The Common Law | Page 3

long as *EITHER*:
[*] The etext, when displayed, is clearly readable, and does *not* contain characters other than those intended by the author of the work, although tilde (~), asterisk (*) and underline (_) characters may be used to convey punctuation intended by the author, and additional characters may be used to indicate hypertext links; OR
[*] The etext may be readily converted by the reader at no expense into plain ASCII, EBCDIC or equivalent form by the program that displays the etext (as is the case, for instance, with most word processors); OR
[*] You provide, or agree to also provide on request at no additional cost, fee or expense, a copy of the etext in its original plain ASCII form (or in EBCDIC or other equivalent proprietary form).
[2] Honor the etext refund and replacement provisions of this "Small Print!" statement.
[3] Pay a trademark license fee to the Project of 20% of the net profits you derive calculated using the method you already use to calculate your applicable taxes. If you don't derive profits, no royalty is due. Royalties are payable to "Project Gutenberg Association/Carnegie-Mellon University" within the 60 days following each date you prepare (or were legally required to prepare) your annual (or equivalent periodic) tax return.
WHAT IF YOU *WANT* TO SEND MONEY EVEN IF YOU DON'T HAVE TO?
The Project gratefully accepts contributions in money, time, scanning machines, OCR software, public domain etexts, royalty free copyright licenses, and every other sort of contribution you can think of. Money should be paid to "Project Gutenberg Association / Carnegie-Mellon University".
*END*THE SMALL PRINT! FOR PUBLIC DOMAIN ETEXTS*Ver.04.29.93*END*

Scanned and proofread by Stuart E. Thiel, Chicago, January 2000

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 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