THE COMMON LAW

THE COMMON LAW

OLIVER WENDELL HOLMES
INTRODUCTION BY G. EDWARD WHITE
Copyright Date: 2009
Published by: Harvard University Press
Pages: 448
https://www.jstor.org/stable/j.ctt13x0kkk
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  • Book Info
    THE COMMON LAW
    Book Description:

    Much more than an historical examination of liability, criminal law, torts, bail, possession and ownership, and contracts, The Common Law articulates the ideas and judicial theory of one of the greatest justices of the Supreme Court. The John Harvard Library presents a text that is, with occasional corrections of typographical errors, identical to that found in the first and all subsequent printings by Little, Brown.

    eISBN: 978-0-674-05401-1
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-iv)
  2. Table of Contents
    (pp. v-vi)
  3. Introduction
    (pp. vii-xxxiv)
    G. Edward White

    The first question that needs to be asked aboutThe Common Lawis why, more than a century after its publication, it is still worth reading. A conventional response is that it continues to be regarded as a major work of American jurisprudence. But that answer does not tell us what makesThe Common Lawimportant; nor, for that matter, does it help the modern reader navigate through its dense and often obscure pages.

    In the fall of 1880, Oliver Wendell Holmes, Jr., was invited to deliver the Lowell Institute Lectures in Boston. That lecture series was designed for professionals...

  4. Note on the Text
    (pp. xxxv-xxxvi)
  5. Chronology of Oliver Wendell Holmes’s Life
    (pp. xxxvii-xliv)
  6. THE COMMON LAW
    • Preface
      (pp. 1-2)
      O. W. Holmes Jr.
    • LECTURE I Early Forms of Liability
      (pp. 3-36)

      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...

    • LECTURE II The Criminal Law
      (pp. 37-70)

      In the beginning of the first Lecture it was shown that the appeals of the early law were directed only to intentional wrongs. The appeal was a far older form of procedure than the indictment, and may be said to have had a criminal as well as a civil aspect. It had the double object of satisfying the private party for his loss, and the king for the breach of his peace. On its civil side it was rooted in vengeance. It was a proceeding to recover those compositions, at first optional, afterwards compulsory, by which a wrong-doer bought the...

    • LECTURE III Torts: Trespass and Negligence
      (pp. 71-117)

      The object of the next two Lectures is to discover whether there is any common ground at the bottom of all liability in tort, and if so, what that ground is. Supposing the attempt to succeed, it will reveal the general principle of civil liability at common law. The liabilities incurred by way of contract are more or less expressly fixed by the agreement of the parties concerned, but those arising from a tort are independent of any previous consent of the wrong-doer to bear the loss occasioned by his act. If A fails to pay a certain sum on...

    • LECTURE IV Fraud, Malice, and Intent: The Theory of Torts
      (pp. 118-147)

      The next subjects to be considered are fraud, malice, and intent. In the discussion of unintentional wrongs, the greatest difficulty to be overcome was found to be the doctrine that a man acts always at his peril. In what follows, on the other hand, the difficulty will be to prove that actual wickedness of the kind described by the several words just mentioned is not an element in the civil wrongs to which those words are applied.

      It has been shown, in dealing with the criminal law, that, when we call an act malicious in common speech, we mean that...

    • LECTURE V The Bailee at Common Law
      (pp. 148-185)

      So far the discussion has been confined to the general principles of liability, and to the mode of ascertaining the point at which a man begins to act at his own peril. But it does not matter to a man whether he acts at his own peril or not, unless harm comes of it, and there must always be some one within reach of the consequences of the act before any harm can be done. Furthermore, and more to the point, there are certain forms of harm which are not likely to be suffered, and which can never be complained...

    • LECTURE VI Possession
      (pp. 186-222)

      Possession is a conception which is only less important than contract. But the interest attaching to the theory of possession does not stop with its practical importance in the body of English law. The theory has fallen into the hands of the philosophers, and with them has become a corner-stone of more than one elaborate structure. It will be a service to sound thinking to show that a far more civilized system than the Roman is framed upon a plan which is irreconcilable with thea prioridoctrines of Kant and Hegel. Those doctrines are worked out in careful correspondence...

    • LECTURE VII Contract: I. History
      (pp. 223-260)

      The doctrine of contract has been so thoroughly remodelled to meet the needs of modern times, that there is less necessity here than elsewhere for historical research. It has been so ably discussed that there is less room here than elsewhere for essentially new analysis. But a short account of the growth of modern doctrines, whether necessary or not, will at least be interesting, while an analysis of their main characteristics cannot be omitted, and may present some new features.

      It is popularly supposed that the oldest forms of contract known to our law are covenant and debt, and they...

    • LECTURE VIII Contract: II. Elements
      (pp. 261-277)

      The general method to be pursued in the analysis of contract is the same as that already explained with regard to possession. Wherever the law gives special rights to one, or imposes special burdens on another, it does so on the ground that certain special facts are true of those individuals. In all such cases, therefore, there is a twofold task. First, to determine what are the facts to which the special consequences are attached; second, to ascertain the consequences. The first is the main field of legal argument. With regard to contracts the facts are not always the same....

    • LECTURE IX Contract: III. Void and Voidable
      (pp. 278-305)

      The elements of fact necessary to call a contract into existence, and the legal consequences of a contract when formed, have been discussed. It remains to consider successively the cases in which a contract is said to be void, and those in which it is said to be voidable,—in which, that is, a contract fails to be made when it seems to have been, or, having been made, can be rescinded by one side or the other, and treated as if it had never been. I take up the former class of cases first.

      When a contract fails to...

    • LECTURE X Successions: I. After Death II. Inter Vivos
      (pp. 306-333)

      In the Lecture on Possession, I tried to show that the notion of possessing a right as such was intrinsically absurd. All rights are consequences attached to filling some situation of fact. A right which may be acquired by possession differs from others simply in being attached to a situation of such a nature that it may be filled successively by different persons, or by any one without regard to the lawfulness of his doing so, as is the case where the situation consists in having a tangible object within one’s power.

      When a right of this sort is recognized...

    • LECTURE XI Successions: II. Inter Vivos
      (pp. 334-368)

      The principal contracts known to the common law and suable in the King’s Courts, a century after the Conquest, were suretyship and debt. The heir, as the general representative of his ancestor’s rights and obligations, was liable for his debts, and was the proper person to sue for those which were due the estate. By the time of Edward III. this had changed. Debts had ceased to concern the heir except secondarily. The executor took his place both for collection and payment. It is said that even when the heir was bound he could not be sued except in case...

  7. Selected Bibliography
    (pp. 369-372)
  8. Glossary of Legal Terms
    (pp. 373-374)
  9. Table of Cases
    (pp. 375-380)
  10. Year Books and Early Cases
    (pp. 380-382)
  11. Index
    (pp. 383-393)