N. W. Ry. Co., 36 Wise. 657, 
 669 (187s).
 
 io6 COLLECTED LEGAL PAPERS 
 
 may be so naturally expected to occur from the 
 wrongful or negligent conduct of persons engaged in 
 carrying out an authority given, that they may be 
 fairly said to be within the scope of the employment." 
 But the theory of agency would require the same 
 liability for both those things which might and those 
 which might not be so naturally expected, and this 
 is only revolt from the theory. Moreover, it may 
 be doubted whether a case could be found where the 
 servant's conduct was more naturally to be expected 
 for the purpose of accomplishing what he had to do." 
 
 The truth is, as pretty clearly appears from the 
 opinions of the judges, that they felt the difficulty 
 of giving a rational explanation of the doctrine sought 
 to be applied, and were not inclined to extend it. 
 The line between right and wrong corresponded with 
 the neighbor's boundary line, and therefore was more 
 easily distinguishable than where it depends on the 
 difference between care and negligence, and it was 
 just so much easier to hold that the scope of the 
 servant's employment was limited to lawful acts. 
 
 I now pass to fraud. It first must be understood 
 that, whatever the law may be, it is the same in the 
 case of agents, stricto sensu, as of other servants. 
 As has been mentioned, the fraudulent servant was a 
 factor in the first reported decision that the master 
 was liable.^^ Now if the defrauded party not merely 
 has a right to repudiate a contract fraudulently ob- 
 tained, or in general to charge a defendant to the 
 
 75 Cf. Harlow v. Humiston, 6 Cowen, 189 (1826). 
 T« Hern v. Nichols, i Salk. 289.
 
 AGENCY 107 
 
 extent that he has derived a benefit from another's 
 fraud, but may hold him answerable in solidum for 
 the damage caused by the fraudulent acts of his 
 servant in the course of the latter's employment, the 
 ground can only be the fiction that the act of the 
 servant is the act of the master. 
 
 It is true that in the House of Lords " Lord Sel- 
 borne said that the English cases "proceeded, not on 
 the ground of any imputation of vicarious fraud to 
 the principal, but because (as it was well put by 
 Mr. Justice Willes in Barwick's case^^) "with respect 
 to the question whether a principal is answerable 
 for the act of his agent in the course of his master's 
 business, no sensible distinction can be drawn be- 
 tween the case of fraud and the case of any other 
 wrong." But this only puts off the evil day. Why 
 is the principal answerable in the case of any other 
 wrong? It is, as has been seen, because, in the 
 language of Mr. Justice Littledale, the "servants 
 represent the master himself, and their acts stand 
 upon the same footing as his own." ^^ Indeed Mr. 
 Justice Willes, in the very judgment cited by Lord 
 Selborne, refers to Mr. Justice Littledale's judgment 
 for the general principle. So Lord Denman, in Fuller 
 V. Wilson," "We think the principal and his agent 
 
 77 Houldsworth v. City of Glasgow Bank, s App. Cas. 317, 326, 327 
 (1880). 
 
 7« L. R. 2 Ex. 259. 
 
 ■^9 Laugher v. Pointer, 5 B. & C. 547, 553. See Williams v. Jones, 3 
 H. & C. 602, 609. 
 
 *° 3 Q. B. 58, 67; s. c. reversed on another ground, but admitting 
 this principle, ib. 77 and 1009, loio (1842).
 
 io8 COLLECTED LEGAI PAPERS 
 
 are for this purpose identified." I repeat more dis- 
 tinctly the admission that no fiction is necessary to 
 account for the rule that one who is induced to con- 
 tract by an agent's fraud may rescind as against the 
 innocent principal. For whether the fraud be im- 
 puted to the principal or not, he has only a right 
 to such a contract as has been made, and that con- 
 tract is a voidable one. But when you go beyond 
 that limit and even outside the domain of contract 
 altogether to make a man answer for any damages 
 caused by his agent's fraud, the law becomes almost 
 inconceivable without the aid of the fiction. But a 
 fiction is not a satisfactory reason for changing men's 
 rights or liabilities, and common-sense has more or 
 less revolted at this point again and has denied the 
 liability. The English cases are collected in Houlds- 
 worth V. City of Glasgow Bank.*^ 
 
 When it was attempted to carry identification one 
 step further still, and to unite the knowledge of the 
 principal with the statement of the agent in order 
 to make the latter's act fraudulent, as in Cornfoot 
 V. Fowke,®^ the absurdity became more manifest and 
 dissent more outspoken. As was most accurately said 
 by Baron Wilde in a later case.^^ "The artificial iden- 
 tification of the agent and principal, by bringing the 
 words of the one side with the knowledge of the 
 other, induced the apparent logical consequence of 
 
 81 5 App. Cas. 317. See The Common Law, p. 231. 
 
 82 6 M. & W, 358 (1810). It is not necessary to consider whether 
 the case was rightly decided or not, as I am only concerned with this 
 particular ground. 
 
 83 UdeU V. Atherton, 7 H. & N. 172, 184 (1861).
 
 AGENCY 109 
 
 fraud. On the other hand, the real innocence of 
 both agent and principal repelled the notion of a 
 constructive fraud in either. A discordance of views, 
 varying with the point from which the subject was 
 looked at, was to be expected." The language of 
 Lord Denman, just quoted, from Fuller v. Wilson, 
 was used with reference to this subject. 
 
 The restrictions which common-sense has imposed 
 on the doctrine of undisclosed principal are well- 
 known. An undisclosed principal may sue on his 
 agent's contract, but his recovery is subject to the 
 state of accounts between the agent and third per- 
 son.®* He may be sued, but it is held that the 
 recovery will be subject to the state of accounts be- 
 tween principal and agent, if the principal has paid 
 fairly before the agency was discovered; but it is, 
 perhaps, doubtful whether this rule or the qualifica- 
 tion of it is as wise as the former one.®^ 
 
 Then as to ratification. It has nothing to do with 
 estoppel,^^ but the desire to reduce the law to general 
 principles has led some courts to cut it down to that 
 point." Again, the right to ratify has been limited 
 by considerations of justice to the other party. It 
 has been said that the ratification must take place 
 
 8* Rabone v. Williams, 7 T. R. 360 (1785); George v. Clagett, 7 
 T. R. 359 (1797) ; Carr v. Hinchcliff, 4 B. & C. 547 (1825) ; Borries v. 
 Imperial Ottoman Bank, L. R. 9 C. P. 38 (1873) ; Semenza v. Brinsley, 
 18 C. B. N. s. 467, 477 (186S) ; Ex parte Dixon, 4 Ch. D 133. 
 
 85 Armstrong v. Stokes, L. R. 7 Q. B. 598, 610; Irvine v. Watson, 
 S Q. B. D. 414. 
 
 ^^ See Metcalf v. Williams, 144 Mass. 452, 454, and cases cited. 
 
 8'' Doughaday v. Crowell, 3 Stockt. (N.J.) 201; Bird v. Brown, 4 
 Exch. 788, 799.
 
 no COLLECTED LEGAL PAPERS 
 
 at a time and under circumstances when the would-be 
 principal could have done the act;** and it has 
 been so held in some cases when it was manifestly- 
 just that the other party should know whether the 
 act was to be considered the principal's or not, as in 
 the case of an unauthorized notice to quit, which the 
 landlord attempts to ratify after the time of the 
 notice has begun to run.*® But it is held that bring- 
 ing an action may be subsequently ratified.®" 
 
 I now take up pleading. It is settled that an 
 assumpsit ®^ to or by a servant for his master may 
 be laid as an assumpsit to or by the master. But 
 these are cases where the master has commanded the 
 act, and, therefore, as I have shown in the beginning 
 of this discussion, may be laid on one side. The same 
 thing is true of a trespass commanded by the 
 master.®^ But when we come to conduct which the 
 master has not commanded, but for which he is re- 
 sponsible, the difficulty becomes greater. It is, never- 
 theless, settled that in actions on the case the negli- 
 gence of the servant is properly laid as the negligence 
 of the master,®^ and if the analogy of the substantive 
 law is to be followed, and the fiction of identity is 
 to be carried out to its logical results, the same would 
 be true of all pleading. It is so held with regard to 
 fraud. "The same rule of law which imputes to the 
 
 88 Bird V. Brown, 4 Exch. 788. 
 *9 Doe V. Goldwin, 2 Q. B. 143. 
 
 90 Ancona v. Marks, 7 H. & N. 686. 
 
 91 Seignior and Wolmer's Case, Godboldt, 360. 
 
 92 Gregory v. Piper, 9 B. & C. 591. 
 
 93 Brucker v. Fromont, 6 T. R. 659 (1796).
 
 AGENCY III 
 
 principal the fraud of the agent and makes him 
 answerable for the consequences justifies the allega- 
 tion that the principal himself committed the 
 wrong." ^* Some American cases have applied the 
 same view to trespass,"^ and have held that this action 
 could be maintained against a master whose servant 
 had committed a trespass for which he was liable al- 
 though he had not commanded it. But these de- 
 cisions, although perfectly reasonable, seem to have 
 been due rather to inadvertence than to logic, in the 
 first instance, and the current of authority is the other 
 way. Baron Parke says, "The maxim 'Qui facit per 
 alium, facit per se' renders the master liable for all 
 the negligent acts of the servant in the course of his 
 employment, but that liability does not make the 
 direct act of the servant the direct act of the master. 
 Trespass will not lie against him; case will, in effect, 
 for employing a careless servant." ^^ Considered as 
 reasoning, it would be hard to unite more errors in 
 as many words. ^^Qui facit per alium, facit per se" 
 as an axiom admitted by common-sense goes no 
 farther than to make a man liable for commanded 
 trespasses, and for them trespass lies. It it be ex- 
 tended beyond that point it simply embodies the 
 fiction, and the precise point of the fiction is that the 
 direct act of one is treated as if it were the direct act 
 
 9* Comstock, Ch. J., in Bennett v. Judson, 21 N. Y. 238 (i860) ; ace. 
 Barwick v. English Joint Stock Bank, L R. 2 Ex. 259 (1867). 
 
 95 Andrew v. Howard, 36 Vt. 248 (1863) ; May v. Bliss, 22 Vt. 477 
 (1850). 
 
 96 Sharrod v. London & N. W. Ry Co., 4 Exch. 580, 585 (1849). 
 Cf. Morley v. Gaisford, 2 H. Bl. 442 (1795) •
 
 112 COLLECTED LEGAL PAPERS 
 
 of another. To avoid this conclusion a false reason 
 is given for the liability in general.®^ It is, as has 
 been shown, the fallacy of the Roman jurists, and is 
 disposed of by the decisions that no amount of care 
 in the choice of one's servant will help the master in 
 a suit against him.''^ But although the reasoning is 
 bad, the language expresses the natural unwilling- 
 ness of sensible men to sanction an allegation that 
 the defendant directly brought force to bear on the 
 plaintiff, as the proper and formal allegation, when 
 as a matter of fact it was another person who did it 
 by his independent act, and the defendant is only 
 answerable because of a previous contract between 
 himself and the actual wrong-doer.**^ Another cir- 
 cumstance may have helped. Usually the master is 
 not liable for his servant's wilful trespasses, and, 
 therefore, the actions against him stand on the ser- 
 vant's negligence as the alternative ground on which 
 anybody is responsible. There was for a time a con- 
 fused idea that when the cause of action was the de- 
 fendant's negligence, the proper form of action was 
 always case."*" Of course if this was true it applied 
 equally to the imputed negligence of a servant. And 
 thus there was the further possibility of confounding 
 the question of the proper form of action with the 
 
 ^^ The same reason is given in M'Manus v. Crickett, i East, 106, 108 
 (1800). Compare i Harg. Law Tracts, 347; Walcott v. Swampscott, 
 I Allen, loi, 103; Lane v. Cotton, 12 Mod. 472, 488, 489. 
 
 98 Dansey v. Richardson, 3 El. & Bl. 144, 161. 
 
 09 M'Manus v. Crickett, i East, 106, no (1800) ; Bracker v. Fremont, 
 6T. R. 659 (1796). 
 
 100 Ogle V. Barnes, 8 T. R. 188 (1799). Cf. Leame v. Bray, 3 East, 
 593 (1803).
 
 AGENCY 113 
 
 perfectly distinct one whether the defendant was 
 liable at all. 
 
 I come finally to the question of damages. In those 
 States where exemplary damages are allowed, the 
 attempt naturally has been made to recover such 
 damages from masters when their servant's conduct 
 has been such as to bring the doctrine into play. 
 Some courts have had the courage to be consistent.^*'^ 
 "What is the principle," it is asked, "upon which 
 this rule of damages is founded? It is that the act of 
 the agent is the act of the principal himself. . . . 
 The law has established, to this extent, their legal 
 unity and identity. . . . This legal unity of the prin- 
 cipal and agent, in respect to the wrongful or tortious, 
 as well as the rightful acts, of the agent, done in the 
 course of his employment, is an incident which the 
 law has wisely attached to the relation, from its 
 earliest history." "If then the act of the agent be 
 the act of the principal in law, and this legal identity 
 is the foundation of the responsibility of the prin- 
 cipal, there can be no escape from his indemnity to 
 the full extent of civil responsiblity." An instruction 
 that the jury might give punitive damages was up- 
 held, and the plaintiff had judgment for $12,000. 
 Whatever may be said of the practical consequences 
 or the English of the opinion from which these ex- 
 tracts are made, it has the merit of going to the root 
 of the matter with great keenness. On the other 
 
 101 New Orleans, Jackson, & Great Northern R. R. Co. v. Bailey, 
 40 Miss. 395, 452, 453, 456 (1866) ; ace Atlantic & G. W. Ry. Co. v. 
 Dunn, 19 Ohio St. 162.
 
 114 COLLECTED LEGAL PAPERS 
 
 hand, other courts, more impressed by the monstrosity 
 of the result than by the elegantia juris, have per- 
 emptorily declared that it was absurd to punish a man 
 who had not been to blame, and have laid down the 
 opposite rule without hesitation.'"" 
 
 I think I now have made good the propositions 
 which I undertook at the beginning of this essay to 
 establish. I fully admit that the evidence here col- 
 lected has been gathered from nooks and corners, 
 and that although in the mass it appears to me im- 
 posing, it does not lie conspicuous upon the face of 
 the law. And this is equivalent to admitting, as I 
 do, that the views here maintained are not favorites 
 v/ith the courts. How can they be? A judge would 
 blush to say nakedly to a defendant: "I can state no 
 rational ground on which you should be held liable, 
 but there is a fiction of law which I must respect and 
 by which I am bound to say that you did the act com- 
 plained of, although we both know perfectly well that 
 it was done by somebody else whom the plaintiff could 
 have sued if he had chosen, who was selected with 
 the utmost care by you, who was in fact an eminently 
 proper person for the employment in which he was 
 engaged, and whom it was not only your right to 
 employ, but much to the public advantage that you 
 should employ." That would not be a satisfactory 
 form in which to render a decision against a master, 
 and it is not pleasant even to admit to one's self that 
 
 102 Hagar v. Providence & Worcester R.R., 3 R. I. 88 (1854) ; Cleghorn 
 V. New York Central & Hudson River R.R., 56 N. Y. 44 (1874)- Cf. 
 Craker v. Chicago & N. W. R.R., 36 Wis. 657 (187s).
 
 AGENCY IIS 
 
 such are the true grounds upon which one is deciding. 
 Naturally, therefore, judges have striven to find more 
 intelligible reasons, and have done so in the utmost 
 good faith; for whenever a rule of law is in fact a 
 survival of ancient traditions, its ancient meaning is 
 gradually forgotten, and it has to be reconciled to 
 present notions of policy and justice, or to disappear. 
 
 If the law of the agency can be resolved into mere 
 applications of general and accepted principles, then 
 my argument fails; but I think it cannot be, and I 
 may suggest, as another ground for my opinion beside 
 those which I have stated heretofore, that the variety 
 of reasons which have been offered for the most im- 
 portant application of the fiction of identity, the 
 liability of the master for his servant's torts, goes far 
 to show that none of those reasons are good. Baron 
 Parke, as we have seen, says that case is brought in 
 effect for employing a negligent servant. Others 
 have suggested that it was because it was desirable 
 that there should be some responsible man who could 
 pay the damages."^ Mr. Justice Grove thinks that 
 the master takes the risk of such offences as it must 
 needs be should come. 
 
 I admit my scepticism as to the value of any such 
 general considerations, while on the other hand I 
 should be perfectly ready to believe, upon evidence, 
 that the law could be justified as it stands when ap- 
 plied to special cases upon special grounds.'"* 
 
 io« See Williams v. Jones, 3 H. & C. 256, 263 ; i Harg. Law Tracts, 347. 
 ^** Cf. what is said as to common carriers in The Common Law, 204, 
 305.
 
 ii6 COLLECTED LEGAL PAPERS 
 
 There should have been added to the illustrations of a man's responsi- 
 bility within his house, given in the former article, that of a vassal 
 for attempts on the chastity of his lord's daughter or sister "tant 
 com elle est Damoiselle en son Hostel," in Ass. Jerusalem, c. 205, 217, 
 ed. 1690. The origin of the liability of innkeepers never has been studied, 
 so far as I know Beaumanoir, c. 36, seems to confine the liability to 
 things intrusted to the innkeeper, and to limit it somewhat even in that 
 case, and to suggest grounds of policy. The English law was more 
 severe, and put it on the ground that the guest for the time had come 
 to be under the innkeeper's protection and safety. 42 Ass., pi. 17, fol. 
 260. A capias was refused on the ground that the defendant was not in 
 fault, but an elegit was granted. 42 Ed. III. 11, pi. 13. Notwithstand- 
 ing the foregoing reason given for it, the liability was confined, at an 
 early date, to those exercising a common calling {common hostler). 
 II Hen. rv. 45, pi. 18. See The Common Law, 183-189, 203. See 
 further, 22 Hen. VI. 21, pi. 38; pi. 8. And note a limitation of 
 liability in cases of taking by the king's enemies, similar to that of 
 bailees. Plowden, 9, and note in margin; The Common Law, 177, 
 182, 199, 201. The references to the custom of England, or to the 
 lex terroe, are of no significance. The Common Law, 188. See further, 
 the titles of GlanviU and Bracton. Other citations could be given if 
 necessary.
 
 PRIVILEGE, MALICE, AND INTENT* 
 
 The law of torts as now administered has worked 
 itself into substantial agreement with a general 
 theory. I should sum up the first part of the theory 
 in a few words, as follows: Actions of tort are 
 brought for temporal damage. The law recognizes 
 temporal damage as an evil which its object is to 
 prevent or to redress, so far as is consistent with 
 paramount considerations to be mentioned. When 
 it is shown that the defendant's act has had temporal 
 damage to the plaintiff for its consequence, the next 
 question is whether that consequence was one which 
 the defendant might have foreseen. If common ex- 
 perience has shown that some such consequence was 
 likely to follow the act under the circumstances 
 known to the actor, he is taken to have acted with 
 notice, and is held liable, unless he escapes upon 
 the special grounds to which I have referred, and 
 which I shall mention in a moment. The standard 
 applied is external, and the words malice, intent, 
 and negligence, as used in this connection, refer to 
 an external standard. If the manifest probability 
 of harm is very great, and the harm follows, we say 
 that it is done maliciously or intentionally; if not so 
 great, but still considerable, we say that the harm is 
 
 ♦ Harvard Law Review, Vol. VIII, i. (1894.) 
 117
 
 ii8 COLLECTED LEGAL PAPERS 
 
 done negligently; if there is no apparent danger, we 
 call it mischance. 
 
 Furthermore, so far as liability for an act depends 
 upon its probable consequences without more, the 
 liability usually is not affected by the degree of the 
 probability if it is sufficient to give the defendant 
 reasonable warning. In other words, for this pur- 
 pose commonly it does not matter whether the act is 
 called malicious or negligent. To make a prima 
 facie case of trespass or libel, if the likelihood of 
 bringing force to bear on the plaintff's person or of 
 bringing him into contempt goes to the height ex- 
 pressed by the word negligence, as above explained, 
 it need not go higher. There are exceptions, at 
 least in the criminal law. The degree of danger 
 under the known circumstances may make the differ- 
 ence between murder and manslaughter.^ But the 
 rule is as I have stated. The foregoing general prin- 
 ciples I assume not to need further argument.^ 
 
 But the simple test of the degree of manifest 
 danger does not exhaust the theory of torts. In 
 some cases, a man is not liable for a very manifest 
 danger unless he actually intends to do the harm 
 complained of. In some cases, he even may intend 
 to do the harm and yet not have to answer for it: and, 
 as I think, in some cases of this latter sort, at least, 
 actual malice may make him liable when without it 
 he would not have been. In this connection I mean 
 
 1 2 Bigelow, Fraud, 117, n. 3; Commonwealth v. Pierce, 138 Mass., 
 165. Compare Hanson v. Globe Newspaper Co., 159 Mass., 293. 
 
 2 See The Common Law, Ch. 2, 3, 4.
 
 PRIVILEGE, MALICE, AND INTENT 119 
 
 by malice a malevolent motive for action, without 
 reference to any hope of a remoter benefit to oneself 
 to be accomplished by the intended harm to another.^ 
 The question whether malice in this sense has any 
 effect upon the extent of a defendant's rights and 
 liabilities, has arisen in many forms. It is familiar 
 in regard to the use of land in some way manifestly 
 harmful to a neighbor. It has been suggested, and 
 brought to greater prominence, by boycotts, and 
 other combinations for more or less similar purposes, 
 although in such cases the harm inflicted is only a 
 means, and the end sought to be attained generally 
 is some benefit to the defendant. But before dis- 
 cussing that, I must consider the grounds on which 
 a man escapes liability in the cases referred to, even 
 if his act is not malicious. 
 
 It will be noticed that I assume that we have got 
 past the question which is answered by the test of 
 the external standard. There is no dispute that the 
 manifest tendency of the defendant's act is to inflict 
 temporal damage upon the plaintiff. Generally, that 
 result is expected, and often at least it is intended. 
 And the first question that presents itself is why the 
 defendant is not liable without going further. The 
 answer is suggested by the commonplace, that the 
 intentional infliction of temporal damage, or the 
 doing of an act manifestly likely to inflict such 
 damage and inflicting it, is actionable if done without 
 just cause.* When the defendant escapes, the court 
 
 3 See Rideout v. Knox, 148 Mass., 368, 373. 
 * Walker v. Cronin, 107 Mass., $55, S62 ; Mogul Steamship Co. v. 
 McGregor, 23 Q.B.D. sg8, 613, 618.
 
 I20 COLLECTED LEGAL PAPERS 
 
 is of opinion that he has acted with just cause. 
 There are various justifications. In these instances, 
 the justification is that the defendant is privileged 
 knowingly to inflict the damage complained of. 
 
 But whether, and how far, a privilege shall be 
 allowed is a question of policy. Questions of policy 
 are legislative questions, and judges are shy of 
 reasoning from such grounds. Therefore, decisions 
 for or against the privilege, which really can stand 
 only upon such grounds, often are presented as hol- 
 low deductions from empty general propositions like 
 sic utere tuo ut alienum non laedas, which teaches 
 nothing but a benevolent yearning, or else are put 
 as if they themselves embodied a postulate of the 
 law and admitted of no further deduction, as when it 
 is said that, although there is temporal damage, there 
 is no wrong; whereas, the very thing to be found out 
 is whether there is a wrong or not, and if not, why 
 not. 
 
 When the question of policy is faced it will be 
 seen to be one which cannot be answered by general- 
 ities, but must be determined by the particular 
 character of the case, even if everybody agrees what 
 the answer should be. I do not try to mention or 
 to generalize all the facts which have to be taken 
 into account; but plainly the worth of the result, or 
 the gain from allowing the act to be done, has to be 
 compared with the loss which it inflicts. Therefore, 
 the conclusion will vary, and will depend on different 
 reasons according to the nature of the affair. 
 
 For instance, a man has a right to set up a shop
 
 PRIVILEGE, MALICE, AND INTENT 121 
 
 in a small village which can support but one of the 
 kind, although he expects and intends to ruin a 
 deserving widow who is established there already. 
 He has a right to build a house upon his land in such 
 a position as to spoil the view from a far more valu- 
 able house hard by. He has a right to give honest 
 answers to inquiries about a servant, although he 
 intends thereby to prevent his getting a place. But 
 the reasons for these several privileges are different. 
 The first rests on the economic postulate that free 
 competition is worth more to society than it costs. 
 The next, upon the fact that a line must be drawn 
 between the conflicting interests of adjoining owners, 
 which necessarily will restrict the freedom of each ; ^ 
 upon the unavoidable philistinism which prefers use 
 to beauty when considering the most profitable way 
 of administering the land in the jurisdiction taken 
 as one whole ; upon the fact that the defendant does 
 not go outside his own boundary; and upon other 
 reasons to be mentioned in a moment. The third, 
 upon the proposition that the benefit of free access 
 to information, in some cases and within some limits, 
 outweighs the harm to an occasional unfortunate. I 
 do not know whether the principle has been applied 
 in favor of a servant giving a character to a master. 
 
 Not only the existence but the extent or degree of 
 the privilege will vary with the case. Some privi- 
 leges are spoken of as if they were absolute, to bor- 
 row the language familiar in cases of slander. For 
 
 5 See Middlesex Company v. McCue, 149 Mass. 103, 104; Boston 
 Ferrule Company v. Hills, 159 Mass. 147, 149, 150.
 
 122 COLLECTED LEGAL PAPERS 
 
 instance, in any common case, apart from statutory 
 exceptions, the right to make changes upon or in a 
 man's land is not affected by the motive with which 
 the changes are made. Were it otherwise, and were 
 the doctrine carried out to its logical conclusion, 
 an expensive warehouse might be pulled down on 
 the finding of a jury that it was maintained mali- 
 ciously, and thus a large amount of labor might be 
 wasted and lost. Even if the law stopped short of 
 such an extreme, still, as the motives with which the 
 building was maintained might change, the question 
 would be left always in the air. There may be other 
 and better reasons than these and those mentioned 
 before, or the reasons may be insufficient.^ I am 
 not trying to justify particular doctrines, but to ana- 
 lyze the general method by which the law reaches 
 its decision. 
 
 So it has been thought that refusing to keep a man 
 in one's service, if he hired a house of the plaintiff, 
 or dealt with him, was absolutely privileged.^ Here 
 the balance is struck between the benefit of un- 
 fettered freedom to abstain from making the con- 
 tract, on the one side, and the harm which may be 
 done by the particular use of that freedom, on the 
 other. 
 
 It is important to notice that the privilege is not 
 a general one, maliciously to prevent making con- 
 
 « See I Ames & Smith, Cases on Torts, 750, n. 
 
 ' Heywood v. Tillson, 75 Me. 225; Payne v. Western & Atlantic 
 R. R., 13 Lea, 507. See Capital and Counties Bank v. Henry, 7 App. 
 Cas. 741.
 
 PRIVILEGE, MALICE, AND INTENT 123 
 
 tracts with the plaintiff, but is attached to the par- 
 ticular means employed. It is a privilege to abstain 
 from making a certain kind of contract oneself, 
 whether maliciously, in order to prevent others from 
 contracting with the plaintiff, or for a more harm- 
 less motive. Still more important it is, and more 
 to the point of this paper, that, in spite of many gen- 
 eral expressions to the contrary, the conclusion does 
 not stand on the abstract proposition that malice 
 cannot make a man liable for an act otherwise law- 
 ful. It is said that if this were not so a man would 
 be sued for his motives. But the proposition is no 
 more self-evident than that knowledge of the cir- 
 cumstances under which an act is done cannot affect 
 liability, since otherwise a man would be sued for 
 his knowledge, a proposition which is obviously un- 
 true. In a proper sense, the state of a man's con- 
 sciousness always is material to his liability, and 
 when we are considering the extent of a man's privi- 
 lege knowingly to inflict pecuniary loss upon his 
 neighbor, it would not be surprising to find that in 
 some cases motives made all the difference in the 
 world. I pass to the inquiry, whether privilege, 
 sometimes at least, is not dependent upon the motives 
 with which the act complained of is done. 
 
 Take a case where, as in the last one, the harm 
 complained of is a malicious interference with busi- 
 ness, but where the means employed (the act of the 
 defendant) are different. I assume that the harm 
 is recognized by the law as a temporal damage, that 
 not being the object of this discussion. I assume
 
 124 COLLECTED LEGAL PAPERS 
 
 also that the defendant's act is not unlawful or a 
 cause of action unless it is made so by reason of 
 the particular consequence mentioned, and the de- 
 fendant's attitude toward that consequence. I as- 
 sume, finally, that the acts or abstinences of third 
 persons induced by the defendant are lawful. If a 
 case could be put where the defendant's act was 
 justified by no grounds of policy more special or other 
 than the general one of letting men do what they 
 want to do, it would present the point which I wish 
 to raise. Such a case I find hard to imagine, but if 
 one should occur, I think courts would say that the 
 benefit of spontaneity was outweighed by the damage 
 which it caused.^ The gratification of ill-will, being 
 a pleasure, may be called a gain, but the pain on 
 the other side is a loss more important. Otherwise, 
 why allow a recovery for a battery? There is no 
 general policy in favor of allowing a man to do harm 
 to his neighbor for the sole pleasure of doing harm. 
 
 But there is no need to stay in such thin air. 
 Let us suppose another case of interference with busi- 
 ness by an act which has some special grounds of 
 policy in its favor. Take the case of advice not to 
 employ a certain doctor, given by one in a position of 
 authority. To some extent it is desirable that people 
 should be free to give one another advice. On the 
 
 8 Possibly, one is suggested by Keeble v. Hickeringill, ii East, 574 n., 
 and Tarleton v. M'Gawley, Peake, 205 — we may suppose people to 
 be kept away from the plaintiff by the malicious firing of guns, other- 
 wise lawful. These cases will be found in i Ames & Smith, Cases of 
 Torts, which contains an exceUent selection of decisions bearing on the 
 subject of this article.
 
 PRIVILEGE, MALICE, AND INTENT 125 
 
 other hand, commonly it is not desirable that a man 
 should lose his business. The two advantages run 
 against one another, and a line has to be drawn. 
 So absolute a right of way may not be given to 
 advice as to abstaining from some contracts which 
 have been mentioned. In such a case, probably it 
 would be said that if the advice was believed to be 
 good, and was given for the sake of benefiting the 
 hearers, the defendant would not be answerable. 
 But if it was not believed to be for their benefit, and 
 was given for the sake of hurting the doctor, the 
 doctor would prevail.^ If the advice was believed 
 to be good, but was volunteered for the sake of doing 
 harm only, courts might differ, but some no doubt 
 would think that the privilege was not made out.^° 
 What the effect of bad faith without malice would 
 be is outside my subject. 
 
 It will be seen that the external standard applied 
 for the purpose of seeing whether the defendant had 
 notice of the probable consequences of his act, has 
 little or nothing to do with the question of privilege. 
 The defendant is assumed to have had notice of the 
 
 ' Sec Morasse v. Brochu, 151 Mass. 567; Tasker v. Stanley, 153 
 Mass. 148; Delz v. Winfree, 80 Texas, 400, 405. The cases often are 
 obscure as to the precise nature of the act done, which seems to me 
 a most important fact. In Lumley v. Gye, 2 El. & Bl. 216, the allega- 
 tion was that the defendant "enticed and procured" the third person 
 to break the contract. In Bowen v. Hall, 6 Q.B.D. 333, the defendant 
 Hall persuaded another to break his contract (pp. 338, 339). In Old 
 Dominion Steamship Co. v. McKenna, 30 Fed. Rep. 48, the defendant 
 "procured plaintiff's workmen" to leave their work, and so on. 
 
 1" See Stevens v. Sampson, 5 Ex. D. 53.
 
 126 COLLECTED LEGAL PAPERS 
 
 probable consequences of his act, otherwise the ques- 
 tion of privilege does not arise. Generally, the harm 
 complained of is not only foreseen but intended. If 
 there is no privilege, the difference between notice 
 of consequences and malice is immaterial. If the 
 privilege is absolute, or extends to malicious acts, of 
 course it extends to those which are not so. If the 
 privilege is qualified, the policy in favor of the de- 
 fendant's freedom generally will be found to be quali- 
 fied only to the extent of forbidding him to use for 
 the sake of doing harm what is allowed him for the 
 sake of good. Suppose, for instance, advice is given 
 which manifestly tends to injure the plaintiff, but 
 without thinking of him in fact, and that the advice 
 would be privileged unless given in bad faith or 
 maliciously, if expressly directed against the plaintiff. 
 The advice could not be given maliciously as against 
 the plaintiff unless he either was thought of, or was 
 embraced in a class which was thought of. 
 
 Perhaps one of the reasons why judges do not 
 like to discuss questions of policy, or to put a deci- 
 sion in terms upon their views as law-makers, is that 
 the moment you leave the path of merely logical 
 deduction you lose the illusion of certainty which 
 makes legal reasoning seem like mathematics. But 
 the certainty is only an illusion, nevertheless. Views 
 of policy are taught by experience of the interests 
 of life. Those interests are fields of battle. What- 
 ever decisions are made must be against the wishes 
 and opinion of one party, and the distinctions on 
 which they go will be distinctions of degree. Even
 
 PRIVILEGE, MALICE, AND INTENT 127. 
 
 the economic postulate of the benefit of free compe- 
 tition which I have mentioned above, is denied by 
 an important schooL 
 
 Let me illustrate further. In England, it is lawful 
 for merchants to combine to offer unprofitably low 
 rates and a rebate to shippers for the purpose of 
 preventing the plaintiff from becoming a competitor, 
 as he has a right to do, and also to impose a forfeiture 
 of the rebate, and to threaten agents with dismissal 
 in case of dealing with him." But it seems to be 
 unlawful for the officer of a trade union to order the 
 members not to work for a man if he supplies goods 
 to the plaintiff, for the purpose of forcing the plain- 
 tiff to abstain from doing what he has a right to do." 
 
 In the latter case the defendant's act, strictly, was 
 giving an order, not refusing to contract; but per- 
 haps the case would have been decided the same way 
 if the same course had been adopted by unanimous 
 vote of the union." So the right to abstain from 
 contracting is not absolutely privileged as against 
 interference with business. The combination and 
 the intent to injure the plaintiff, without more, do 
 not seem to be the ground. Both those elements were 
 present to an equal degree in the Mogul Steamship 
 Company's case. It is true the jury found malice. 
 
 " Mogul Steamship Company, Limited, v. McGregor, 1892, App. 
 Cas. 2$; 23 Q.B.D. 598. See also Bowen v. Matheson, 14 Allen, 499 
 (1867); Bohn Manufacturing Company v. Hollis, SS N.W.R. 1119 
 (Minnesota, 1893). 
 
 12 Temperton v. Russell, 1893, i Q. B. 715. 
 
 13 See Carew v. Rutherford, 106 Mass. i, and the cases below, as 
 to combination. See, also, the further comments toward the end of 
 this article.
 
 128 COLLECTED LEGAL PAPERS 
 
 But looking at the evidence, the instructions of the 
 judge, and the judgments, evidently they did not 
 mean that the ultimate motive of the defendants was 
 not to benefit themselves. The defendants meant to 
 benefit themselves by making the plaintiff submit, 
 just as, in the other case, the defendants meant to 
 benefit themselves by driving the plaintiff away. It 
 might be said that the defendants were free not to 
 contract, but that they had no right to advise or 
 persuade the contractors who would have dealt with 
 the plaintiff not to do so, and that, by communicating 
 the union's willingness to deal with the contractors, 
 if they would not deal with the plaintiff, the defend- 
 ants were using such persuasion. But if this refine- 
 ment is not a roundabout denial of the freedom not 
 to contract, since a man hardly is free in his abstain- 
 ing unless he can state the terms or conditions upon 
 which he intends to abstain, at all events the same 
 mode of reasoning could be used in the cases where 
 the defendant escapes. The ground of decision 
 really comes down to a proposition of policy of rather 
 a delicate nature concerning the merit of the par- 
 ticular benefit to themselves intended by the defend- 
 ants, and suggests a doubt whether judges with differ- 
 ent economic sympathies might not decide such a 
 case differently when brought face to face with the 
 issue. 
 
 Another illustration may be drawn from other 
 cases upon boycotts. Acts which would be privi- 
 leged if done by one person for a certain purpose 
 may be held unlawful if done for the same purpose
 
 PRIVILEGE, MALICE, AND INTENT 129 
 
 in combination/* It is easy to see what trouble 
 may be found in distinguishing between the combi- 
 nation of great powers in a single capitalist, not to 
 speak of a corporation, and the other form of combi- 
 nation/^ It is a question of degree at what point 
 the combination becomes large enough to be wrong, 
 unless the knot is cut by saying that any combina- 
 tion however puny is so. Behind all is the question 
 whether the courts are not flying in the face of the 
 organization of the world which is taldng place so 
 fast, and of its inevitable consequences. I make 
 these suggestions, not as criticisms of the decisions, 
 but to call attention to the very serious legislative 
 considerations which have to be weighed. The 
 danger is that such considerations should have their 
 weight in an inarticulate form as unconscious preju- 
 dice or half conscious inclination. To measure them 
 justly needs not only the highest powers of a judge 
 and a training which the practice of the law does 
 not insure, but also a freedom from prepossessions 
 which is very hard to attain. It seems to me desir- 
 able that the work should be done with express 
 recognition of its nature. The time has gone by 
 when law is only an unconscious embodiment of the 
 common will. It has become a conscious reaction 
 
 1* See state v. Donaldson, 32 N.J. 191 ; State v. Glidden, 55 Conn. 
 46; Camp V. Commonwealth, 84 Va. 927; Lucke v. Clothing Cutters' & 
 Trimmers' Assembly No. 7, 507, K. of L., 26 Atl. R. 50$; Jackson v. 
 Stanfield, 36 N.E.R. 34S (Indiana, 1894) ; Mogul Steamship Company 
 V. McGregor, 23 Q.B.D. 598, 616 (1892); App. Cas. 25, 45. The cases 
 are not quite unanimous. Bohn Manufacturing Co. v. Hollis, 55 N.W.R. 
 II 19 (Minnesota, 1893). 
 
 « 23 Q.B.D. 617.
 
 130 COLLECTED LEGAL PAPERS 
 
 upon itself of organized society knowingly seeking to 
 determine its own destinies. 
 
 To sum up this part of the discussion, when a 
 responsible defendant seeks to escape from liability 
 for an act which he had noticed was likely to cause 
 temporal damage to another, and which has caused 
 such damage in fact, he must show a justification. 
 The most important justification is a claim of privi- 
 lege. In order to pass upon that claim, it is not 
 enough to consider the nature of the damage, and 
 the effect of the act, and to compare them. Often 
 the precise nature of the act and its circumstances 
 must be examined. It is not enough, for instance, 
 to say that the defendant induced the public, or a 
 part of them, not to deal with the plaintiff. We 
 must know how he induced them. If by refusing 
 to let them occupy a building, or to employ them, 
 the answer may be peremptory in his favor, without 
 regard to other circumstances. If by acts wrongful 
 for other reasons, the answer falls outside my sub- 
 ject. If by advice, or combined action not other- 
 wise unlawful, motive may be a fact of the first 
 importance. It is entirely conceivable that motive, 
 in some jurisdictions, should be held to affect all, 
 or nearly all, claims of privilege. The cases which 
 I have cited, by way of illustration, come from 
 different States, and might not be regarded as being 
 so consistent with each other as I have assumed them 
 to be. But in all such cases the ground of decision 
 is policy; and the advantages to the community, on 
 the one side and the other, are the only matters really
 
 PRIVILEGE, MALICE, AND INTENT 131 
 
 entitled to be weighed. I only wish to add that thus 
 far, when the act of a third person is nearer to the 
 harm than the act of the defendant, I have assumed 
 the former to be lawful. I have said nothing as yet 
 of privilege in connection with wrongful acts of 
 others. Also I have left on one side exceptional 
 cases where the act induced by the defendant would 
 have been a tort or a crime had the third person 
 had his knowledge, for instance, the innocent giving 
 of a poisoned apple. If the harm were of a more 
 serious nature than loss of business, that naturally 
 would narrow the privilege, but it is not likely to be 
 so in the cases which I have had in mind. 
 
 I now pass to an entirely different class of cases. 
 In these, intent to produce the harm complained of 
 has an importance of its own, as distinguished from 
 notice of danger on the one side, and from actual 
 malice on the other. To begin at a little distance, 
 one of the difficulties which must occur to every 
 one in thinking of the external standard of liability 
 is: if notice so determined is the general ground, why 
 is not a man who sells fire-arms answerable for 
 assaults committed with pistols bought of him, since 
 he must be taken to know the probability that, sooner 
 or later, some one will buy a pistol of him for some 
 unlawful end? I do not think that the whole answer 
 to such questions is to be found in the doctrine of 
 privilege. Neither do I think that any instruction 
 is to be got from the often-repeated discussions as 
 to cause. It is said that the man whose wrong-doing 
 is nearest to the injury is the only cause of it. But,
 
 132 COLLECTED LEGAL PAPERS 
 
 as is pointed out in Hayes v. Hyde Park/" a man 
 whose act is nearest to the injury is as much a cause 
 when his act is rightful, as when it is wrongful. Yet 
 an intervening act may not exonerate the defendant. 
 
 The principle seems to be pretty well established, 
 in this country at least, that every one has a right 
 to rely upon his fellow-men acting lawfully, and, 
 therefore, is not answerable for himself acting upon 
 the assumption that they will do so, however im- 
 probable it may be. There may have been some 
 nibbling at the edges of this rule in strong cases, for 
 instance, where only the slight negligence of a third 
 person intervenes, or where his negligence plays only 
 a subordinate part, but the rule hardly will be dis- 
 puted. It applies in favor of wrong-doers as well as 
 others. The classical illustration is, that one who 
 slanders another is not liable for the wrongful repe- 
 tition of the slander without his authority; but the 
 principle is general.^^ If the repetition were privi- 
 leged, and so rightful, and also were manifestly 
 likely to happen, the law might be otherwise.^^ 
 
 But the case is different when a defendant has not 
 stopped at the point of saying, I take it for granted 
 that my neighbors will keep to the law, and I shall 
 not let myself be checked in doing what I like, by 
 the danger which there would be, if they acted un- 
 
 18 153 Mass. S14. 
 
 i'" Ward V. Weeks, 7 Bing. 211, 215; Cuff v. Newark & New York 
 R.R., 6 Vroom, 17, 32; Clifford v. Atlantic Mills, 146 Mass. 47; Tasker 
 V. Stanley, 153 Mass. 148, 150. 
 
 18 Elmer v. Fessenden, 151 Mass. 359, 362, and cases cited. See 
 Hayes v. Hyde Park, 153 Mass. 514.
 
 PRIVILEGE, MALICE, AND INTENT 133 
 
 lawfully; when, instead, he not only has expected 
 unlawful conduct, but has acted with the intent to 
 bring about consequences which could not happen 
 without the help of such unlawful acts on the part of 
 others. The difference is illustrated by the differ- 
 ence between the general right of a landowner, as 
 against trespassers, to put his land in what condition 
 he likes, and his liability, even to trespassers (with- 
 out notice), for man-traps or dog-spears. In the 
 latter case, he has contemplated expressly what he 
 would have had a right to assume would not happen, 
 and the harm done stands just as if he had been on 
 the spot and had done it in person. His intent may 
 be said to make him the last wrong-doer.^' 
 
 So when the wrongful act expected is that of a 
 third person, and not of the plaintiff, the defendant 
 may be liable for the consequences of it. There is 
 no doubt, of course, that a man may be liable for the 
 unlawful act of another, civilly as well as criminally, 
 and this now is pretty well agreed when the act is 
 a breach of contract as well as when it is a tort."° 
 He is liable, if having authority he commands it ; he 
 may be liable if he induces it by persuasion. I do 
 not see that it matters how he knowingly gives the 
 other a motive for unlawful action, whether by fear, 
 fraud, or persuasion, if the motive works. But, in 
 order to take away the protection of his right to rely 
 
 i» Bird V. Holbrook, 4 Bing. 628, 641, 642. See Jordin v. Crump, 8 
 M. & W. 78; Chenery v. Fitchburg R.R., 160 Mass. 211, 213, 214. 
 
 20 Lumley v. Gye, 2 El. & Bl. 216; i Ames & Smith, Cases on 
 Torts, 600, 612, note by Professor Ames.
 
 134 COLLECTED LEGAL PAPERS 
 
 upon lawful conduct, you must show that he intended 
 to bring about consequences to which that unlawful 
 act was necessary. Ordinarily, this is the same as 
 saying that he must have intended the unlawful act. 
 To sum the matter up in a rule, where it is sought to 
 make a man answerable for damage, and the act of 
 a third person is nearer in time than the defendant's 
 to the harm, if the third person's act was lawful, it 
 stands like the workings of nature, and the question 
 is whether it reasonably was to be anticipated or 
 looked out for; but if the third person's act was un- 
 lawful, the defendant must be shown to have 
 intended consequences which could not happen with- 
 out the act." 
 
 Although actual intention is necessary in this class 
 of cases, malice commonly is not so, except so far as 
 the question of liability for an intervening wrong- 
 doer is complicated with a question of privilege. 
 The damage is assumed to be inflicted unlawfully, 
 since the act of the third person which is nearest to 
 it is assumed to be unlawful. If the defendant has 
 no notice that the third person's act will or may be 
 unlawful, he is free on general principles. But, not- 
 withstanding the reserves of Bowen v. Hall," if he 
 
 21 I venture to refer to a series of cases in which my views will 
 be found illustrated. Hayes v. Hyde Park, 153 Mass. 514; Burt v. 
 Advertiser Newspaper Co., 154 Mass. 238, 347; Tasker v. Stanley, 153 
 Mass. 148. [Note that, in this case, it did not appear that the conduct 
 advised (the departure of the plaintiff's wife) would have been unlaw- 
 ful in any sense, on the facts assumed as the basis of the advice. It did 
 not appear what those facts were. The question of privilege, therefore, 
 was the main one.] Elmer v. Fessenden, 151 Mass. 359, 362; Clifford v. 
 Atlantic Cotton Mills., 146 Mass. 47. 
 
 22 6 Q.B.D. 333, 338.
 
 PRIVILEGE, MALICE, AND INTENT 135 
 
 knows the act will be unlawful, it seems plain that 
 persuasion to do it will make him liable as well when 
 not malicious as when malicious. I cannot believe 
 that bona fide advice to do an unlawful act to the 
 manifest harm of the plaintiff ought to be any more 
 privileged than such advice, given maliciously, to do 
 a lawful act. Of course, I am speaking of effectual 
 advice. It seems to me hard for the law to recog- 
 nize a privilege to induce unlawful conduct. But, 
 whether there is such a privilege or not, what I am 
 driving at is, that apart from privilege there is no 
 defence; that is to say, that malice is not material, 
 on any other ground than that of privilege, to liabiUty 
 for the wrongful act of another man. 
 
 At this point, then, we have come again upon the 
 question of privilege. When the purpose of the de- 
 fendant's act is to produce the result complained of 
 by means of illegal acts of third persons, his privilege 
 will be narrower than when he intends to induce only 
 legal acts. As I have said, I do not suppose that 
 the privilege extended to honest persuasion to do 
 harm to the plaintiff by lawful conduct, would extend 
 to similar persuasion to do it by unlawful conduct. 
 Take acts of which the privilege is greater. Could a 
 man refuse to contract with A unless he broke his 
 contract with B? There are cases by respectable 
 courts which look as if he could not." What I have 
 called heretofore the privilege not to contract really 
 
 23 Temperton v. Russell (1893), i Q.B.D. 715, mentioned above for 
 a different point. In this case, there was the additional element of 
 combination. See the other cases cited above, p. 129, n. 14.
 
 136 COLLECTED LEGAL PAPERS 
 
 is only the negative side of a privilege to make con- 
 tracts. I stated it in the negative way in order to 
 make the claim of an absolute privilege more plaus- 
 ible. But the right not to contract in a certain event, 
 and to say that you will not, means nothing unless 
 it is implied that you offer a contract, that is, an 
 act on your part, in the other event. If no such offer 
 is understood, then you simply refuse to contract, 
 whatever happens, which undoubtedly you may do. 
 But there is no absolute privilege to make agree- 
 ments which are not unlawful on their face, that is 
 to say, which do not necessarily and always tend to 
 produce a result that the law wishes to prevent. An 
 agreement may be unlawful, because under the par- 
 ticular circumstances it tends to produce such a 
 result, although in general harmless. 
 
 The question has arisen, how close the connection 
 must be between an agreement — for instance, a 
 sale — and the result sought to be prevented, in 
 order to make the sale unlawful. I presume that 
 the same degree of connection which would have that 
 effect would make the seller liable if the result in 
 question was a tort. In Graves v. Johnson,'* where 
 intoxicating liquor was found to have been sold in 
 Massachusetts, "with a view to" an illegal resale by 
 the purchaser in Maine, a majority of the court inter- 
 preted the words quoted as meaning that the seller 
 intended that the buyer should resell unlawfully, 
 and was understood by the latter to be acting in aid 
 of that purpose, and held the sale unlawful. But it 
 
 2* is6 Mass. 211.
 
 PRIVILEGE, MALICE, AND INTENT 137 
 
 may be conjectured that the decision would have 
 been different if the seller merely had known of the 
 buyer's intent without encouraging or caring about it. 
 In questions of privilege, the nature of the de- 
 fendant's act, the nature of the consequences, and 
 the closeness of the bond between them, may vary 
 indefinitely. We may imagine the conduct to be of 
 the most highly privileged kind, like the use of land, 
 and to consist of imposing conditions upon the letting 
 of rooms or the removal of a building cutting off a 
 view. We may imagine the conditions to be stated 
 with intent, but without any persuasion or advice, 
 that they should be satisfied, and we may imagine 
 them to be illegal acts anywhere from murder down 
 to breach of a contract to take the Herald for a 
 month. Interesting cases of such a kind might be 
 framed for a moot court, although I hardly expect 
 to meet one in practice. But, as I have said, my ob- 
 ject is not to decide cases, but to make a little clearer 
 the method to be followed in deciding them.
 
 LEARNING AND SCIENCE* 
 
 speech at a dinner of the harvard law school 
 
 association in honor of professor 
 
 c. c. langdell, june 25, 1895 
 
 Mr. President and Gentlemen of the Associa- 
 tion: 
 As most of those here have graduated from the 
 Law School within the last twenty-five years, I know 
 that I am in the presence of very learned men. For 
 my own part, lately my thoughts have been turned to 
 
 "old, unhappy, far-off things, 
 And battles long ago"; 
 
 and when once the ghosts of the dead fifers of thirty 
 years since begin to play in my head, the laws are 
 silent. And yet as I look around me, I think to 
 myself, like Correggio, "I too am, or at least have 
 been, a pedagogue." And as such I will venture a 
 reflection. 
 
 Learning, my learned brethren, is a very good 
 thing. I should be the last to undervalue it, having 
 done my share of quotation from the Year Books. 
 But it is liable to lead us astray. The law, so far 
 as it depends on learning, is indeed, as it has been 
 called, the government of the living by the dead. 
 
 * From Speeches (1913), Little, Brown, & Co. 
 
 138
 
 LEARNING AND SCIENCE 139 
 
 To a very considerable extent no doubt it is in- 
 evitable that the living should be so governed. The 
 past gives us our vocabulary and fixes the limits of 
 our imagination; we cannot get away from it. There 
 is, too, a peculiar logical pleasure in making manifest 
 the continuity between what we are doing and what 
 has been done before. But the present has a right 
 to govern itself so far as it can; and it ought always 
 to be remembered that historic continuity with the 
 past is not a duty, it is only a necessity. 
 
 I hope that the time is coming when this thought 
 will bear fruit. An ideal system of law should draw 
 its postulates and its legislative justification from 
 science. As it is now, we rely upon tradition, or 
 vague sentiment, or the fact that we never thought 
 of any other way of doing things, as our only warrant 
 for rules which we enforce with as much confidence 
 as if they embodied revealed wisdom. Who here can 
 give reasons of any different kind for believing that 
 half the criminal law does not do more harm than 
 good? Our forms of contract, instead of being made 
 once for all, like a yacht, on lines of least resistance, 
 are accidental relics of early notions, concerning 
 which the learned dispute. How much has reason 
 had to do in deciding how far, if at all, it is expedient 
 for the State to meddle with the domestic relations? 
 And so I might go on through the whole law. 
 
 The Italians have begun to work upon the notion 
 that the foundations of the law ought to be scientific, 
 and, if our civilization does not collapse, I feel pretty 
 sure that the regiment or division that follows us
 
 I40 COLLECTED LEGAL PAPERS 
 
 will carry that flag. Our own word seems the last 
 always; yet the change of emphasis from an argu- 
 ment in Plowden to one in the time of Lord Ellen- 
 borough, or even from that to one in our own day, 
 is as marked as the difference between Cowley's 
 poetry and Shelley's. Other changes as great will 
 happen. And so the eternal procession moves on, we 
 in the front for the moment; and, stretching away 
 against the unattainable sky, the black spearheads 
 of the army that has been passing in unbroken line 
 already for near a thousand years.
 
 EXECUTORS * 
 
 At the present day executors and administrators 
 hold the assets of the estate in a fiduciary capacity. 
 Their rights and Habilities in respect of the fund in 
 tlieir hands, are very like those of trustees. But 
 this way of regarding them is somewhat modern. I 
 wish to call attention to several changes in the law 
 which have taken place at different times and with- 
 out reference to each other, for the purpose of sug- 
 gesting that they are witnesses of an older condition 
 of things in which the executor received his testator's 
 assets in his own right. As usually is the case 
 with regard to a collection of doctrines of which 
 one seeks to show that they point to a more general 
 but forgotten principle, there can be found a plaus- 
 ible separate explanation for each or for most of 
 them, which some, no doubt, will regard as the last 
 word to be said upon the matter. 
 
 I have shown elsewhere that originally the only 
 person liable to be sued for the debts of the deceased, 
 if they were disputed and had not passed to judgment 
 in the debtor's lifetime, was the heir.^ In Glanvill's 
 
 * Harvard Law Review, Vol. IX, 42. (1895.) 
 
 1 Early English Equity, i Law Quart. Rev. 165. The Common 
 Law, 348. Bracton 407b, 61, 98a, loia, 113b. The article referred to 
 in the Law Quarterly Review shows the origin and early functions of 
 the executor. It is not necessary to go into them here. 
 
 141
 
 142 COLLECTED LEGAL PAPERS 
 
 time, if the effects of the ancestor were not sufficient 
 for the payment of his debts the heir was bound to 
 make up the deficiency out of his own property.^ 
 In the case of debts to the king, this liabiKty con- 
 tinued as late as Edward III.,^ royalty like religion 
 being a conservator of archaisms. The unlimited 
 liability was not peculiar to England/ While it con- 
 tinued we may conjecture with some confidence that 
 a judgment against the heir was not confined to the 
 property which came to him from his ancestor, and 
 that such property belonged to him outright. At a 
 later date, M. Viollet tells us, the French customary 
 law borrowed the benefit of inventory from the 
 Roman law of Justinian. The same process had 
 taken place in England before Bracton, wrote. But 
 in the earliest sources it looks as if the limitation of 
 liability was worked out by a limitation of the 
 amount of the judgment, not by confining the judg- 
 ment to a particular fund.° 
 
 2 "Si veto non sufficiunt res defuncti ad debita persolvenda, tunc 
 quidem haeres ejus defectum ipsum de suo tenetur adhnplere: ita dico 
 si kabuerit aetatem haeres ipse." Glanvill, Lib. 7, C. 8. Regiam 
 Majestatem, Book 2, C. 39, § 3. 
 
 3 2 Rot. Pari. 240, pi. 35. St. 3 Ed. I., C. 19. 
 
 * Ass. Jerus., Bourgeois, C. cxciii. 2 Beugnot, 130. Paul Viollet, 
 Hist, du Droit Franq., 2d ed. 829. 
 
 s Viollet, op. cit. The Common Law, 347, 348. "Haeres autem 
 defuncti tenebitur ad debita preadecessoris sui acquietanda eatenus 
 quatenus ad ipsum pervenerit, sci. de haereditate defuncti, et non 
 ultra," etc. Bracton, 61 a. "Notandum tamen est, quod nullus de 
 antecessoris debito tenetur respondere ultra valorem huius, quod de eius 
 hereditate dignoscitur possidere." Somma, Lib. 2, C. 22, § 5, in 7 
 Ludewig, Reliq. Manuscript, 308, 300. Grand Coustum. C. 88. Com- 
 pare also St. Westm. IL (13 Ed. I.), C. 19, as to the liability of the
 
 EXECUTORS 143 
 
 As was shown in the article above referred to, the 
 executor took the place of the heir as universal suc- 
 cessor within the limits which still are familiar, 
 shortly after Br acton wrote. His right to sue and 
 the right of others to sue him in debt seemed to have 
 been worked out at common law.^ It hardly needs 
 argument to prove that the new rights and burdens 
 were arrived at by treating the executor as standing 
 in the place of the heir. The analogy relied on is 
 apparent on the face of the authorities, and in books 
 of a later but still early date we find the express state- 
 ment, executores universales loco haeredis sunt,'' or 
 as it is put in Doctor and Student, "the heir, which 
 in the laws of England is called an Executor." 
 
 Now when executors thus had displaced heirs par- 
 tially in the courts, the question is what was their 
 position with regard to the property in their hands. 
 Presumably it was like that of heirs at about the 
 beginning of the fourteenth century, but I have had 
 to leave that somewhat conjectural. The first mode 
 of getting at an answer is to find out, if we can, what 
 was the form of judgment against them. For if the 
 
 ordinary: "Obligetur decetero Ordinarius ad respondendum de debitis, 
 quatenus bona defuncti sufficiimt eodem modo quo executores hujus 
 tnodo erespondere tenerentur si tesiamentum fecisset." See the cases 
 stated below, I know of no early precedents or forms of judg- 
 ments against heirs. I wish that Mr. Maitland would give the 
 world the benefit of his knowledge and command of the sources on the 
 matter. Later the judgments against heirs was limited to assets de- 
 scended. Townesend, Second Book of Judgments, 67, pi. 26. 
 
 6 Y. B. 20 & 21 Ed. I., 374; 30 Ed. I., 238; II Ed. III., 143. 
 Id. 186. (Rolls ed.) 
 
 7 Lyndwood, Provindale. Lib. 3, Tit. 13, C. S- (Statutum bonae 
 memoriae), note, at word Intestatis. Dr. and Stud. Dial. I, Ch. 19.
 
 144 COLLECTED LEGAL PAPERS 
 
 judgment ran against them personally, and was not 
 limited to the goods of the deceased in their hands, 
 it is a more than probable corollary that they held 
 those assets in their own right. The best evidence 
 known to me is a case of the year 1292 (21 Ed. I.) 
 in the Rolls of Parliament.^ Margery Moygne re- 
 covered two judgments against Roger Bertelmeu as 
 executor of William the goldsmith. In the first case 
 he admitted the debt and set up matter in discharge. 
 This was found against him except as to £60, as to 
 which the finding was in his favor, and the judgment 
 went against him personally for the residue. In the 
 second case the claim was for 200 marks, of which 
 the plaintiff's husband had endowed her ad ostium 
 ecclesiae. The defendant pleaded that the testator 
 did not leave assets sufficient to satisfy his creditors. 
 The plaintiff replied that her claim was preferred, 
 which the defendant denied. The custom of bor- 
 oughs was reported by four burgesses to be as 
 the plaintiff alleged, and the plaintiff had a judg- 
 ment against the defendant generally. The defend- 
 ant complained of these judgments in Parliament, 
 and assigned as error that there came to his hands 
 only £27 at most, and that the two judgments 
 amounted to £40 and more. The matter was com- 
 promised at this stage, but enough appears for my 
 purposes. If the defendant was right in his con- 
 tention, it would follow in our time that the judg- 
 ment should be de bonis tcstatoris, yet it does not 
 
 8 I Rot. Pari. 107, 108. It may be remarked, by the way, that an 
 excellent example of trustee process will be found in this case.
 
 EXECUTORS 145 
 
 seem to have occurred to him to make that sug- 
 gestion. He assumed, as the court below assumed, 
 that the judgment was to go against him personally. 
 The limitation for which he contended was in the 
 amount of the judgment, not in the fund against 
 which it should be directed. 
 
 There is some other evidence that at this time, 
 and later, the judgment ran against the executor 
 personally, and that the only limitation of liability 
 expressed by it was in the amount. In the first case 
 known to me in which executors were defeated on a 
 plea of plene administravit it was decided that the 
 plaintiff should recover of the defendants "without 
 having regard to whether they had to the value of 
 the demand." ® Afterwards it was settled that in 
 such cases the judgment for the debt should be of 
 the goods of the deceased, and that the judgment 
 for the damages should be general.'" But whether 
 the first case was right in its day or not, the material 
 point is the way in which the question is stated. The 
 alternatives are not a judgment de bonis testatoris 
 and a general judgment against the defendants, but 
 a judgment against the defendants limited to the 
 amount in their hands, and an unlimited judg- 
 ment against them. 
 
 But if it be assumed that a trace of absolute 
 ownership still was shown in the form of the judg- 
 
 » Y. B. 17 Ed. III. 66, pi. 83. 
 
 " Y. B. II Hen. IV. S, pi. 11. Skrene in 7 Hen. IV. 12, 13, pi. 
 8. Martin in 9 Hen. VI. 44, pl- 26. Danby in 11 Hen. VI. 7, 8, pi. 12. 
 Dyer, 32 a, pi. 2. i Roll. Abr. 931, D. pi. 3. i Wms. Saund. 336, n. 10.
 
 146 COLLECTED LEGAL PAPERS 
 
 ment, when we come to the execution we find a dis- 
 tinction between the goods of the testator and those 
 of the executor already estabhshed. In 12 Edward 
 III. a judgment had been recovered against a parson, 
 who had died. His executors were summoned, and 
 did not appear. Thereupon the plaintiff had fieri 
 facias to levy on the chattels of the deceased in the 
 executors' hands (de lever ses chateux qil avoient 
 entre mayns des biens la mort), and on the sheriff 
 returning that he had taken 20s and that there were 
 no more, execution was granted of the goods of the 
 deceased which the executors had in their hands 
 on the day of their summons, or to the value out of 
 the executors' own goods if the former had been 
 eloigned.^^ 
 
 I now pass to two other rules of law for each 
 of which there is a plausible and accepted explana- 
 tion, but which I connect with each other and with 
 my theme. In former days, I was surprised to read 
 in Williams on Executors, that the property in the 
 ready money left by the testator "must of necessity 
 be altered ; for when it is intermixed with the execu- 
 tor's own money, it is incapable of being distinguished 
 from it, although he shall be accountable for its 
 value." '"^ What right, one asked oneself, has an 
 executor to deal in that way with trust funds? In 
 
 11 Y. B. 13 Ed. in. 398-401 (ad. 1338). Ace. 2 Rot. Pari. 397, 
 No. no (Ed. III.). See also the intimation of Wychingham, J., in 40 
 Ed. m. IS, pi. I. Fleta, Lib. 2, C. 57, § 6. 
 
 12 1 Wms. Exors. (7th ed.), 646. In the ninth edition this is qualified 
 slightly by the editor in a note. (9th ed.) 566, 567 and n. (p).
 
 EXECUTORS 147 
 
 this Commonwealth at least the executor would be 
 guilty of a breach of duty if he mingled money of 
 his testator with his own. Another passage in Wil- 
 liams shows that we must not press his meaning too 
 far. It is stated that money of the testator which 
 can be distinguished does not pass to a bankrupt 
 executor's assignee/' The principal passage merely 
 was repeated from the earlier text-books of Went- 
 worth and Toller. In Wentworth the notion appears 
 to be stated as a consequence of the difficulty of dis- 
 tinguishing pieces of money of the same denomina- 
 tion from each other — a most impotent reason.^* 
 There is no doubt that similar arguments were used 
 in other cases of a later date than Wentworth.^' 
 But I prefer to regard the rule as a survival, es- 
 pecially when I connect it with that next to be men- 
 tioned. 
 
 As late as Lord Ellenborough's time it was the 
 unquestioned doctrine of the common law that the 
 executor was answerable absolutely for goods which 
 had come into his possession, and that he was not 
 excused if he lost them without fault, for instance, 
 by robbery.'® Now it is possible to regard this as 
 
 13 I Wms. Exors. 9th ed. 559. Howard v. Jemmett, 2 Burr. 1368, 
 1369, note; Farr v. Newman, 4 T.R. 621, 648. 
 
 1* Wentworth, Executors (14th ed. Philadelphia, 1832), 198. 
 
 1' Whitecomb v. Jacob, i Salk. 160; Ford v. Hopkins, i Salk, 283, 
 284; Ryall V. Rolle, i Atk. 165, 172; Scott v. Surman, Willes, 400, 
 403, 404. Rightly condemned quoad hoc in Re Hallett's Estate, 13 Ch. 
 D. 696, 714, 715. See also Miller v. Race, i Burr. 452, 457 S.C. i Sm. 
 L. C. 
 
 i« Crosse v. Smith, 7 East, 246, 258.
 
 148 COLLECTED LEGAL PAPERS 
 
 merely one offshoot of the early liability of bailees 
 which still lingered alive, although the main root had 
 rotted and had been cut a century before by Chief 
 Justice Pemberton, and by the mock learning of Lord 
 Holt." It is explained in that way by Wentworth/* 
 who wrote before the early law of bailment had been 
 changed, but with some suggestions of difference and 
 mitigation. If this explanation were adopted we 
 only should throw the discussion a little further back, 
 upon the vexed question whether possession was title 
 in primitive law. But it is undeniable that down to 
 the beginning of this century the greatest common- 
 law judges held to the notion that the executor's 
 liability stood on stronger grounds than that of an 
 ordinary bailee, and this notion is easiest explained 
 as an echo of a time when he was owner of the 
 goods, and therefore absolutely accountable for their 
 value. In the Chancery, the forum of trusts, it is 
 not surprising to find a milder rule laid down at an 
 earlier date, and no doubt the doctrine of equity now 
 has supplanted that of the common law.^® 
 
 There is no dispute, of course, that in some sense 
 executors and administrators have the property in 
 the goods of the deceased.^" I take it as evidence 
 
 IT King V. Viscount Hertford, 2 Shower, 172; Coggs v. Bernard, 
 2 Ld. Raym. 909. The Common Law, Lect. 5, esp. p. 195. Morley v. 
 Morley, 2 Cas. in Ch. 2. 
 
 18 Executors (14th ed.), 234. 
 
 13 Lord Hardwicke in Jones v. Lewis, 2 Ves. Sen. 240, 241 (1751) ; 
 Job V. Job, 6 Ch. D. 562 ; Stevens v. Gage, 55 N.H. 175. See Morley v. 
 Morley, 2 Cas. in Ch. 2 (1678). 
 
 20 Com. Dig. Admmistration (B. 10). Cf. Wms. Exors. (gth 
 ed.) 558.
 
 EXECUTORS 149 
 
 how hard the early way of thinking died that as late 
 as 1792, the King's Bench were divided on the ques- 
 tion whether a sheriff could apply the goods of a 
 testator in the hands of his executor in execution of 
 a judgment against the executor in his own right, if 
 the sheriff was notified after seizure that the goods 
 were effects of the testator. As might have been 
 expected the judgment was that the sheriff had not 
 the right, but Mr. Justice Buller delivered a power- 
 ful dissent.'^ A little earlier the same court decided 
 that a sale of the testator's goods in execution of 
 such a judgment passed the title, and Lord Mans- 
 field laid it down as clear that an executor might 
 alien such goods to one who knew them to be assets 
 for the payment of debts, and that he might alien 
 them for a debt of his own. He added, "If the 
 debts had been paid the goods are the property of 
 the executor." " 
 
 Another singular thing is the form of an execu- 
 tor's right of retainer. "If an executor has as much 
 goods in his hands as his own debt amounts to, the 
 property of those goods is altered and rests in him- 
 self; that is, he has them as his own proper goods 
 in satisfaction of his debt, and not as executor." " 
 This proposition is qualified by Wentworth, so far 
 as to require an election where the goods are more 
 than the debt." But the right is clear, and if not 
 
 21 Farr v. Newman, 4 T.R. 621. 
 
 *2 Whale V. Booth, 4 Doug. 36, 46. See i Wms. Exors. (9th ed.) 
 561, note. 
 
 23 Woodward v. Lord Darcy, Plowden, 184, 185. 
 2* Executors (14th ed.), 77, 198, 199.
 
 150 COLLECTED LEGAL PAPERS 
 
 exercised by the executor in his lifetime passes to his 
 executor." So when an executor or administrator 
 pays a debt of the deceased with his own money he 
 may appropriate chattels to the value of the debt." 
 A right to take money would not have seemed 
 strange, but this right to take chattels at a valuation 
 in pais without judgment is singular. It may be 
 a survival of archaic modes of satisfaction when 
 money was scarce and valuations in the country 
 common." But it may be a relic of more extensive 
 title. 
 
 The last fact to be considered is the late date 
 at which equity fully carried out the notion that 
 executors hold the assets in trust. In 1750, in a 
 case where one Richard Watkins had died, leaving 
 his property to his nephew and niece, Lord Hard- 
 wicke, speaking of a subsequently deceased nephew, 
 William Watkins, said that he ''had no right to any 
 specific part of the personal estate of Richard what- 
 ever; only a right to have that personal estate ac- 
 counted for, and debts and legacies paid out of it, 
 and so much as should be his share on the whole 
 account paid to him; which is only a debt, or in the 
 nature of a chose in action due to the estate of Wil- 
 
 25 Hopton V. Dryden, Prec. Ch. i79- Wentw. Exors. (14th ed.) 
 77, note, citing 11 Vin. Abr. 261, 263; Croft v. Pyke, 3 P. Wms. 
 179, 183; Burdet v. Pix, 2 Brownl. 50. 
 
 «« Dyer, 2a; Elliott v. Kemp. 7 M. & W. 306, 313. 
 
 " See, e.g., the application of the trusteed wool to the judgment in 
 I Rot. Pari. 108. Assignment of dower de la pluis beale, Litt. § 49. 
 Delivery of debtor's chattels by sheriff, St. Westm. II. Ch. 18. Reams 
 V. Cunniff, 138 Mass. 434, 436.
 
 EXECUTORS 151 
 
 liam."'" In M'Leod v. Drummond'" Lord Eldon 
 says that Lord Hardwicke "frequently considered it 
 as doubtful, whether even in the excepted cases any 
 one except a creditor, or a specific legatee, could 
 follow the assets in equity. On the same page. 
 Hill V. Simpson, 7 Ves. 152 (1802), is said to have 
 been the first case which gave that right to a general 
 pecuniary legatee.^" Hill v. Simpson lays it down 
 that executors in equity are mere trustees for the 
 performance of the will,^^ but it adds that in many 
 respects and for many purposes third persons are 
 entitled to consider them absolute owners. Toward 
 the end of the last century their fiduciary position 
 began to be insisted on more than had been the case, 
 and the common-law decisions which have been cited 
 helped this tendency of the Chancery.^" 
 
 The final step was taken in M'Leod v. Drum- 
 mond,^^ when Lord Eldon established the rights of 
 residuary legatees. "It is said in Farr v. Newman 
 that the residuary legatee is to take the money, 
 when made up: but I say, he has in a sense a lien 
 upon the fund, as it is; and may come here for the 
 specific fund." ^* 
 
 28 Thome v. Watkins, 2 Ves. Sen. 35, 36. 
 
 29 17 Ves. 152, 169 (1810). 
 
 '0 See also M'Leod v. Drummond, 14 Ves. 353, 354. 
 
 31 P. 166. Note the recurrence with a difference to their original 
 position in the early Frankish law. I Law Quart. Rev. 164. 
 
 '2 See also Scott v. Tyler, 2 Dickens, 712, 725, 726. 
 
 " 17 Ves. 152, i6p. 
 
 3* See Marvel v. Babbitt, 143 Mass. 226; Pierce :;. Gould, 143 Mass. 
 234> 235; Mechanics' Savings Bank v. Waite, ijo Mass. 234, 235. 
 I made the decree appealed from in Foster v. Bailey, 157 Mass. 160,
 
 152 COLLECTED LEGAL PAPERS 
 
 162. The particular form which it took, allowing the defendant, the 
 administrator of an administrator, to retain one share of stock and a 
 savings-bank book as security for what might be found due to his 
 intestate on the settlement of his account, and directmg him to hand 
 over the rest of the assets, was consented to, in case the defendant 
 bad a right to retain anything. I made the decree on the assumption 
 that the change in the position of executor and administrator which 
 I am considering left their rights undisturbed. Of course if the liability 
 were only to account for a balance, the executor of an executor would 
 not be bound to hand over anything more, and could not be compelled 
 to pay anything until the balance was settled. His duty, when estab- 
 lished, would not be to deliver specific property, but to pay a sura 
 of money. I do not know what evidence can be found on this point. 
 It is fair to mention that the plea offered in 30 Ed. I. 240, by executor 
 of executors, was that, "We held none of the goods of the deceased 
 on the day when this bill was delivered." But that may be no more 
 than a general form. "Bonz" probably only meant property.
 
 THE BAR AS A PROFESSION* 
 
 The main thoughts of the fine paper on "The 
 Bar as a Profession," by the Lord Chief Justice of 
 England, in the Companion of February 13, 1896, 
 are as true for America as for England ; but possibly 
 a few local variations on his theme may have their 
 use. It is not likely here that anybody will be 
 prejudiced against business or will take formal views 
 of the dignity of callings such as a hundred years ago 
 put the ministry first, law and medicine next, and 
 below them all other pursuits. The real beliefs of 
 the world to-day are commercial, and money and the 
 means of making it are in no danger of being under- 
 valued. 
 
 I should say that one of the good things about 
 the law is that it does not pursue money directly. 
 When you sell goods the price which you get and 
 your own interests are what you think about in the 
 affair. When you try a case you think about the 
 ways to win it and the interests of your client. In 
 the long run this affects one's whole habit of mind, 
 as anyone will notice if he talks much with men. 
 
 In the twenty-five years that I have known English 
 lawyers it has seemed to me that a scholastic type of 
 man has more chance of success in England than 
 
 * Reprinted from the Youth's Companion for 1896. 
 I S3
 
 154 COLLECTED LEGAL PAPERS 
 
 here, where the men at the top are usually hard 
 fighters. At all events, scholarliness as a social ac- 
 complishment is more important there than here, and 
 this would lead me to lay somewhat less weight upon 
 a university training than is done by the Lord Chief 
 Justice. 
 
 I will not go so far as a jesting friend of mine once 
 did and say that the main use of a imiversity educa- 
 tion is to learn the humbug of it. I think it very 
 useful and very important to a man as a man. But 
 in this country I do not think it quite so important 
 to a lawyer as a lawyer. 
 
 A certain amount of education a man must have 
 who constantly is using books. It will save him 
 trouble if he understands an occasional scrap of Latin 
 when he comes across it. But a man may sweep 
 juries before him, command the attention of judges, 
 counsel sagely in great affairs, or be a leader in any 
 senate of the country with nothing of the scholarly 
 about him. 
 
 I say this not to make light of the good of going 
 to college, but by way of encouragement to those 
 who doubt whether their inability to go there does 
 not take away hope of success in the law. I have 
 had letters from young men beset with the doubt, 
 and always have told them that it is no ground for 
 despair. 
 
 If a man misses a university education it may be 
 made up to him in part by the way we study law in 
 this country; for that also is different from the 
 English way. I think all the lawyers I Imow here-
 
 THE BAR AS A PROFESSION 155 
 
 abouts would agree that the place for a young man 
 to study law is a law school, not a lawyer's office. 
 
 We have a great many law schools in the United 
 States in which a great many able and more or less 
 distinguished men are teachers. I will mention that 
 at Cambridge, not by way of invidious comparison, 
 but as that which I know best. If a young man can 
 afford to study there for two, or even three years, he 
 will not regret a month of it when he comes to 
 practice. 
 
 After the law school spend six months in a good 
 office, to see how things are done, and also perhaps 
 to get a little of the usual law student's conceit 
 rubbed off, and then begin. Practice, in Massachu- 
 setts at least, is very easily understood. 
 
 What needs time is not to learn the routine of 
 clerk's offices or what a writ looks like, but to master 
 profoundly and in detail the great body of the law. 
 This is done far better in a law school in the midst 
 of a catching enthusiasm than it can be in the listless 
 solitude of an office, and the companionship and intel- 
 lectual excitement which are found in the school take 
 the place to many of the experience which they 
 missed at an earlier stage. 
 
 In a law school the lines of study are marked out, 
 of course, and the student will not be likely to find 
 much time for the Roman law. If he studies that, 
 it will be in his months of waiting for clients. But 
 in spite of the very great authority by which the 
 study of it is recommended, I never have been able 
 to believe that it has the value so often supposed.
 
 156 COLLECTED LEGAL PAPERS 
 
 A system of law at any time is the resultant of 
 present needs and present notions of what is wise 
 and right on the one hand, and, on the other, of 
 rules handed down from earlier states of society and 
 embodying needs and notions which more or less have 
 passed away. 
 
 To get to the bottom of any system, therefore, a 
 good deal of history has to be studied, and this is 
 true of the law under which we live now. But our 
 law has reached broader and more profound general- 
 izations than the Roman law, and at the same time 
 far surpasses it in the detail with which it has been 
 worked out. 
 
 One who is master of our own will master any 
 civilized body of law with ease. But while he is 
 engaged in mastering one, I doubt the wisdom of 
 adding to his difficulties by the attempt to learn an- 
 other system which is even more in need than ours 
 of historical explanation at every step, a large part 
 of which is obsolete, and a part of which is hard to 
 understand even in the best modern books. I cannot 
 help suspecting that the advantages attributed to 
 his study of it by the Lord Chief Justice were 
 due to Sir Henry Maine more than to the Roman 
 law. 
 
 The main roots of our law are Prankish, not 
 Roman, and many ideas which formerly were sup- 
 posed, and in the common books still are supposed, 
 to have come from Rome are now traced to the Lex 
 Salica and the folk-law which left its mark in the 
 Gcrmania of Tacitus. The last will is almost the
 
 THE BAR AS A PROFESSION 157 
 
 only conception of first-rate importance which has 
 a Roman origin, so far as I know. 
 
 Of course I recognize that a man hardly can be 
 called accomplished in his profession who knows 
 nothing of Roman law, and more particularly of the 
 great Germans who have taught it in this century, 
 but I am speaking of how to learn law for practice. 
 
 The study of jurisprudence is a different matter. 
 When properly taught, jurisprudence means simply 
 the broadest generalization of the principles and the 
 deepest analysis of the ideas at the bottom of an 
 actual system. It is the same process, carried 
 further, by which the law is carried out from particu- 
 lar cases into general rules. A young man who has 
 understood John Austin's tedious and often mistaken 
 book has taken a real step forward, while Sir Henry 
 Maine makes him feel as if his whole road were 
 strewn with diamonds. 
 
 The means of thoroughly understanding the law 
 now within every one's reach are very different from 
 those with which we had to content ourselves when 
 I was a student. Studied as it may be studied and 
 as there are now many encouragements to study it, 
 Burke no longer would fear, I think, that it would 
 sharpen the mind by narrowing it. 
 
 One of the courses to be pursued is the anatomy 
 of legal ideas worked out by the English school of 
 jurisprudence; another is the embryology of the 
 same conceptions to be found in history as the Ger- 
 mans have taught it to the world. 
 
 With regard to the chances of success, I remember
 
 158 COLLECTED LEGAL PAPERS 
 
 that the late Lord Justice Bowen once told me, when 
 he was at the bar and already successful, that he 
 thought that beside patience and talent a man must 
 have luck. But, so far as I have noticed, luck gen- 
 erally comes to patience and talent, if coupled with 
 love of the thing, as the Lord Chief Justice so truly 
 adds. 
 
 In this country there seems to be as good a chance 
 to succeed at the bar as in other callings, and I 
 should not think that much depended on luck for 
 a man of the right sort. Sometimes, too, the law has 
 been the starting-point for a business career, and 
 always it has offered an opening into politics. 
 
 For the last quarter of a century a large part of 
 our best talent has gone into business rather than 
 into politics, doubtless because it was more needed 
 there and therefore the rewards were higher. It has 
 been more important that the country should be de- 
 veloped than that it should be governed by the great- 
 est skill. But there can be no doubt that we need 
 all the ability we can get in our government at the 
 present time and that we shall want, if we can get 
 them, trained lawyers as well as economists in our 
 legislatures. 
 
 But here again the situation is different from that 
 in England; and political life generally means giving 
 up the law for the time and rather a falling off in 
 legal capacity, although I should not advise any one 
 to sleep on that consideration if he should be trying 
 a case against Senator Hoar. 
 
 In one of the most beautiful pieces of English in
 
 THE BAR AS A PROFESSION 159 
 
 the world, the essay called The Lantern-Bearers, Mr. 
 Robert Louis Stevenson shows us how in their hearts 
 all men are idealists. The only criticism which I 
 should make upon his adorable essay is that his ex- 
 amples find their ideals outside their daily pursuits. 
 George Herbert's 
 
 "Who sweeps a room as for Thy laws, 
 Makes that and th' action fine," 
 
 has an intellectual as well as a moral meaning. If 
 the world is a subject for rational thought it is all 
 of one piece; the same laws are found everywhere, 
 and everything is connected with everything else; 
 and if this is so, there is nothing mean, and nothing 
 in which may not be seen the universal law. 
 
 The difference between gossip and philosophy lies 
 only in one's way of taking a fact. The law may 
 lead to high things those who stay in it as well as 
 those who pass beyond but not above it to other 
 forms of command.
 
 i6o COLLECTED LEGAL TAPERS 
 A REJOINDER 
 
 BY THE LORD CHIEF JUSTICE OF ENGLAND 
 
 I HAVE read the comments on "The Bar as a Pro- 
 fession," by Mr. Justice Holmes, with interest and 
 with some surprise. With much that the learned 
 judge says I find myself in agreement. On two 
 main points I find myself differing from him. In the 
 first place I regard university training as much more 
 important than the learned judge appears to do. 
 Robust minds can do much to make good the want of 
 it, but to make an accomplished lawyer in the sense 
 in which Chief Justice Marshall, Lord Mansfield 
 and Sir William Grant, amongst others, answered 
 that description, I regard university culture as almost 
 indispensable. 
 
 My surprise in the next place arises from the de- 
 preciatory view which Mr. Justice Holmes seems to 
 take of the value of the study of Roman law. Under 
 that head I of course include not only the Corpus 
 Juris, but also that body of text law, mainly German, 
 which deals not only with the historical and scientific 
 side of Roman law, but which, by modernizing it, has 
 rejected much of the early Roman law now obsolete. 
 
 No one can read the judgments of your great 
 Chief Justice Marshall or the writings of Story or 
 of Kent without seeing how much, in arrangement 
 and in breadth of view, they owe to the study of 
 Roman law.
 
 THE BAR AS A PROFESSION i6i 
 
 Mr. Justice Holmes speaks truly and with just 
 pride of the system of legal education in the United 
 States. It is in my opinion far superior to that 
 existing in these islands. Its superiority I think 
 mainly consists in its systematic teaching of the his- 
 torical and scientific aspects of law before the actual, 
 practical, workaday law is dealt with. 
 
 To the absence of this system I largely attrib- 
 ute the facts — which I deplore — that with but 
 few exceptions our legal treatises are analyses of 
 decided cases, our legal arguments at the bar are 
 a nice discrimination of those cases, and the deliver- 
 ances from the judges but little more than able efforts 
 to establish analogies or differences between the case 
 in hand and reported authority. I think also the 
 form if not the substance of legislation is injuriously 
 affected by the same cause. 
 
 If this state of things is to be remedied, it can 
 only be by early training in law, historically and 
 systematically taught, and I can imagine no such 
 teaching from which the Roman law can be excluded. 
 I need hardly say that in any study of comparative 
 law the Roman system must find a prominent place. 
 
 The learned judge speaks of the broader and more 
 profound generalizations reached in our time. May 
 I suggest to him that even now, after the lapse of 
 centuries, the De regulis juris still speaks with a liv- 
 ing voice? Again, I cannot agree that the main roots 
 of our law are Prankish — they are mainly of native 
 growth — and still less that the "last will" is almost 
 the only conception of first-rate importance which
 
 1 62 COLLECTED LEGAL PAPERS 
 
 originates in the Roman law. But I would prefer 
 to suggest other authority than my own in favor of 
 the views I propound. 
 
 It happens that I have recently had to read the re- 
 port known as that of the Gresham Commission 
 (1894), before which were examined a number of 
 distinguished men on the subject of the establish- 
 ment of a legal faculty in connection with a teaching 
 university in London. Amongst these were Lord 
 Coleridge, Lord Bowen, Prof. J. Bryce, M. P., Lord 
 Davey, Professor Westlake, and last, but by no 
 means least, Prof. E. H. Emmott of the Johns Hop- 
 kins University, Baltimore. Each of these high 
 authorities was emphatic as to the importance of the 
 study of Roman law in any high system of legal 
 training. 
 
 In The Bar as a Profession, I have suggested a 
 high ideal of the accomplished lawyer — one who 
 may make a great advocate, a great judge, a great 
 writer, or a great legislator, or all of these. I do not 
 deny that without the liberal equipment which I would 
 desire, men of ability may make large incomes and 
 even have distinguished careers at the bar, but I 
 maintain that their careers would have been still 
 more distinguished, their marks on their generation 
 graven still deeper, and their contributions to the 
 wisdom of the world still weightier, had they pos- 
 sessed it.
 
 THE BAR AS A PROFESSION 163 
 
 A POSTSCRIPT 
 
 BY MR. JUSTICE HOLMES 
 
 I HAVE read the second article of the Lord Chief 
 Justice, but I see no reason to change the opinions 
 which I have expressed. I will only add a few words 
 of explanation. 
 
 I trust that it will be understood that I did not 
 undervalue the moral or even the intellectual ad- 
 vantages of a university education, but that I am 
 speaking of its importance for what I may call a 
 fighting success. 
 
 In saying that the main roots of our law are Prank- 
 ish I mean to deny the notion, which has been held, 
 that they are Roman, rather than accurately to dis- 
 criminate the particular folk-law to which we are 
 most indebted. I do not think, however, that any 
 of the most important conceptions of private law are 
 of native origin in England. 
 
 For further expression of my views I should have 
 to refer to my book on The Common Law and to an 
 article on "Early English Equity" in the Law 
 Quarterly Review. The leading ideas there advanced 
 appear to me to have been followed in the main by 
 the latest and most accomplished historians of Eng- 
 lish law, Sir F. Pollock and Mr. Maitland.
 
 BROWN UNIVERSITY — COMMENCE- 
 MENT 1897* 
 
 A UNIVERSITY is a place from which men start 
 for the Eternal City. In the university are pictured 
 the ideals which abide in the City of God. Many 
 roads lead to that haven, and those who are here 
 have traveled by different paths towards the goal. 
 I do not know what better the travelers can do at a 
 gathering like this, where for a moment the univer- 
 sity becomes conscious of itself and of its meaning, 
 than to report to those about to start something of 
 their experiences and to give a hint of what is to 
 be expected on the way . 
 
 My way has been by the ocean of the law. On 
 that I have learned a part of the great lesson, the 
 lesson not of law but of life. There were few of 
 the charts and lights for which one longed when I 
 began. One found oneself plunged in a thick fog 
 of details — in a black and frozen night, in which 
 were no flowers, no spring, no easy joys. Voices of 
 authority warned that in the crush of that ice any 
 craft might sink. One heard Burke saying that law 
 sharpens the mind by narrowing it. One heard in 
 Thackeray of a lawyer bending all the powers of a 
 great mind to a mean profession. One saw that 
 
 ♦ Hitherto unprinted. 
 164
 
 BROWN UNIVERSITY, 1897 165 
 
 artists and poets shrank from it as from an alien 
 world. One doubted oneself how it could be worthy 
 of the interest of an intelligent mind. And yet 
 one said to oneself, law is human — it is a part 
 of man, and of one world with all the rest. There 
 must be a drift, if one will go prepared and have 
 patience, which will bring one out to daylight and 
 a worthy end. You all have read or heard the 
 story of Nansen and see the parallel which I use. 
 Most men of the college-bred type in some form or 
 other have to go through that experience of sailing 
 for the ice and letting themselves be frozen in. In 
 the first stage one has companions, cold and black 
 though it be, and if he sticks to it, he finds at last 
 that there is a drift as was foretold. When he has 
 found that he has learned the first part of his lesson, 
 that one is safe in trusting to courage and to time. 
 But he has not yet learned all. So far his trials 
 have been those of his companions. But if he is a 
 man of high ambitions he must leave even his fellow- 
 adventurers and go forth into a deeper solitude and 
 greater trials. He must start for the pole. In plain 
 words he must face the loneliness of original work. 
 No one can cut out new paths in company. He does 
 that alone. 
 
 When he has done that and has turned misgiving 
 into success he is master of himself and knows the 
 secret of achievement. He has learned the second 
 part of his lesson and is ready for the consummation 
 of the whole. For he has gained another knowledge 
 more fruitful than success. He knows now what he
 
 i66 COLLECTED LEGAL PAPERS 
 
 had divined at the outset, that one part of the uni- 
 verse yields the same teaching as any other if only 
 it is mastered, that the difference between the great 
 way of taking things and the small — between phil- 
 osophy and gossip — is only the difference between 
 realizing the part as a part of a whole and looking at 
 it in its isolation as if it really stood apart. The 
 consummation to which I referred comes when he 
 applies this knowledge to himself. He may put it 
 in the theological form of justification by faith or in 
 the philosophical one of the continuity of the uni- 
 verse. I care not very much for the form if in some 
 way he has learned that he cannot set himself over 
 against the universe as a rival god, to criticize it, or 
 to shake his fist at the skies, but that his meaning 
 is its meaning, his only worth is as a part of it, as a 
 humble instrument of the universal power. It seems 
 to me that this is the key to intellectual salvation, as 
 the key to happiness is to accept a like faith in one's 
 heart, and to be not merely a necessary but a willing 
 instrument in working out the inscrutable end.
 
 THE PATH OF THE LAW * 
 
 When we study law we are not studying a mystery 
 but a well-known profession. We are studying what 
 we shall want in order to appear before judges, or 
 to advise people in such a way as to keep them out 
 of court. The reason why it is a profession, why 
 people will pay lawyers to argue for them or to 
 advise them, is that in societies like ours the com- 
 mand of the public force is intrusted to the judges 
 in certain cases, and the whole power of the state 
 will be put forth, if necessary, to carry out their 
 judgments and decrees. People want to know under 
 what circumstances and how far they will run the 
 risk of coming against what is so much stronger than 
 themselves, and hence it becomes a business to find 
 out when this danger is to be feared. The object 
 of our study, then, is prediction, the prediction of 
 the incidence of the public force through the instru- 
 mentality of the courts. 
 
 The means of the study are a body of reports, 
 of treatises, and of statutes, in this country and in 
 England, extending back for six hundred years, and 
 now increasing annually by hundreds. In these 
 
 ♦An Address delivered by Mr. Justice Holmes, of the Supreme 
 Judicial Court of Massachusetts, at the dedication of the new hall of 
 the Boston University School of Law, on January 8, 1897. Copy- 
 righted by 0. W. Holmes, 1897. Harvard Law Review, Vol. X,, 457- 
 
 167
 
 1 68 COLLECTED LEGAL PAPERS 
 
 sibylline leaves are gathered the scattered prophe- 
 cies of the past upon the cases in which the axe will 
 fall. These are what properly have been called the 
 oracles of the law. Far the most important and 
 pretty nearly the whole meaning of every new effort 
 of legal thought is to make these prophecies more 
 precise, and to generalize them into a thoroughly 
 connected system. The process is one, from a law- 
 yer's statement of a case, eliminating as it does all 
 the dramatic elements with which his client's story 
 has clothed it, and retaining only the facts of legal 
 import, up to the final analyses and abstract uni- 
 versals of theoretic jurisprudence. The reason why 
 a lawyer does not mention that his client wore a white 
 hat when he made a contract, while Mrs. Quickly 
 would be sure to dwell upon it along with the parcel 
 gilt goblet and the sea-coal fire, is that he foresees 
 that the public force will act in the same way what- 
 ever his client had upon his head. It is to make 
 the prophecies easier to be remembered and to be 
 understood that the teachings of the decisions of the 
 past are put into general propositions and gathered 
 into text-books, or that statutes are passed in a gen- 
 eral form. The primary rights and duties with which 
 jurisprudence busies itself again are nothing but 
 prophecies. One of the many evil effects of the con- 
 fusion between legal and moral ideas, about which 
 I shall have something to say in a moment, is that 
 theory is apt to get the cart before the horse, and 
 to consider the right or the duty as something exist- 
 ing apart from and independent of the consequences
 
 THE PATH OF THE LAW 169 
 
 of its breach, to which certain sanctions are added 
 afterward. But, as I shall try to show, a legal duty 
 so called is nothing but a prediction that if a man 
 does or omits certain things he will be made to suffer 
 in this or that way by judgment of the court; and so 
 of a legal right. 
 
 The number of our predictions when generalized 
 and reduced to a system is not unmanageably large. 
 They present themselves as a finite body of dogma 
 which may be mastered within a reasonable time. 
 It is a great mistake to be frightened by the ever- 
 increasing number of reports. The reports of a 
 given jurisdiction in the course of a generation take 
 up pretty much the whole body of the law, and 
 restate it from the present point of view. We could 
 reconstruct the corpus from them if all that went 
 before were burned. The use of the earlier reports 
 is mainly historical, a use about which I shall have 
 something to say before I have finished. 
 
 I wish, if I can, to lay down some first principles 
 for the study of this body of dogma or systematized 
 prediction which we call the law, for men who want 
 to use it as the instrument of their business to enable 
 them to prophesy in their turn, and, as bearing upon 
 the study, I wish to point out an ideal which as yet 
 our law has not attained. 
 
 The first thing for a business-like understanding 
 of the matter is to understand its limits, and there- 
 fore I think it desirable at once to point out and 
 dispel a confusion between morality and law, which 
 sometimes rises to the height of conscious theory,
 
 170 COLLECTED LEGAL PAPERS 
 
 and more often and indeed constantly is making 
 trouble in detail without reaching the point of con- 
 sciousness. You can see very plainly that a bad 
 man has as much reason as a good one for wishing 
 to avoid an encounter with the public force, and 
 therefore you can see the practical importance of the 
 distinction between morality and law. A man who 
 cares nothing for an ethical rule which is believed 
 and practised by his neighbors is likely nevertheless 
 to care a good deal to avoid being made to pay 
 money, and will want to keep out of jail if he can. 
 
 I take it for granted that no hearer of mine will 
 misinterpret what I have to say as the language 
 of cynicism. The law is the witness and external 
 deposit of our moral life. Its history is the history 
 of the moral development of the race. The practice 
 of it, in spite of popular jests, tends to make good 
 citizens and good men. When I emphasize the 
 difference between law and morals I do so with 
 reference to a single end, that of learning and under- 
 standing the law. For that purpose you must defi- 
 nitely master its specific marks, and it is for that I 
 ask you for the moment to imagine yourselves in- 
 different to other and greater things. 
 
 I do not say that there is not a wider point of 
 view from which the distinction between law and 
 morals becomes of secondary or no importance, as 
 all mathematical distinctions vanish in presence of 
 the infinite. But I do say that that distinction is of 
 the first importance for the object which we are 
 here to consider — a right study and mastery of the
 
 THE PATH OF THE LAW 
 
 I 1 
 
 law as a business with well understood limits, a body 
 of dogma enclosed within definite lines. I have just 
 shown the practical reason for saying so. If you 
 want to know the law and nothing else, you must 
 look at it as a bad man, who cares only for the 
 material consequences which such knowledge enables 
 him to predict, not as a good one, who finds his 
 reasons for conduct, whether inside the law or out- 
 side of it, in the vaguer sanctions of conscience. The 
 theoretical importance of the distinction is no less, 
 if you would reason on your subject aright. The 
 law is full of phraseology drawn from morals, and 
 by the mere force of language continually invites us 
 to pass from one domain to the other without per- 
 ceiving it, as we are sure to do unless we have the 
 boundary constantly before our minds. The law 
 talks about rights, and duties, and malice, and intent, 
 and negligence, and so forth, and nothing is easier, 
 or, I may say, more common in legal reasoning, than 
 to take these words in their moral sense, at some 
 stage of the argument, and so to drop into fallacy. 
 For instance, when we speak of the rights of man 
 in a moral sense, we mean to mark the limits of 
 interference with individual freedom which we think 
 are prescribed by conscience, or by our ideal, how- 
 ever reached. Yet it is certain that many laws have 
 been enforced in the past, and it is likely that some 
 are enforced now, which are condemned by the most 
 enlightened opinion of the time, or which at all events 
 pass the limit of interference as many consciences 
 would draw it. Manifestly, therefore, nothing but
 
 ;7a COLLECTED LEGAL PAPERS 
 
 confusion of thought can result from assuming that 
 the rights of man in a moral sense are equally rights 
 in the sense of the Constitution and the law. No 
 doubt simple and extreme cases can be put of imagin- 
 able laws which the statute-making power would not 
 dare to enact, even in the absence of written consti- 
 tutional prohibitions, because the community vrould 
 rise in rebellion and fight; and this gives some plaus- 
 ibility to the proposition that the law, if not a part 
 of morality, is limited by it. But this limit of power 
 is not coextensive with any system of morals. For 
 the most part it falls far within the lines of any such 
 system, and in some cases may extend beyond them, 
 for reasons drawn from the habits of a particular 
 people at a particular time. I once heard the late 
 Professor Agassiz say that a German population 
 would rise if you added two cents to the price of a 
 glass of beer. A statute in such a case would be 
 empty words, not because it was wrong, but because 
 it could not be enforced. No one will deny that 
 wrong statutes can be and are enforced, and we 
 should not all agree as to which were the wrong ones. 
 The confusion with which I am dealing besets con- 
 fessedly legal conceptions. Take the fundamental 
 question, What constitutes the law? You will find 
 some text writers telling you that it is something 
 different from what is decided by the courts of 
 Massachusetts or England, that it is a system of 
 reason, that it is a deduction from principles of 
 ethics or admitted axioms or what not, which may 
 or may not coincide with the decisions. But if we
 
 THE PATH OF THE LAW 173 
 
 take the view of our friend the bad man we shall find 
 that he does not care two straws for the axioms or 
 deductions, but that he does want to know what the 
 Massachusetts or English courts are likely to do in 
 fact. I am much of his mind. The prophecies of 
 what the courts will do in fact, and nothing more 
 pretentious, are what I mean by the law. 
 
 Take again a notion which as popularly under- 
 stood is the widest conception which the law con- 
 tains — the notion of legal duty, to which already 
 I have referred. We fill the word with all the con- 
 tent which we draw from morals. But what does 
 it mean to a bad man? Mainly, and in the first 
 place, a prophecy that if he does certain things he 
 will be subjected to disagreeable consequences by 
 way of imprisonment or compulsory payment of 
 money. But from his point of view, what is the 
 difference between being fined and being taxed a 
 certain sum for doing a certain thing? That his 
 point of view is the test of legal principles is shown 
 by the many discussions which have arisen in the 
 courts on the very quesetion whether a given statu- 
 tory liability is a penalty or a tax. On the answer 
 to this question depends the decision whether conduct 
 is legally wrong or right, and also whether a man 
 is under compulsion or free. Leaving the criminal 
 law on one side, what is the difference between the 
 liability under the mill acts or statutes authorizing 
 a taking by eminent domain and the liability for 
 what we call a wrongful conversion of property 
 where restoration is out of the question. In both
 
 174 COLLECTED LEGAL PAPERS 
 
 cases the party taking another man's property has 
 to pay its fair value as assessed by a jury, and no 
 more. What significance is there in caUing one 
 taking right and another wrong from the point of 
 view of the law? It does not matter, so far as the 
 given consequence, the compulsory payment, is con- 
 cerned, whether the act to which it is attached is 
 described in terms of praise or in terms of blame, or 
 whether the law purports to prohibit it or to allow 
 it. If it matters at all, still speaking from the bad 
 man's point of view, it must be because in one case 
 and not in the other some further disadvantages, or 
 at least some further consequences, are attached to 
 the act by the law. The only other disadvantages 
 thus attached to it which I ever have been able to 
 think of are to be found in two somewhat insignifi- 
 cant legal doctrines, both of which might be abolished 
 without disturbance. One is, that a contract to do 
 a prohibited act is unlawful, and the other, that, if 
 one of two or more joint wrongdoers has to pay 
 all the damages, he cannot recover contribution from 
 his fellows. And that I believe is all. You see how 
 the vague circumference of the notion of duty shrinks 
 and at the same time grows more precise when we 
 wash it with cynical acid and expel everything except 
 the object of our study, the operations of the law. 
 
 Nowhere is the confusion between legal and moral 
 ideas more manifest than in the law of contract. 
 Among other things, here again the so called primary 
 rights and duties are invested with a mystic signifi- 
 cance beyond what can be assigned and explained.
 
 THE PATH OF THE LAW 175 
 
 The duty to keep a contract at common law means a 
 prediction that you must pay damages if you do not 
 keep it — and nothing else. If you commit a tort, 
 you are liable to pay a compensatory sum. If you 
 commit a contract, you are liable to pay a compensa- 
 tory sum unless the promised event comes to pass, and 
 that is all the difference. But such a mode of looking 
 at the matter stinks in the nostrils of those who think 
 it advantageous to get as much ethics into the law 
 as they can. It was good enough for Lord Coke, 
 however, and here, as in many other cases, I am 
 content to abide with him. In Bromage v. Genning,"^ 
 a prohibition was sought in the King's Bench against 
 a suit in the marches of Wales for the specific per- 
 formance of a covenant to grant a lease, and Coke 
 said that it would subvert the intention of the cove- 
 nantor, since he intends it to be at his election either 
 to lose the damages or to make the lease. Sergeant 
 Harris for the plaintiff confessed that he moved 
 the matter against his conscience, and a prohibition 
 was granted. This goes further than we should go 
 now, but it shows what I venture to say has been 
 the common law point of view from the beginning, 
 although Mr. Harriman, in his very able little book 
 upon Contracts has been misled, as I humbly think, 
 to a different conclusion. 
 
 I have spoken only of the common law, because 
 there are some cases in which a logical justification 
 can be found for speaking of civil liabilities as im- 
 posing duties in an intelligible sense. These are 
 
 1 Roll. Rep. 368.
 
 176 COLLECTED LEGAL PAPERS 
 
 the relatively few in which equity will grant an 
 injunction, and will enforce it by putting the defend- 
 ant in prison or otherwise punishing him unless he 
 complies with the order of the court. But I hardly 
 think it advisable to shape general theory from the 
 exception, and I think it would be better to cease 
 troubling ourselves about primary rights and sanc- 
 tions altogether, than to describe our prophecies con- 
 cerning the liabilities commonly imposed by the law 
 in those inappropriate terms. 
 
 I mentioned, as other examples of the use by the 
 law of words drawn from morals, malice, intent, and 
 negligence. It is enough to take malice as it is used 
 in the law of civil liability for wrongs — what we 
 lawyers call the law of torts — to show that it means 
 something different in law from what it means in 
 morals, and also to show how the difference has been 
 obscured by giving to principles which have little or 
 nothing to do with each other the same name. Three 
 hundred years ago a parson preached a sermon and 
 told a story out of Fox's Book of Martyrs of a man 
 who had assisted at the torture of one of the saints, 
 and afterward died, suffering compensatory inward 
 torment. It happened that Fox was wrong. The 
 man was alive and chanced to hear the sermon, and 
 thereupon he sued the parson. Chief Justice Wray 
 instructed the jury that the defendant was not liable, 
 because the story was told innocently, without malice. 
 He took malice in the moral sense, as importing a 
 malevolent motive. But nowadays no one doubts 
 that a man may be liable, without any malevolent
 
 THE PATH OF THE LAW 177 
 
 motive at all, for false statements manifestly cal- 
 culated to inflict temporal damage. In stating the 
 case in pleading, we still should call the defendant's 
 conduct malicious; but, in my opinion at least, the 
 word means nothing about motives, or even about 
 the defendant's attitude toward the future, but only 
 signifies that the tendency of his conduct under the 
 known circumstances was very plainly to cause the 
 plaintiff temporal harm.^ 
 
 In the law of contract the use of moral phrase- 
 ology has led to equal confusion, as I have shown 
 in part already, but only in part. Morals deal with 
 the actual internal state of the individual's mind, 
 what he actually intends. From the time of the 
 Romans down to now, this mode of dealing has 
 affected the language of the law as to contract, and 
 the language used has reacted upon the thought. We 
 talk about a contract as a meeting of the minds 
 of the parties, and thence it is inferred in various 
 cases that there is no contract because their minds 
 have not met; that is, because they have intended 
 different things or because one party has not known 
 of the assent of the other. Yet nothing is more 
 certain than that parties may be bound by a contract 
 to things which neither of them intended, and when 
 one does not know of the other's assent. Suppose 
 a contract is executed in due form and in writing 
 to deliver a lecture, mentioning no time. One of 
 the parties thinks that the promise will be construed 
 to mean at once, within a week. The other thinks 
 
 2 See Hanson v. Globe Newspaper Co., 759 Mass. 293, 302.
 
 178 COLLECTED LEGAL PAPERS 
 
 that it means when he is ready. The court says 
 that it means within a reasonable time. The parties 
 are bound by the contract as it is interpreted by 
 the court, yet neither of them meant what the court 
 declares that they have said. In my opinion no one 
 will understand the true theory of contract or be 
 able even to discuss some fundamental questions 
 intelligently until he has understood that all con- 
 tracts are formal, that the making of a contract 
 depends not on the agreement of two minds in one 
 intention, but on the agreement of two sets of ex- 
 ternal signs — not on the parties' having meant the 
 same thing but on their having said the same thing. 
 Furthermore, as the signs may be addressed to one 
 sense or another — to sight or to hearing — on the 
 nature of the sign will depend the moment when the 
 contract is made. If the sign is tangible, for in- 
 stance, a letter, the contract is made when the letter 
 of acceptance is delivered. If it is necessary that 
 the minds of the parties meet, there will be no con- 
 tract until the acceptance can be read — none, for 
 example, if the acceptance be snatched from the 
 hand of the offerer by a third person. 
 
 This is not the time to work out a theory in de- 
 tail, or to answer many obvious doubts and questions 
 which are suggested by these general views. I know 
 of none which are not easy to answer, but what I 
 am trying to do now is only by a series of hints to 
 throw some light on the narrow path of legal doc- 
 trine, and upon two pitfalls which, as it seems to 
 me, lie perilously near to it. Of the first of these
 
 THE PATH OF THE LAW 179 
 
 I have said enough. I hope that my illustrations 
 have shown the danger, both to speculation and to 
 practice, of confounding morality with law, and the 
 trap which legal language lays for us on that side 
 of our way. For my own part, I often doubt 
 whether it would not be a gain if every word of moral 
 significance could be banished from the law al- 
 together, and other words adopted which should con- 
 vey legal ideas uncolored by anything outside the 
 law. We should lose the fossil records of a good 
 deal of history and the majesty got from ethical 
 associations, but by ridding ourselves of an unneces- 
 sary confusion we should gain very much in the 
 clearness of our thought. 
 
 So much for the limits of the law. The next thing 
 which I wish to consider is what are the forces which 
 determine its content and its growth. You may as- 
 sume, with Hobbes and Bentham and Austin, that 
 all law emanates from the sovereign, even when the 
 first human beings to enunciate it are the judges, 
 or you may think that law is the voice of the Zeit- 
 geist, or what you like. It is all one to my present 
 purpose. Even if every decision required the sanc- 
 tion of an emperor with despotic power and a whim- 
 sical turn of mind, we should be interested none the 
 less, still with a view to prediction, in discovering some 
 order, some rational explanation, and some principle 
 of growth for the rules which he laid down. In every 
 system there are such explanations and principles to 
 be found. It is with regard to them that a second 
 fallacy comes in, which I think it important to 
 expose.
 
 i8o COLLECTED LEGAL PAPERS 
 
 The fallacy to which I refer is the notion that 
 the only force at work in the development of the 
 law is logic. In the broadest sense, indeed, that 
 notion would be true. The postulate on which we 
 think about the universe is that there is a fixed 
 quantitative relation between every phenomenon and 
 its antecedents and consequents. If there is such 
 a thing as a phenomenon without these fixed quanti- 
 tative relations, it is a miracle. It is outside the law 
 of cause and effect, and as such transcends our power 
 of thought, or at least is something to or from which 
 we cannot reason. The condition of our thinking 
 about the universe is that it is capable of being 
 thought about rationally, or, in other words, that 
 every part of it is effect and cause in the same sense 
 in which those parts are with which we are most 
 familiar. So in the broadest sense it is true that 
 the law is a logical development, like everything else. 
 The danger of which I speak is not the admission 
 that the principles governing other phenomena also 
 govern the law, but the notion that a given system, 
 ours, for instance, can be worked out like mathe- 
 matics from some general axioms of conduct. This 
 is the natural error of the schools, but it is not con- 
 fined to them. I once heard a very eminent judge 
 say that he never let a decision go until he was 
 absolutely sure that it was right. So judicial dis- 
 sent often is blamed, as if it meant simply that one 
 side or the other were not doing their sums right, 
 and, if they would take more trouble, agreement 
 inevitably would come.
 
 THE PATH OF THE LAW i8i 
 
 This mode of thinking is entirely natural. The 
 training of lawyers is a training in logic. The proc- 
 esses of analogy, discrimination, and deduction are 
 those in which they are most at home. The lan-^"^ 
 guage of judicial decision is mainly the language of 
 logic. And the logical method and form flatter that 
 longing for certainty and for repose which is in 
 every human mind. But certainty generally is illu- 
 sion, and repose is not the destiny of man. Behind 
 the logical form lies a judgment as to the relative 
 worth and importance of competing legislative 
 grounds, often an inarticulate and unconscious judg- 
 ment, it is true, and yet the very root and nerve of 
 the whole proceeding. You can give any conclusion 
 a logical form. You always can imply a condition in 
 a contract. But why do you imply it? It is be- 
 cause of some belief as to the practice of the commu- 
 nity or of a class, or because of some opinion as to 
 policy, or, in short, because of some attitude of yours 
 upon a matter not capable of exact quantitative 
 measurement, and therefore not capable of founding 
 exact logical conclusions. Such matters really are 
 battle grounds where the means do not exist for 
 determinations that shall be good for all time, and 
 where the decision can do no more than embody 
 the preference of a given body in a given time and 
 place. We do not realize how large a part of our 
 law is open to reconsideration upon a slight change 
 in the habit of the public mind. No concrete propo- 
 sition is self evident, no matter how ready we may 
 be to accept it, not even Mr. Herbert Spencer's
 
 i82 COLLECTED LEGAL PAPERS 
 
 "Every man has a right to do what he wills, pro- 
 vided he interferes not with a like right on the part 
 of his neighbors." 
 
 Why is a false and injurious statement privileged, 
 if it is made honestly in giving information about a 
 servant. It is because it has been thought more 
 important that information should be given freely, 
 than that a man should be protected from what under 
 other circumstances would be an actionable wrong. 
 Why is a man at liberty to set up a business which 
 he knows will ruin his neighbor? It is because the 
 public good is supposed to be best subserved by free 
 competition. Obviously such judgments of relative 
 importance may vaiy in different times and places. 
 Why does a judge instruct a jury that an employer 
 is not liable to an employee for an injury received 
 in the course of his employment unless he is negli- 
 gent, and why do the jury generally find for the 
 plaintiff if the case is allowed to go to them? It is 
 because the traditional policy of our law is to confine 
 liability to cases where a prudent man might have 
 foreseen the injury, or at least the danger, while the 
 inclination of a very large part of the community 
 is to make certain classes of persons insure the safety 
 of those with whom they deal. Since the last words 
 were written, I have seen the requirement of such 
 insurance put forth as part of the programme of one 
 of the best known labor organizations. There is 
 a concealed, half conscious battle on the question 
 of legislative policy, and if any one thinks that it 
 can be settled deductively, or once for all, I only
 
 THE PATH OF THE LAW 183 
 
 can say that I think he is theoretically wrong, and 
 that I am certain that his conclusion will not be ac- 
 cepted in practice semper ubique et ah omnibus. 
 
 Indeed, I think that even now our theory upon 
 this matter is open to reconsideration, although I 
 am not prepared to say how I should decide if a 
 reconsideration were proposed. Our law of torts 
 comes from the old days of isolated, ungeneralized 
 wrongs, assaults, slanders, and the like, where the 
 damages might be taken to lie where they fell by 
 legal judgment. But the torts with which our courts 
 are kept busy to-day are mainly the incidents of 
 certain well known businesses. They are injuries 
 to person or property by railroads, factories, and the 
 like. The liability for them is estimated, and sooner 
 or later goes into the price paid by the public. The 
 public really pays the damages, and the question of 
 liability, if pressed far enough, is really the question 
 how far it is desirable that the public should insure 
 the safety of those whose work it uses. It might 
 be said that in such cases the chance of a jury find- 
 ing for the defendant is merely a chance, once in a 
 while rather arbitrarily interrupting the regular 
 course of recovery, most likely in the case of an un- 
 usually conscientious plaintiff, and therefore better 
 done away with. On the other hand, the economic 
 value even of a life to the community can be esti- 
 mated, and no recovery, it may be said, ought to 
 go beyond that amount. It is conceivable that some 
 day in certain cases we may find ourselves imitating.
 
 i84 COLLECTED LEGAL PAPERS 
 
 on a higher plane, the tariff for life and limb which 
 we see in the Leges Barbarorum. 
 
 I think that the judges themselves have failed 
 adequately to recognize their duty of weighing con- 
 siderations of social advantage. The duty is inevit- 
 able, and the result of the often proclaimed judicial 
 aversion to deal with such considerations is simply to 
 leave the very ground and foundation of judgments 
 inarticulate, and often unconscious, as I have said. 
 When sociahsm first began to be talked about, the 
 comfortable classes of the community were a good 
 deal frightened. I suspect that this fear has influ- 
 enced judicial action both here and in England, yet 
 it is certain that it is not a conscious factor in the 
 decisions to which I refer. I think that something 
 similar has led people who no longer hope to control 
 the legislatures to look to the courts as expounders 
 of the Constitutions, and that in some courts new 
 principles have been discovered outside the bodies 
 of those instruments, which may be generalized into 
 acceptance of the economic doctrines which prevailed 
 about fifty years ago, and a wholesale prohibition of 
 what a tribunal of lawyers does not think about 
 right. I cannot but believe that if the training of 
 lawyers led them habitually to consider more defi- 
 nitely and explicitly the social advantage on which 
 the rule they lay down must be justified, they some- 
 times would hesitate where now they are confident, 
 and see that really they were taking sides upon de- 
 batable and often burning questions. 
 
 So much for the fallacy of logical form. Now let
 
 THE PATH OF THE LAW 185 
 
 us consider the present condition of the law as a 
 subject for study, and the ideal toward which it tends. 
 We still are far from the point of view which I desire 
 to see reached. No one has reached it or can reach 
 it as yet. We are only at the beginning of a phil- 
 osophical reaction, and of a reconsideration of the 
 worth of doctrines which for the most part still are 
 taken for granted without any deliberate, conscious, 
 and systematic questioning of their grounds. The 
 development of our law has gone on for nearly a 
 thousand years, like the development of a plant, 
 each generation taking the inevitable next step, mind, 
 like matter, simply obeying a law of spontaneous 
 growth. It is perfectly natural and right that it 
 should have been so. Imitation is a necessity of 
 human nature, as has been illustrated by a remark- 
 able French writer, M. Tarde, in an admirable book, 
 Les Lois de VImitation. Most of the things we do, we 
 do for no better reason than that our fathers have 
 done them or that our neighbors do them, and the 
 same is true of a larger part than we suspect of what 
 we think. The reason is a good one, because our 
 short Hfe gives us no time for a better, but it is not 
 tlie best. It does not follow, because we all are 
 compelled to take on faith at second hand most of 
 the rules on which we base our action and our 
 thought, that each of us may not try to set some 
 corner of his world in the order of reason, or that 
 all of us collectively should not aspire to carry reason 
 as far as it will go throughout the whole domain. In 
 regard to the law, it is true, no doubt, that an evo-
 
 i86 COLLECTED LEGAL PAPERS 
 
 lutionist will hesitate to affirm universal validity 
 for his social ideals, or for the principles which he 
 thinks should be embodied in legislation. He is con- 
 tent if he can prove them best for here and now. He 
 may be ready to admit that he knows nothing about 
 an absolute best in the cosmos, and even that he 
 knows next to nothing about a permanent best for 
 men. Still it is true that a body of law is more 
 rational and more civilized when every rule it con- 
 tains is referred articulately and definitely to an end 
 which it subserves, and when the grounds for desir- 
 ing that end are stated or are ready to be stated in 
 words. 
 
 At present, in very many cases, if we want to know 
 why a rule of law has taken its particular shape, 
 and more or less if we want to know why it exists 
 at all, we go to tradition. We follow it into the 
 Year Books, and perhaps beyond them to the cus- 
 toms of the Salian Franks, and somewhere in the 
 past, in the German forests, in the needs of Norman 
 kings, in the assumptions of a dominant class, in 
 the absence of generalized ideas, we find out the 
 practical motive for what now best is justified by 
 the mere fact of its acceptance and that men are 
 accustomed to it. The rational study of law is still 
 to a large extent the study of history. History must 
 be a part of the study, because without it we cannot 
 know the precise scope of rules which it is our busi- 
 ness to know. It is a part of the rational study, 
 because it is the first step toward an enlightened 
 scepticism, that is, towards a deliberate reconsidera-
 
 THE PATH OF THE LAW 187 
 
 tion of the worth of those rules. When you get the 
 dragon out of his cave on to the plain and in the 
 daylight, you can count his teeth and claws, and 
 see just what is his strength. But to get him out 
 is only the first step. The next is either to kill him, 
 or to tame him and make him a useful animal. For 
 the rational study of the law the black-letter man 
 may be the man of the present, but the man of the 
 future is the man of statistics and the master of 
 economics. It is revolting to have no better reason 
 for a rule of law than that so it was laid down in 
 the time of Henry IV. It is still more revolting 
 if the grounds upon which it was laid down have 
 vanished long since, and the rule simply persists from 
 blind imitation of the past. I am thinking of the 
 technical rule as to trespass ab initio, as it is called, 
 which I attempted to explain in a recent Massa- 
 chusetts case. ' 
 
 Let me take an illustration, which can be stated 
 in a few words, to show how the social end which 
 is aimed at by a rule of law is obscured and only 
 partially attained in consequence of the fact that 
 the rule owes its form to a gradual historical develop- 
 ment, instead of being reshaped as a whole, with 
 conscious articulate reference to the end in view. 
 We think it desirable to prevent one man's property 
 being misappropriated by another, and so we make 
 larceny a crime. The evil is the same whether the 
 misappropriation is made by a man into whose hands 
 the owner has put the property, or by one who wrong- 
 
 3 Commonwealth v. Rubin, 165 Mass. 453.
 
 1 88 COLLECTED LEGAL PAPERS 
 
 fully takes it away. But primitive law in its weak- 
 ness did not get much beyond an effort to prevent 
 violence, and very naturally made a wrongful taking, 
 a trespass, part of its definition of the crime. In 
 modern times the judges enlarged the definition a 
 little by holding that, if the wrong-doer gets posses- 
 sion by a trick or device, the crime is committed. 
 This really was giving up the requirement of a tres- 
 pass, and it would have been more logical, as well as 
 truer to the present object of the law, to abandon 
 the requirement altogether. That, however, would 
 have seemed too bold, and was left to statute. 
 Statutes were passed making embezzlement a crime. 
 But the force of tradition caused the crime of em- 
 bezzlement to be regarded as so far distinct from 
 larceny that to this day, in some jurisdictions at 
 least, a slip corner is kept open for thieves to con- 
 tend, if indicted for larceny, that they should have 
 been indicted for embezzlement, and if indicted for 
 embezzlement, that they should have been indicted 
 for larceny, and to escape on that ground. 
 
 Far more fundamental questions still await a bet- 
 ter answer than that we do as our fathers have done. 
 What have we better than a blind guess to show 
 that the criminal law in its present form does more 
 good than harm? I do not stop to refer to the effect 
 which it has had in degrading prisoners and in plung- 
 ing them further into crime, or to the question 
 whether fine and imprisonment do not fall more 
 heavily on a criminal's wife and children than on 
 himself. I have in mind more far-reaching ques-
 
 THE PATH OF THE LAW 189 
 
 tions. Does punishment deter? Do we deal with 
 criminals on proper principles? A modern school of 
 Continental criminalists plumes itself on the formula, 
 first suggested, it is said, by Gall, that we must con- 
 sider the criminal rather than the crime. The 
 formula does not carry us very far, but the inquiries 
 which have been started look toward an answer of 
 my questions based on science for the first time. If 
 the typical criminal is a degenerate, bound to swindle 
 or to murder by as deep seated an organic necessity 
 as that which makes the rattlesnal^e bite, it is idle 
 to talk of deterring him by the classical method of 
 imprisonment. He must be got rid of; he cannot 
 be improved, or frightened out of his structural re- 
 action. If, on the other hand, crime, like normal 
 human conduct, is mainly a matter of imitation, 
 punishment fairly may be expected to help to keep 
 it out of fashion. The study of criminals has been 
 thought by some well known men of science to sus- 
 tain the former hypothesis. The statistics of the 
 relative increase of crime in crowded places like large 
 cities, where example has the greatest chance to work, 
 and in less populated parts, where the contagion 
 spreads more slowly, have been used with great force 
 in favor of the latter view. But there is weighty 
 authority for the belief that, however this may be, 
 "not the nature of the crime, but the dangerousness 
 of the criminal, constitutes the only reasonable legal 
 criterion to guide the inevitable social reaction against 
 the criminal." * 
 
 * Havelock Ellis, The Criminal, 41, citing Garofalo. See also Ferri, 
 Sociologie Criminelle, passim. Compare Tarde, La Pkilosophie Pinale.
 
 190 COLLECTED LEGAL PAPERS 
 
 The impediments to rational generalization, which 
 I illustrated from the law of larceny, are shown in 
 the other branches of the law, as well as in that of 
 crime. Take the law of tort or civil liability for 
 damages apart from contract and the like. Is there 
 any general theory of such liability, or are the cases 
 in which it exists simply to be enumerated, and to 
 be explained each on its special ground, as is easy to 
 believe from the fact that the right of action for 
 certain well known classes of wrongs like trespass 
 or slander has its special history for each class? I 
 think that there is a general theory to be discovered, 
 although resting in tendency rather than established 
 and accepted. I think that the law regards the inflic- 
 tion of temporal damage by a responsible person 
 as actionable, if under the circumstances known to 
 him the danger of his act is manifest according to 
 common experience, or according to his own experi- 
 ence if it is more than common, except in cases where 
 upon special grounds of policy the law refuses to pro- 
 tect the plaintiff or grants a privilege to the defend- 
 ant.^ I think that commonly malice, intent, and 
 negligence mean only that the danger was manifest 
 to a greater or less degree, under the circumstances 
 known to the actor, although in some cases of privi- 
 lege malice may mean an actual malevolent motive, 
 
 5 An example of the law's refusing to protect the plaintiff is when 
 he is interrupted by a stranger in the use of a valuable way, which 
 he has travelled adversely for a week less than the period of prescrip- 
 tion. A week later he will have gained a right, but now he is only 
 a trespasser. Example of privilege I have given already. One of the 
 best is competition in business.
 
 THE PATH OF THE LAW 191 
 
 and such a motive may take away a permission know- 
 ingly to inflict harm, which otherwise would be 
 granted on this or that ground of dominant public 
 good. But when I stated my view to a very emi- 
 nent English judge the other day, he said: "You are 
 discussing what the law ought to be; as the law is, 
 you must show a right. A man is not liable for 
 negligence unless he is subject to a duty." If our 
 difference was more than a difference in words, or 
 with regard to the proportion between the exceptions 
 and the rule, then, in his opinion, liability for an 
 act cannot be referred to the manifest tendency of 
 the act to cause temporal damage in general as a 
 sufficient explanation, but must be referred to the 
 special nature of the damage, or must be derived 
 from some special circumstances outside of the ten- 
 dency of the act, for which no generalized explana- 
 tion exists. I think that such a view is wrong, but 
 it is familiar, and I dare say generally is accepted in 
 England. 
 
 Everywhere the basis of principle is tradition, to 
 such an extent that we even are in danger of making 
 the role of history more important than it is. The 
 other day Professor Ames wrote a learned article 
 to show, among other things, that the common law 
 did not recognize the defence of fraud in actions 
 upon specialties, and the moral might seem to be 
 that the personal character of that defence is due 
 to its equitable origin. But if, as I have said, all 
 contracts are formal, the difference is not merely 
 historical, but theoretic, between defects of form
 
 192 COLLECTED LEGAL PAPERS 
 
 which prevent a contract from being made, and mis- 
 taken motives which manifestly could not be con- 
 sidered in any system that we should call rational 
 except against one who was privy to those motives. 
 It is not confined to specialties, but is of universal 
 application. I ought to add that I do not suppose 
 that Mr. Ames would disagree with what I suggest. 
 
 However, if we consider the law of contract, we 
 find it full of history. The distinctions between 
 debt, covenant, and assumpsit are merely historical. 
 The classification of certain obligations to pay money, 
 imposed by the law irrespective of any bargain as 
 quasi contracts, is merely historical. The doctrine 
 of consideration is merely historical. The effect 
 given to a seal is to be explained by history alone. 
 Consideration is a mere form. Is it a useful form? 
 If so, why should it not be required in all contracts? 
 A seal is a mere form, and is vanishing in the scroll 
 and in enactments that a consideration must be given, 
 seal or no seal. Why should any merely historical 
 distinction be allowed to affect the rights and obli- 
 gations of business men? 
 
 Since I wrote this discourse I have come on a 
 very good example of the way in which tradition 
 not only overrides rational policy, but overrides it 
 after first having been misunderstood and having 
 been given a new and broader scope than it had 
 when it had a meaning. It is the settled law of 
 England that a material alteration of a written con- 
 tract by a party avoids it as against him. The doc- 
 trine is contrary to the general tendency of the law.
 
 THE PATH OF THE LAW 193 
 
 We do not tell a jury that if a man ever has lied 
 in one particular he is to be presumed to lie in all. 
 Even if a man has tried to defraud, it seems no suffi- 
 cient reason for preventing him from proving the 
 truth. Objections of like nature in general go to the 
 weight, not to the admissibility, of evidence. More- 
 over, this rule is irrespective of fraud, and is not con- 
 fined to evidence. It is not merely that you cannot 
 use the writing, but that the contract is at an end. 
 What does this mean? The existence of a written 
 contract depends on the fact that the offerer and 
 offeree have interchanged their written expressions, 
 not on the continued existence of those expressions. 
 But in the case of a bond, the primitive notion was 
 different. The contract was inseparable from the 
 parchment. If a stranger destroyed it, or tore off 
 the seal, or altered it, the obligee could not recover, 
 however free from fault, because the defendant's 
 contract, that is, the actual tangible bond which he 
 had sealed, could not be produced in the form in 
 which it bound him. About a hundred years ago 
 Lord Kenyon undertook to use his reason on this 
 tradition, as he sometimes did to the detriment of 
 the law, and, not understanding it, said he could 
 see no reason why what was true of a bond should 
 not be true of other contracts. His decision hap- 
 pened to be right, as it concerned a promissory note, 
 where again the common law regarded the contract 
 as inseparable from the paper on which it was writ- 
 ten, but the reasoning was general, and soon was 
 extended to other written contracts, and various ab-
 
 194 COLLECTED LEGAL PAPERS 
 
 surd and unreal grounds of policy were invented to 
 account for the enlarged rule. 
 
 I trust that no one will understand me to be speak- 
 ing with disrespect of the law, because I criticise it 
 so freely. I venerate the law, and especially our 
 system of law, as one of the vastest products of 
 the human mind. No one knows better than I do 
 the countless number of great intellects that have 
 spent themselves in making some addition or im- 
 provement, the greatest of which is trifling when com- 
 pared with the mighty whole. It has the final title 
 to respect that it exists, that it is not a Hegelian 
 dream, but a part of the lives of men. But one may 
 criticise even what one reveres. Law is the business 
 to which my life is devoted, and I should show less 
 than devotion if I did not do what in me lies to im- 
 prove it, and, when I perceive what seems to me the 
 ideal of its future, if I hesitated to point it out and 
 to press toward it with all my heart. 
 
 Perhaps I have said enough to show the part which 
 the study of history necessarily plays in the intelli- 
 gent study of the law as it is to-day. In the teach- 
 ing of this school and at Cambridge it is in no danger 
 of being undervalued. Mr. Bigelow here and Mr. 
 Ames and Mr. Thayer there have made important 
 contributions which will not be forgotten, and in 
 England the recent history of early English law by 
 Sir Frederick Pollock and Mr. Maitland has lent the 
 subject an almost deceptive charm. We must be- 
 ware of the pitfall of antiquarianism, and must re- 
 member that for our purposes our only interest in
 
 THE PATH OF THE LAW 19S 
 
 the past is for the light it throws upon the present. 
 I look forward to a time when the part played by 
 history in the explanation of dogma shall be very 
 small, and instead of ingenious research we shall 
 spend our energy on a study of the ends sought to 
 be attained and the reasons for desiring them. As 
 a step toward that ideal it seems to me that every 
 lawyer ought to seek an understanding of economics. 
 The present divorce between the schools of political 
 economy and law seems to me an evidence of how 
 much progress in philosophical study still remains 
 to be made. In the present state of political 
 economy, indeed, we come again upon history on a 
 larger scale, but there we are called on to consider 
 and weigh the ends of legislation, the means of attain- 
 ing them, and the cost. We learn that for every- 
 thing we have we give up something else, and we are 
 taught to set the advantage we gain against the other 
 advantage we lose, and to know what we are doing 
 when we elect. 
 
 There is another study which sometimes is under- 
 valued by the practical minded, for which I wish to 
 say a good word, although I think a good deal of 
 pretty poor stuff goes under that name. I mean the 
 study of what is called jurisprudence. Jurisprudence, 
 as I look at it, is simply law in its most generalized 
 part. Every effort to reduce a case to a rule is an 
 effort of jurisprudence, although the name as used 
 in English is confined to the broadest rules and most 
 fundamental conceptions. One mark of a great law- 
 yer is that he sees the application of the broadest
 
 196 COLLECTED LEGAL PAPERS 
 
 rules. There is a story of a Vermont justice of the 
 peace before whom a suit was brought by one farmer 
 against another for breaking a churn. The justice 
 took time to consider, and then said that he had 
 looked tlirough the statutes and could find nothing 
 about churns, and gave judgment for the defendant. 
 The same state of mind is shown in all our common 
 digests and text-books. Applications of rudimentary 
 rules of contract or tort are tucked away under the 
 head of Railroads or Telegraphs or go to swell 
 treatises on historical subdivisions, such as Shipping 
 or Equity, or are gathered under an arbitrary title 
 which is thought likely to appeal to the practical 
 mind, such as Mercantile Law. If a man goes into 
 law it pays to be a master of it, and to be a master 
 of it means to look straight through all the dramatic 
 incidents and to discern the true basis for prophecy. 
 Therefore, it is well to have an accurate notion of 
 what you mean by law, by a right, by a duty, by 
 malice, intent, and negligence, by ownership, by pos- 
 session, and so forth. I have in my mind cases in 
 which the highest courts seem to me to have floun- 
 dered because they had no clear ideas on some of 
 these themes. I have illustrated their importance 
 already. If a further illustration is wished, it may 
 be found by reading the Appendix to Sir James 
 Stephen's Criminal Law on the subject of possession, 
 and then turning to Pollock and Wright's enlight- 
 ened book. Sir James Stephen is not the only writer 
 whose attempts to analyze legal ideas have been con- 
 fused by strivmg for a useless quintessence of all sys-
 
 THE PATH OF THE LAW 197 
 
 terns, instead of an accurate anatomy of one. The 
 trouble with Austin was that he did not know enough 
 English law. But still it is a practical advantage to 
 master Austin, and his predecessors, Hobbes and 
 Bentham, and his worthy successors, Holland and 
 Pollock. Sir Frederick Pollock's recent little book 
 is touched with the felicity which marks all his works, 
 and is wholly free from the perverting influence of 
 Roman models. 
 
 The advice of the elders to young men is very 
 apt to be as unreal as a list of the hundred best 
 books. At least in my day I had my share of such 
 counsels, and high among the unrealities I place the 
 recommendation to study the Roman law. I assume 
 that such advice means more than collecting a few 
 Latin maxims with which to ornament the discourse 
 — the purpose for which Lord Coke recommended 
 Bracton. If that is all that is wanted, the title De 
 Regulis Juris Antiqui can be read in an hour. I as- 
 sume that, if it is well to study the Roman Law, it is 
 well to study it as a working system. That means 
 mastering a set of technicalities more difficult and 
 less understood than our own, and studying another 
 course of history by which even more than our own 
 the Roman law must be explained. If any one 
 doubts me, let him read Keller's Der Romische 
 Civil Process und die Actionen, a treatise on the 
 praetor's edict, Muirhead's most interesting His- 
 torical Introduction to the Private Law of Rome, 
 and, to give him the best chance, Sohm's admirable 
 Institutes. No. The way to gain a liberal view of
 
 198 COLLECTED LEGAL PAPERS 
 
 your subject is not to read something else, but to 
 get to the bottom of the subject itself. The means 
 of doing that are, in the first place, to follow the 
 existing body of dogma into its highest generaliza- 
 tions by the help of jurisprudence; next, to discover 
 from history how it has come to be what it is; and, 
 finally, so far as you can, to consider the ends 
 which the several rules seek to accomplish, the rea- 
 sons why those ends are desired, what is given up to 
 gain them, and whether they are worth the price. 
 
 We have too little theory in the law rather than 
 too much, especially on this final branch of study. 
 When I was speaking of history, I mentioned larceny 
 as an example to show how the law suffered from not 
 having embodied in a clear form a rule which will 
 accomplish its manifest purpose. In that case the 
 trouble was due to the survival of forms coming 
 from a time when a more limited purpose was enter- 
 tained. Let me now give an example to show the 
 practical importance, for the decision of actual cases, 
 of understanding the reasons of the law, by taking 
 an example from rules which, so far as I know, never 
 have been explained or theorized about in any ade- 
 quate way. I refer to statutes of limitation and the 
 law of prescription. The end of such rules is obvi- 
 ous, but what is the justification for depriving a man 
 of his rights, a pure evil as far as it goes, in conse- 
 quence of the lapse of time? Sometimes the loss 
 of evidence is referred to, but that is a secondary 
 matter. Sometimes the desirability of peace, but 
 why is peace more desirable after twenty years than
 
 THE PATH OF THE LAW 199 
 
 before? It is increasingly likely to come without 
 the aid of legislation. Sometimes it is said that, if 
 a man neglects to enforce his rights, he cannot com- 
 plain if, after a while, the law follows his example. 
 Now if this is all that can be said about it, you 
 probably will decide a case I am going to put, for 
 the plaintiff; if you take the view which I shall sug- 
 gest, you possibly will decide it for the defendant. 
 A man is sued for trespass upon land, and justifies 
 under a right of way. He proves that he has used 
 the way openly and adversely for twenty years, but 
 it turns out that the plaintiff had granted a license 
 to a person whom he reasonably supposed to be the 
 defendant's agent, although not so in fact, and there- 
 fore had assumed that the use of the way was per- 
 missive, in which case no right would be gained. 
 Has the defendant gained a right or not? If his 
 gaining it stands on the fault and neglect of the 
 landowner in the ordinary sense, as seems commonly 
 to be supposed, there has been no such neglect, and 
 the right of way has not been acquired. But if I 
 were the defendant's counsel, I should suggest that 
 the foundation of the acquisition of rights by lapse 
 of time is to be looked for in the position of the per- 
 son who gains them, not in that of the loser. Sir 
 Henry Maine has made it fashionable to connect the 
 archaic notion of property with prescription. But 
 the connection is further back than the first recorded 
 history. It is in the nature of man's mind. A thing 
 which you have enjoyed and used as your own for a 
 long time, whether property or an opinion, takes
 
 ioo COLLECTED LEGAL PAPERS 
 
 root in your being and cannot be torn away without 
 your resenting the act and trying to defend yourself, 
 however you came by it. The law can ask no better 
 justification than the deepest instincts of man. It 
 is only by way of reply to the suggestion that you 
 are disappointing the former owner, that you refer 
 to his neglect having allowed the gradual dissociation 
 between himself and what he claims, and the gradual 
 association of it with another. If he knows that 
 another is doing acts which on their face show that 
 he is on the way toward establishing such an associa- 
 tion, I should argue that in justice to that other he 
 was bound at his peril to find out whether the other 
 was acting under his permission, to see that he was 
 warned, and if necessary, stopped. 
 
 I have been speaking about the study of the law, 
 and I have said next to nothing of what commonly 
 is talked about in that connection — text-books and 
 the case system, and all the machinery with which 
 a student comes most immediately in contact. Nor 
 shall I say anything about them. Theory is my sub- 
 ject, not practical details. The modes of teaching 
 have been improved since my time, no doubt, but 
 ability and industry will master the raw material 
 with any mode. Theory is the most important part 
 of the dogma of the law, as the architect is the most 
 important man who takes part in the building of a 
 house. The most important improvements of the 
 last twenty-five years are improvements in theory. 
 It is not to be feared as unpractical, for, to the compe- 
 tent, it simply means going to the bottom of the
 
 THE PATH OF THE LAW 201 
 
 subject. For the incompetent, it sometime rue, 
 as has been said, that an interest in gene leas 
 means an absence of particular knowledge. . re- 
 member in army days reading of a youth who, being 
 examined for the lowest grade and being asked a 
 question about squadron drill, answered that he never 
 had considered the evolutions of less than cen thou- 
 sand men. But the weak and foolish miist be left to 
 their folly. The danger is that the able and practical 
 minded should look with indifference or distrust upon 
 ideas the connection of which with their business is 
 remote. I heard a story, the other day, of a man 
 who had a valet to whom he paid high wages, sub- 
 ject to deduction for faults. One of his deductions 
 was, "For lack of imagination, five dollars." The 
 lack is not confined to valets. The object of ambi- 
 tion, power, generally presents itself nowadays in 
 the form of money alone. Money is the most im- 
 mediate form, and is a proper object of desire. "The 
 fortune," said Rachel, "is the measure of the intelli- 
 gence." That is a good text to waken people out 
 of a fool's paradise. But, as Hegel says,° "It is in 
 the end not the appetite, but the opinion, which has 
 to be satisfied." To an imagination of any scope 
 the most far-reaching form of power is not money, 
 it is the command of ideas. If you want great ex- 
 amples, read Mr. Leslie Stephen's History of English 
 Thought in the Eighteenth Century, and see how a 
 hundred years after his death the abstract specula- 
 tions of Descartes had become a practical force con- 
 
 * Phil, des Rechts, § 190.
 
 202 COLLECTED LEGAL PAPERS 
 
 trolli/i^ yie conduct of men. Read the works of the 
 greaf" ^'^scj-man jurists, and see how much more the 
 worl^verjoverned to-day by Kant than by Bonaparte. 
 We cannot all be Descartes or Kant, but we all want 
 happiness. And happiness, I am sure from having 
 known many successful men, cannot be won simply 
 by being counsel for great corporations and having 
 an income i f fifty thousand dollars. An intellect 
 great enough to win the prize needs other food be- 
 sides success. The remoter and more general aspects 
 of the law are those which give it universal interest. 
 It is through them that you not only become a great 
 master in your calling, but connect your subject with 
 the universe and catch an echo of the infinite, a 
 glimpse of its unfathomable process, a hint of the 
 universal law.
 
 THE THEORY OF LEGAL INTERPRETATION* 
 
 The paper upon the "Principles of Legal Interpre- 
 tation," by Mr. F. Vaughan Hawkins, reprinted in 
 Professor Thayer's recently published and excellent 
 Preliminary Treatise on Evidence, induces me to 
 suggest what seems to me the theory of our rules 
 of interpretation — a theory which I think supports 
 Lord Wensleydale and the others whom Mr. Haw- 
 kins quotes and disapproves, if I correctly understand 
 their meaning and his. 
 
 It is true that in theory any document purporting 
 to be serious and to have some legal effect has one 
 meaning and no other, because the known object is 
 to achieve some definite result. It is not true that 
 in practice (and I know no reason why theory should 
 disagree with the facts) a given word or even a given 
 collocation of words has one meaning and no other. 
 A word generally has several meanings, even in the 
 dictionary. You have to consider the sentence in 
 which it stands to decide which of those meanings 
 it bears in the particular case, and very likely will 
 see that it there has a shade of significance more 
 refined than any given in the word-book. But in 
 this first step, at least, you are not troubling yourself 
 
 * Harvard Law Review, Vol. XII., 417 (1899). 
 203
 
 204 COLLECTED LEGAL PAPERS 
 
 about the idiosyncrasies of the writer, you are con- 
 sidering simply the general usages of speech. So 
 when you let whatever galvanic current may come 
 from the rest of the instrument run through the par- 
 ticular sentence, you still are doing the same thing. 
 How is it when you admit evidence of circumstances 
 and read the document in the light of them? Is this 
 trying to discover the particular intent of the individ- 
 ual, to get into his mind and to bend what he said 
 to what he wanted? No one would contend that 
 such a process should be carried very far, but, as 
 it seems to me, we do not take a step in that direc- 
 tion. It is not a question of tact in drawing a line. 
 We are after a different thing. What happens is 
 this. Even the whole document is found to have 
 a certain play in the joints when its words are 
 translated into things by parol evidence, as they have 
 to be. It does not disclose one meaning conclusively 
 according to the laws of language. Thereupon we 
 ask, not what this man meant, but what those words 
 would mean in the mouth of a normal speaker of Eng- 
 lish, using them in the circumstances in which they 
 were used, and it is to the end of answering this last 
 question that we let in evidence as to what the cir- 
 cumstances were. But the normal speaker of Eng- 
 lish is merely a special variety, a literary form, so 
 to speak, of our old friend the prudent man. He 
 is external to the particular writer, and a reference 
 to him as the criterion is simply another instance of 
 the externality of the law. 
 
 But then it is said, and this is thought to be the
 
 THEORY OF LEGAL INTERPRETATION 205 
 
 crux: In the case of a gift of Blackacre to John Smith, 
 when the donor owned two Blackacres and the direc- 
 tory reveals two John Smiths, you may give direct 
 evidence of the donor's intention, and it is only an 
 anomaly that you cannot give the same evidence in 
 every case. I think, on the contrary, that the excep- 
 tional rule is a proof of the instinctive insight of the 
 judges who established it. I refer again to the 
 theory of our language. By the theory of our lan- 
 guage, while other words may mean different things, 
 a proper name means one person or thing and no 
 other. If language perfectly performed its function, 
 as Bentham wanted to make it, it would point out the 
 person or thing in every case. But under our random 
 system it sometimes happens that your name is 
 idem sonans with mine, and it may be the same even 
 in spelling. But it never means you or me indiffer- 
 ently. In theory of speech your name means you 
 and my name means me, and the two names are 
 different. They are different words. Licet idem sit 
 nomen, tamen diversum est propter diversitatem 
 personae} In such a case we let in evidence of 
 intention not to help out what theory recognizes as 
 an uncertainty of speech, and to read what the writer 
 meant into what he has tried but failed to say, but, 
 recognizing that he has spoken with theoretic cer- 
 tainty, we inquire what he meant in order to find 
 out what he has said. It is on this ground that 
 there is no contract when the proper name used by 
 one party means one ship, and that used by the other 
 
 1 Bract. 190a.
 
 2o6 COLLECTED LEGAL PAPERS 
 
 means another.^ The mere difference of intent as 
 such is immateriaL In the use of common names 
 and words a plea of different meaning from that 
 adopted by the court would be bad, but here the 
 parties have said different things and never have ex- 
 pressed a contract. If the donor, instead of saying 
 "Blackacre," had said "my gold watch" and had 
 owned more than one, inasmuch as the words, though 
 singular, purport to describe any such watch belong- 
 ing to the speaker, I suppose that no evidence of 
 intention would be admitted. But I dare say that 
 evidence of circumstances sufficient to show that 
 the normal speaker of English would have meant 
 a particular watch by the same words would be 
 let in. 
 
 1 have stated what I suppose to be our general 
 theory of construction. It remains to say a few 
 words to justify it. Of course, the purpose of writ- 
 ten instruments is to express some intention or state 
 of mind of those who write them, and it is desirable 
 to make that purpose effectual, so far as may be, if 
 instruments are to be used. The question is how 
 far the law ought to go in aid of the writers. In the 
 case of contracts, to begin with them, it is obvious 
 that they express the wishes not of one person but 
 of two, and those two adversaries. If it turns out 
 that one meant one thing and the other another, 
 speaking generally, the only choice possible for the 
 
 2 Raffles V. Wichelhaus, 2 H. & C. 906. See Mead v. Phenix 
 Insurance Co., 158 Mass. 124; Hanson v. Globe Newspaper Co., iS9 
 Mass. 393, 305.
 
 THEORY OF LEGAL INTERPRETATION 207 
 
 legislator is either to hold both parties to the judge's 
 interpretation of the words in the sense which I have 
 explained, or to allow the contract to be avoided 
 because there has been no meeting of minds. The 
 latter course not only would greatly enhance the 
 difficulty of enforcing contracts against losing parties, 
 but would run against a plain principle of justice. 
 For each party to a contract has notice that the other 
 will understand his words according to the usage of 
 the normal speaker of English under the circum- 
 stances, and therefore cannot complain if his words 
 are taken in that sense.' 
 
 Different rules conceivably might be laid down for 
 the construction of different kinds of writing. In the 
 case of a statute, to turn from contracts to the 
 opposite extreme, it would be possible to say that as 
 we are dealing with the commands of the sovereign 
 the only thing to do is to find out what the sovereign 
 wants. If supreme power resided in the person of a 
 despot who would cut off your hand or your head 
 if you went wrong, probably one would take every 
 available means to find out what was wanted. Yet 
 in fact we do not deal differently with a statute from 
 our way of dealing with a contract. We do not 
 inquire what the legislature meant; we ask only what 
 the statute means. In this country, at least, for 
 constitutional reasons, if for no other, if the same 
 legislature that passed it should declare at a later 
 
 3 In Nash v. Minnesota Title Insurance and Trust Company, 163 
 Mass. 574, I thought that this principle should be carried further than 
 the majority of the court were willing to go.
 
 2o8 COLLECTED LEGAL PAPERS 
 
 date a statute to have a meaning which in the opinion 
 of the court the words did not bear, I suppose that 
 the declaratory act would have no effect upon inter- 
 vening transactions unless in a place and case where 
 retrospective legislation was allowed. As retrospec- 
 tive legislation it would not work by way of construc- 
 tion except in form. 
 
 So in the case of a will. It is true that the test- 
 ator is a despot, within limits, over his property, but 
 he is required by statute to express his commands in 
 writing, and that means that his words must be 
 sufficient for the purpose when taken in the sense in 
 which they would be used by the normal speaker of 
 English under his circumstances. 
 
 I may add that I think we should carry the external 
 principle of construction even further than I have 
 indicated. I do not suppose that you could prove, 
 for purposes of construction as distinguished from 
 avoidance, an oral declaration or even an agreement 
 that words in a dispositive instrument making sense 
 as they stand should have a different meaning from 
 the common one; for instance, that the parties to a 
 contract orally agreed that when they wrote five hun- 
 dred feet it should mean one hundred inches, or at 
 Bunker Hill Monument should signify Old South 
 Church.^ On the other hand, when you have the 
 security of a local or class custom or habit of speech, 
 it may be presumed that the writer conforms to the 
 usage of his place or class when that is what a normal 
 person in his situation would do. But these cases 
 
 * Goode V. Riley, iS3 Mass. 585, 586.
 
 THEORY OF LEGAL INTERPRETATION 209 
 
 are remote from the point of theory upon which I 
 started to speak. 
 
 It may be, after all, that the matter is one in which 
 the important thing, the law, is settled, and different 
 people will account for it by such theory as pleases 
 them best, as in the ancient controversy whether the 
 finder of a thing which had been thrown away by the 
 owner got a title in privity by gift, or a new title by 
 abandonment. That he got a title no one denied. 
 But although practical men generally prefer to leave 
 their major premises inarticulate, yet even for prac- 
 tical purposes theory generally turns out the most 
 important thing in the end. I am far from saying 
 that it might not make a difference in the old question 
 to whicli I have referred.
 
 LAW IN SCIENCE AND SCIENCE IN LAW * 
 
 The law of fashion is a law of life. The crest 
 of the wave of human interest is always moving, 
 and it is enough to know that the depth was greatest 
 in respect of a certain feature or style in literature 
 or music or painting a hundred years ago to be sure 
 that at that point it no longer is so profound. I 
 should draw the conclusion that artists and poets, 
 instead of troubling themselves about the eternal, had 
 better be satisfied if they can stir the feelings of a 
 generation, but that is not my theme. It is more to 
 my point to mention that what I have said about art 
 is true within the limits of the possible in matters 
 of the intellect. What do we mean when we talk 
 about explaining a thing? A hundred years ago 
 men explained any part of the universe by showing 
 its fitness for certain ends, and demonstrating what 
 they conceived to be its final cause according to a 
 providential scheme. In our less theological and 
 more scientific day, we explain an object by tracing 
 the order and process of its growth and development 
 from a starting point assumed as given. 
 
 This process of historical explanation has been 
 
 * An Address delivered by Mr. Justice Holmes before the New 
 York state Bar Association on January 17, 1899. — Harvard Law 
 Review, Vol, XH., 443. 
 
 210
 
 LAW IN SCIENCE — SCIENCE IN LAW 211 
 
 applied to the matter of our profession, especially 
 of recent years, with great success, and with so much 
 eagerness, and with such a feeling that when you had 
 the true historic dogma you had the last word not 
 only in the present but for the immediate future, 
 that I have felt warranted heretofore in throwing out 
 the caution that continuity with the past is only a 
 necessity and not a duty. As soon as a legislature 
 is able to imagine abolishing the requirement of a 
 consideration for a simple contract, it is at perfect 
 liberty to abolish it, if it thinks it wise to do so, 
 without the slightest regard to continuity with the 
 past. That continuity simply limits the possibilities 
 of our imagination, and settles the terms in which 
 we shall be compelled to think. 
 
 Historical explanation has two directions or as- 
 pects, one practical and the other abstractly scientific. 
 I by no means share that morality which finds in a 
 remoter practice the justification of philosophy and 
 science. I do not believe that we must justify our 
 pursuits by the motive of social well-being. If we 
 have satisfied ourselves that our pursuits are good for 
 society, or at least not bad for it, I think that 
 science, like art, may be pursued for the pleasure of 
 the pursuit and of its fruits, as an end in itself. 
 I somewhat sympathize with the Cambridge mathe- 
 matician's praise of his theorem, "The best of it all 
 is that it can never by any possibility be made of the 
 slightest use to anybody for anything." I think it 
 one of the glories of man that he does not sow seed, 
 and weave cloth, and produce all the other economic
 
 212 COLLECTED LEGAL PAPERS 
 
 means simply to sustain and multiply other sowers 
 and weavers that they in their turn may multiply, 
 and so ad infinitum, but that on the contrary he 
 devotes a certain part of his economic means to 
 uneconomic ends — ends, too, which he finds in him- 
 self and not elsewhere. After the production of 
 food and cloth has gone on a certain time, he stops 
 producing and goes to the play, or he paints a picture, 
 or asks unanswerable questions about the universe, 
 and thus delightfully consumes a part of the world's 
 food and clothing, while he idles away the only hours 
 that fully account for themselves. 
 
 Thinking in this way, you readily will understand 
 that I do not consider the student of the history of 
 legal doctrine bound to have a practical end in view. 
 It is perfectly proper to regard and study the law 
 simply as a great anthropological document. It is 
 proper to resort to it to discover what ideals of so- 
 ciety have been strong enough to reach that final 
 form of expression, or what have been the changes 
 in dominant ideals from century to century. It is 
 proper to study it as an exercise in the morphology 
 and transformation of human ideas. The study pur- 
 sued for such ends becomes science in the strictest 
 sense. Who could fail to be interested in the transi- 
 tion through the priest's test of truth, ^ the miracle 
 of the ordeal, and the soldier's, the battle of the duel, 
 to the democratic verdict of the jury! Perhaps I 
 might add, in view of the great increase of jury- 
 waived cases, a later transition yet — to the commer- 
 
 1 I do not forget that the church abolished the ordeal.
 
 LAW IN SCIENCE — SCIENCE IN LAW 213 
 
 cial and rational test of the judgment of a man 
 trained to decide. 
 
 It is still only the minority who recognize how the 
 change of emphasis which I have called the law of 
 fashion has prevailed even in the realm of morals. 
 The other day I was looking over Bradford's his- 
 tory — the book which Mr. Bayard brought as a 
 gift from Lambeth to the Massachusetts State House 
 — and I was struck to see recounted the execution 
 of a man with horrible solemnities for an offence 
 which still, to be sure, stands on the statute book as 
 a serious crime, but which no longer is often heard 
 of in court, which many would regard as best pun- 
 ished simply by the disgust of normal men, and which 
 a few think of only as a physiological aberration, of 
 interest mainly to the pathologist. I found in the 
 same volume the ministers consulted as the final ex- 
 pounders of the law, and learnedly demonstrating 
 that what now we should consider as needing no other 
 repression than a doctor's advice, was a crime punish- 
 able with death and to be ferreted out by searching 
 the conscience of the accused^ although after dis- 
 cussion it was thought that torture should be reserved 
 for state occasions. 
 
 To take a less odious as well as less violent con- 
 trast, when we read in the old books that it is the 
 duty of one exercising a common calling to do his 
 work upon demand and to do it with reasonable skill, 
 we see that the gentleman is in the saddle and means 
 to have the common people kept up to the mark for 
 his convenience. We recognize the imperative tone
 
 214 COLLECTED LEGAL PAPERS 
 
 which in our day has changed sides, and is oftener 
 to be heard from the hotel clerk than from the guest. 
 I spoke of the scientific study of the morphology 
 and transformation of human ideas in the law, and 
 perhaps the notion did not strike all of you as famil- 
 iar. I am not aware that the study ever has been 
 systematically pursued, but I have given some ex- 
 amples as I have come upon them in my work, and 
 perhaps I may mention some now by way of illustra- 
 tion, which, so far as I know, have not been followed 
 out by other writers. In the Lex Salica^ — the law 
 of the Salian Franks — you find going back to the 
 fifth century a very mysterious person, later ^ named 
 the salmannus — the sale-man — a third person who 
 was called in to aid in completing the transfer of 
 property in certain cases. The donor handed to him 
 a symbolic staff which he in due season handed over 
 in solemn form to the donee. If we may trust M. 
 Dareste, and take our information at second hand, 
 a copious source of error, it would look as if a similar 
 use of a third person was known to the Egyptians 
 and other early peoples. But what is certain is that 
 we see the same form used down to modern times 
 in England for the transfer of copyhold. I dare say 
 that many of you were puzzled, as I was when I was 
 a law student, at the strange handing over of a staff 
 to the lord or steward of the manor as a first step 
 toward conveying copyhold land to somebody else. 
 It really is nothing but a survival of the old form 
 
 * Merkel, ch. 46. 
 
 » A.D. 1 108, Beseler, 263, n.
 
 LAW IN SCIENCE — SCIENCE IN LAW 215 
 
 of the Salic law, as M. Vinogradoff at last has noticed, 
 in his work on Villainage in England. There you 
 have the Salic device in its original shape. But it 
 is the transformations which it has undergone to 
 which I wish to call your attention. The surrender 
 to the steward is expressed to be to the use of the 
 purchaser or donee. Now, although Mr. Kenelm 
 Digby in his History of the Law of Real Property 
 warns us that this has nothing to do with the doctrine 
 of uses, I venture to think that, helped by the work 
 of learned Germans as to the development of the 
 saleman on the continent, I have shown heretofore 
 that the saleman became in England the better known 
 feoffee to uses, and thus that the connection between 
 him and the steward of the manor when he receives 
 the surrender of a copyhold is clear. But the execu- 
 tor originally was nothing but a feoffee to uses. The 
 heir was the man who paid his ancestor's debts and 
 took his property. The executor did not step into 
 the heir's shoes, and come fully to represent the per- 
 son of the testator as to personal property and lia- 
 bilities until after Bracton wrote his great treatise 
 on the Laws of England. Surely a flower is not more 
 unlike a leaf, or a segment of a skull more unlike 
 a vertebra, than the executor as we know him is 
 remote from his prototype, the saleman of the Salic 
 law. I confess that such a development as that fills 
 me with interest, not only for itself, but as an illus- 
 tration of what you see all through the law — the 
 paucity of original ideas in man, and the slow, coast- 
 ing way in which he works along from rudimentary
 
 2i6 COLLECTED LEGAL PAPERS 
 
 beginnings to the complex and artificial conceptions 
 of civilized life. It is like the niggardly uninventive- 
 ness of nature in its other manifestations, with its 
 few smells or colors or types, its short list of ele- 
 ments, working along in the same slow way from 
 compound to compound until the dramatic impres- 
 siveness of the most intricate compositions, which we 
 call organic life, makes them seem different in kind 
 from the elements out of which they are made, when 
 set opposite to them in direct contrast. 
 
 In a book which I printed a good many years ago 
 I tried to establish another example of the develop- 
 ment and transformation of ideas. The early law 
 embodied hatred for any immediate source of hurt, 
 which comes from the association of ideas and im- 
 perfect analysis, in the form of proceedings against 
 animals and inanimate objects, and of the noxae 
 deditio by which the owner of the offending thing 
 surrendered it and was free from any further lia- 
 bility. I tried to show that from this primitive 
 source came, in part at least, our modern responsi- 
 bility of an owner for his animals and of a master 
 for his servants acting within the scope of their em- 
 ployment, the limited liability of shipowners under 
 the law which allows them to surrender their vessel 
 and free themselves, and that curious law of deodand, 
 under which a steam engine was declared forfeited by 
 the Court of Exchequer in 1842.* I shall have to 
 suggest later that it played a part also in the develop- 
 ment of contract. 
 
 * Regina v. Eastern Counties RaUway Company, lo M. & W. 59-
 
 LAW IN SCIENCE — SCIENCE IN LAW 217 
 
 Examples like these lead us beyond the trans- 
 formations of an idea to the broader field of the 
 development of our more general legal conceptions. 
 We have evolution in this sphere of conscious thought 
 and action no less than in lower organic stages, but 
 an evolution which must be studied in its own field. 
 I venture to think that the study is not yet finished. 
 Take for instance the origin of contract. A single 
 view has prevailed with slight modifications since 
 Sohm published Das Recht der Eheschliessung in 
 1875. But fashion is potent in science as well as 
 elsewhere, and it does not follow because Sohm 
 smashed his predecessor that there may not arise 
 a later champion who will make some impact upon 
 him. Sohm, following a thought first suggested, I 
 believe, by Savigny, and made familiar by Maine in 
 his Ancient Law, sees the beginning of contract in 
 an interrupted sale. This is expressed in later law 
 by our common law debt, founded upon a quid pro 
 quo received by the debtor from the creditor. Out 
 of this, by a process differently conceived by different 
 writers, arises the formal contract, the fides facta of 
 the Salic law, the covenant familiar to us. And this 
 dichotomy exhausts the matter. I do not say that 
 this may not be proved to be the final and correct 
 account, but there are some considerations which I 
 should like to suggest in a summary way. We are 
 not bound to assume with Sohm that his Frankish 
 ancestors had a theory in their heads which, even if 
 a trifle inarticulate, was the majestic peer of all that 
 was done at Rome. The result of that assumption
 
 2i8 COLLECTED LEGAL PAPERS 
 
 is to lead to the further one, tacitly made, but felt 
 to be there, that there must have been some theory 
 of contract from the beginning, if only you can find 
 what it was. It seems to me well to remember that 
 men begin with no theory at all, and with no such 
 generalization as contract. They begin with par- 
 ticular cases, and even when they have generalized 
 they are often a long way from the final generaliza- 
 tions of a later time. Down into this century con- 
 sideration was described by enumeration, as you may 
 see in Tidd's Practice, or Blackstone,' and only of 
 late years has it been reduced to the universal ex- 
 pression of detriment to the promises. So, bailment 
 was bailment and nothing further until modern 
 times. It was not contract. And so warranty was 
 warranty, a duty imposed by law upon the vendor, 
 and nothing more.' A trust still is only a trust, 
 although according to the orthodox it creates merely 
 a personal obligation. 
 
 Well, I have called attention elsewhere to the 
 fact that giving hostages may be followed back to 
 the beginning of our legal history, as far back as 
 sales, that is, and that out of the hostage grew the 
 surety, quite independently of the development of 
 debt or formal contract. If the obligation of the 
 surety, who, by a paradox explained by his origin, 
 appears often in early law without a principal con- 
 tractor, as the only party bound, had furnished the 
 
 ' I Tidd, Ch. I.; 2 Bl. Comm. 444, 445. , 
 
 •Glanv. X, C. 16; Bracton, 151; i Loning, Vertragsbruch, § 14, 
 p. 103 ; cf. Sohm, Inst. Rom. Law, § 46, § ir, n. 7.
 
 LAW IN SCIENCE — SCIENCE IN LAW 219 
 
 analogy for other undertakings, we never should have 
 had the doctrine of consideration. If other under- 
 takings were to be governed by the analogy of the 
 law developed out of sales, sureties must either have 
 received a quid pro quo or have made a covenant. 
 There was a clash between the competing ideas, and 
 just as commerce was prevailing over war the chil- 
 dren of the sale drove the child of the hostage from 
 the field. In the time of Edward III. it was decided 
 that a surety was not bound without a covenant, 
 except in certain cities where local custom maintained 
 the ancient law. Warranty of land came to re- 
 quire, and thus to be, a covenant in the same way, 
 although the warranty of title upon a sale of chattels 
 still retains its old characteristics, except that it now 
 is thought of as a contract.^ 
 
 But the hostage was not the only competitor for 
 domination. The oath also goes back as far as the 
 history of our race.^ It started from a different 
 point, and, leaving the possible difference of sanc- 
 tion on one side, it might have been made to cover 
 the whole field of promises. The breach of their 
 promissory oath by witnesses still is punished as 
 perjury, and formerly there were severe penalties 
 for the jury if convicted of a similar offence by 
 attaint." The solemnity was used for many other 
 purposes, and, if the church had had its way, the 
 
 1 Y. B. 13 & 14 Ed. Ill, 80. 
 
 8 Caesar, B. G., IV, ii; Ammianus Marcellinus, XVII, i, 13, 
 jurantes conceptis ritu patrio verbis. 
 ^ Bracton, 292b.
 
 220 COLLECTED LEGAL PAPERS 
 
 oath, helped by its cousin the plighting of troth, 
 would have been very likely to succeed. In the 
 time of Henry III., faith, oath, and writing, that 
 is, the covenant, were the popular familiar forms of 
 promise. The plighting of a man's faith or troth, 
 still known to us in the marriage ceremony, was in 
 common use, and the courts of the church claimed 
 jurisdiction over it as well as over the oath. I have 
 called attention elsewhere to a hint of inclination 
 on the part of the early clerical chancellors to con- 
 tinue the clerical jurisdiction in another court, and 
 to enforce the ancient form of obligation. Professor 
 Ames has controverted my suggestion, but I cannot 
 but think it of significance that down to later times 
 we still find the ecclesiastical tribunals punishing 
 breach of faith or of promissory oaths with spiritual 
 penalties. When we know that a certain form of 
 undertaking was in general use, and that it was en- 
 forced by the clergy in their own courts, a very little 
 evidence is enough to make us believe that in a new 
 court, also presided over by a clergyman and with 
 no substantive law of its own, the idea of enforcing 
 it well might have been entertained, especially in 
 view of the restrictions which the civil power put 
 upon the church. But oath and plighting of troth 
 did not survive in the secular forum except as an 
 occasional solemnity, and I have mentioned them 
 only to show a lively example of the struggle for 
 life among competing ideas, and of the ultimate vic- 
 tory and survival of the strongest. After victory 
 the law of covenant and debt went on, and consoli-
 
 LAW IN SCIENCE — SCIENCE IN LAW 221 
 
 dated and developed their empire in a way that is 
 familiar to you all, until they in their turn lost some- 
 thing of their power and prestige in consequence of 
 the rise of a new rival, Assumpsit. 
 
 There were other seeds which dropped by the way- 
 side in early law, and which were germs of relations 
 that might now be termed contractual, such as the 
 blood covenant, by which people bound themselves 
 together or made themselves of one substance by 
 drinking the blood or eating the flesh of a newly 
 killed animal. Such was the fiction of family rela- 
 tionship, by which, for instance, the Aedui symbol- 
 ized their alliance with the Romans.^" I may notice 
 in this connection that I suspect that the mundium 
 or early German guardianship was the origin of our 
 modern bail, while, as I have said, the surety came 
 from a different source. I mention these only to 
 bring still closer home the struggle for existence be- 
 tween competing ideas and forms to which I have 
 referred. In some instances the vanquished com- 
 petitor has perished. In some it has put on the 
 livery of its conqueror, and has become in form and 
 external appearance merely a case of covenant or 
 assumpsit. 
 
 Another important matter is the way in which 
 the various obligations were made binding after they 
 were recognized. A breach of oath of course brought 
 with it the displeasure of the gods. In other cases, 
 as might be expected, we find hints that liabilities 
 of a more primitive sort were extended to the new 
 
 " Strabo, IV., 32.
 
 222 COLLECTED LEGAL PAPERS 
 
 candidates for legal recognition. In the Roman law 
 a failure to pay the price of a purchase seems to 
 have suggested the analogy of theft. All over the 
 world slavery for debt is found, and this seems not 
 to have stood on the purely practical considerations 
 which first would occur to us, but upon a notion akin 
 to the noxal surrender of the offending body for a 
 tort. There is a mass of evidence that various early 
 contracts in the systems of law from which our own 
 is descended carried with them the notion of pledg- 
 ing the person of the contracting party — a notion 
 which we see in its extreme form in the seizure or 
 division of the dead body of the debtor," and which 
 seems to come out in the maxim Debita inhaerent 
 ossibus debitoris. 
 
 I am not going to trace the development of every 
 branch of our law in succession, but if we turn to the 
 law of torts we find there, perhaps even more notice- 
 ably than in the law of contracts, another evolution- 
 ary process which Mr. Herbert Spencer has made 
 familiar to us by the name of Integration. The 
 first stage of torts embraces little if anything beyond 
 those simple acts of violence where the appeals of 
 death, of wounding or maiming, of arson and the 
 like had taken the place of self-help, to be succeeded 
 by the modification known as the action of trespass. 
 But when the action on the case let libel and slander 
 and all the other wrongs which are known to the 
 
 II See, e.g., Three Metrical Romances, Camden Soc. 1842, introd. 
 p. xxvi, and cantos XII and XXII; Boccaccio, Bohn's tr., p. 444 n., 
 referring to an old English ballad.
 
 LAW IN SCIENCE — SCIENCE IN LAW 223 
 
 modern law into the civil courts, for centuries each 
 of the recognized torts had its special history, its 
 own precedents, and no one dreamed, so far as I 
 know, that the different cases of liability were, or 
 ought to be, governed by the same principles through- 
 out. As is said in the preface to Mr. Jaggard's 
 book, "the use of a book on Torts, as a distinct 
 subject, was a few years ago a matter of ridicule." 
 You may see the change which has taken place by 
 comparing Hilliard on Torts, which proceeds by 
 enumeration in successive chapters through assault 
 and battery, libel and slander, nuisance, trespass, 
 conversion, etc., with Sir Frederick Pollock's Intro- 
 duction, in which he says that the purpose of his 
 book "is to show that there really is a Law of Torts, 
 not merely a number of rules of law about various 
 kinds of torts — that this is a true living branch 
 of the Common Law, not a collection of heteroge- 
 neous instances." It would be bold, perhaps, to 
 say that the integration was complete, that it did 
 not rest partly in tendency. The recent much dis- 
 cussed case of Allen v. Flood, in the House of Lords, 
 seems to me to indicate that, in the view of the 
 older generation even of able and learned men, the 
 foundation of liability still is somewhat in the air, 
 and that tradition and enumeration are the best 
 guides to this day. But I have no doubt that the 
 generalizing principle will prevail, as generalization 
 so often prevails, even in advance of evidence, be- 
 cause of the ease of mind and comfort which it brings. 
 Any one who thinks about the world as I do does
 
 224 COLLECTED LEGAL PAPERS 
 
 not need proof that the scientific study of any part 
 of it has an interest which is the same in kind as 
 that of any other part. If the examples which I 
 have given fail to make the interest plain, there is 
 no use in my adding to them, and so I shall pass to 
 another part of my subject. But first let me add 
 a word. The man of science in the law is not merely 
 a bookworm. To a microscopic eye for detail he 
 must unite an insight which tells him what details 
 are significant. Not every maker of exact investi- 
 gation counts, but only he who directs his investiga- 
 tion to a crucial point. But I doubt if there is any 
 more exalted form of life than that of a great ab- 
 stract thinker, wrapt in the successful study of prob- 
 lems to which he devotes himself, for an end which is 
 neither unselfish nor selfish in the common sense 
 of those words, but is simply to feed the deepest 
 hunger and to use the greatest gifts of his soul. 
 
 But after all the place for a man who is complete 
 in all his powers is in the fight. The professor, 
 the man of letters, gives up one-half of life that his 
 protected talent may grow and flower in peace. But 
 to make up your mind at your peril upon a living 
 question, for purposes of action, calls upon your 
 whole nature. I trust that I have shown that I 
 appreciate what I thus far have spoken of as if it 
 were the only form of the scientific study of law, but 
 of course I think, as other people do, that the main 
 ends of the subject are practical, and from a practical 
 point of view, history, with which I have been dealing 
 thus far, is only a means, and one of the least of
 
 LAW IN SCIENCE — SCIENCE IN LAW 225 
 
 the means, of mastering a tool. From a practical 
 point of view, as I have illustrated upon another 
 occasion, its use is mainly negative and skeptical. 
 It may help us to know the true limit of a doctrine, 
 but its chief good is to burst inflated explanations. 
 Every one instinctively recognizes that in these days 
 the justification of a law for us cannot be found in 
 the fact that our fathers always have followed it. 
 It must be found in some help which the law brings 
 toward reaching a social end which the governing 
 power of the community has made up its mind that 
 it wants. And when a lawyer sees a rule of law in 
 force he is very apt to invent, if he does not find, 
 some ground of policy for its base. But in fact some 
 rules are mere survivals. Many might as well be 
 different, and history is the means by which we 
 measure the power which the past has had to govern 
 the present in spite of ourselves, so to speak, by im- 
 posing traditions which no longer meet their original 
 end. History sets us free and enables us to make 
 up our minds dispassionately whether the survival 
 which we are enforcing answers any new purpose 
 when it has ceased to answer the old. Notwithstand- 
 ing the contrasts which I have been making, the prac- 
 tical study of the law ought also to be scientific. 
 The true science of the law does not consist mainly 
 in a theological working out of dogma or a logical 
 development as in mathematics, or only in a study 
 of it as an anthropological document from the out- 
 side; an even more important part consists in the 
 establishment of its postulates from within upon
 
 2 26 COLLECTED LEGAL PAPERS 
 
 accurately measured social desires instead of tradi- 
 tion. It is this latter part to which I now am turn- 
 ing, and I begin with one or two instances of the 
 help of history in clearing away rubbish — instances 
 of detail from my own experience. 
 
 Last autumn our court had to consider the grounds 
 upon which evidence of fresh complaint by a rav- 
 ished woman is admitted as part of the government's 
 case in an indictment for rape. All agree that it is 
 an exception to the ordinary rules of evidence to 
 allow a witness to be corroborated by proof that he 
 has said the same thing elsewhere when not under 
 oath, except possibly by way of rebuttal under ex- 
 traordinary circumstances. But there is the excep- 
 tion, almost as well settled as the rule, and courts and 
 lawyers finding the law to be established proceed to 
 account for it by consulting their wits. We are told 
 that the outrage is so great that there is a natural 
 presumption that a virtuous woman would disclose 
 it at the first suitable opportunity. I confess that 
 I should think this was about the last crime in which 
 such a presumption could be made, and that it was 
 far more likely that a man who had had his pocket 
 picked or who had been the victim of an attempt to 
 murder would speak of it, than that a sensitive 
 woman would disclose such a horror. If we look 
 into history no further than Hale's Pleas of the 
 Crown, where we find the doctrine, we get the real 
 reason and the simple truth. In an appeal of rape 
 the first step was for the woman to raise hue and 
 cry. Lord Hale, after stating that fact, goes on to
 
 LAW IN SCIENCE — SCIENCE IN LAW 227 
 
 say that upon an indictment for the same offence 
 the woman can testify, and that her testimony will 
 be corroborated if she made fresh complaint and 
 pursued the offender. That is the hue and cry over 
 again. At that time there were few rules of evi- 
 dence. Later our laws of evidence were systema- 
 tized and developed. But the authority of Lord 
 Hale has caused his dictum to survive as law in the 
 particular case, while the principle upon which it 
 would have to be justified has been destroyed. The 
 exception in other words is a pure survival, having 
 nothing or very little to back it except that the prac- 
 tice is established.'" 
 
 In a somewhat earlier case '"'' I tried to show that 
 the doctrine of trespass ab initio in like manner was 
 the survival in a particular class of cases of a primi- 
 tive rule of evidence, which established intent by 
 a presumption of law from subsequent conduct, after 
 the rule had gone to pieces and had been forgotten 
 as a whole. Since that decision Professor Ames has 
 made some suggestions which may or may not modify 
 or enlarge the view which I took, but which equally 
 leave the doctrine a survival, the reasons for which 
 long have disappeared. 
 
 In Brower v. Fisher,'* the defendant, a deaf and 
 dumb person, had conveyed to the plaintiff real and 
 personal property, and had got a judgment against 
 the plaintiff for the price. The plaintiff brought a 
 
 12 Commonwealth v. Cleary, 172 Mass. 172. 
 ^3 Commonwealth v. Rubin, 165 Mass. 453. 
 1* 4 Johns. Ch. 441.
 
 2 28 COLLECTED LEGAL PAPERS 
 
 bill to find out whether the conveyance was legal, 
 and got an injunction pendente lite to stay execu- 
 tion on the judgment. On the plaintiff's petition 
 a commission of lunacy was issued to inquire whether 
 the defendant was compos mentis. It was found 
 that he was so unless the fact that he was born deaf 
 and dumb made him otherwise. Thereupon Chan- 
 cellor Kent dismissed the bill but held the inquiry 
 so reasonable that he imposed no costs. The old 
 books of England fully justified his view; and why? 
 History again gives us the true reason. The Roman 
 law held very properly that the dumb, and by ex- 
 tension the deaf, could not make the contract called 
 stipulatio because the essence of that contract was 
 a formal question and answer which the dumb could 
 not utter and the deaf could not hear. Bracton 
 copies the Roman law and repeats the true reason, 
 that they could not express assent, consentire; but 
 shows that he had missed the meaning of stipulari 
 by suggesting that perhaps it might be done by 
 gestures or writing. Fleta copied Bracton, but 
 seemed to think that the trouble was inability to 
 bring the consenting mind, and whereas the Roman 
 law explained that the rule did not apply to one 
 who was only hard of hearing — qui tardius exaudit 
 — Fleta seems to have supposed that this pointed 
 to a difference between a man born deaf and dumb 
 and one who became so later in life." In Perkins's 
 Profitable Book, this is improved upon by requiring 
 that the man should be born blind, deaf, and dumb, 
 
 15 But see C. 6, 22, 10.
 
 LAW IN SCIENCE — SCIENCE IN LAW 229 
 
 and then the reason is developed that "a man that 
 is born bhnd, deaf, and dumb can have no under- 
 standing, so that he cannot make a gift or a grant." ^" 
 In a case before Vice-Chancellor Wood '^ good sense 
 prevailed, and it was laid down that there is no ex- 
 ception to the presumption of sanity in the case of a 
 deaf and dumb person. 
 
 Other cases of what I have called inflated and un- 
 real explanations, which collapse at the touch of 
 history, are the liability of a master for the torts of 
 his servant in the course of his employment, to which 
 I have referred earlier, and which thus far never, in 
 my opinion, has been put upon a rational footing; 
 and the liability of a common carrier, which, as I 
 conceive, is another distorted survival from the abso- 
 lute responsibility of bailees in early law, crossed 
 with the liability of those exercising a common calling 
 to which I have referred. These examples are suffi- 
 cient, I hope, to illustrate my meaning, and to point 
 out the danger of inventing reasons offhand for what- 
 ever we find established in the law. They lead me 
 to some other general considerations in which history 
 plays no part, or a minor part, but in which my 
 object is to show the true process of law-making, and 
 the real meaning of a decision upon a doubtful case 
 and thus, as in what I have said before, to help in 
 substituting a scientific foundation for empty words. 
 
 I pass from unreal explanations to unreal formulas 
 and inadequate generalizations, and I will take up 
 
 " PI. 25; Co. Lit. 42b. 
 
 17 Harrod v. Harrod, i K. & J. 4, 9.
 
 230 COLLECTED LEGAL PAPERS 
 
 one or two with especial reference to the problems 
 with which we have to deal at the present time. The 
 first illustration which occurs to me, especially in view 
 of what I have been saying, is suggested by another 
 example of the power of fashion. I am immensely 
 struck with the blind imitativeness of man when I 
 see how a doctrine, a discrimination, even a phrase, 
 will run in a year or two over the whole English- 
 speaking world. Lately have we not all been bored 
 to death with volenti non fit injuria, and with Lord 
 Justice Bowen's remark that it is volenti and not 
 scienti? I congratulate any State in whose reports 
 you do not see the maxim and its qualification re- 
 peated. I blush to say that I have been as guilty 
 as the rest. Do we not hear every day of taking the 
 risk — an expression which we never heard used as 
 it now is until within a very few years? Do we not 
 hear constantly of invitation and trap — which came 
 into vogue within the memory of many, if not most 
 of those who are here? Heaven forbid that I should 
 find fault with an expression because it is new, or 
 with the last mentioned expressions on any ground! 
 Judges commonly are elderly men, and are more 
 likely to hate at sight any analysis to which they 
 are not accustomed, and which disturbs repose of 
 mind, than to fall in love with novelties. Every liv- 
 ing sentence which shows a mind at work for itself 
 is to be welcomed. It is not the first use but the 
 tiresome repetition of inadequate catch words which 
 I am observing — phrases which originally were con- 
 tributions, but which, by their very felicity, delay
 
 LAW IN SCIENCE — SCIENCE IN LAW 231 
 
 further analysis for fifty years. That comes from 
 the same source as dislike of novelty — intellectual 
 indolence or weakness — a slackening in the eternal 
 pursuit of the more exact. 
 
 The growth of education is an increase in the 
 knowledge of measure. To use words familiar to 
 logic and to science, it is a substitution of quanti- 
 tative for qualitative judgments. The difference 
 between the criticism of a work of art by a man 
 of perception without technical training and that by 
 a critic of the studio will illustrate what I mean. 
 The first, on seeing a statue, will say, "It is gro- 
 tesque," a judgment of quality merely; the second 
 will say, "That statue is so many heads high, instead 
 of the normal so many heads." His judgment is one 
 of quantity. On hearing a passage of Beethoven's 
 Ninth Symphony the first will say, "What a gorgeous 
 sudden outburst of sunshine!" the second, "Yes, 
 great idea to bring in his major third just there, 
 wasn't it?" Well, in the law we only occasionally 
 can reach an absolutely final and quantitative de- 
 termination, because the worth of the competing 
 social ends which respectively solicit a judgment for 
 the plaintiff or the defendant cannot be reduced to 
 number and accurately fixed. The worth, that is, 
 the intensity of the competing desires, varies with 
 the varying ideals of the time, and, if the desires 
 were constant, we could not get beyond a relative 
 decision that one was greater and one was less. But 
 it is of the essence of improvement that we should 
 be as accurate as we can. Now to recur to such
 
 232 COLLECTED LEGAL PAPERS 
 
 expressions as taking the risk and volenti non fit 
 injuria, which are very well for once in the sprightly- 
 mouth which first applies them, the objection to the 
 repetition of them as accepted legal formulas is that 
 they do not represent a final analysis, but dodge diffi- 
 culty and responsibility with a rhetorical phrase. 
 When we say that a workman takes a certain risk as 
 incident to his employment, we mean that on some 
 general grounds of policy blindly felt or articulately 
 present to our mind, we read into his contract a term 
 of which he never thought ; and the real question in 
 every case is. What are the grounds, and how far 
 do they extend? The question put in that form 
 becomes at once and plainly a question for scientific 
 determination, that is, for quantitative comparison 
 by means of whatever measure we command. When 
 we speak of taking the risk apart from contract, I 
 believe that we merely are expressing what the law 
 means by negligence, when for some reason or other 
 we wish to express it in a conciliatory form. 
 
 In our approach towards exactness we constantly 
 tend to work out definite lines or equators to mark 
 distinctions which we first notice as a difference of 
 poles. It is evident in the beginning that there must 
 be differences in the legal position of infants and 
 adults. In the end we establish twenty-one as the 
 dividing point. There is a difference manifest at 
 the outset between night and day. The statutes of 
 Massachusetts fix the dividing points at one hour 
 after sunset and one hour before sunrise, ascertained 
 according to mean time. When he has discovered
 
 LAW IN SCIENCE — SCIENCE IN LAW 233 
 
 that a difference is a difference of degree, that dis- 
 tinguished extremes have between them a penumbra 
 in which one gradually shades into the other, a tyro 
 thinks to puzzle you by asking where you are going 
 to draw the line, and an advocate of more experience 
 will show the arbitrariness of the line proposed by 
 putting cases very near to it on one side or the other. 
 But the theory of the law is that such lines exist, be- 
 cause the theory of the law as to any possible conduct 
 is that it is either lawful or unlawful. As that dif- 
 ference has no gradation about it, when applied to 
 shades of conduct that are very near each other it 
 has an arbitrary look. We like to disguise the arbi- 
 trariness, we like to save ourselves the trouble of 
 nice and doubtful discriminations. In some regions 
 of conduct of a special sort we have to be informed 
 of facts which we do not know before we can draw 
 our lines intelligently, and so, as we get near the 
 dividing point, we call in the jury. From saying that 
 we will leave a question to the jury to saying that 
 it is a question of fact is but a step, and the result 
 is that at this day it has come to be a widespread 
 doctrine that negligence not only is a question for 
 the jury but is a question of fact. I have heard 
 it urged with great vehemence by counsel, and calmly 
 maintained by professors that, in addition to their 
 wrongs to labor, courts were encroaching upon the 
 province of the jury when they directed a verdict 
 in a negligence case, even in the unobtrusive form 
 of a ruling that there was no evidence of neglect. 
 I venture to think, on the other hand, now, as
 
 234 COLLECTED LEGAL PAPERS 
 
 I thought twenty years ago, before I went upon the 
 bench, that every time that a judge dedines to 
 rule whether certain conduct is neghgent or not he 
 avows his inabihty to state the law, and that the 
 meaning of leaving nice questions to the jury is that 
 while if a question of law is pretty clear we can 
 decide it, as it is our duty to do, if it is difficult it 
 can be decided better by twelve men at random from 
 the street. If a man fires a gun over a prairie that 
 looks empty to the horizon, or crosses a railroad 
 which he can see is clear for a thousand yards each 
 way, he is not negligent, that is, he is free from legal 
 liability in the first case, he has not prevented his 
 recovery by his own conduct, if he is run ove'r, in 
 the second, as matter of law. If he fires a gun into 
 a crowded street, or tries to cross a track ten feet 
 in front of an express train in full sight running sixty 
 miles an hour, he is liable, or he cannot recover, 
 again as matter of law, supposing these to be all 
 the facts in the case. What new question of fact 
 is introduced if the place of firing is something half 
 way between a prairie and a crowded street, or if 
 the express train is two hundred, one hundred, or 
 fifty yards away? I do not wish to repeat arguments 
 which I published long ago, and which have been 
 more or less quoted in leading text-books. I only 
 wish to insist that false reasons and false analogies 
 shall not be relied upon for daily practice. It is so 
 easy to accept the phrase "there is no evidence of 
 negligence," and thence to infer, as the English 
 House of Lords has inferred, as Professor Thayer
 
 LAW IN SCIENCE — SCIENCE IN LAW 235 
 
 infers in his admirable Preliminary Treatise on Evi- 
 dence which has appeared since these words were 
 written, that the question is the same in kind as any- 
 other question whether there is evidence of a fact. 
 When we rule on evidence of negligence we are 
 ruling on a standard of conduct, a standard which we 
 hold the parties bound to know beforehand, and 
 which in theory is always the same upon the same 
 facts and not a matter dependent upon the whim of 
 the particular jury or the eloquence of the particular 
 advocate. And I may be permitted to observe that, 
 referring once more to history, similar questions 
 originally were, and to some extent still are, dealt 
 with as questions of law. It was and is so on the 
 question of probable cause in malicious prosecution.^' 
 It was so on the question of necessaries for an 
 infant.^® It was so in questions of what is reason- 
 able,^° as — a reasonable fine,""^ convenient time," 
 seasonable time,^^ reasonable time,'* reasonable notice 
 of dishonor." It is so in regard to the remoteness 
 
 18 Knight V. Jermin, Cro. Eliz. 134; S.C. nom. Knight v. German, 
 Cro. Eliz. 70 ; Paine v. Rochester, Cro. Eliz. 871 ; Chambers v. Taylor, 
 Cro. Eliz. 900. 
 
 19 Mackarell v. Bachelor, Cro. Eliz. 583. As to married women 
 see Manby v. Scott, i Siderfin, 109, 2 Sm. L.C. 
 
 20 Caterall v. Marshall, i Mod. 70. 
 
 21 Hobart v. Hammond, 4 Co. Rep. 27b. 
 
 22 Stodder v. Harvey, Cro. Jac. 204. 
 
 23 Bell V. WardeU, WiUes, 202, A.D. 1740. 
 2* Butler V. Play, i Mod. 27. 
 
 25 Tindal v. Brown, i T.R. 167, A.D. 1786. In this case an exact 
 line has been worked out for commercial paper, and an arbitrary rule 
 established.
 
 236 COLLECTED LEGAL PAPERS 
 
 of damage in an action of contract.'"' Originally in 
 malicious prosecution, probable cause, instead of be- 
 ing negatived in the declaration, was pleaded by the 
 defendant, and the court passed upon the sufficiency 
 of the cause alleged. In the famous case of Weaver 
 V. Ward," the same course was suggested as proper 
 for negligence. I quote: "as if the defendant had 
 said that the plaintiff ran across his piece when it 
 was discharging, or had set forth the case with the 
 circumstances, so as it had appeared to the court that 
 it had been inevitable, and that the defendant had 
 committed no negligence to give occasion to the 
 hurt." But about the middle of the last century, 
 when the rule of conduct was complicated with prac- 
 tical details the court began to leave some of these 
 questions to the jury. Nevertheless, Mr. Starkie, a 
 man of intellect, who was not imposed upon by 
 phrases, very nearly saw the ground upon which it 
 was done, and puts it on the purely practical distinc- 
 tion that when the circumstances are too special and 
 complicated for a general rule to be laid down the 
 jury may be called in. But it is obvious that a 
 standard of conduct does not cease to be law because 
 the facts to which that standard applies are not 
 likely often to be repeated. 
 
 I do not believe that the jury have any historic 
 or a priori right to decide any standard of conduct. 
 
 26 Hobbs V. London & Southwestern Railway, L.R. lo Q.B. iii, 
 122; Hammond & Co. v. Bussey, 20 Q.B.D. 79, 89; Johnston v. Faxon, 
 172 Mass., 466. 
 
 27 Hobart, 134.
 
 LAW IN SCIENCE — SCIENCE IN LAW 237 
 
 I think that the logic of the contrary view would be 
 that every decision upon such a question by the court 
 is an invasion of their province, and that all the law 
 properly is in their breasts. I refer to the subject, 
 however, merely as another matter in which phrases 
 have taken the place of real reasons, and to do my 
 part toward asserting a certain freedom of approach 
 in dealing with negligence cases, not because I wish 
 to quarrel with the existing and settled practice. I 
 think that practice may be a good one, as it certainly 
 is convenient, for Mr. Starkie's reason. There are 
 many cases where no one could lay down a standard 
 of conduct intelligently without hearing evidence 
 upon that, as well as concerning what the conduct 
 was. And although it does not follow that such 
 evidence is for the jury, any more than the question 
 of fact whether a legislature passed a certain statute, 
 still they are a convenient tribunal, and if the evi- 
 dence to establish a rule of law is to be left to them, 
 it seems natural to leave the conclusion from the 
 evidence to them as well. I confess that in my expe- 
 rience I have not found juries specially inspired for 
 the discovery of truth. I have not noticed that they 
 could see further into things or form a saner judg- 
 ment than a sensible and well trained judge. I have 
 not found them freer from prejudice than an ordi- 
 nary judge would be. Indeed one reason why I 
 believe in our practice of leaving questions of negli- 
 gence to them is what is precisely one of their gravest 
 defects from the point of view of their theoretical 
 function: that they will introduce into their verdict
 
 238 COLLECTED LEGAL PAPERS 
 
 a certain amount — a very large amount, so far as 
 I have observed — of popular prejudice, and thus 
 keep the administration of the law in accord with 
 the wishes and feelings of the community. Possibly 
 such a justification is a little like that which an 
 eminent English barrister gave me many years ago 
 for the distinction between barristers and solicitors. 
 It was in substance that if law was to be practised 
 somebody had to be damned, and he preferred that 
 it should be somebody else. 
 
 My object is not so much to point out what seem 
 to me to be fallacies in particular cases as to enforce 
 by various examples and in various applications the 
 need of scrutinizing the reasons for the rules which 
 we follow, and of not being contented with hollow 
 forms of words merely because they have been used 
 very often and have been repeated from one end of 
 the Union to the other. We must think things not 
 words, or at least we must constantly translate our 
 words into the facts for which they stand, if we are 
 to keep to the real and the true. I sometimes tell 
 students that the law schools pursue an inspirational 
 combined with a logical method, that is, the postu- 
 lates are taken for granted upon authority without 
 inquiry into their worth, and then logic is used as 
 the only tool to develop the results. It is a neces- 
 sary method for the purpose of teaching dogma. 
 But inasmuch as the real justification of a rule of 
 law, if there be one, is that it helps to bring about 
 a social end which we desire, it is no less necessary 
 that those who make and develop the law should
 
 LAW IN SCIENCE — SCIENCE IN LAW 239 
 
 have those ends articulately in their minds. I do 
 not expect or think it desirable that the judges should 
 undertake to renovate the law. That is not their 
 province. Indeed precisely because I believe that 
 the world would be just as well off if it lived 
 under laws that differed from ours in many ways, 
 and because I believe that the claim of our 
 especial code to respect is simply that it exists, 
 that it is the one to which we have become 
 accustomed, and not that it represents an eternal 
 principle, I am slow to consent to overruling 
 a precedent, and think that our important duty is to 
 see that the judicial duel shall be fought out in the 
 accustomed way. But I think it most important to 
 remember whenever a doubtful case arises, with cer- 
 tain analogies on one side and other analogies on the 
 other, that what really is before us is a conflict 
 between two social desires, each of which seeks to 
 extend its dominion over the case, and which can- 
 not both have their way. The social question is 
 which desire is stronger at the point of conflict. 
 The judicial one may be narrower, because one or 
 the other desire may have been expressed in previous 
 decisions to such an extent that logic requires us 
 to assume it to preponderate in the one before us. 
 But if that be clearly so, the case is not a doubtful 
 one. Where there is doubt the simple tool of logic 
 does not suffice, and even if it is disguised and un- 
 conscious, the judges are called on to exercise the 
 sovereign prerogative of choice. 
 
 I have given an example of what seems to me the
 
 240 COLLECTED LEGAL PAPERS 
 
 uninstructive and indolent use of phrases to save the 
 trouble of thinking closely, in the expression "taking 
 the risk," and of what I think a misleading use in 
 calling every question left to the jury a question 
 of fact. Let me give one of over-generalization, or 
 rather of the danger of reasoning from generaliza- 
 tions unless you have the particulars which they em- 
 brace in mind. A generalization is empty so far as 
 it is general. Its value depends on the number of 
 particulars which it calls up to the speaker and the 
 hearer. Hence the futility of arguments on economic 
 questions by any one whose memory is not stored 
 with economic facts. Allen v. Flood was decided 
 lately by the English House of Lords upon a case of 
 maliciously inducing workmen to leave the plaintiff's 
 employ. It is made harder to say what the precise 
 issue before the House was, by the fact that except 
 in fragmentary quotations it does not appear what 
 the jury were told would amount to a malicious inter- 
 ference. I infer that they were instructed as in 
 Temper ton v. Russell, ^^ in such a way that their 
 finding meant little more than that the defendant 
 had acted with knowledge and understanding of the 
 harm which he would inflict if successful. Or if I 
 should add an intent to harm the plaintiff without 
 reference to any immediate advantage to the defend- 
 ant, still I do not understand that finding meant 
 that the defendant's act was done from disinterest- 
 edly malevolent motives, and not from a wish to 
 better the defendant's union in a battle of the mar- 
 28 1893, 1 Q.B. 715.
 
 LAW IN SCIENCE — SCIENCE IN LAW 241 
 
 ket. Taking the point decided to be what I suppose 
 it to be, this case confirms opinions which I have had 
 occasion to express judicially, and commands my 
 hearty assent. But in the elaborate, although to my 
 notion inadequate, discussion which took place, emi- 
 nent judges intimated that anything which a man 
 has a right to do he has a right to do whatever his 
 motives, and this has been hailed as a triumph of the 
 principle of external standards in the law, a prin- 
 ciple which I have done my best to advocate as well 
 as to name. Now here the reasoning starts from the 
 vague generalization Right, and one asks himself at 
 once whether it is definite enough to stand the 
 strain. If the scope of the right is already deter- 
 mined as absolute and irrespective of motive, cadit 
 quaestio, there is nothing to argue about. So if all 
 rights have that scope. But if. different rights are 
 of different extent, if they stand on different grounds 
 of policy and have different histories, it does not fol- 
 low that because one right is absolute, another is — 
 and if you simply say all rights shall be so, that is 
 only a pontifical or imperial way of forbidding dis- 
 cussion. The right to sell property is about as abso- 
 lute as any I can think of, although, under statutes 
 at least, even that may be affected by motive, as in 
 the case of an intent to prefer creditors. But the 
 privilege of a master to state his servant's character 
 to one who is thinking of employing him is also a 
 right within its limits. Is it equally extensive? I 
 suppose it would extend to mistaken statements vol- 
 unteered in good faith out of love for the possible
 
 242 COLLECTED LEGAL PAPERS 
 
 employer. Would it extend to such statements 
 volunteered simply out of hate for the man? To 
 my mind here, again, generalities are worse than use- 
 less, and the only way to solve the problem presented 
 is to weigh the reasons for the particular right claimed 
 and those for the competing right to be free from 
 slander as well as one can, and to "decide which set 
 preponderates. Any solution in general terms seems 
 to me to mark a want of analytic power. 
 
 Gentlemen, I have tried to show by examples 
 something of the interest of science as applied to the 
 law, and to point out some possible improvement in 
 our way of approaching practical questions in the 
 same sphere. To the latter attempt, no doubt, many 
 will hardly be ready to yield me their assent. But 
 in that field, as in the other, I have had in mind an 
 ultimate dependence upon science because it is finally 
 for science to determine, so far as it can, the relative 
 worth of our different social ends, and, as I have 
 tried to hint, it is our estimate of the proportion be- 
 tween these, now often blind and unconscious, that 
 leads us to insist upon and to enlarge the sphere 
 of one principle and to allow another gradually to 
 dwindle into atrophy. Very likely it may be that 
 with all the help that statistics and every modern 
 appliance can bring us there never will be a common- 
 wealth in which science is everywhere supreme. But 
 it is an ideal, and without ideals what is life worth? 
 They furnish us our perspectives and open glimpses 
 of the infinite. It often is a merit of an ideal to 
 be unattainable. Its being so keeps forever before
 
 LAW IN SCIENCE — SCIENCE IN LAW 243 
 
 us something more to be done, and saves us from 
 the ennui of a monotonous perfection. At the least 
 it glorifies dull details, and uplifts and sustains weary 
 years of toil with George Herbert's often quoted 
 but ever-inspiring verse: 
 
 "Who sweeps a room as for Thy laws, 
 Makes that and the action fine."
 
 SPEECH 
 
 AT A DINNER GIVEN TO CHIEF JUSTICE HOLMES 
 
 BY THE BAR ASSOCIATION OF BOSTON 
 
 ON MARCH 7, 1900. * 
 
 Gentlemen of the Suffolk Bar: 
 
 The kindness of this reception almost unmans me, 
 and it shakes me the more when taken with a kind 
 of seriousness which the moment has for me. As 
 with a drowning man, the past is telescoped into a 
 minute, and the stages are all here at once in my 
 mind. The day before yesterday I was at the law 
 school, fresh from the army, arguing cases in a little 
 club with Goulding and Beaman and Peter Olney, 
 and laying the dust of pleading by certain sprinklings 
 which Huntington Jackson, another ex-soldier, and 
 I managed to contrive together. A little later in 
 the day, in Bob Morse's office, I saw a real writ, 
 acquired a practical conviction of the difference be- 
 tween assumpsit and trover, and marvelled open- 
 mouthed at the swift certainty with which a master 
 of his business turned it off. 
 
 Yesterday I was at the law school again, in the 
 chair instead of on the benches, when my dear part- 
 ner, Shattuck, came out and told me that in one hour 
 the Governor would submit my name to the council 
 for a judgeship, if notified of my assent. It was a 
 
 ♦ From Speeches (1913), Little, Brown & Co. 
 244
 
 SPEECH AT BAR DINNER 245 
 
 stroke of lightning which changed the whole course 
 of my life. 
 
 And the day before yesterday, gentlemen, was 
 thirty-five years, and yesterday was more than eigh- 
 teen years, ago. I have gone on feeling young, but 
 I have noticed that I met fewer of the old to whom 
 to show my deference, and recently I was startled 
 by being told that ours is an old bench. Well, I 
 accept the fact, although I find it hard to realize, 
 and I ask myself, what is there to show for this half 
 lifetime that has passed? I look into my book in 
 which I keep a docket of the decisions of -the full 
 court which fall to me to write, and find about a 
 thousand cases. A thousand cases, many of them 
 upon trifling or transitory matters, to represent 
 nearly half a lifetime ! A thousand cases, when one 
 would have liked to study to the bottom and to say 
 his say on every question which the law ever has pre- 
 sented, and then to go on and invent new problems 
 which should be the test of doctrine, and then to 
 generalize it all and write it in continuous, logical, 
 philosophic exposition, setting forth the whole corpus 
 with its roots in history and its justifications of ex- 
 pedience real or supposed ! 
 
 Alas, gentlemen, that is life. I often imagine 
 Shakespeare or Napoleon summing himself up and 
 thinking: "Yes, I have written five thousand lines of 
 solid gold and a good deal of padding — I, who would 
 have covered the milky way with words that out- 
 shone the stars!" "Yes, I beat the Austrians in 
 Italy and elsewhere: I made a few brilliant cam-
 
 246 COLLECTED LEGAL PAPERS 
 
 paigns, and I ended in middle life in a cul-de-sac — 
 I, who had dreamed of a world monarchy and Asiatic 
 power." We cannot live our dreams. We are lucky 
 enough if we can give a sample of our best, and if 
 in our hearts we can feel that it has been nobly done. 
 
 Some changes come about in the process, changes 
 not necessarily so much in the nature as in the 
 emphasis of our interest. I do not mean in our wish 
 to make a living and to succeed — of course, we all 
 want those things — but I mean in our ulterior in- 
 tellectual or spiritual interest, in the ideal part, with- 
 out which we are but snails or tigers. 
 
 One begins with a search for a general point of 
 view. After a time he finds one, and then for a while 
 he is absorbed in testing it, in trying to satisfy him- 
 self whether it is true. But after many experiments 
 or investigations all have come out one way, and his 
 theory is confirmed and settled in his mind, he knows 
 in advance that the next case will be but another 
 verification, and the stimulus of anxious curiosity is 
 gone. He realizes that his branch of knowledge only 
 presents more illustrations of the universal principle ; 
 he sees it all as another case of the same old ennui, 
 or the same sublime mystery — for it does not matter 
 what epithets you apply to the whole of things, they 
 are merely judgments of yourself. At this stage the 
 pleasure is no less, perhaps, but it is the pure pleasure 
 of doing the work, irrespective of further aims, and 
 when you reach that stage you reach, as it seems to 
 me, the triune formula of the joy, the duty, and the 
 end of life.
 
 SPEECH AT BAR DINNER 247 
 
 It was of this that Malebranche was thinking when 
 he said that, if God held in one hand truth, and in 
 the other the pursuit of truth, he would say: "Lord, 
 the truth is for thee alone; give me the pursuit." 
 The joy of life is to put out one's power in some 
 natural and useful or harmless way. There is no 
 other. And the real misery is not to do this. The 
 hell of the old world's literature is to be taxed beyond 
 one's powers. This country has expressed in story 
 — I suppose because it has experienced it in life — 
 a deeper abyss, of intellectual asphyxia or vital ennui, 
 when powers conscious of themselves are denied their 
 chance. 
 
 The rule of joy and the law of duty seem to me all 
 one. I confess that altruistic and cynically selfish 
 talk seem to me about equally unreal. With all 
 humility, I think "Whatsoever thy hand findeth to 
 do, do it with thy might" infinitely more important 
 than the vain attempt to love one's neighbor as one's 
 self. If you want to hit a bird on the wing, you 
 must have all your will in a focus, you must not be 
 thinking about yourself, and, equally, you must not 
 be thinking about your neighbor; you must be living 
 in your eye on that bird. Every achievement is a 
 bird on the wing. 
 
 The joy, the duty, and, I venture to add, the end 
 of life. I speak only of this world, of course, and of 
 the teachings of this world. I do not seek to trench 
 upon the province of spiritual guides. But from the 
 point of view of the world the end of life is life. 
 Life is action, the use of one's powers. As to use
 
 248 COLLECTED LEGAL PAPERS 
 
 them to their height is our joy and duty, so it is the 
 one end the justifies itself. Until lately the best 
 thing that I was able to think of in favor of civiliza- 
 tion, apart from blind acceptance of the order of the 
 universe, was that it made possible the artist, the 
 poet, the philosopher, and the man of science. But 
 I think that is not the greatest thing. Now I believe 
 that the greatest thing is a matter that comes directly 
 home to us all. When it is said that we are too much 
 occupied with the means of living to live, I answer 
 that the chief worth of civilization is just that it 
 makes the means of living more complex; that it 
 calls for great and combined intellectual efforts, 
 instead of simple, uncoordinated ones, in order that 
 the crowd may be fed and clothed and housed and 
 moved from place to place. Because more complex 
 and intense intellectual efforts mean a fuller and 
 richer life. They mean more life. Life is an end in 
 itself, and the only question as to whether it is worth 
 living is whether you have enough of it. 
 
 I will add but a word. We all are very near 
 despair. The sheathing that floats us over its waves 
 is compounded of hope, faith in the unexplainable 
 worth and sure issue of effort, and the deep, sub-con- 
 scious content which comes from the exercise of our 
 powers. In the words of a touching negro song — 
 
 Sometimes I's up, sometimes I's down, 
 Sometimes I's almost to the groun'; 
 
 but these thoughts have carried me, as I hope they 
 will carry the young men who hear me, through long
 
 SPEECH AT BAR DINNER 249 
 
 years of doubt, self-distrust, and solitude. They do 
 now, for, although it might seem that the day of 
 trial was over, in fact it is renewed each day. The 
 kindness which you have shown me makes me bold 
 in happy moments to believe that the long and 
 passionate struggle has not been quite in vain.
 
 MONTESQUIEU * 
 
 "There is no new thing under the sun." It is the 
 judgment of a man of the world, and from his point 
 of view it is true enough. The things which he sees 
 in one country he sees in another, and he is sHghtly 
 bored from the beginning. But the judgment is 
 quite untrue from the point of view of science or 
 philosophy. From the time of Pericles to now, dur- 
 ing the whole period that counts in the intellectual 
 history of the race, the science or philosophy of one 
 century has been different from that of the one 
 before, and in some sense further along. By a corol- 
 lary easy to work out, we have the paradox that the 
 books which are always modern, the thoughts which 
 are as stinging to-day as they were in their cool youth, 
 are the books and thoughts of the men of the world. 
 Ecclesiastes, Horace, and Rochefoucauld give us as 
 much pleasure as they gave to Hebrew or Roman or 
 the subject of Louis XIV. In this sense it is the 
 second rate that lasts. But the greatest works of 
 intellect soon lose all but their historic significance. 
 The science of one generation is refuted or out- 
 generalized by the science of the next; the philosophy 
 of one century is taken up or transcended by the 
 philosophy of a later one; and so Plato, St. Augus- 
 tine, and Descartes, and we almost may say Kant and 
 
 ♦ Introduction to a reprint of the Esprit des Lois. (1900.) 
 250
 
 MONTESQUIEU 251 
 
 Hegel, are not much more read than Hippocrates or 
 Cuvier or Bichat. 
 
 Montesquieu was a man of science and at the 
 same time a man of the world. As a man of science 
 he wrote an epoch-making book. And just because 
 and in so far as his book was a work of science and 
 epoch-making, it is as dead as the classics. The 
 later investigations which it did so much to start 
 have taken up what was true in it and have re- 
 futed what needed refutation, and without the need 
 of controversy they have killed many pale shoots 
 of fancy and insufficient knowledge simply by letting 
 in light and air. For a beginner to read Montes- 
 quieu with the expectation that there he is to find 
 his understanding of the laws of social being, would 
 be as ingenuous as to read Plato at eighteen expect- 
 ing to find in him the answers to the riddles of life 
 when they begin to perplex and sadden the mind of 
 youth. He would learn a good deal more from 
 Lecky. Montesquieu is buried under his own tri- 
 umphs, to use his own words with a different appli- 
 cation. 
 
 But Montesquieu also was a man of the world 
 and a man of esprit. That wit which deals with the 
 daily aspect of life and offers trenchant solutions in 
 two or three lines is a dangerous gift. It hardly is 
 compatible with great art, and Flaubert is not with- 
 out reason when he rails at it in his letters. It is 
 no less dangerous to great thinking, to that profound 
 and sustained insight which distrusts the dilemma as 
 an instrument of logic, and discerns that a thing may
 
 2 52 COLLECTED LEGAL PAPERS 
 
 be neither A nor not A, but the perpendicular, or, 
 more plainly, that the truth may escape from the 
 limitations of a given plane of thought to a higher 
 one. Montesquieu said that Voltaire had too much 
 esprit to understand him. Nevertheless, Montes- 
 quieu had enough of it to have sustained the Satur- 
 day Review when Maine and Fitzjames Stephen or 
 Venables were its contributors, and as a man of 
 wit he still is fresh and pleasant reading. When one 
 runs through the Lettres Persanes one feels as he 
 does after reading Swift's Polite Conversation, struck 
 with a wondering shame at the number of things he 
 has been capable of feeling pleased with himself for 
 saying, when they had been noted as familiar two 
 hundred years before. He is in the realm of the ever 
 old which also is the ever new, those middle axioms 
 of experience which have been made from the begin- 
 ing of society, but which give each generation a fresh 
 pleasure as they are realized again in actual life. 
 There is a good deal more than this, because Montes- 
 quieu was a good deal more than a man of the 
 world, but there is this also in which we escape from 
 the preliminary dulness of things really great. 
 
 We find the same thing in the Esprit des Lois, 
 and one might read that work happily enough simply 
 as literature. One may read it also as a first step 
 in studies intended to be carried further and into later 
 days. But to read it as it should be read, to appre- 
 ciate the great and many-sided genius of the author 
 and his place in the canonical succession of the high 
 priests of thought, one must come back to it in the
 
 MONTESQUIEU 253 
 
 fulness of knowledge and the ripeness of age. To 
 read the great works of the past with intelligent 
 appreciation, is one of the last achievements of a 
 studious life. But I will postpone what more I 
 have to say of this book until we come to it in 
 following the course of the author's career. 
 
 Charles de Secondat, Baron de la Brede, was born 
 at the Chateau de la Brede, near Bordeaux, on Jan- 
 uary 18, 1689. His family had gained distinction both 
 by the sword and in the law. His father was a magis- 
 trate, and intended that he should be one. His 
 mother was pious, and no doubt hoped that he might 
 be like her. Neither wish was entirely fulfilled. 
 
 At the moment of his birth a beggar presented him- 
 self at the chateau, and was retained that he might 
 be god-father to the young noble, and so remind him 
 all his life that the poor were his brothers. He was 
 nursed by peasants, and he kept through life a 
 touch of Gascon speech, and, the Frenchmen say, 
 something of the Gascon in his style. His early 
 education was by churchmen, but at twenty he 
 showed the tendency of his mind by composing an 
 essay to prove that the pagan did not deserve to be 
 eternally damned. The essay has not been pre- 
 served, but perhaps an echo of his reflections is to be 
 found in the thirty-fifth of the Lettres Persanes, in 
 which Usbek, who, not without dispute, has been 
 taken for the author, asks the "sublime dervish" 
 Gemchid whether he thinks that the Christians are 
 to be damned forever for not having embraced the 
 true religion of which they never have heard.
 
 2 54 COLLECTED LEGAL PAPERS 
 
 He studied law. "When I left college," he said, 
 "they put law books into my hands. I tried to find 
 their inner meaning" {J' en cherchais V esprit). The 
 Esprit des Lois was the outcome, but not the imme- 
 diate outcome, of his studies. The immediate result 
 w^as that, at twenty-five, on February 24, 1714, he 
 was admitted to the Parlement de Bordeaux as con- 
 seiller. On July 13, 1 716, he succeeded to the office 
 {president a mortier) and fortune of an uncle, on 
 condition of assuming the name of Montesquieu. 
 Meantime he had married, and he had a son this same 
 year, and later two daughters. As a magistrate 
 he seems to have been not without weight. In 1722 
 he was intrusted with the shaping of a remonstrance 
 to the king against a tax on wines, which for the 
 time was successful. As a husband he was not want- 
 ing in decorum. But neither magistracy nor mar- 
 riage seems to have filled his life. 
 
 He made a reasonable amount of love in his day, 
 I infer not wholly before 1715. Whether or not he 
 would have said that the society of women makes us 
 "subtle and insincere," he did say that it spoils our 
 morals and forms our taste. I suspect also that it 
 added a poignancy to his phrase when he came to 
 write, as it certainly gave him a freedom and alert- 
 ness of interest in dealing with matters of sex. He 
 took his passions easily. As soon as he ceased to 
 believe that a woman loved him, he broke with her 
 at once, he says, and elsewhere he tells us in more 
 general terms that he never had a sorrow which an 
 hour's reading would not dispel. At times his de-
 
 MONTESQUIEU 255 
 
 tachment seems to have been too visible, as one lady 
 reproached him with writing his book in society. 
 Perhaps it was timidity, which he says was a plague 
 of his life. So much for his relations, domestic and 
 otherwise, with women. As to the magistracy, he 
 resigned his place in 1 72 6. He found procedure hard 
 to master, and it disgusted him to see men upon 
 whose talents he justly looked down excelling in a 
 matter that was too much for him. 
 
 About the same time that he succeeded his uncle 
 he joined a society in Bordeaux, in which for a while 
 he devoted himself to science. He made some experi- 
 ments, wrote some scientific memoirs, planned a phys- 
 ical history of the earth, and sent out circulars 
 of inquiry in 17 19, but happily it all came to nothing, 
 and this failure, combined with the shortness of his 
 outward and the reach of his inward sight, helped 
 to fix his attention upon his kind. He had the "dis- 
 ease of book-making," and as early as 1721 he 
 published his Lettres Persanes. The putting of the 
 criticism of his own times into the mouth of an 
 intelligent foreigner, and all the Oriental coloring, 
 seem a trifle faded nowadays. But these are merely 
 the frame or excuse for a series of essays — some- 
 what like those in the nearly contemporary Spec- 
 tator — on social subjects and subjects of social in- 
 terest, running all the way from God to the Fashions. 
 
 In almost every letter there are things which have 
 been quoted so often that one is afraid to repeat 
 them. In one he makes a few reflections upon sui- 
 cide that are hard to answer, and which had a prac-
 
 2 56 COLLECTED LEGAL PAPERS 
 
 tical aim, in view of the monstrous condition of the 
 law. In another he is equally outspoken with regard 
 to divorce, and says, not without some truth, that 
 wishing to tighten the knot the law has untied it, 
 and instead of uniting hearts, as it proposed, has 
 separated them forever. Before Adam Smith he re- 
 marks the activity of dissenting sects, and he points 
 out with unorthodox candor their service in reform- 
 ing the abuses of the established faith. 
 
 In the person of Usbek he says: "Everything inter- 
 ests me, everything excites my wonder. I am like a 
 child whose immature organs are keenly struck by 
 the most insignificant objects." Montesquieu proves 
 it in these letters. Alongside of such grave discus- 
 sions as the foregoing he has portraits, or rather 
 types, that still live. The parvenu tax farmer, the 
 father confessor, the old soldier who can not hope 
 for preferment "because we" (very sensibly) "believe 
 that a man who has not the qualities of a general 
 at thirty never will have them," the homme a bonnes 
 fortunes who has hair, little wit, and so much imperti- 
 nence, the poet (Montesquieu despised the poets, at 
 least those whom he saw) — the poet, with grimaces 
 and language different from the others, who would 
 stand a beating better than the least criticism, the 
 grand seigneur who personates himself. "He took 
 a pinch of snuff so haughtily, he wiped his nose so 
 pitilessly, he spit with so much phlegm, he fondled his 
 dogs in a way so insulting to men, that I could not 
 weary of wondering." The decisionnaire: "In a 
 quarter of an hour he decided three questions of
 
 MONTESQUIEU 257 
 
 morals, four problems of history, and five points of 
 physics. . . . They dropped the sciences and 
 talked of the news of the day. ... I thought that 
 I would catch him, and spoke of Persia. But I 
 hardly had said four words when he contradicted me 
 twice. ... Ah! bon Dieu! said I to myself, what 
 sort of man is this? Soon he will know the streets 
 of Ispahan better than I." 
 
 The letter on fashion ought to be quoted entire. 
 When he says in the next one that what is foreign 
 always seems ridiculous to the French, of course he is 
 only noticing an instance of the universal law, but he 
 makes us remember that Little Pedlington is every- 
 where, and that this day there is no more marked 
 Little Pedlingtonian than the Parisian boulevardier 
 man of letters. It is true that Montesquieu limits 
 his remarks to trifles. They readily will admit that 
 other people are wiser, he says, if you grant them 
 that they are better dressed. His talk about the 
 Spaniards is equally good. The Spaniards whom 
 they do not burn, he says, seem so attached to the 
 Inquisition that it would be ill-natured to deprive 
 them of it. But at the end he gives them their 
 revenge. He imagines a Spaniard in Paris and 
 makes him say that they have a house there in 
 which they shut up a few madmen in order to per- 
 suade the world that the rest are not mad. After 
 things of this sort, two pages further on we read that 
 the most perfect government is that which attains 
 its ends with the least cost, so that the one which 
 leads men in the way most according to their incli-
 
 2 58 COLLECTED LEGAL PAPERS 
 
 nation is best. What have two hundred years 
 added? What proximate test of excellence can be 
 found except correspondence to the actual equi- 
 librium of force in the community — that is, conform- 
 ity to the wishes of the dominant power? Of course, 
 such conformity may lead to destruction, and it is 
 desirable that the dominant power should be wise. 
 But wise or not, the proximate test of a good govern- 
 ment is that the dominant power has its way. 
 
 There are considerations upon colonies, upon 
 population, upon monarchy, a striking prophecy that 
 the Protestant countries will grow richer and more 
 powerful and the Catholic countries weaker. There 
 is, in short, a scattering criticism of pretty nearly 
 everything in the social order, of a sceptically radical 
 kind, but always moderate and rational, with hints 
 and germs of his future work, interspersed with many 
 little sayings not too bright or good for human na- 
 ture's daily food, and with some which are famous, 
 such as, "It sometimes is necessary to change certain 
 laws, but the case is rare, and when it occurs one 
 should touch them only with a trembling hand"; or, 
 "Nature always acts slowly and, so to speak, spar- 
 ingly; her operations are never violent." This last 
 is said by Sorel to be the whole philosophy of the 
 Esprit des Lois, and suggests a more extensive phil- 
 osophy still, which no doubt was more or less in the 
 air, which found expression a little later in Linnaeus's 
 Natura non facit saltus, and which nowadays in its 
 more developed form we call evolution. 
 
 The Lettres Persanes came out anonymously, os-
 
 MONTESQUIEU 259 
 
 tensibly from Amsterdam, when Montesquieu was 
 little more than thirty, and ran through four editions 
 in the first year. The name of the author became 
 known to everybody. He went to Paris, and there 
 frequented the society of men and women whose 
 names to us of this country and time are but foam 
 from the sea of obHvion, but who were the best of 
 their day. There, to please the ladies, or a lady, 
 he wrote in 1725 the Temple de Guide and Cephise 
 et V Amour, which need not delay us. He says that 
 only well-curled and well-powdered heads will under- 
 stand them. At the beginning of 1728 he was 
 elected to the Academy, which he, like other French- 
 men, had made sport of but desired to enter. He 
 had been elected before, but had been refused by 
 the king. This time he had better luck. Voltaire 
 and D'Alembert tell a tale of how it was managed. 
 Entrance to the Academy is apt to be an occasion 
 for the display of malice on the one side or the other; 
 the address of welcome twitted him with having no 
 recognized works to justify the election, under the 
 form of a compliment on the certainty that the pub- 
 lic would give him the credit of clever anonymous 
 ones. For this or other reasons he did not go much 
 to the Academy, and he soon set out upon a tour of 
 Europe. He went to Vienna, and there met the 
 Prince Eugene. He applied for a post as a diplomat, 
 and again, luckily for the world, he failed. He 
 visited Hungary, then Venice, where he met the 
 famous John Law and became a friend of Lord 
 Chesterfield; then Switzerland and Holland by way
 
 26o COLLECTED LEGAL PAPERS 
 
 of the Rhine. From Holland he went with Lord 
 Chesterfield to England, where he remained for 
 nearly two years, returning in August, 1731, to La 
 Brede, his family, and his writing. 
 
 In 1734 he published his Considerations sur les 
 causes de la grandeur des Romains et de leur 
 decadence. He was drawing nearer to his great 
 work; from sporadic apergus he was turning to sys- 
 tematic exposition. It often is said, and with a good 
 deal of truth, that men reach their highest mark 
 between thirty and forty. Perhaps the statement 
 seems more significant than it really is, because men 
 generally have settled down to their permanent occu- 
 pation by thirty, and in the course of the next ten 
 years are likely to have found such leading and domi- 
 nant conceptions as they are going to find; the rest 
 of life is working out details. Montesquieu and 
 Kant either are exceptions to the rule or illustrate 
 the qualification just suggested. In their earlier life 
 as you look back at it you see the Critique and the 
 Esprit des Lois coming, but the fruit did not ripen 
 fully until they were in the neighborhood of sixty. 
 In 1734 Montesquieu was already forty-five. 
 
 Roman history has been rewritten since his day 
 by Niebuhr and his successors. But Montesquieu 
 gives us the key to his mode of thought and to all 
 fruitful thought upon historic subjects when he says 
 that "there are general causes, moral or physical, at 
 work in every monarchy, which elevate and maintain 
 it or work its downfall; all accidents are the result 
 of causes ; and if the chance of a battle — that is, a
 
 MONTESQUIEU 261 
 
 special cause — has ruined a state, there was a 
 general cause at work which made that state ready- 
 to perish by a single battle. In a word, the main 
 current carries with it all the special accidents." 
 
 Montesquieu the ladies' man, Montesquieu the 
 student of science, Montesquieu the lover of travel 
 both real and fictitious, Montesquieu the learned in 
 the classics and admirer of that conventional an- 
 tiquity that passed so long for the real thing in 
 France — all these Montesquieus unite in the Esprit 
 des Lois, as is pointed out most happily by Faguet, 
 whose many-sided and delicate appreciation of the 
 author I read just as I was writing this sentence. 
 The book, he says, is called Esprit des Lois; it should 
 have been called simply Montesquieu. Perhaps the 
 fact is due in part to the subject's not having become 
 a specialty. In the same way Adam Smith's Wealth 
 of Nations has many interesting and penetrating re- 
 marks that, alas! hardly would be allowed in a mod- 
 ern political economy, even if the writer had the 
 wit to make them. At all events, after his Roman 
 history, the rest of Montesquieu's life may be 
 summed up as the production of this volume. In the 
 preface he calls it the labor of twenty years. It 
 appeared in 1748. When it was done his hair had 
 whitened over the last books, and his eyes had grown 
 dim. "It seems to me," he said, "that the light left 
 to me is but the dawn of the day on which my eyes 
 shall close forever." He published a defence of the 
 work in 1750, attended to the sale of wine from his 
 vineyards, noticed with pleasure that the sale seemed
 
 262 COLLECTED LEGAL PAPERS 
 
 to have been increased in England by the publication 
 of his book, and died in Paris on February lo, 1755, 
 watched, if not like Arthur by weeping queens, at 
 least by the Duchess d'Aiguillon and a houseful of 
 loving and admiring friends. According to Mauper- 
 tuis, he was well proportioned, careless in dress, 
 modest in demeanor, candid in speech, simple in 
 his mode of life, and welcomed in society with uni- 
 versal joy. The medallion gives him a distinguished 
 face. 
 
 It would be out of place to offer an analysis of a 
 book which is before the reader, and it would take a 
 larger book to contain all the thoughts which it sug- 
 gests. The chapters on the feudal law are so far 
 separable from the rest that it had been thought a 
 mistake of Montesquieu to add them. The modern 
 student naturally would turn to Roth or whatever 
 still later man may displace Roth. With regard 
 to the main body of the work, one might say that 
 it expressed a theory of the continuity of the phe- 
 nomenal universe at a time when, through no fault of 
 the author, its facts were largely miraculous. He 
 was not able to see history as an evolution, he looked 
 at all events as if they were contemporaneous. 
 Montesquieu's Rome was the Rome of fable un- 
 critically accepted. His anthropology was anec- 
 dotic. His notion of a democracy suggests a Latin 
 town meeting rather than the later developements in 
 the United States and France. He made the world 
 realize the influence of the climate and physical en- 
 vironment — which in our day furnished the already
 
 MONTESQUIEU 263 
 
 forgotten Buckle a suggestive chapter — but had not 
 the data to be more than a precursor. 
 
 His England — the England of the threefold divi- 
 sion of power into legislative, executive and judicial 
 — was a fiction invented by him, a fiction which mis- 
 led Blackstone and Delolme. Hear Bagehot in his 
 work upon the subject: "The efficient secret of the 
 English Constitution may be described as the close 
 union, the nearly complete fusion of the executive 
 and legislative powers." And again: "The Ameri- 
 can Constitution was made upon a most careful argu- 
 ment, and most of that argument assumes the king 
 to be the administrator of the English Constitution, 
 and an unhereditary substitute for him — viz., a 
 president — to be peremptorily necessary. Living 
 across the Atlantic, and misled by accepted doc- 
 trines, the acute framers of the Federal Constitu- 
 tion, even after the keenest attention, did not 
 perceive the Prime Minister to be the principal execu- 
 tive of the British Constitution, and the sovereign 
 a cog in the mechanism." 
 
 It is worth remarking that, notwithstanding his 
 deep sense of the inevitableness of the workings of 
 the world, Montesquieu had a possibly exaggerated 
 belief in the power of legislation, and an equally 
 strong conviction of the reality of abstract justice. 
 But it is vain to attempt to criticise the book in detail. 
 Indeed, it is more important to understand its rela- 
 tion to what had been done before than to criticise. 
 There is not space even to point out how many seeds 
 it sowed. Montesquieu is a precursor, to repeat the
 
 2 64 COLLECTED LEGAL PAPERS 
 
 word, in so many ways. He was a precursor of polit- 
 ical economy. He was the precursor of Beccaria 
 in the criminal law. He was the precursor of Burke 
 when Burke seems a hundred years ahead of his time. 
 The Frenchmen tell us that he was the precursor of 
 Rousseau. He was an authority for the writers of 
 The Federalist. He influenced, and to a great 
 extent started scientific theory in its study of soci- 
 eties, and he hardly less influenced practice in legis- 
 lation, from Russia to the United States. His book 
 had a dazzling success at the moment, and since then 
 probably has done as much to remodel the world 
 as any product of the eighteenth century, which 
 burned so many forests and sowed so many fields. 
 
 And this was the work of a lonely scholar sitting 
 in a library. Like Descartes or Kant, he com- 
 manded the future from his study more than 
 Napoleon from his throne. At the same time he 
 affects no august sovereignty, but even gives us one 
 or two discreet personal touches full of a sort of 
 pathetic charm — the "Italiam! Italiamf" when the 
 long day's work was done and the author saw his 
 goal before darkness closed upon him; the suppressed 
 invocation at the beginning of Book XX; the proud 
 epigraph, '^Prolem sine matre creatam" ; and above 
 all the prefacQ, that immortal cheer to other lonely 
 spirits. It is the great sigh of a great man when he 
 has done a great thing. The last words of that are 
 the words with which this introduction should end. 
 "If this work meets with success, I shall owe it 
 largely to the majesty of my subject. However, I
 
 MONTESQUIEU 265 
 
 do not think that I have been wholly wanting in 
 genius. When I have seen what so many great men 
 in France, England, and Germany have written be- 
 fore me, I have been lost in admiration, but I have 
 not lost my courage. 'And I too am a painter,' I 
 have said with Correggio."
 
 JOHN MARSHALL * 
 
 IN ANSWER TO A MOTION THAT THE COURT ADJOURN, 
 
 ON FEBRUARY 4, 19OI, THE ONE HUNDREDTH 
 
 ANNIVERSARY OF THE DAY ON WHICH 
 
 MARSHALL TOOK HIS SEAT AS 
 
 CHIEF JUSTICE. 
 
 As we walk down Court Street in the midst of a 
 jostling crowd, intent like us upon to-day and its 
 affairs, our eyes are like to fall upon the small, dark 
 building that stands at the head of State Street, and, 
 like an ominous reef, divides the stream of business 
 in its course to the gray cliffs that tower beyond. 
 And, whoever we may be, we may chance to pause 
 and forget our hurry for a moment, as we remember 
 that the first waves that foretold the coming storm 
 of the Revolution broke around that reef. But, if 
 we are lawyers, our memories and our reverence grow 
 more profound. In the Old State House, we re- 
 member, James Otis argued the case of the writs of 
 assistance, and in that argument laid one of the 
 foundations for American constitutional law. Just as 
 that little building is not diminished, but rather is 
 enhanced and glorified, by the vast structures which 
 somehow it turns into a background, so the begin- 
 
 ♦ From Speeches (1913), Little, Brown & Co. 
 266
 
 JOHN MARSHALL 267 
 
 nings of our national life, whether in battle or in law, 
 lose none of their greatness by contrast with all the 
 mighty things of later date, beside which, by every 
 law of number and measure, they ought to seem so 
 small. To us who took part in the Civil War, the 
 greatest battle of the Revolution seems little more 
 than a reconnoissance in force, and Lexington and 
 Concord were mere skirmishes that would not find 
 mention in the newspapers. Yet veterans who have 
 known battle on a modern scale, are not less aware of 
 the spiritual significance of those little fights, I ven- 
 ture to say, than the enlightened children of com- 
 merce who tell us that soon war is to be no more. 
 
 If I were to think of John Marshall simply by num- 
 ber and measure in the abstract, I might hesitate 
 in my superlatives, just as I should hesitate over the 
 battle of the Brandywine if I thought of it apart 
 from its place in the line of historic cause. But 
 such thinking is empty in the same proportion that 
 it is abstract. It is most idle to take a man apart 
 from the circumstances which, in fact, were his. 
 To be sure, it is easier in fancy to separate a person 
 from his riches than from his character. But it is 
 just as futile. Remove a square inch of mucous 
 membrane, and the tenor will sing no more. Re- 
 move a little cube from the brain, and the orator 
 will be speechless; or another, and the brave, gen- 
 erous and profound spirit becomes a timid and queru- 
 lous trifler. A great man represents a great ganglion 
 in the nerves of society, or, to vary the figure, a 
 strategic point in the campaign of history, and part
 
 268 COLLECTED LEGAL PAPERS 
 
 of his greatness consists in his being there. I no 
 more can separate John Marshall from the fortunate 
 circumstance that the appointment of Chief Justice 
 fell to John Adams, instead of to Jefferson a month 
 later, and so gave it to a Federalist and loose con- 
 structionist to start the working of the Constitution, 
 than I can separate the black line through which he 
 sent his electric fire at Fort Wagner from Colonel 
 Shaw. When we celebrate Marshall we celebrate at 
 the same time and indivisibly the inevitable fact that 
 the oneness of the nation and the supremacy of the 
 national Constitution were declared to govern the 
 dealings of man with man by the judgments and 
 decrees of the most august of courts. 
 
 I do not mean, of course, that personal estimates 
 are useless or teach us nothing. No doubt to-day 
 there will be heard from able and competent persons 
 such estimates of Marshall. But I will not trench 
 upon their field of work. It would be out of place 
 when I am called on only to express the answer to 
 a motion addressed to the court and when many of 
 those who are here are to listen this afternoon to 
 the accomplished teacher who has had every occasion 
 to make a personal study of the judge, and again this 
 evening to a gentleman who shares by birth the 
 traditions of the man. My own impressions are only 
 those that I have gathered in the common course of 
 legal education and practice. In them I am con- 
 scious, perhaps, of some little revolt from our purely 
 local or national estimates, and of a wish to see things 
 and people judged by more cosmopolitan standards.
 
 JOHN MARSHALL 269 
 
 A man is bound to be parochial in his practice — to 
 give his life, and if necessary his death, for the place 
 where he has his roots. But his thinking should be 
 cosmopolitan and detached. He should be able to 
 criticise what he reveres and loves. 
 
 The Federalist, when I read it many years ago, 
 seemed to me a truly original and wonderful produc- 
 tion for the time. I do not trust even that judgment 
 unrevised when I remember that The Federalist and 
 its authors struck a distinguished English friend of 
 mine as finite; and I should feel a greater doubt 
 whether, after Hamilton and the Constitution itself, 
 Marshall's work proved more than a strong intellect, 
 a good style, personal ascendancy in his court, cour- 
 age, justice and the convictions of his party. My 
 keenest interest is excited, not by what are called 
 great questions and great cases, but by little deci- 
 sions which the common run of selectors would pass 
 by because they did not deal with the Constitution or 
 a telephone company, yet which have in them the 
 germ of some wider theory, and therefore of some 
 profound interstitial change in the very tissue of the 
 law. The men whom I should be tempted to com- 
 memorate would be the originators of transforming 
 thought. They often are half obscure, because what 
 the world pays for is judgment, not the original mind. 
 
 But what I have said does not mean that I shall 
 join in this celebration or in granting the motion 
 before the court in any half-hearted way. Not only 
 do I recur to what I said in the beginning, and re- 
 membering that you cannot separate a man from his
 
 270 COLLECTED LEGAL PAPERS 
 
 place, remember also that there fell to Marshall per- 
 haps the greatest place that ever was filled by a 
 judge; but when I consider his might, his justice, and 
 his wisdom, I do fully believe that if American law 
 were to be represented by a single figure, sceptic and 
 worshipper alike would agree without dispute that 
 the figure could be one alone, and that one, John 
 Marshall. 
 
 A few words more and I have done. We live by 
 symbols, and what shall be symbolized by any image 
 of the sight depends upon the mind of him who sees 
 it. The setting aside of this day in honor of a great 
 judge may stand to a Virginian for the glory of his 
 glorious State ; to a patriot for the fact that time has 
 been on Marshall's side, and that the theory for 
 which Hamilton argued, and he decided, and Webster 
 spoke, and Grant fought, and Lincoln died, is now 
 our corner-stone. To the more abstract but farther- 
 reaching contemplation of the lawyer, it stands for 
 the rise of a new body of jurisprudence, by which 
 guiding principles are raised above the reach of 
 statute and State, and judges are entrusted with a 
 solemn and hitherto unheard-of authority and duty. 
 To one who lives in what may seem to him a solitude 
 of thought, this day — as it marks the triumph of a 
 man whom some Presidents of his time bade carry 
 out his judgments as he could — this day marks the 
 fact that all thought is social, is on its way to action; 
 that, to borrow the expression of a French writer, 
 every idea tends to become first a catechism and then 
 a code; and that according to its worth his unhelped
 
 JOHN MARSHALL 271 
 
 meditation may one day mount a throne,. and with- 
 out armies, or even with them, may shoot across the 
 world the electric despotism of an unresisted power. 
 It is all a symbol, if you like, but so is the flag. The 
 flag is but a bit of bunting to one who insists on 
 prose. Yet, thanks to Marshall and to the men of 
 his generation — and for this above all we celebrate 
 him and them — its red is our lifeblood, its stars our 
 world, its blue our heaven. It owns our land. At 
 will it throws away our lives. 
 
 The motion of the bar is granted, and the court 
 will now adjourn.
 
 ADDRESS OF CHIEF JUSTICE HOLMES 
 
 At the Dedication of the Northwestern University 
 Law School Building, Chicago, October 20, 1902. 
 
 Mr. President and Gentlemen: 
 
 Nature has but one judgment on wrong conduct 
 — if you can call that a judgment which seemingly 
 has no reference to conduct as such — the judgment 
 of death. That is the judgment or the consequence 
 which follows uneconomical expenditure if carried far 
 enough. If you waste too much food you starve; 
 too much fuel, you freeze; too much nerve tissue, 
 you collapse. And so it might seem that the law 
 of life is the law of the herd; that man should pro- 
 duce food and raiment in order that he might produce 
 yet other food and other raiment to the end of time. 
 Yet who does not rebel at that conclusion? Accept- 
 ing the premises, I nevertheless almost am prepared 
 to say that every joy that gives to life its inspiration 
 consists in an excursion toward death, although wisely 
 stopping short of its goal. Art, philosophy, charity, 
 the search for the north pole, the delirium of every 
 great moment in man's experience — all alike mean 
 uneconomic expenditure — mean waste — mean a 
 step toward death. The justification of art is not 
 that it offers prizes to those who succeed in the 
 economic struggle, to those who in an economic sense 
 have produced the most, and that thus by indirection 
 
 272
 
 NORTHWESTERN UNIVERSITY 273 
 
 it increases the supply of wine and oil. The justi- 
 fication is in art itself, whatever its economic effect. 
 It gratifies an appetite which in some noble spirits is 
 stronger than the appetite for food. The principle 
 might be pressed even further and be found to fur- 
 nish art with one of its laws. For it might be said, 
 as I often have said, and as I have been gratified to 
 find elaborated by that true poet Coventry Patmore, 
 that one of the grounds of aesthetic pleasure is waste. 
 I need not refer to Charles Lamb's well-known com- 
 ments on the fallacy that enough is as good as a feast. 
 Who does not luiow how his delight has been in- 
 creased to find some treasure of carving upon a 
 mediaeval cathedral in a back alley — to see that 
 the artist has been generous as well as great, and 
 has not confined his best to the places where it could 
 be seen to most advantage? Who does not recognize 
 the superior charm of a square-hewed beam over a 
 joist set on edge which would be enough for the 
 work? To leave art, who does not feel that Nansen's 
 account of his search for the pole rather loses than 
 gains in ideal satisfaction by the pretense of a few 
 trifling acquisitions for science? If I wished to make 
 you smile I might even ask whether life did not gain 
 an enrichment from neglected opportunities which 
 would be missed in the snug filling out of every 
 chance. But I am not here to press a paradox. I 
 only mean to insist on the importance of the uneco- 
 nomic to man as he actually feels to-day. You may 
 philosophize about the honors of leisure as a sur- 
 vival; you may, if you like, describe in the same way,
 
 2 74 COLLECTED LEGAL PAPERS 
 
 as I have heard them described, the ideals which 
 burn in the center of our hearts. None the less they 
 are there. They are categorical imperatives. They 
 hold their own against hunger and thirst; they scorn 
 to be classed as mere indirect supports of our bodily 
 needs, which rather they defy; and our friends the 
 economists would do well to take account of them, 
 as some great writers like M. Tarde would take 
 account of them, if they are to deal with man as 
 he is. No doubt already you have perceived the 
 reason why I have insisted upon this double view 
 of life. The special value of a university is that it 
 moves in the twofold direction of man's desires which 
 I have described. I have listened with interest to 
 able business men when they argued and testified 
 that a university training made men fitter to suc- 
 ceed in their practical struggles. I am far from de- 
 nying it. No doubt such a training gives men a 
 larger mastery of the laws of nature under whicli 
 they must work, a wider outlook over the world of 
 science and of fact. If it could give to every student 
 a scientific point of view, if education could make 
 men realize that you can not produce something 
 out of nothing and make them promptly detect the 
 pretense of doing so with which at present the talk 
 of every day is filled, I should think it had more than 
 paid for itself. Still more should I think so if it 
 could send men into the world with a good rudimen- 
 tary knowledge of the laws of their environment. I 
 can not believe that anything else would be so likely 
 to secure prosperity as the universal acceptance of
 
 NORTHWESTERN UNIVERSITY 275 
 
 scientific premises in every department of thought. 
 But beside prosperity there is to be considered happi- 
 ness, which is not the same thing. The chance of a 
 university to enlarge men's power of happiness is at 
 least not less than its chance to enlarge their capacity 
 for gain. I own that with regard to this, as with re- 
 gard to every other aspiration of man, the most 
 important question seems to me to be, what are his 
 inborn qualities? 
 
 Mr. Ruskin's first rule for learning to draw, you 
 will remember, was, Be born with genius. It is the 
 first rule for everything else. If a man is adequate 
 in native force, he probably will be happy in the 
 deepest sense, whatever his fate. But we must not 
 undervalue effort, even if it is the lesser half. And 
 the opening which a university is sure to offer to all 
 the idealizing tendencies — which, I am not afraid to 
 say, it ought to offer to the romantic side of life — 
 makes it above all other institutions the conservator 
 of the vestal fire. Our tastes are finalities, and 
 it has been recognized since the days of Rome that 
 there is not much use in disputing about them. If 
 some professor should proclaim that what he wanted 
 was a strictly economic world, I should see no more 
 use in debating with him than I do in arguing with 
 those who despise the ideals which we owe to war. 
 But most men at present are on the university side. 
 They want to be told stories and to go to the play. 
 They want to understand and, if they can, to paint 
 pictures, and to write poems, whether the food prod- 
 uct is greater in the long run because of them or not.
 
 276 COLLECTED LEGAL PAPERS 
 
 They want to press philosophy to the uttermost edge 
 of the articulate, and to try forever after some spirit- 
 ual ray outside the spectrum that will bring a mes- 
 sage to them from behind phenomena. They love 
 the gallant adventure which yields no visible return. 
 I think it the glory of that university which I know 
 best, that under whatever reserves of manner they 
 may hide it, its graduates have the romantic pas- 
 sion in their hearts. 
 
 But, gentlemen, there is one department of your 
 institution to which I must be permitted specially 
 to refer — the department to which I am nearest by 
 profession, and to which I owe the honor of being 
 here. I mean, of course, the department of law. 
 Let me say one word about that before I sit down. 
 It was affirmed, I believe, by a man not without 
 deserved honor in his generation — the late Chief 
 Justice Cooley — that the law was and ought to be 
 commonplace. No doubt the remark has its truth. 
 It is better that the law should be commonplace than 
 that it should be eccentric. No doubt, too, in any 
 aspect it would seem commonplace to a mind that 
 understood everything. But that is the weakness 
 of all truth. If instead of the joy of eternal pursuit 
 you imagine yourself to have mastered it as a com- 
 plete whole, you would find yourself reduced to the 
 alternative either of finding the remotest achieve- 
 ment of quaternions or ontology — the whole frame 
 of the universe, in short — a bore, or of dilating with 
 undying joy over the proposition that twice two is 
 four. It seems to me that for men as they are, the
 
 NORTHWESTERN UNIVERSITY 277 
 
 law may keep its every-day character and yet be 
 an object of understanding wonder and a field for 
 the lightning of genius. One reason why it gives me 
 pleasure to be here today and to express my good 
 wishes for the future and my appreciation of the past 
 of your law school, is that it is here and in places 
 like it that such wonder is kindled and that from 
 it may fly sparks that shall set free in some genius 
 his explosive message. 
 
 I am not dealing in generalities. I mean more than 
 good will to a law school, simply because it is a 
 law school. Indeed, I almost fear that the intellec- 
 tual ferment of the better schools may be too potent 
 an attraction to young men and seduce into the pro- 
 fession many who would be better elsewhere. But 
 I am thinking of this law school and no other. I 
 never have had an opportunity to give public expres- 
 sion to my sense of the value of the work of your 
 accomplished dean.^ I have come in for my share of 
 criticism from him, as also I have had from him 
 words which have given me new courage on a lonely 
 road. But my appreciation of what I have seen from 
 his hands is untouched by personal relations. It is 
 solely because I think that it is the duty of those 
 who know to recognize the unadvertised first rate, 
 that I wish now to express my respect for his great 
 learning and originality and for the volume and del- 
 icacy of his production, which seem to me to de- 
 serve more distinct and public notice than, so far 
 as I am aware, they have received. I feel quite sure, 
 
 1 Professor John H. Wigmore,
 
 278 COLLECTED LEGAL PAPERS 
 
 from his printed work, that his teaching will satisfy 
 the two-fold desire of man; that it will be enlightened 
 with intelligent economic views and give men what 
 they want to know when they go out to fight, but 
 that also it will send them forth with a pennon as 
 well as with a sword, to keep before their eyes in 
 the long battle the little flutter that means ideals, 
 honor, yes, even romance, in all the dull details.
 
 ECONOMIC ELEMENTS * 
 
 I ENTERTAIN somc Opinions concerning the issues 
 raised by your questions, and though not strictly 
 responsive, I will state them. 
 
 The real problem is not who owns, but who con- 
 sumes, the annual product. The identification of 
 these two very different questions is the source of 
 many fallacies, and misleads many workingmen. 
 The real evil of fifty-thousand-dollar balls and other 
 manifestations of private splendor is that they tend 
 to confirm this confusion in the minds of the ignorant 
 by an appeal to their imagination, and make them 
 think that the Vanderbilts and Rockefellers swallow 
 their incomes like Cleopatra's dissolved pearl. The 
 same conception is at the bottom of Henry George's 
 Progress and Poverty. He thinks he has finished 
 the discussion when he shows the tendency of wealth 
 to be owned by the landlords. He does not consider 
 what the landlords do with it. 
 
 I conceive that economically it does not matter 
 whether you call Rockefeller or the United States 
 owner of all the wheat in the United States, if that 
 wheat is annually consumed by the body of the 
 people; except that Rockefeller, under the illusion 
 of self-seeking or in the conscious pursuit of power, 
 
 * A letter written in response to questions and not intended for 
 print, but reprinted here, as it was published in a magazine (1904). 
 
 279
 
 28o COLLECTED LEGAL PAPERS 
 
 will be likely to bring to bear a more poignant 
 scrutiny of the future in order to get a greater return 
 for the next year. 
 
 If then, as I believe, the ability of the ablest men 
 under the present regime is directed to getting the 
 largest markets and the largest returns, such ability 
 is directed to the economically desirable end. 
 
 I have vainly urged our various statisticians to 
 exhibit in the well-known form the proportions of 
 the products consumed by the many and those con- 
 sumed by the few, expressed in labor hours or in any 
 other convenient way. This would show whether 
 private ownership was abused for the production of 
 an undue proportion of luxuries for the few. I do 
 not beUeve the luxuries would be one per cent. 
 
 It follows from what I have said that the objec- 
 tions to unlimited private ownership are sentimental 
 or political, not economic. Of course, as the size 
 of a private fortune increases, the interest of the 
 public in the administration of it increases. If a 
 man owned one-half of the wheat in the country and 
 announced his intention to burn it, such abuse of 
 ownership would not be permitted. The crowd 
 would kill him sooner than stand it. 
 
 But it seems to me that if every desirable object 
 were in the hands of a monopolist, intent on getting 
 all he could for it (subject to the limitation that it 
 must be consumed, and that it might not be wantonly 
 destroyed, as, of course, it would not be), the value 
 of the several objects would be settled by the in- 
 tensity of the desires for them respectively, and they
 
 ECONOMIC ELEMENTS 281 
 
 would be consumed by those who were able to get 
 them and that would be the ideal result. 
 
 The first question put,* if I may be permitted to 
 say so, seems to me rather fanciful. I see no way of 
 answering it intelligently, and if I am right, it appears 
 to imply an acceptance of what I have already tried 
 to show to be a fallacy or confusion. 
 
 So far as I can answer it, what I should say would 
 be this: All that any man contributes to the world 
 is the intelligence which directs a change in the 
 place of matter. A man does not create the thing 
 he handles or the force he exerts. The force could 
 be got cheaper if the directing intelligence were not 
 needed. The whole progress of the world in a ma- 
 terial way is to put the need of intelligence further 
 back. It is obvious that the intelligence of an archi- 
 tect contributes more to the change of form which 
 takes place in a house than that of all the laboring 
 hands. How can any one measure the scope and 
 value of remote causes of change? How can I com- 
 pare the present effect on the lives of men of the 
 speculations of Kant and of the empire of Napoleon? 
 I should not think it absurd to assert that the former 
 counted for the more, though, of course, it is impos- 
 sible to prove it. My practical answer is that a 
 great fortune does not mean a corresponding con- 
 sumption, but a power of command; that some one 
 must exercise that command, and that I know of no 
 way of finding the fit man so good as the fact of 
 winning it in the competition of the market. 
 
 ♦ Whether a man can render services entitling him to a fortune as 
 great as some of ours in America.
 
 2 82 COLLECTED LEGAL PAPERS 
 
 I already have intimated my opinion that the 
 owner of a great fortune has pubHc functions, and 
 therefore, subject to legal questions which I am not 
 considering, should be subject to some negative 
 restraint. Among others, I should like to see him 
 prohibited from giving great sums to charities which 
 could not be clearly justified as long-sighted public 
 investments. 
 
 The only other question on which I desire to say a 
 word is the nature of taxes in this connection. Taxes, 
 when thought out in things and results, mean an 
 abstraction of a part of the annual product for gov- 
 ernment purposes, and cannot mean anything else. 
 Whatever form they take in their imposition they 
 must be borne by the consumer, that is, mainly by 
 the working-men and fighting-men of the community. 
 It is well that they should have this fact brought 
 home to them, and not too much disguised by the 
 form in which the taxes are imposed.
 
 ON F. W. MAITLAND'S DEATH* 
 
 One is almost ashamed to praise a dead master 
 for what he did in a field where he was acknowledged 
 to be supreme. When his work is finished it is too 
 late for praise to give the encouragement which all 
 need, and of which the successful get too little. 
 Still, there is a pleasure in bearing one's testimony 
 even at that late time, and thus in justifying the 
 imagination of posthumous power on which all ideal- 
 ists and men not seeking the immediate rewards of 
 success must live. That imagination, if Mr. Mait- 
 land was not, as I fear, too modest to get much joy 
 from it, will be realized, I am sure. His profound 
 knowledge of the sources of English law equipped 
 him, as perhaps no other was equipped, to illustrate 
 and explain the present. His knowledge was only a 
 tool to his good sense. His good sense and insight 
 were illuminated and made vivid by his power of 
 statement and gift of narrative, so that any reason- 
 ably prepared reader of his writings, even those deal- 
 ing with what one would have expected to be dry 
 details, is sure to become interested, absorbed, and 
 charmed. His last work, the Life of Sir Leslie 
 Stephen, was a no less successful excursion into new 
 fields, and showed the same gifts, coupled with an 
 
 ♦ Law Qxtarterly Review (1907). 
 283
 
 284 COLLECTED LEGAL PAPERS 
 
 unconscious spirituality, which did not surprise, but 
 which found freer scope for expression there. To 
 elaborate an estimate of Mr. Maitland's achieve- 
 ments would require time which my occupations do 
 not permit me to give. But I would not willingly 
 miss the chance to say what I believe about him, and 
 to lay a wreath, if only of dry leaves, upon his grave.
 
 HOLDSWORTH'S ENGLISH LAW* 
 
 The study of English law has been slow to feel 
 the impulse of science. But during the last thirty- 
 years, alongside of the practitioners to whom the law 
 is a ragbag from which they pick out the piece and 
 color that they want, there have been some students 
 who have striven to make their knowledge organic. 
 A brilliant result of that effort was Pollock and Mait- 
 land's history. Mr. Holdsworth is giving us another. 
 The first dealt mainly with the embryology of the sub- 
 ject. The present work intends to deal with it in its 
 maturity as well; and the two volumes just published 
 trace its development through the Year Books to the 
 point where we begin to recognize its adult form. A 
 development is hard to describe. Mr. Holdsworth is 
 to be complimented on the skill with which he has 
 done it, although it would be difficult to give an ac- 
 count of his book, precisely because of his skill. One 
 is made to feel the complex antecedents — Saxon tra- 
 dition, Norman practice, the Roman law, the charac- 
 ter of kings, the rise of Parliament, the varying 
 economic needs and aims — out of which the plant 
 has grown, and one is made to see the growth. The 
 reading leaves the conviction that one has received 
 
 * A History of English Law. By W. S. Holdsworth, D.C.L. 
 London: Methuen & Co., 1009. 8vo. Vol. II., xxxi, and 572 pp.; Vol. 
 in., xxxviii, and 532 pp. Law Quarterly Review (1909). 
 
 28s
 
 286 COLLECTED LEGAL PAPERS 
 
 the most important of object lessons in the birth and 
 life of ideas. The difficulty in remembering the 
 details is the difficulty of marking the steps of an 
 organic process. One sees that the embryo has taken 
 form, gained size and coherence, more readily than 
 one marks the moments of the change. 
 
 The line between antiquarianism and knowledge of 
 practical importance is kept with tact. Enough is 
 told to gratify disinterested philosophic curiosity, yet 
 not more than should be read by any one who desires 
 to understand his art. No doubt Mr. Holdsworth is 
 right in saying that "We cannot date the beginnings 
 of the common law much earlier than the first half 
 of the twelfth century . " For that reason he properly 
 does not spend much time on what he calls Anglo- 
 Saxon antiquities, but what he says tells, and makes 
 a proper beginning. The Church and the Roman law 
 are other secondary influences, and those again are 
 delicately and judiciously expounded. They are 
 shown strengthening the royal power; impelling the 
 first attempt at systematizing the new corpus that 
 is to be; tending to qualify the old principle of 
 liability (stated somewhat strongly perhaps in the 
 proposition that a man acted at his peril); intro- 
 ducing the last will and also the book for land grants, 
 which fostered free alienation ; suggesting new reme- 
 dies and the eccceptio in pleading; and in short, in 
 various ways by their foreign atmosphere forcing the 
 growth of the native plant, especially through their 
 influence on the King's Court. Much, perhaps most, 
 of what we are told has been told before, and the
 
 HOLDSWORTH'S ENGLISH LAW 287 
 
 author is frank in his reference to previous work, but 
 it is told here in continuous form, with proportion, 
 and so as to bring out the story of the birth and life 
 of the common law. 
 
 Attention has been called before now to the strug- 
 gle for life carried on among ideas ; to the result that 
 some perish and others put on the livery of the con- 
 queror; and to the fact that law only ends with a 
 theory, but begins with a concrete case. But so far 
 as I know these considerations have not been much 
 attended to heretofore. Mr. Holdsworth illustrates 
 them with more or less definite reference to this mode 
 of approach. A slight example is that twenty-one, 
 the time of coming of age for the knight, prevails over 
 fifteen, the time for the socman. But the best in- 
 stance is that of contract. We are shown how there 
 are brought under that head matters that earlier were 
 thought of in terms of grant, or like bailment formed 
 a head by themselves. The surety, from a hostage, 
 becomes a covenantor. We are given many illus- 
 trations of the persistence of the fides facta and the 
 oath as older competitors of the real and formal con- 
 tracts that finally got the power. Ecclesiastical 
 penalties for perjury in the breach of a promissory 
 oath continue to a late period,^ and although the 
 opinion has been controverted, I think that there are 
 signs that ecclesiastical chancellors hesitated before 
 they denied a remedy for breach of faith. 
 
 1 In Chaucer's Frere's Tale the Archdeacon "dide execucioun In 
 punisshinge of . . . diffamacioun . . . and of testaments, Of con- 
 tractes, and of lakke of sacraments." etc.
 
 288 COLLECTED LEGAL PAPERS 
 
 While I am speaking of contract I may add that 
 the progress from tort to assumpsit seems to me bet- 
 ter told than it has been before. Perhaps there is 
 some perpetuation of what seems to me the con- 
 fusion between the fraud that is wrought if a man 
 keeps an executed consideration and will not perform 
 his promise, and the misfortune that may be caused 
 by not keeping a promise for which no consideration 
 has been given. The very meaning of the doctrine 
 of consideration is that if a man relies upon a promise 
 made without it, he does so at his peril. Unless 
 action on the faith of the promise is the conventional 
 inducement for the promise, it has no effect. By 
 conventional inducement I mean, of course, that 
 which is contemplated, as the ground for the promise, 
 by the bargain, whatever may be the motive in fact. 
 Unless my memory deceives me, the false doctrine 
 sometimes has been treated as if it were the main 
 ground out of which assumpsit grew. 
 
 If the development of ideas and their struggle 
 for life are the interests of the day, the interest of the 
 future, the final and most important question in the 
 law is that of their worth. I mean their worth in 
 a more far-reaching sense than that of expressing 
 the de facto will of the community for the time. On 
 this as yet no one has much to say. To answer it we 
 should have in the first place to establish the ideals 
 upon which our judgments of worth depend; and the 
 statement of such ideals by different classes would 
 differ, at least in form. But suppose that we had 
 agreed that the end of law was, for instance, the sur-
 
 HOLDSWORTH'S ENGLISH LAW 289 
 
 vival of a certain type of man, still we should have 
 made very little way toward the founding of a scien- 
 tific code. Statistics would leave the effect of the 
 criminal law open to doubt. Who can prove that the 
 doctrine of master and servant, or the theory of con- 
 sideration, helps to attam the ideal assumed? The 
 attitude of the State toward marriage and divorce is 
 governed more by church and tradition than by facts. 
 Wherever we turn we find that what are called good 
 laws are apt to be called so because men see that 
 they promote a result that they fancy desirable, and 
 do not see the bill that has to be paid in reactions 
 that are relatively obscure. One fancies that one 
 could invent a different code under which men would 
 have been as well off as tliey are now, if they had 
 happened to adopt it. But that if is a very great 
 one. The tree has grown as we know it. The prac- 
 tical question is what is to be the next organic step. 
 No doubt the history of the law encourages scepti- 
 cism when one sees how a rule or a doctrine has 
 grown up, or when one notices the naivete with 
 which social prejudices are taken for eternal prin- 
 ciples. But it also leads to an unconvinced con- 
 servatism. For it points out that almost the only 
 thing that can be assumed as certainly to be wished is 
 that men should know the rules by which the game 
 will be played. Doubt as to the value of some of 
 those rules is no sufficient reason why they should not 
 be followed by the courts. Legislation gives notice 
 at least if it makes a change. And after all, those of 
 us who believe with Mr. Lester Ward, the sociologist,
 
 290 COLLECTED LEGAL PAPERS 
 
 in the superiority of the artificial to the natural, may- 
 see in what has been done some ground for believing 
 that mankind yet may take its own destiny con- 
 sciously and intelligently in hand. 
 
 Mr. Holdsworth is telling us a profoundly interest- 
 ing story. It is one of the most important chapters 
 in the greatest human document — the tale of what 
 men have most believed and most wanted. It is told 
 with learning and scientific instinct, and the book 
 is to be recommended equally to philosophers who 
 can understand it and to practical students of the 
 law. Readers of M. Tarde will see that author's 
 laws of imitation illustrated by the most striking 
 example, and if they doubt how far it can be said 
 that the principles of any system are eternal, will 
 realize that imitation of the past, until we have 
 a clear reason for change, no more needs justification 
 than appetite. It is a form of the inevitable to be 
 accepted until we have a clear vision of what differ- 
 ent thing we want.
 
 LAW AND THE COURT 
 
 SPEECH AT A DINNER OF THE HARVARD LAW SCHOOL 
 
 ASSOCIATION OF NEW YORK ON FEBRUARY 
 
 15,1913 * 
 
 Mr. Chairman and Gentlemen: 
 
 Vanity is the most philosophical of those feelings 
 that we are taught to despise. For vanity recognizes 
 that if a man is in a minority of one we lock him up, 
 and therefore longs for an assurance from others 
 that one's work has not been in vain. If a man's 
 ambition is the thirst for a power that comes not from 
 office but from within, he never can be sure that any 
 happiness is not a fool's paradise — he never can be 
 sure that he sits on that other bench reserved for the 
 masters of those who know. Then too, at least 
 until one draws near to seventy, one is less likely to 
 hear the trumpets than the rolling fire of the front. 
 I have passed that age, but I still am on the firing 
 line, and it is only in rare moments like this that 
 there comes a pause and for half an hour one feels 
 a trembling hope. They are the rewards of a life- 
 time's work. 
 
 But let me turn to more palpable reaHties — to 
 that other visible Court to which for ten now ac- 
 complished years it has been my opportunity to be- 
 
 • From Speeches (1913), Little, Brown & Co. 
 291
 
 2 92 COLLECTED LEGAL PAPERS 
 
 long. We are very quiet there, but it is the quiet of 
 a storm centre, as we all know. Science has taught 
 the world scepticism and has made it legitimate to 
 put everything to the test of proof. Many beauti- 
 ful and noble reverences are impaired, but in these 
 days no one can complain if any institution, system, 
 or belief is called on to justify its continuance in life. 
 Of course we are not excepted and have not escaped. 
 Doubts are expressed that go to our very being. 
 Not only are we told that when Marshall pronounced 
 an Act of Congress unconstitutional he usurped a 
 power that the Constitution did not give, but we are 
 told that we are the representatives of a class — a 
 tool of the money power. I get letters, not always 
 anonymous, intimating that we are corrupt. Well, 
 gentlemen, I admit that it makes my heart ache. It 
 is very painful, when one spends all the energies of 
 one's soul in trying to do good work, with no thought 
 but that of solving a problem according to the rules 
 by which one is bound, to know that many see sinister 
 motives and would be glad of evidence that one was 
 consciously bad. But we must take such things 
 philosophically and try to see what we can learn from 
 hatred and distrust and whether behind them there 
 may not be some germ of inarticulate truth. 
 
 The attacks upon the Court are merely an expres- 
 sion of the unrest that seems to wonder vaguely 
 whether law and order pay. When the ignorant are 
 taught to doubt they do not know what they safely 
 may believe. And it seems to me that at this time 
 we need education in the obvious more than investi-
 
 LAW AND THE COURT 293 
 
 gation of the obscure. I do not see so much imme- 
 diate use in committees on the high cost of Hving 
 and inquiries how far it is due to the increased pro- 
 duction of gold, how far to the narrowing of cattle 
 ranges and the growth of population, how far to 
 the bugaboo, as I do in bringing home to people a 
 few social and economic truths. Most men think 
 dramatically, not quantitatively, a fact that the rich 
 would be wise to remember more than they do. We 
 are apt to contrast the palace with the hovel, the 
 dinner at Sherry's with the working man's pail, and 
 never ask how much or realize how little is withdrawn 
 to make the prizes of success (subordinate prizes — 
 since the only prize much cared for by the powerful 
 is power. The prize of the general is not a bigger 
 tent, but command). We are apt to think of owner- 
 ship as a terminus, not as a gateway, and not to 
 realize that except the tax levied for personal con- 
 sumption large ownership means investment, and 
 investment means the direction of labor towards the 
 production of the greatest returns — returns that so 
 far as they are great show by that very fact that they 
 are consumed by the many, not alone by the few. 
 If I may ride a hobby for an instant, I should say 
 we need to think things instead of words — to drop 
 ownership, money, etc., and to think of the stream 
 of products; of wheat and cloth and railway travel. 
 When we do, it is obvious that the many consume 
 them; that they now as truly have substantially all 
 there is, as if the title were in the United States; that 
 the great body of property is socially administered
 
 294 COLLECTED LEGAL PAPERS 
 
 now, and that the function of private ownership is 
 to divine in advance the equiUbrium of social desires 
 — which sociaHsm equally would have to divine, but 
 which, under the illusion of self-seeking, is more 
 poignantly and shrewdly foreseen. 
 
 I should like to see it brought home to the public 
 that the question of fair prices is due to the fact that 
 none of us can have as much as we want of all the 
 things we want; that as less will be produced than the 
 public wants, the question is how much of each prod- 
 uct it will have and how much go without; that thus 
 the final competition is between the objects of desire, 
 and therefore between the producers of those ob- 
 jects; that when we oppose labor and capital, labor 
 means the group that is selling its product and capital 
 all the other groups that are buying it. The hated 
 capitalist is simply the mediator, the prophet, the 
 adjuster according to his divination of the future 
 desire. If you could get that believed, the body of 
 the people would have no doubt as to the worth of 
 law. 
 
 That is my outside thought on the present dis- 
 contents. As to the truth embodied in them, in part 
 it cannot be helped. It cannot be helped, it is as it 
 should be, that the law is behind the times. I told a 
 labor leader once that what they asked was favor, 
 and if a decision was against them they called it 
 wicked. The same might be said of their opponents. 
 It means that the law is growing. As law embodies 
 beliefs that have triumphed in the battle of ideas and 
 then have translated themselves into action, while
 
 LAW AND THE COURT 295 
 
 there still is doubt, while opposite convictions still 
 keep a battle front against each other, the time for 
 law has not come; the notion destined to prevail is 
 not yet entitled to the field. It is a misfortune if 
 a judge reads his conscious or unconscious sympathy 
 with one side or the other prematurely into the law, 
 and forgets that what seem to him to be first prin- 
 ciples are believed by half his fellow men to be wrong. 
 I think that we have suffered from this misfortune, in 
 State courts at least, and that this is another and 
 very important truth to be extracted from the popu- 
 lar discontent. When twenty years ago a vague 
 terror went over the earth and the word socialism 
 began to be heard, I thought and still think that fear 
 was translated into doctrines that had no proper place 
 in the Constitution or the common law. Judges are 
 apt to be naif, simple-minded men, and they need 
 something of Mephistopheles. We too need educa- 
 tion in the obvious — to learn to transcend our own 
 convictions and to leave room for much that we hold 
 dear to be done away with short of revolution by the 
 orderly change of law. 
 
 I have no belief in panaceas and almost none in 
 sudden ruin. I believe with Montesquieu that if 
 the chance of a battle — I may add, the passage of 
 a law — has ruined a state, there was a general cause 
 at work that made the state ready to perish by a 
 single battle or a law. Hence I am not much inter- 
 ested one way or the other in the nostrums now so 
 strenuously urged. I do not think the United 
 States would come to an end if we lost our power
 
 2 96 COLLECTED LEGAL PAPERS 
 
 to declare an Act of Congress void. I do think the 
 Union would be imperiled if we could not make that 
 declaration as to the laws of the several States. For 
 one in my place sees how often a local policy pre- 
 vails with those who are not trained to national views 
 and how often action is taken that embodies what the 
 Commerce Clause was meant to end. But I am not 
 aware that there is any serious desire to limit the 
 Court's power in this regard. For most of the things 
 that properly can be called evils in the present state 
 of the law I think the main remedy, as for the evils 
 of public opinion, is for us to grow more civilized. 
 
 If I am right it will be a slow business for our 
 people to reach rational views, assuming that we are 
 allowed to work peaceably to that end. But as I 
 grow older I grow calm. If I feel what are perhaps 
 an old man's apprehensions, that competition from 
 new races will cut deeper than working men's dis- 
 putes and will test whether we can hang together and 
 can fight; if I fear that we are running through the 
 world's resources at a pace that we cannot keep; 
 I do not lose my hopes. I do not pin my dreams 
 for the future to my country or even to my race. 
 I think it probable that civilization somehow will last 
 as long as I care to look ahead — perhaps with 
 smaller numbers, but perhaps also bred to greatness 
 and splendor by science. I think it not improbable 
 that man, like the grub that prepares a chamber for 
 the winged thing it never has seen but is to be — that 
 man may have cosmic destinies that he does not 
 understand. And so beyond the vision of battling
 
 LAW AND THE COURT 297 
 
 races and an impoverished earth I catch a dreaming 
 glimpse of peace. 
 
 The other day my dream was pictured to my mind. 
 It was evening. I was walking homeward on Penn- 
 sylvania Avenue near the Treasury, and as I looked 
 beyond Sherman's Statue to the west the sky was 
 aflame with scarlet and crimson from the setting sun. 
 But, like the note of downfall in Wagner's opera, 
 below the sky line there came from little globes the 
 pallid discord of the electric lights. And I thought 
 to myself the Gotterdammerung will end, and from 
 those globes clustered like evil eggs will come the 
 new masters of the sky. It is like the time in which 
 we live. But then I remembered the faith that I 
 partly have expressed, faith in a imiverse not meas- 
 ured by our fears, va universe that has thought and 
 more than thought inside of it, and as I gazed, after 
 the sunset and above the electric lights there shone 
 the stars.
 
 INTRODUCTION TO THE GENERAL 
 SURVEY 
 
 BY EUROPEAN AUTHORS IN THE CONTINENTAL 
 LEGAL HISTORICAL SERIES* 
 
 The authors whose writings are offered in this 
 volume and Series do not need introduction. They 
 introduce the man who has the honor for a moment 
 to associate his name with theirs. But a few words 
 from a veteran may catch the attention of those who 
 still are in the school of the soldier and have not seen 
 their first fight. 
 
 The philosophers teach us that an idea is the first 
 step toward an act. Beliefs, so far as they bear upon 
 the attainment of a wish (as most beliefs do), lead in 
 the first place to a social attitude, and later to com- 
 bined social action, that is, to law. Hence, ever since 
 it has existed, the law expressed what men most 
 strongly have believed and desired. And, as the be- 
 liefs and desires of the Western world have changed 
 and developed a good deal since the days of the 
 Twelve Tables and the Law of the Salian Franks, 
 I thought it dangerously near a platitude to say, a 
 dozen years ago, that the law might be regarded as a 
 great anthropological document. But, as a gentleman 
 prominent at the bar of one of the States professed 
 
 * Little, Brown & Co., Boston. 1913. 
 
 298
 
 INTRODUCTION TO GENERAL SURVEY 299 
 
 difficulty in understanding what I meant, it is evident 
 that the rudiments need eternal repetition. Any man 
 who is interested in ideas needs only the suggestion 
 that I have made to realize that the history of the 
 law is the embryology of a most important set of 
 ideas, and perhaps more than any other history tells 
 the story of a race. 
 
 The trouble with general or literary historical 
 works is that they deal with premises or conclusions 
 that are both unquantified. We readily admit their 
 assumption that such and such a previous fact tended 
 to produce such and such a later one ; but how much 
 of the first would be necessary to produce how much 
 of the last, and how much there actually was of either, 
 we are not told. On the other hand, in the history of 
 philosophy and economics we can say with more 
 confidence that we trace cause and effect. The one 
 shows the inward bond between the successive stages 
 of the thought of man; the other the sequence of 
 outward events that have governed his action and 
 (some believe) really have determined his thought. 
 At all events the latter fits the former as the outside 
 of a cathedral fits the inside, — although there are 
 gargoyles and Mephistopheles without and angels and 
 saints within. 
 
 There is no place for the history of law in this 
 metaphor; but, in plain prose, it is midway between 
 the other two. As we follow it down from century to 
 century, we see logic at work attempting to develop 
 the concrete cases given in experience into universal 
 rules, and the struggle for life between the attempted
 
 300 COLLECTED LEGAL PAPERS 
 
 generalizations and other competing forms. We 
 watch the metamorphosis of the simple into the com- 
 plex. We see changes of environment producing 
 new institutions, and new taking the place of old 
 beliefs and wants. We observe the illustrations, as 
 striking here as in poetry or music, of the universal 
 change of emphasis that each century brings along. 
 An argument that would have prevailed in Plowden's 
 time, and perhaps, would have raised a difficulty to 
 be got rid of in Lord Ellenborough's, now would be 
 answered only with a smile. 
 
 The most obvious moral of what I have said is 
 that the law will furnish philosophical food to philo- 
 sophical minds. The surgeon of my regiment in the 
 War of Secession used to divide the world into ex- 
 ternal and internal men. The distinction is as old as 
 Plato. For I take it that what makes the Banquet 
 immortal is not the divine gossip about Aristophanes 
 and Alcibiades and Socrates, but that it and some of 
 the Dialogues are the first articulate expression that 
 has come down to us of what internal men believe, 
 that ideas are more interesting than things. To the 
 internal men, I need say no more to recommend the 
 theme of this and the following volumes. But the 
 profit is not confined to them. When a man has a 
 working knowledge of his business, he can spend his 
 leisure better than in reading all the reported cases 
 he has time for. They are apt to be only the small 
 change of legal thought. They represent the compro- 
 mise of the moment between tradition and precedent 
 on the one side and the free conception of the desir-
 
 INTRODUCTION TO GENERAL SURVEY 301 
 
 able on the other. It is worth while, even with the 
 most mundane ideals, to get as big a grasp of one's 
 subject as one can. And therefore it is worth while 
 to do what we can to enlighten our notions of the de- 
 sirable and to understand the precedents by which we 
 are constrained. The history of the law stands along- 
 side of sociology and economics as a necessary tool if 
 one is to practise law in a large way. 
 
 If what I have said is granted, not much argument 
 is needed to show that a survey of the general devel- 
 opment of Continental law is necessary to understand 
 our own. The relationship is too well established to 
 need new proofs, — although I believe that there 
 still are standard treatises that ascribe trusts to 
 Rome and ignore the Salman. Indeed, I am not sure 
 that the best way of proving the need of this Series 
 would not be to present a series of Elegant Extracts 
 from text-books and decisions. 
 
 I can but envy the felicity of the generation to 
 whom it is made so easy to see their subject as a 
 whole. When I began, the law presented itself as 
 a ragbag of details. The best approach that I found 
 to general views on the historical side was the first 
 volume of Spence's Equitable Jurisdiction, and, on 
 the practical. Walker's American Law. The only 
 philosophy within reach was Austin's Jurisprudence. 
 It was not without anguish that one asked oneself 
 whether the subject was worthy of the interest of an 
 intelligent man. One saw people whom one respected 
 and admired leaving the study because they thought 
 it narrowed the mind; for which they had the author-
 
 302 COLLECTED LEGAL PAPERS 
 
 ity of Burke. It required blind faith — faith that 
 could not yet find the formula of justification for 
 itself. The works of foreign scholarship were then 
 inaccessible. One had to spend long days of groping, 
 with the inward fear that if one only knew where to 
 look, one would find that one's difficulties and ques- 
 tions were fifty years behind the times. Now, a man 
 can start with the knowledge that he starts fair — 
 that the best results of Europe, as well as of this 
 country and England, are before him. And those 
 results are so illuminating that diligence alone is 
 enough to give him an understanding of how the law 
 came to be what it is, of its broadest generalizations, 
 and (so far as any one yet can state them) of the 
 reasons to be offered for continuing it in its present 
 form or for desiring a change. 
 Washington, D.C, November 28, 1911.
 
 IDEALS AND DOUBTS* 
 
 For the last thirty years we have been preoccu- 
 pied with the embryology of legal ideas ; and explana- 
 tions, which, when I was in college, meant a refer- 
 ence to final causes, later came to mean tracing origin 
 and growth. But fashion is as potent in the intellec- 
 tual world as elsewhere, and there are signs of an 
 inevitable reaction. The reaction, if there is one, 
 seems to me an advance, for it is toward the ultimate 
 question of worth. That is the text of an excellent 
 article, "History versus Value," by Morris R. Cohen 
 in the Journal of Philosophy, Psychology and Scien- 
 tific Methods, and although perhaps rather in the 
 form of conservation than of advance, of Del Vec- 
 chio's Formal Bases of Law in the Modern Legal 
 Philosophical Series. To show that it has my sym- 
 pathy I may refer to the Law Quarterly Review.^ 
 But perhaps it will not be out of place to express the 
 caution with which I am compelled to approach any 
 general recension from which the young hope so 
 much. 
 
 The first inquiry is for the criterion. If I may 
 do Del Vecchio the wrong of summing up in a sen- 
 tence or two what from a hasty reading I gather to 
 be his mode of reaching one, it is that of a Neo-Kan- 
 
 * Illinois Law Review, Vol. X (1915). 
 
 1 25 Law Quarterly Review, 412, 414, October, 1909. Ante, pp. 285-290. 
 
 303
 
 304 COLLECTED LEGAL PAPERS 
 
 tian idealist. Experience takes place and is organ- 
 ized in consciousness, by its machinery and according 
 to its laws, such as the category of cause and effect. 
 Therefore consciousness constructs the universe and 
 as the fundamental fact is entitled to fundamental 
 reverence. From this it is easy to proceed to the 
 Kantian injunction to regard every human being as 
 an end in himself and not as a means. 
 
 I confess that I rebel at once. If we want con- 
 scripts, we march them up to the front with bayonets 
 in their rear to die for a cause in which perhaps they 
 do not believe. The enemy we treat not even as a 
 means but as an obstacle to be abolished, if so it 
 may be. I feel no pangs of conscience over either 
 step, and naturally am slow to accept a theory that 
 seems to be contradicted by practices that I approve. 
 In fact, it seems to me that the idealists give away 
 their case when they write books. For it shows that 
 they have done the great act of faith and decided 
 that they are not God. If the world were my dream, 
 I should be God in the only universe I know. But 
 although I cannot prove that I am awake, I believe 
 that my neighbors exist in the same sense that I do, 
 and if I admit that, it is easy to admit also that I 
 am in the universe, not it in me. 
 
 When I say that a thing is true, I mean that I 
 cannot help believing it. I am stating an experience 
 as to which there is no choice. But as there are many 
 things that I cannot help doing that the universe can, 
 I do not venture to assume that my inabilities in the 
 way of thought are inabilities of the universe. I
 
 IDEALS AND DOUBTS 305 
 
 therefore define the truth as the system of my Hmita- 
 tions, and leave absolute truth for those who are 
 better equipped. With absolute truth I leave abso- 
 lute ideals of conduct equally on one side. 
 
 But although one believes in what commonly, with 
 some equivocation, is called necessity; that phe- 
 nomena always are found to stand in quantitatively 
 fixed relations to earlier phenomena; it does not fol- 
 low that without such absolute ideals we have nothing 
 to do but to sit still and let time run over us. As I 
 wrote many years ago, the mode in which the in- 
 evitable comes to pass is through effort. Consciously 
 or unconsciously we all strive to make the kind of a 
 world that we like. And although with Spinoza we 
 may regard criticism of the past as futile, there is 
 every reason for doing all that we can to make a 
 future such as we desire. 
 
 There is every reason also for trying to make our 
 desires intelligent. The trouble is that our ideals for 
 the most part are inarticulate, and that even if we 
 have made them definite we have very little experi- 
 mental knowledge of the way to bring them about. 
 The social reformers of today seem to me so far to 
 forget that we no more can get something for nothing 
 by legislation than we can by mechanics as to be 
 satisfied if the bill to be paid for their improvements 
 is not presented in a lump sum. Interstitial detri- 
 ments that may far outweigh the benefit promised 
 are not bothered about. Probably I am too skeptical 
 as to our ability to do more than shift disagreeable 
 burdens from the shoulders of the stronger to those
 
 3o6 COLLECTED LEGAL PAPERS 
 
 of the weaker. But I hold to a few articles of a 
 creed that I do not expect to see popular in my day. 
 I believe that the wholesale social regeneration which 
 so many now seem to expect, if it can be helped by 
 conscious, coordinated human effort, cannot be 
 affected appreciably by tinkering with the institution 
 of property, but only by taking in hand life and 
 trying to build a race. That would be my starting 
 point for an ideal for the law. The notion that with 
 socialized property we should have women free and a 
 piano for everybody seems to me an empty humbug. 
 To get a little nearer to the practical, our current 
 ethics and our current satisfaction with conventional 
 legal rules, it seems to me, can be purged to a certain 
 extent without reference to what our final ideal may 
 be. To rest upon a formula is a slumber that, pro- 
 longed, means death. Our system of morality is a 
 body of imperfect social generalizations expressed in 
 terms of emotion. To get at its truth, it is useful 
 to omit the emotion and ask ourselves what those 
 generalizations are and how far they are confirmed 
 by fact accurately ascertained. So in regard to the 
 formulas of the law, I have found it very instructive 
 to consider what may be the postulates implied. 
 They are generically two: that such and such a con- 
 dition or result is desirable and that such and such 
 means are appropriate to bring it about. In all de- 
 batable matters there are conflicting desires to be 
 accomplished by inconsistent means, and the further 
 question arises, which is entitled to prevail in the 
 specific case? Upon such issues logic does not carry
 
 IDEALS AND DOUBTS 307 
 
 us far, and the practical solution sometimes may 
 assume a somewhat cynical shape. But I have 
 found it a help to clear thinking to try to get behind 
 my conventional assumptions as a judge whose first 
 business is to see that the game is played according 
 to the rules whether I like them or not. To have 
 doubted one's own first principles is the mark of a 
 civilized man. To know what you want and why 
 you think that such a measure will help it is the first 
 but by no means the last step towards intelligent 
 legal reform. The other and more difficult one is 
 to realize what you must give up to get it, and to 
 consider whether you are ready to pay the price. 
 
 It is fashionable nowadays to emphasize the cri- 
 terion of social welfare as against the individualistic 
 eighteenth century bills of rights. I may venture to 
 refer to a book of mine published thirty-four years 
 ago to show that it is no novelty.^ The trouble with 
 some of those who hold to that modest platitude is 
 that they are apt to take the general premise as a 
 sufficient justification for specific measures. One 
 may accept the premise in good faith and yet dis- 
 believe all the popular conceptions of socialism, or 
 even doubt whether there is a panacea in giving 
 women votes. Personally I like to know what the 
 bill is going to be before I order a luxury. But it 
 is a pleasure to see more faith and enthusiasm in 
 the young men; and I thought that one of them made 
 a good answer to some of my skeptical talk when he 
 said, "You would base legislation upon regrets rather 
 than upon hopes." 
 
 2 The Common Law, pp. 43, 44, 48.
 
 BRACTON DE LEGIBUS ET CONSUETU- 
 DINIBUS ANGLIAE 
 
 Edited by George E. Woodbine, Yale University Press, 
 New Haven, 19 15. Volume i. 
 
 One who in the last thirty-five years, not to speak 
 of more usual themes, has seen more of treaties with 
 North American Indians than of Bracton cannot 
 speak competently of the detail of this monumental 
 work. Indeed the case probably is not unlike that 
 of the Greek Lexicon of the Roman and Byzantine 
 periods written by the late Professor Sophocles, of 
 which it was said that there was only one man in 
 Europe who could criticize it. That one in this case 
 may be my friend Sir Frederick Pollock, but it cer- 
 tainly is not I. But some things may be said. The 
 history of the law is of much importance to the 
 understanding of the law, even apart from its signifi- 
 cance in the more disinterested study of anthro- 
 pology. Bracton is a work of the very highest 
 value for the theme. There is no edition that gives 
 us anything like an adequate approach to the un- 
 known original, that lets us see the variations of the 
 better manuscripts, or that opens to us a solution of 
 the problems of the text. The little but important 
 world that these questions interest has been praying 
 
 ♦ Yale Review, 1915. 
 308
 
 BRACTON DE LEGIBUS 309 
 
 for years that someone might undertake Professor 
 Woodbine's task. 
 
 Now the man has come. Backed by a generous 
 gift of money he makes the more splendid one of his 
 life. For he already has devoted years and expects 
 to devote many more to bringing his work to an end. 
 The first volume, now published, proves the thorough- 
 ness, the all but exhaustive collection of apparatus 
 (that two manuscripts have been missed is no fault 
 of his), and the critical aptitude that he commands. 
 It contains a study of the pedigree of the texts with 
 diagrams illustrating their probable relations to their 
 source and to one another, and an analysis of the 
 addiciones. It illustrates the infinity of detail that 
 the editor has scrutinized with microscopic eye. It 
 shows the interest of the results to which his re- 
 searches point. At this stage perhaps the only thing 
 really proper to be dwelt upon is the nobility of spirit, 
 the heroism of the scholar that the undertaking ex- 
 hibits. Those who at any time have spent fewer 
 months than Professor Woodbine already has spent 
 years upon details, fired with the faith that one day 
 they would disclose the organic line of life that made 
 them great, those who remember Browning's picture 
 of his imaginary hero of letters in "A Grammarian's 
 Funeral," who 
 
 Gave us the doctrine of the enclitic De, 
 Dead from the waist down, 
 
 will salute with a soldier's respect for a soldier this 
 real man who is achieving honor by sacrificing self 
 as fully as did the Grammarian and to a greater end.
 
 NATURAL LAW* 
 
 It is not enough for the knight of romance that 
 you agree that his lady is a very nice girl — if you 
 do not admit that she is the best that God ever made 
 or will make, you must fight. There is in all men 
 a demand for the superlative, so much so that the 
 poor devil who has no other way of reaching it attains 
 it by getting drunk. It seems to me that this de- 
 mand is at the bottom of the philosopher's effort 
 to prove that truth is absolute and of the jurist's 
 search for criteria of universal validity which he col- 
 lects under the head of natural law. 
 
 I used to say, when I was young, that truth was 
 the majority vote of that nation that could lick all 
 others. Certainly we may expect that the received 
 opinion about the present war will depend a good 
 deal upon which side wins (I hope with all my soul 
 it will be mine), and I think that the statement was 
 correct in so far as it implied that our test of truth 
 is a reference to either a present or an imagined 
 future majority in favor of our view. If, as I have 
 suggested elsewhere, the truth may be defined as the 
 system of my (intellectual) limitations,^ what gives 
 
 * Suggested by reading Francois Geny, Science et Technique en 
 Droit Positif Privi, Paris, 1915. (Harvard Law Review, Vol. XXXII.) 
 (1918.) 
 
 ^ Ante, Ideals and Doubts. 
 
 310
 
 NATURAL LAW 311 
 
 it objectivity is the fact that I find my fellow man to 
 a greater or less extent (never wholly) subject to the 
 same CanH Helps. If I think that I am sitting at a 
 table I find that the other persons present agree with 
 me; so if I say that the sum of the angles of a tri- 
 angle is equal to two right angles. If I am in a 
 minority of one they send for a doctor or lock me up ; 
 and I am so far able to transcend the to me con- 
 vincing testimony of my senses or my reason as to 
 recognize that if I am alone probably something is 
 wrong with my works. 
 
 Certitude is not the test of certainty. We have 
 been cock-sure of many things that were not so. If 
 I may quote myself again, property, friendship, and 
 truth have a common root in time. One can not be 
 wrenched from the rocky crevices into which one has 
 grown for many years without feeling that one is 
 attacked in one's life. What we most love and 
 revere generally is determined by early associations. 
 I love granite rocks and barberry bushes, no doubt 
 because with them were my earliest joys that reach 
 back through the past eternity of my life. But while 
 one's experience thus makes certain preferences dog- 
 matic for oneself, recognition of how they came to 
 be so leaves one able to see that others, poor souls, 
 may be equally dogmatic about something else. 
 And this again means scepticism. Not that one's 
 belief or love does not remain. Not that we would 
 not fight and die for it if important — we all, whether 
 we know it or not, are fighting to make the kind 
 of a world that we should like — but that we have
 
 312 COLLECTED LEGAL PAPERS 
 
 learned to recognize that others will fight and die 
 to make a different world, with equal sincerity or 
 belief. Deep-seated preferences can not be argued 
 about — you can not argue a man into liking a glass 
 of beer — and therefore, when differences are suffi- 
 ciently far reaching, we try to kill the other man 
 rather than let him have his way. But that is per- 
 fectly consistent with admitting that, so far as ap- 
 pears, his grounds are just as good as ours. 
 
 The jurists who believe in natural law seem to me 
 to be in that naive state of mind that accepts what 
 has been familiar and accepted by them and their 
 neighbors as something that must be accepted by 
 all men everywhere. No doubt it is true that, so far 
 as we can see ahead, some arrangements and the rudi- 
 ments of familiar institutions seem to be necessary 
 elements in any society that may spring from our 
 own and that would seem to us to be civiHzed — 
 some form of permanent association between the 
 sexes — some residue of property individually owned 
 — some mode of binding oneself to specified future 
 conduct — at the bottom of all, some protection for 
 the person. But without speculating whether a 
 group is imaginable in which all but the last of these 
 might disappear and the last be subject to quali- 
 fications that most of us would abhor, the question 
 remains as to the Ought of natural law. 
 
 It is true that beliefs and wishes have a transcen- 
 dental basis in the sense that their foundation is 
 arbitrary. You can not help entertaining and feel- 
 ing them, and there is an end of it. As an arbitrary
 
 NATURAL LAW 313 
 
 fact people wish to live, and we say with various de- 
 grees of certainty that they can do so only on certain 
 conditions. To do it they must eat and drink. 
 That necessity is absolute. It is a necessity of less 
 degree but practically general that they should live 
 in society. If they live in society, so far as we can 
 see, there are further conditions. Reason working 
 on experience does tell us, no doubt, that if our wish 
 to live continues, we can do it only on those terms. 
 But that seems to me the whole of the matter. I see 
 no a priori duty to live with others and in that way, 
 but simply a statement of what I must do if I wish 
 to remain alive. If I do live with others they tell me 
 that I must do and abstain from doing various things 
 or they will put the screws on to me. I believe that 
 they will, and being of the same mind as to their 
 conduct I not only accept the rules but come in time 
 to accept them with sympathy and emotional affirma- 
 tion and begin to talk about duties and rights. But 
 for legal purposes a right is only the hypostasis of a 
 prophecy — the imagination of a substance support- 
 ing the fact that the public force will be brought to 
 bear upon those who do things said to contravene it 
 — just as we talk of the force of gravitation account- 
 ing for the conduct of bodies in space. One phrase 
 adds no more than the other to what we know with- 
 out it. No doubt behind these legal rights is the 
 fighting will of the subject to maintain them, and the 
 spread of his emotions to the general rules by which 
 they are maintained; but that does not seem to 
 me the same thing as the supposed a priori discern-
 
 314 COLLECTED LEGAL PAPERS 
 
 ment of a duty or the assertion of a preexisting right. 
 A dog will fight for his bone. 
 
 The most fundamental of the supposed preexisting 
 rights — the right to life — is sacrificed without a 
 scruple not only in war, but whenever the interest of 
 society, that is, of the predominant power in the com- 
 munity, is thought to demand it. Whether that 
 interest is the interest of mankind in the long run no 
 one can tell, and as, in any event, to those who do not 
 think with Kant and Hegel it is only an interest, the 
 sanctity disappears. I remember a very tender- 
 hearted judge being of opinion that closing a hatch 
 to stop a fire and the destruction of a cargo was justi- 
 fied even if it was known that doing so would stifle 
 a man below. It is idle to illustrate further, because 
 to those who agree with me I am uttering common- 
 places and to those who disagree I am ignoring the 
 necessary foundations of thought. The a priori men 
 generally call the dissentients superficial. But I do 
 agree with them in believing that one's attitude on 
 these matters is closely connected with one's general 
 attitude toward the universe. Proximately, as has 
 been suggested, it is determined largely by early asso- 
 ciations and temperament, coupled with the desire 
 to have an absolute guide. Men to a great extent 
 believe what they want to — although I see in that 
 no basis for a philosophy that tells us what we should 
 want to want. 
 
 Now when we come to our attitude toward the 
 universe I do not see any rational ground for demand- 
 ing the superlative — for being dissatisfied unless we
 
 NATURAL LAW 315 
 
 are assured that our truth is cosmic truth, if there 
 is such a thing — that the ultimates of a Httle crea- 
 ture on this little earth are the last word of the un- 
 imaginable whole. If a man sees no reason for be- 
 Heving that significance, consciousness and ideals are 
 more than marks of the finite, that does not justify 
 what has been familiar in French sceptics; getting 
 upon a pedestal and professing to look with haughty 
 scorn upon a world in ruins. The real conclusion is 
 that the part can not swallow the whole — that our 
 categories are not, or may not be, adequate to for- 
 mulate what we cannot know. If we believe that 
 we come out of the universe, not it out of us, we must 
 admit that we do not know what we are talking about 
 when we speak of brute matter. We do know that 
 a certain complex of energies can wag its tail and 
 another can make syllogisms. These are among the 
 powers of the unknown, and if, as may be, it has still 
 greater powers that we can not understand, as Fabre 
 in his studies of instinct would have us believe, studies 
 that gave Bergson one of the strongest strands for 
 his philosophy and enabled Maeterlinck to make us 
 fancy for a moment that we heard a clang from 
 behind phenomena — if this be true, why should we 
 not be content? Why should we employ the energy 
 that is furnished to us by the cosmos to defy it and 
 shake our fist at the sky? It seems to me silly. 
 
 That the universe has in it more than we under- 
 stand, that the private soldiers have not been told 
 the plan of campaign, or even that there is one, rather 
 than some vaster unthinkable to which every predi-
 
 3i6 COLLECTED LEGAL PAPERS 
 
 cate is an impertinence, has no bearing upon our con- 
 duct. We still shall fight — all of us because we 
 want to live, some, at least, because we want to 
 realize our spontaneity and prove our powers, for the 
 joy of it, and we may leave to the unknown the sup- 
 posed final valuation of that which in any event has 
 value to us. It is enough for us that the universe 
 has produced us and has within it, as less than it, 
 all that we believe and love. If we think of our 
 existence not as that of a little god outside, but as 
 that of a ganglion within, we have the infinite be- 
 hind us. It gives us our only but our adequate sig- 
 nificance. A grain of sand has the same, but what 
 competent person supposes that he understands a 
 grain of sand? That is as much beyond our grasp 
 as man. If our imagination is strong enough to ac- 
 cept the vision of ourselves as parts inseverable from 
 the rest, and to extend our final interest beyond the 
 boundary of our skins, it justifies the sacrifice even 
 of our lives for ends outside of ourselves. The 
 motive, to be sure, is the common wants and ideals 
 that we find in man. Philosophy does not furnish 
 motives, but it shows men that they are not fools for 
 doing what they already want to do. It opens to the 
 forlorn hopes on which we throw ourselves away, the 
 vista of the farthest stretch of human thought, the 
 chords of a harmony that breathes from the unknown. 
 
 August, 1918. 

 
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