The Annotated Common Law: with 2010 Foreword and Explanatory Notes

By Steven Alan Childress

Decoded, demythed rendition of Holmes' classic study of law and judicial development of rules. "The life of the law has not been logic: it has been experience." Includes 2010 Foreword; extensive, clear annotations by a Tulane law professor woven into The Common Law; footnotes with real numbers; and original page cites. Care in detail, proofreading, notes, and formatting, unlike any version made.

• Language: English
• Publisher: Quid Pro, LLC
• Release date: Jul 5, 2010
• ISBN: 9781610270137

Steven Alan Childress

Professor of Law at Tulane University, coauthor of the three-volume treatise Federal Standards of Review, series editor for the Legal Legends Series at Quid Pro Books, and publishing director of quality books at quidprobooks.com.

Book preview

Summary of Contents

TABLE OF CONTENTS (DETAILED)

FOREWORD

PREFACE.

THE COMMON LAW.

LECTURE I.

LECTURE II.

LECTURE III.

LECTURE IV.

LECTURE V.

LECTURE VI.

LECTURE VII.

LECTURE VIII.

LECTURE IX.

LECTURE X.

LECTURE XI.

INDEX.

THE annotated COMMON LAW

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Oliver Wendell Holmes, Jr.

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with 2010 Foreword and Explanatory Notes

Smashwords edition. Published by Quid Pro Books, at Smashwords.

The Legal Legends Series offers high-quality digital editions of classic legal scholarship, adding active tables of contents and linked footnotes, without formatting errors and misquotes common in such versions. Each book is painstakingly checked against original sources. All books in the Series embed the original page numbers for easy citation and classroom use. New Forewords by modern legal scholars place the works in historical context with biographical background on the lives and influences of the authors. Some, such as this book in an extended format, include clarifying annotations throughout.  An unannotated but still-corrected version is also available.

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The annotated Common Law:  with 2010 Foreword and Explanatory Notes

Compilation, Foreword, and Annotations copyright © 2010 by Steven Alan Childress. All rights reserved.

The original source of the text without annotations and added material, The Common Law, was published in 1881 by Little, Brown & Co. (Boston, Massachusetts).  No copyright is claimed in the original text (though it is claimed in the scanning, correcting, and compilation of this work); nor in any quoted statutes, regulations, or excerpts from court opinions; or in photography. The cover photo is adapted from the Harris & Ewing Collection in the Library of Congress, depicting Justice Holmes circa 1930; the copyright and restrictions on it and related photos have expired. Further information on images and copyrights is found in the section More about this edition.

Published in the 2010 digital (ePUB) edition, in its annotated format, by Quid Pro Books.

ISBN-10:  1610270134 (ePUB)

ISBN-13:  9781610270137 (ePUB)

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Publisher's Cataloging-in-Publication

Holmes, Jr., Oliver Wendell; and Childress, Steven Alan (ed.).

The annotated common law:  with 2010 Foreword and Explanatory Notes / by Oliver Wendell Holmes, Jr. (compilation and annotations by Steven Alan Childress).

p. cm.

Includes preface and index; includes extensive annotations; includes 2010 Foreword.

The most influential and famous book on American law and judicial rule-making.  Written by an outstanding legal thinker, and later an important Justice of the Supreme Court, the book has been studied by lawyers and law students, political scientists and historians, and others who want to learn the development of English and U.S. common law through centuries of history and public policy.  This 2010 edition is thoroughly annotated by a law professor to make the work accessible to modern readers.

1. Common law.  2. Law—United States—Legal history.  3. Law—England—Legal history.  I. Title. II. Series.

K588.H65  2010

340.5’7—dc20

  CIP

THE annotated COMMON LAW

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Oliver Wendell Holmes, Jr.

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with 2010 Foreword and Explanatory Notes

by Steven Alan Childress

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Legal Legends Series

TABLE OF CONTENTS (DETAILED)

FOREWORD

EDITOR’S NOTES:  What to look for in this edition

About the Series and the editor

Photography and Images

PREFACE by O.W. Holmes, Jr.

CONTENTS  (very detailed Contents in original book, laying out his argument)

LECTURE I.  Early Forms of Liability.

LECTURE II. The Criminal Law.

LECTURE III. Torts. — Trespass and Negligence.

LECTURE IV. Fraud, Malice, and Intent. — The Theory of Torts.

LECTURE V. The Bailee at Common Law.

LECTURE VI. Possession.

LECTURE VII. Contract. — I. History.

LECTURE VIII. Contract. — II. Elements.

LECTURE IX. Contract. — III. Void and Voidable.

LECTURE X. Successions. — I. After Death. — II. Inter Vivos.

— Successions Inter Vivos.  {Pt. 1}

LECTURE XI. Successions. — II. Inter Vivos. {Pt. 2}

MORE ABOUT THIS EDITION

INDEX

ENDNOTES

FOREWORD

Boston, 1880.  You showed up a little late to the first presentation in the Lowell Institute series of lectures over the late fall, this installment given by esteemed local lawyer Oliver Wendell Holmes, Jr.  There’s still the restless sound of people easing into their seats, ready to hear Holmes speak about the common law that derives from our English heritage (and still permeates the way the United States approaches legal doctrine and decision-making). You were lucky enough to get a ticket to this event. (See its image here.) You are taking off your coat, trying not to be noticed for the affront by the gathered lawyers, judges, and academics — and the occasional law student who is prescient enough to recognize this as, among other things, the ultimate bar review course of its time (well, except that in some Massachusetts counties, there is fortunately no bar exam, yet, and Holmes himself had sat for his orals barely over a decade before).

You notice one unusual thing right away. The presentation is meticulous and detailed, but Holmes is not reading from any notes.  It had taken him the whole year to write it, and then he memorized it. This is not your father’s law lecture, you realize.

Just a little late, you just missed one of the best warm-up lines in American legal history. The life of the law has not been logic:  it has been experience.  Holmes then dove into a pragmatist’s view of law, born of what he personally saw in the carnage of both the Civil War and its Reconstruction aftermath.  He asserted that the law had less to do with syllogism than, often, as a response to the felt necessities of the time.

From his first words, Holmes had just blown away all the formalist tradition — a faith in reasoning from precedent, and in deciding cases by analytic process from existing law — that was dominant throughout much of the nineteenth century and still, as he spoke, influential.  He peppered the theme of logic versus policy throughout the lectures, as well as in the book he published from them, starting at page 35 (Every important principle which is developed by litigation is in fact and at bottom the result of more or less definitely understood views of public policy....), and for instance at page 211 (The first call of a theory is that it should fit the facts.). He grounded tort law in experience on pages 112, 123, 147, and 162; contract law bows to experience over sheer logic on pages 305, 312, 326, and 337-338. These lectures were destined to cause a buzz, in the hall where he boomed them and wherever they would be read as a book.

Only later did Holmes become a legendary justice of Massachusetts’ Supreme Judicial Court and eventually an influential Associate Justice of the U.S. Supreme Court. As a state court judge, he put his thoughts about the common law into action — states are where the common law of torts, crimes, property, contracts, and wills most directly reside; Massachusetts’ court was one of the most influential to other states, and even back in England, as to the progress of common law. On the U.S. Supreme Court, Holmes contributed mightily not only to developing some of these areas further (at a time when even federal courts heard railroad cases and title disputes), but also more notably to constitutional law. He checked legislative power and championed free speech rights — though admittedly it is because of him that you can’t yell fire in a crowded theater.

Yet if all he had done is uttered these opening lines and made them live on in these lectures and the book, with exploration of the concept and meaning of the common law, he might still be famous. He set the groundwork for the sociological jurisprudence and Realistic schools of legal theory to come, and ushered out the tradition of formalism and its pretenses. He certainly would be thought of by legal historians as giving us an important part of our legal canon. Even in 1881, long before he contributed as a giant in the law in so many other ways, Holmes had staked out his claim to a new way of thinking about law and judicial discretion. And it was built not on a pseudo-scientific faith in logic but rather on experience, from a man who had already experienced so much in his life, both in law and outside of it. The Civil War and its aftermath had changed him, and he returned the favor to the very idea of law.

The book also served importantly to foreshadow the remainder of his impressive life in law. On the bench at two levels, he continued this theme of reality and policy, of rules that work. Years later, his important decisions and dissents, in both state and federal court, echoed this great book and the judicial temperament he was seen here developing before he earned the robes.

The pragmatist’s opening shot across the bow of accepted dogma was powerful enough, but the rest of his lectures and book backed them up in many powerful ways, both substantive and stylistically. His life’s work as a jurist extended their reach even further. You barely missed a great opening line — though luckily you got to hear the crowd laugh at a clever maxim about society’s basic understanding of the difference between intentional wrongs and accidents (page 3):  even a dog distinguishes between being stumbled over and being kicked.

In any event, the real action was yet to come, and you will not miss that.

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Biography and the Book

Oliver Wendell Holmes, Jr., was born into a literate and prestigious family of Boston in 1841.   Most notably, his namesake father — poet, lecturer, columnist, and physician — was nationally famous by the time Wendell, as he was called in his youth, graduated from Harvard College in 1861 and volunteered for service in the Civil War.   The latter tours, born at least in part from an abolitionist passion he learned from his mother, Amelia, turned out to be less the glorious and righteous experience he anticipated, and more of a bloody and disillusioning struggle for survival. This was increasingly so even as he bravely returned to war after suffering severe wounds that should have killed him:  shots in the chest, neck, and heel, from three separate battles. And illness and horror through many other battles.  The realism that hit him, just as hard as the bullets and cannon shot, later shaped his outlook on life and law.

Perhaps as influential, too, was an ambition driven early on by the perception that he may never be as successful as his father. Even as he developed into one of the most accomplished legal figures in American history — many rank him as a Supreme Court Justice behind only John Marshall in greatness — it apparently took a long time to be able to shake the feeling of disapproval from the elder Oliver, long since passed. His premier modern biographer, G. Edward White, reports that Holmes reflected on a full life a bit before retiring on January 12, 1932, as the oldest Justice in history (at nearly 91, that still holds today, by some eight months over Justice Stevens); after a nationwide 90th-birthday radio address in his honor, he confided to a law professor friend:

When I came back from the Civil War, Holmes said, my father asked me what I was going to do, and I told him I was going to the Harvard Law School.  ‘Pooh!,’ said my father, ‘What’s the use of going to the Harvard Law School?  A lawyer cannot be a great man.’   Then there came into his voice an almost wistful tenderness. I wish, he continued, that my father could have listened tonight for only two or three minutes. Then I could have thumbed my nose at him.

White, Oliver Wendell Holmes, Jr. 6 (Oxford U. Press, Lives & Legacies Series, 2006), quoting Harold Laski, Ever Sincerely Yours, O. W. Holmes, New York Times Magazine 56 (Feb. 15, 1948).   (Dr. White’s previous detailed and analytical biography, Justice Oliver Wendell Holmes:  Law and the Inner Self (Oxford, 1993), is also excellent. So is the earlier unfinished series of works by Mark DeWolfe Howe, particularly Justice Oliver Wendell Holmes:  The Proving Years 1870-1882 (Harvard, 1963), for the time period of this book.)

Holmes’s own part of the 1931 radio address, fully reported by both White and Howe, showed his stoic stance at the end of the great man’s life, and his work ethic:  Holmes accepted that the end draws near, but added that the riders in the race do not stop short when they reach the goal. There is a little finishing canter before coming to a standstill. Quoting from a Latin poet (drawing yet again from a philosopher’s reserve you will see in the book he wrote a half-century before, as with the references to horses as well), he finished, Death plucks my ear and says, ‘Live — I am coming.’

Whatever the impetus, the war experience and acute ambition drove him to try his hand at law, despite the paternal warning, by indeed returning from the war to Harvard. He completed law school (then, a boring and unchallenging series of recitations and dry doctrine) and began practice in Boston in 1866. Eventually marrying a childhood friend, Fanny Dixwell, he threw himself into his work, practicing for sixteen years in commercial and admiralty law — both fields, as can be seen in the book, that heavily influenced his understanding of the common law, even though those fields derive much from Roman trade law sources. On the side, and sometimes full time between periods of practice, Holmes edited standard textbooks, wrote articles for the new law reviews, and lectured on jurisprudence at Harvard College. He developed the reputation as being a scholar and not just a practitioner. If it was not yet the intellectual success and fame of his father, it pointed in a similar direction, though with writing and lectures not in literature but in law. 

Perhaps his biggest break was the invitation to deliver a series of lectures at the Lowell Institute of Boston in late 1880. The subject would be the history, development, and reasoning of the common law, as used in the United States and developed over centuries from English precedents influenced by, Holmes saw clearly, Roman, French, and German origins as well. Preparing for the twelve-lecture series took nearly a year, even with much of his groundwork already laid in previous articles and editorial notes he had produced over the years. The challenge was even more acute with his decision to deliver the lectures without notes. And he did, to much success. He immediately polished the lectures into a book, published in early 1881, just before his 40th birthday — a timing important to him. The book itself brought him, at least in time, growing and lasting acclaim as one of the country’s greatest legal thinkers.

The book is undoubtedly a great achievement, original and influential beyond what any U.S. law book had been.  But it is not an easy read, and it occasionally confounds students and interested readers by assuming a background in history and terminology that they may not share (especially today, as some of his words have a different sense than he intended in 1880). He often sets up the point before making the point, requiring some patience from the reader (though a patience rewarded, I believe, with a clear payoff when he weaves his strands into a perceptive conclusion). As Dr. White writes, "The Common Law is still in print.  It is very likely the best-known book ever written about American law.  But it is a difficult, sometimes obscure book, which today’s lawyers and law students find largely inaccessible."  White, Oliver Wendell Holmes, Jr. 40 (2006).

Yet the modern reader’s task is not at all daunting, in my opinion, with some choice insertions, cross-references, and contextual markers along the way, clearly indicated (see Editor’s Notes following the Foreword). In any event, The Common Law remains one of the most important and original books on law written by an American, and it contains some passages that are frequently quoted today, White adds (at pp. 40-41).

In The Common Law, as with some of his later judicial opinions, Holmes recognized that there are certain policy choices involved in judicial decision-making for which sound reasoning and result, in fact a common sense application of law to human behavior, matters more than legal science. He suggested in the book’s first page that, after Lecture I sets out general themes and background on legal liability, he would consult history and existing theories of legislation to analyze criminal law (Lecture II), tort law (Lectures III and IV), property possession (Lectures V and VI), contracts (Lectures VII, VIII, and IX), and wills and trusts (Lectures X and XI). He certainly did explore all that, in a deliberate organization and break-down that one could describe as ironically civil law-like for a book on the common law. And much of his sourcing and methodology, particularly the search for unifying principles in broad swatches of law, seem surprisingly civilian as well for a book by this name.

But to be clear, what Holmes means by theories of legislation here is not the specific acts and statutes of the legislative branch, especially at a time when most of the common law was made by judicial decision, not by Congress or state representatives. Rather, he means the use of policy to choose among possible rules, but by judges in their common law function of creating precedent and law to control that human behavior for the common good.

It is this connotation of legislation that he uses when he writes, at page 35, that in substance the growth of the law is legislative. And this in a deeper sense than that what the courts declare to have always been the law is in fact new.  Public policy is the true basis of sound rules: The very considerations which judges most rarely mention, and always with an apology, are the secret root from which the law draws all the juices of life. Whether they articulate it or not, judges must ultimately consider what is expedient for the community concerned.

In a sense, he was urging that judges learn to act more like legislators, as acknowledged lawmakers, and test their decisions and laws so created against policy goals and not just historical tradition.  In fact, much of the book actually demonstrates that the historical tradition behind specific rules was often happenstance and ought to be contextually confined, rather than used by reflex to justify modern rules in the face of public policy.

Although he did not always take his point to its logical conclusion of justifying a new rule or proposing what the better policy would be, the entire effort at seeing a theory of legislation and thus policy-making as legitimately within the judicial function became somewhat liberating to a legal system steeped, at that time, in legal formalism. Still, it would be a mistake to see Holmes as anti-precedent, anti-historical, or in any way anarchist, as later his own judicial style was quite meticulous and respectful of the law he had received. The idea caught on more with others, and became the source of advances in legal thought even beyond his stated goals in the book.

With these views and his later writings, despite helping to start the Metaphysical Club of philosophical pragmatists and then dropping out of it by 1873 or so, Holmes is traditionally regarded as the founding, and still the leading, representative of legal pragmatism — and with good reason, including "the understanding of the law that he articulated in The Common Law and in later opinions unmistakably pragmatist in tone and tenor." Susan Haack, The Pluralistic Universe of Law:  Towards a Neo-Classical Legal Pragmatism, 21 Ratio Juris 453, 454 (2008). Under his contributions, law itself is judged by its external results and not just by its internal consistency.

Even so, as of 1881, Holmes’s influence on the law was just beginning, and the impact would be even more profound from his hands-on role as lawmaker. The Lowell lectures and book earned him a professorship at Harvard Law School in 1882, but he quickly abandoned the post (to the chagrin of mentors and colleagues, who thought him too ambitious) for a sudden appointment to the Supreme Judicial Court of Massachusetts.  He would become its intellectual leader, its most prolific author of opinions, and eventually, by 1899, its Chief Justice. It seemed, however, that the routine and perceived anti-intellectualism of his colleagues became tiring, even as he used the bench to apply and shape the principles of common law that he had famously organized in his 1881 book.  He apparently wondered, at age 60, what was left to achieve in law.

Fate intervened with the assassination of President William McKinley, Jr., who was shot by an anarchist in 1901.  Ironically, the ascension of Teddy Roosevelt gave new life to Holmes’s ambitions for nomination to the U.S. Supreme Court, now to replace the retiring Horace Gray (whom he had, coincidentally, replaced on the Massachusetts court years earlier). Appointment to the High Court had seemed very unlikely under McKinley for various political reasons, and some future appointment even unlikelier given his age. But Roosevelt secretly met him at the behest of powerful supporters such as Senator Henry Cabot Lodge of home-state Massachusetts, in an attempt to sidestep certain senatorial privilege issues. Nomination of Holmes would buck the known opposition by the senior Massachusetts senator (George Frisbee Hoar), who soon publicly stated that Holmes was lacking in intellectual strength, such that he would be at best ornamental, merely carved ivory not as strong or enduring as the typical tough oak timbers that New England tended to contribute to the bench. (If Hoar were a stock, short him. As to Holmes's toughness, consider the only definitions he gives in the Index for Creditor and Debtor.)

From the summer 1902 meeting, President Roosevelt was impressed enough to appoint him, but mostly after getting some implicit assurances, White and others report, that Holmes felt the same way as Roosevelt did about a pending case:  that the Constitution would not apply fully to territories acquired from Spain in the recent war where T.R. had won fame. The Senate quickly and unanimously confirmed Holmes in December 1902, apparently ignoring Hoar’s concerns about his intellect and strength.

In the role of Associate Justice from 1902-1932, Holmes finally lived in his element.  He became a powerful voice on the Supreme Court — both in opinions that won the day, and even more so in dissents that triumphed in history and became the law decades later. He eventually earned the legend as the Great Dissenter on many matters of constitutional law, personal freedoms, and legislative reform. Even his early dissent in Lochner v. New York (1905) applied his typically trenchant prose in arguing the majority should not interfere with social legislation:  A constitution is not intended to embody a particular economic theory.

Law, he continued to write over the years, comes from humans and sound policy, and is not controlled by some logical imperative of precedent. The common law is not a brooding omnipresence in the sky, he wrote in dissent in a 1917 case. Law should be a pragmatic and living thing, based on evidence, and not just a reflex from received custom and terminology.  This was, of course, a theme certainly pushed from page 1 of The Common Law, but which he now applied to constitutional powers as well.

To be sure, as time went on, Holmes’s pithy judicial prose style was not always put to the most celebrated uses, as when he justified a decision, in Buck v. Bell (1927), to uphold Virginia’s compulsory sterilization of institutionalized women:  three generations of imbeciles are enough. At the least, Holmes could be one tough oak timber. He even continued to write opinions on issues of tort law and private disputes in an era when the federal courts still heard matters of federal common law, some ironically reflecting hypotheticals he spun in this book (e.g., page 129).

Yet it was Holmes’s activism for freedom of speech and association, and other rights of citizens against the looming possibility of government tyranny both in wartime and the aftermath of World War I, that made his legend indomitable. His First Amendment legacy became particularly important, long after he left the Court, with decisions drawing on his views and dissents. (A new book edited by Ronald Collins explores his writings and impact on this subject, The Fundamental Holmes:  A Free Speech Chronicle and Reader (Cambridge, 2010).)

Notably, Holmes declared the clear and present danger test for a unanimous Court in Schenck v. United States (1919), disallowing governmental suppression of speech except in provable emergencies with palpable consequences. Although there certainly are socially protective limits to the right to speak (hence the classic line about falsely shouting fire in a theatre), the government cannot suppress free speech just on vague notions of fear and privilege. Or just by citing the general police power and the need for order, without a more specific and immediate showing of harm. 

Holmes later dissented from the Supreme Court majority’s applications of the clear and present danger test that he believed to be too speculative and really about stopping the ideas expressed more than the external harm as such. The broader idea of external effects being more important than the heart and mind, one might say, again echoed common law themes developed strongly in this book. An example is his basing criminal blame and tort damages on objective, external behavior rather than on personal, internal wickedness or moral culpability, as seen in Lectures II through IV (a view that still heavily influences liability doctrines today).

Similarly, a central theme of his contract theory from Lectures VII through IX, admittedly quite controversial over the years, is that the law is concerned more about the damages that remedy a breach of contract than with the moral righteousness of keeping a promise. And, even before the possibility of breach and law’s indifference to it, contract formation, he argues, is less about the internal meeting of the minds to which traditional contract theory ascribes such significance than it is about external understandings of reality. Thus, long before he developed constitutional law about rights, duties, and externalities (both in the objective-standard sense of the word and, it can be seen on hindsight, in the economic sense as well), he was digging into the very point of the common law to see its real-world effects as more decisive to the making of a rule than are vague claims of morality and internal motivations.

When Holmes died on March 6, 1935, two days short of his 94th birthday, he left a judicial and scholarly wake that still matters today, and should have made his literary father proud. Not lost in any of this great life as a jurist were the contributions the younger Holmes had already made to the development of legal thought by publishing The Common Law. It essentially jump-started what would become the Realist school of thought, in which scholars carried Holmes’s insights — such as that law in action, as good policy and fair result, means more than law as logic drawn from cases — to an open challenge to the formalist tradition in which Holmes grew up.

Later scholars who began a sociological jurisprudence, truly studying that law in action and openly advising policy changes based on observed experience rather than syllogism and rhetoric, carried the mantle from him. Even more recently, schools of legal thought from the law and economics movement, to law and society and critical legal studies, all owe a debt to Holmes’s remarkable insights, as well as his elocution of them born, no doubt, of a literary heritage and ambition. And it started with this book, with his opening Lecture, with his opening lines.

— Steven Alan Childress

New Orleans, Louisiana

July 2010

Editor’s Notes: What to look for in this edition

As the series editor, I have tried as much as possible to recreate the book exactly as Holmes published it and intended it in 1881, as an accessible collection he edited from his November-December 1880 Lowell Institute lectures (its admission ticket and program follow these Notes).  The previous digital or online books that I compared to the original 1881 source all failed to produce it accurately, by an intolerably wide margin.  Whether in paid or free versions, old or new, they derive from the same poorly scanned source, and frequently omit the words from the inside margins, making these downloads nonsensical. They attribute to him words like docs, modem, ease, and tiling (does, modern, case, thing).  Even the latest, from Google Books, uses non-standard pagination. They all made it very hard to navigate, without linked footnotes or active contents.  At the least, format errors and missing chunks should not distract the reader from this great work, or make it impossible to reference.

I determined to make this edition as true to Holmes’s writing as possible.  Yet the work must be usable today as well, in a digital platform with its own universe of rules, and with language and difficult legal concepts that have changed over the years.

To that end, this version includes all the original page numbers (from the standard 1881 edition produced by Little, Brown & Co.); they are re-introduced by {brackets} so that the work may be accurately referenced. 

Anything else in {brackets} is added by me, to clarify or update.  In each chapter, I’ve added several clearly marked annotations.  For example, I explain terms and usages where today’s reader would naturally misunderstand what Holmes says, either because he uses them differently from what they mean now or he assumes a familiarity with shorthand lingo of the time.  Or I have related his passage to a difficult but still important point of law, or updated an application to modern law.  In places, I translate his Latin on a point where that seems necessary, I provide historical context and framing as needed, and I fill in some cross-references for him so that the reader can readily follow the argument to its fuller discussion. Otherwise I’ve let his prose speak for itself, of course.

Even so, producing this work for a non-static digital format required a few alterations that were necessary given the format.  Some notes to keep in mind:

·   The footnotes are numbered sequentially throughout.   In the original, footnotes re-started at 1 on each new page.  Digital books typically use mutable locations rather than fixed pages (to accommodate font sizing and text to speech), so that was out.   Even with an ebook with pages, the reader would get lost in the recycling footnote numbers (and so, many of the modern editions in paper also use continuous numbering, while digital versions just repeat hundreds of footnote 1’s throughout).  But for citation purposes, I’ve added the original footnote number at the start of each note.

·   The footnotes are now endnotes, as they must be in ebooks.  Yet the notes are linked, to jump easily.  At any rate, the power of this work, in my opinion, is in the text and not the noted authorities.  Reading only the text makes complete sense and flows better — a lesson to be learned in legal writing.  The textual points find impressive support in detailed precedent and other sources, in his notes, but they usually aren’t necessary to appreciate the work.  Still, I linked them and made them active, at the very least for accurate citation and research purposes.

·   I made minor, consistent spacing changes throughout for legibility and ebook flow without changing the words or quotability in any way (for example, deleting the extra spaces around semi-colons).  Where a word was split and hyphenated between two pages, I assigned it to the earlier page, unless the word ended with a footnote reference which belonged on the original page (there were few instances presenting such editorial choice).

·   The separate Lectures, or discrete parts of them, are organized technically as chapters.  This is clearly how it was intended (and the numbering is from the original), but it also allowed me to create an active table of contents.  I’ve added a clarifying {Part 2} in the title of Lecture XI because it’s obviously meant as a continuation of Lecture X.  I added a {subheading} in Lecture X where he clearly intended a transition (his detailed Contents break it that way too).

·   Latin is reproduced as Holmes had it, without editing.  His occasional Greek citations are noted as well (and it will be unsurprising to learn that he wrote a thesis at Harvard College on Plato). However, because some Kindle formats trip over Greek, several lengthier passages are omitted in the Greek, as noted by {annotation}, but then translated to English, with my sincere thanks, by Professor A. N. Yiannopoulos of Tulane.

·   Lengthy tables of cases are omitted as not particularly useful to a flowing ebook (instead, the search function works better, and anyway most tables were added by others years later).  His Preface is included, unlike in many prior versions (leaving the reader to lament something he mentions:  the sum-up Lecture 12 he omitted).  His own Contents is included, to indicate his detailed organizational plan in its subheadings, just after the Preface.  The Index is reproduced at the back, though again the search function, where available, may work better.

·   Readers who want to see all of the substantive annotations throughout need only search for .} without the quotes:  period+bracket.  This functions as an index of annotations.  Most of them, and certainly the most important ones, are found in text rather than footnotes.

·   This edition uses Holmes’s original 1881 book, which is considered his classic work.

This edition was designed to include a digital platform, where the gap in accuracy and working footnotes has been greatest.  It can be read using free ereader applications on such devices as a Windows PC or laptop, Mac, Android, BlackBerry, iPhone, iPod Touch, and iPad.  Other digital formats for this work include Kindle, Sony, Kobo, Palm OS, ePub, and active PDF.

A print version is also available, with ISBN 1610270142. This edition too contains the clarifying annotations, unlike any previous edition produced, as well as the accurate page and note citations discussed above. It is available at multiple sites including Amazon, Barnes & Noble, and www.quidprolaw.com.

— S.A.C.

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About the Series and the editor

The Legal Legends Series offers high-quality digital editions of classic legal and political scholarship, adding active tables of contents and linked footnotes. Each book is painstakingly checked against original sources. All books in the Series embed the original page numbers for easy citation and classroom use. New Forewords by modern legal scholars place the works in historical context with biographical background on the lives and influences of the authors. The publisher welcomes comments, questions, and formatting suggestions, as well as ideas for new additions to the Series with descriptive Forewords.  Contemporary and original manuscripts will also be considered for publication digitally and in print.

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Steven Alan Childress is the Conrad Meyer III Professor of Law at Tulane University School of Law, where he teaches torts, legal ethics, and evidence.  He earned his law degree from Harvard, his M.A. and Ph.D. in Jurisprudence & Social Policy from Berkeley, and a B.A. summa cum laude from the University of Alabama.

Alan writes about federal courts, juries, the First Amendment, and ethics.  He coauthored Federal Standards of Review.  Its fourth edition was published in 2010 by LexisNexis in three volumes; previous editions have been cited by law professors and over 350 courts, including the Supreme Court.  He coedits the Legal Profession Blog.  He is a member of the California and D.C. bars, Phi Beta Kappa, and the Law & Society Association.

This is his second contribution to Legal Legends, joining Warren & Brandeis’s The Right to Privacy.

Photographs and Images

The admission ticket and program schedule (shown above), to the Lowell Lectures that Holmes presented in late 1880.

The lecture helpfully includes a Summary.

Reproduced by permission of Special & Historical Collections of the Harvard Law School Library. Hollis no. 000992838, seq. 453.

Holmes as a young man, called Wendell.

Justice Holmes in 1902 at age 60 or 61 (the two shown above), in the year leading to his confirmation to the U.S. Supreme Court. He was Chief Justice of Massachusetts' highest court at the time.

Justice Holmes on the Supreme Court, circa 1930.

From the Harris & Ewing Collection of the Library of Congress; the copyright restrictions on it have expired.

Below is a 1968 first-class postage stamp commemorating Holmes. It is also a public domain image.

Above: Page 107 from the original printing, but annotated with Holmes’s own handwritten notes, additions, and corrections (some obviously much later, as on another page he cites an 1894 Supreme Court case, in U.S. citation form).

Specifying the middle point dilemma.

Reproduced by permission of Special & Historical Collections of the Harvard Law School Library. Hollis no. 000992838, seq. 129.

Above: Page 110 from Holmes’s annotated volume, this one clarifying, Even in prior matters of fact where the House of Lords has drawn inferences ‘the same inferences should be drawn from the same facts’ in subsequent cases.

Trying to make tort law and juries be consistent.

Courtesy of Special & Historical Collections of the HLS Library. Hollis no. 000992838, seq. 132.

Above: Page 247 on the history of contract law spells out more order and clearer cross-references at the top: The forms of early contracts are not sufficiently distinguished from the substance on this page.

Note too the added citations to old sources; the annotated volume is laced with such details, almost as if Holmes were making edits for a new, expanded edition.

Courtesy of Special & Historical Collections of the HLS Library. Hollis no. 000992838, seq. 269.

Above: Page 264 from the chapter on contract history, making an apparent correction: the text says plaintiff’s, but Holmes changes it to defendant’s.

It does make more sense this way.

Courtesy of Special & Historical Collections of the HLS Library. Hollis no. 000992838, seq. 286. Its special collection on Holmes and the annotated book is found at http://pds.lib.harvard.edu/pds/view/10253629.

THE COMMON LAW

PREFACE.

—•—

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

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

O. W. HOLMES, JR.

BOSTON, February 8, 1881.

CONTENTS.

—•—

LECTURE I.

Early Forms of Liability.

Object of the Book, 1. — Origin of Legal Procedure in the Composition for Vengeance, 2-4. — Subject of this Lecture, Indirect Liability for Servants, Animals, &c., 5. — A. Mosaic Law, 7. — B. Greek Law, 7, 8. — C. Roman Law:  (a.) Noxoe deditio, 8-15; (b.) Personal Liability, 15-17. —D. Early German Law, 17, 18. — E. Anglo-Saxon Law, 18, 19. — F. The Common Law: (a.) Master and Servant, 19, 20; (b.) Animals, 20-24; (c.) Inanimate Things, — Deodand, 24, 25; the Ship and the Admiralty Law, 25-34. — G. Conclusion, 34-38.

LECTURE II.

The Criminal Law.

A. Vengeance:  (a.) As Source of the Criminal Law, 39, 40; (b.) As one Object still, 40, 41. — B. Theories of Punishment: (a.) Reformation, 42; (b.) Retribution, 42, 43, 45; (c.) Prevention, 43-48. — C. Preventive Theory shows Penal Liability not measured by actual Blameworthiness alone, but by Nonconformity to external Standard based on what would be wrong in average Man, 49-51. — D. Murder, 51-60; Malice = Knowledge of Facts making the Conduct dangerous, 52-56; Exceptional Cases where Man must know at his Peril, 58, 59; Murder and Manslaughter, 59, 60. — E. Manslaughter, 59-62; Provocation, 61, 62. — F. Malicious Mischief, why actual Malice, 62-64. — G. Arson, 64, 65. — H. Attempts, 65-70; Intent as making a harmful Result probable from Act otherwise innocent, 66-68; Limit to this, 68-70. — I. Larceny is Attempt to deprive Man of his Property permanently, 70-74. — K. Burglary, 74; Conclusion, 75, 76.

LECTURE III.

Torts. — Trespass and Negligence.

A. Introduction, 77-79; The Question, 79; Two Theories: (a.) Liability confined to moral Shortcoming, 79, 81, 82; (b.) A Man acts at his Peril, 80, 82; Neither sound. — B. Latter Theory considered: (a.) Argument for, 83-88; i. Analogy, 83, 84; ii. Theory, 84; iii. Pleading, 84, 85; iv. Precedent, 85-88. (b.) Argument against, 89-107; i. Analogy, 90-94; ii. Principle and Policy, 94-96; iii. Trespasses upon Land, &c., 96-100; iv;. Pleading, 100-102; v. Precedent, 102-107. — C. Negligence not judged by personal or moral Standard, 107. — D. Liability for unintended Harm is determined by what would be Blameworthy in average Man, 108-110; i. e. by Standard external to the Individual, which tends to become more specific, and to take form of concrete Rules of Conduct, 110-113; (a.) Process of Specification illustrated, 113-119; i. Statute, 113, 114; ii. Decisions, 113-115; iii. Policy apart from Negligence, Rylands v. Fletcher, 115-117; iv.. Cattle, 116-119; (b.) Bailment, 120; (c.) Evidence of Negligence, 120-126; (d.) Function of Jury, 123-129.

LECTURE IV.

Fraud, Malice, and Intent. — The Theory of Torts.

Preliminaries, 130-132. — A. Moral Element in Wrongs called Intentional: (a.) Deceit, 132-138; (b.) Slander, 138-140; (c.) Malicious Prosecution, 140-142; (d.) Conspiracy, 143; (e.) Trover, 143, 144. — B. Moral Standards adopted only so far as to give Opportunity to avoid inflicting Harm, 144; (a.) Some Harms may be done, 144, 145; Risk of others must be taken, 145, 146 ; but most Cases between these Extremes, 146; (b.) Common Ground of Liability in Tort: Knowledge of Circumstances making Conduct dangerous, 146-149; (c.) What these Circumstances are, determined by Experience, 147, 149, 150; (d.) Function of the Jury, 150-152. — C. Examples in which the Circumstances which must be known have been worked out: Trespass to Property, 153; Fierce Animals, 154-156; Cattle, &c., 156-158; Slander, &c., 158, 159. — D. Proximity of Choice to Harm complained of, 160, 161. — E. Summary of Law of Torts, 161-163.

LECTURE V.

The Bailee at Common Law.

Law of Bailment is Test of Theory of Possession, 164, 165. — A. Early German Law, 165-167. — B. English Law after the Conquest closely resembles it, 167-180: (a.) Remedy for converted Chattels is possessory, 168, 169; (b.) Transfer by Bailee binds Owner, 169, 170; (c.) Inverted Explanation of Bailee's Right of Action, 170, 171; (d.) True Explanation that our Law regards him as Possessor, 171-175; (e.) Bailee answerable to Bailor if Goods are stolen, 175-180. — C. Common Carriers. Survival of ancient Law, 180-205: (a.) Under Elizabeth, Carriers like other Bailees, 181, 182; (b.) Change from Detinue to Case introduces Allegation of Assumpsit or Common Calling, even where Ground of Liability is Bailment, 183-187; (c.) The Custom of the Realm, 187, 188; (d.) The Cases examined from Southcote's Case (A. D. 1601) to Coggs v. Bernard (A. D. 1703), 181, 182, 185, 189-199; (Effect of Assumpsit and Common Calling, 195;) (e.) Bailee's Liability diminished one Way, 195, 197, 198; increased another, 199-201; (f.) Public Enemy