The Common Law | Page 3

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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.

THE COMMON LAW
OLIVER WENDELL HOLMES, JR.

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