



Produced by Stuart E. Thiel





THE COMMON LAW

By Oliver Wendell Holmes, Jr.



Conventions:

Numbers in square brackets (e.g. [245]) refer to original page
numbers. Original footnotes were numbered page-by-page, and are
collected at the end of the text. In the text, numbers in slashes
(e.g./1/) refer to original footnote numbers. In the footnote
section, a number such as 245/1 refers to (original) page 245,
footnote 1. The footnotes are mostly citations to old English law
reporters and to commentaries by writers such as Ihering, Bracton
and Blackstone. I cannot give a source for decrypting the
notation.

There is quite a little Latin and some Greek in the original
text. I have reproduced the Latin. The Greek text is omitted; its
place is marked by the expression [Greek characters]. Italics and
diacritical marks such as accents and cedillas are omitted and
unmarked.

Lecture X has two subheads--Successions After Death and
Successions Inter Vivos. Lecture XI is also titled Successions
Inter Vivos. This conforms to the original.




LECTURE I. -- EARLY FORMS OF LIABILITY.

[1] The object of this book is to present a general view of the
Common Law. To accomplish the task, other tools are needed
besides logic. It is something to show that the consistency of a
system requires a particular result, but it is not all. The life
of the law has not been logic: it has been experience. The felt
necessities of the time, the prevalent moral and political
theories, intuitions of public policy, avowed or unconscious,
even the prejudices which judges share with their fellow-men,
have had a good deal more to do than the syllogism in determining
the rules by which men should be governed. The law embodies the
story of a nation's development through many centuries, and it
cannot be dealt with as if it contained only the axioms and
corollaries of a book of mathematics. In order to know what it
is, we must know what it has been, and what it tends to become.
We must alternately consult history and existing theories of
legislation. But the most difficult labor will be to understand
the combination of the two into new products at every stage. The
substance of the law at any given time pretty nearly [2]
corresponds, so far as it goes, with what is then understood to
be convenient; but its form and machinery, and the degree to
which it is able to work out desired results, depend very much
upon its past.

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

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

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

It is commonly known that the early forms of legal procedure were
grounded in vengeance. Modern writers [3] have thought that the
Roman law started from the blood feud, and all the authorities
agree that the German law begun in that way. The feud led to the
composition, at first optional, then compulsory, by which the
feud was bought off. The gradual encroachment of the composition
may be traced in the Anglo-Saxon laws, /1/ and the feud was
pretty well broken up, though not extinguished, by the time of
William the Conqueror. The killings and house-burnings of an
earlier day became the appeals of mayhem and arson. The appeals
de pace et plagis and of mayhem became, or rather were in
substance, the action of trespass which is still familiar to
lawyers. /2/ But as the compensation recovered in the appeal was
the alternative of vengeance, we might expect to find its scope
limited to the scope of vengeance. Vengeance imports a feeling of
blame, and an opinion, however distorted by passion, that a wrong
has been done. It can hardly go very far beyond the case of a
harm intentionally inflicted: