from the fact that the right of action for certain well known classes of
wrongs like trespass or slander has its special history for each class？
I think that the law regards the infliction of temporal damage by a
responsible person as actionable； if under the circumstances known to
him the danger of his act is manifest according to common experience； or
according to his own experience if it is more than common； except in
cases where upon special grounds of policy the law refuses to protect
the plaintiff or grants a privilege to the defendant。 I think that
commonly malice； intent； and negligence mean only that the danger was
manifest to a greater or less degree； under the circumstances known to
the actor； although in some cases of privilege malice may mean an actual
malevolent motive； and such a motive may take away a permission
knowingly to inflict harm； which otherwise would be granted on this or
that ground of dominant public good。 But when I stated my view to a
very eminent English judge the other day； he said； 〃You are discussing
what the law ought to be； as the law is； you must show a right。 A man
is not liable for negligence unless he is subject to a duty。〃 If our
difference was more than a difference in words； or with regard to the
proportion between the exceptions and the rule； then； in his opinion；
liability for an act cannot be referred to the manifest tendency of the
act to cause temporal damage in general as a sufficient explanation； but
must be referred to the special nature of the damage； or must be derived
from some special circumstances outside of the tendency of the act； for
which no generalized explanation exists。 I think that such a view is
wrong； but it is familiar； and I dare say generally is accepted in
England。
Everywhere the basis of principle is tradition； to such an extent that
we even are in danger of making the role of history more important than
it is。 The other day Professor Ames wrote a learned article to show；
among other things； that the common law did not recognize the defence of
fraud in actions upon specialties； and the moral might seem to be that
the personal character of that defence is due to its equitable origin。
But if； as I said； all contracts are formal； the difference is not
merely historical； but theoretic； between defects of form which prevent
a contract from being made； and mistaken motives which manifestly could
not be considered in any system that we should call rational except
against one who was privy to those motives。 It is not confined to
specialties； but is of universal application。 I ought to add that I do
not suppose that Mr。 Ames would disagree with what I suggest。
However； if we consider the law of contract； we find it full of history。
The distinctions between debt； covenant； and assumpsit are merely
historical。 The classification of certain obligations to pay money；
imposed by the law irrespective of any bargain as quasi contracts； is
merely historical。 The doctrine of consideration is merely historical。
The effect given to a seal is to be explained by history alone。
Consideration is a mere form。 Is it a useful form？ If so； why should
it not be required in all contracts？ A seal is a mere form； and is
vanishing in the scroll and in enactments that a consideration must be
given； seal or no seal。 Why should any merely historical distinction be
allowed to affect the rights and obligations of business men？
Since I wrote this discourse I have come on a very good example of the
way in which tradition not only overrides rational policy； but overrides
it after first having been misunderstood and having been given a new and
broader scope than it had when it had a meaning。 It is the settled law
of England that a material alteration of a written contract by a party
avoids it as against him。 The doctrine is contrary to the general
tendency of the law。 We do not tell a jury that if a man ever has lied
in one particular he is to be presumed to lie in all。 Even if a man has
tried to defraud； it seems no sufficient reason for preventing him from
proving the truth。 Objections of like nature in general go to the
weight； not to the admissibility； of evidence。 Moreover； this rule is
irrespective of fraud； and is not confined to evidence。 It is not
merely that you cannot use the writing； but that the contract is at an
end。 What does this mean？ The existence of a written contract depends
on the fact that the offerer and offeree have interchanged their written
expressions； not on the continued existence of those expressions。 But
in the case of a bond； the primitive notion was different。 The contract
was inseparable from the parchment。 If a stranger destroyed it； or tore
off the seal； or altered it； the obligee count not recover； however free
from fault； because the defendant's contract； that is； the actual
tangible bond which he had sealed； could not be produced in the form in
which it bound him。 About a hundred years ago Lord Kenyon undertook to
use his reason on the tradition； as he sometimes did to the detriment of
the law； and； not understanding it； said he could see no reason why what
was true of a bond should not be true of other contracts。 His decision
happened to be right； as it concerned a promissory note； where again the
common law regarded the contract as inseparable from the paper on which
it was written； but the reasoning was general； and soon was extended to
other written contracts； and various absurd and unreal grounds of policy
were invented to account for the enlarged rule。
I trust that no one will understand me to be speaking with disrespect of
the law； because I criticise it so freely。 I venerate the law； and
especially our system of law； as one of the vastest products of the
human mind。 No one knows better than I do the countless number of great
intellects that have spent themselves in making some addition or
improvement； the greatest of which is trifling when compared with the
mighty whole。 It has the final title to respect that it exists； that it
is not a Hegelian dream； but a part of the lives of men。 But one may
criticise even what one reveres。 Law is the business to which my life
is devoted； and I should show less than devotion if I did not do what in
me lies to improve it； and； when I perceive what seems to me the ideal
of its future； if I hesitated to point it out and to press toward it
with all my heart。
Perhaps I have said enough to show the part which the study of history
necessarily plays in the intelligent study of the law as it is today。
In the teaching of this school and at Cambridge it is in no danger of
being undervalued。 Mr。 Bigelow here and Mr。 Ames and Mr。 Thayer there
have made important contributions which will not be forgotten； and in
England the recent history of early English law by Sir Frederick Pollock
and Mr。 Maitland has lent the subject an almost deceptive charm。 We
must beware of the pitfall of antiquarianism； and must remember that for
our purposes our only interest in the past is for the light it throws
upon the present。 I look forward to a time when the part played by
history in the explanation of dogma shall be very small； and instead of
ingenious research we shall spend our energy on a study of the ends
sought to be attained and the reasons for desiring them。 As a step
toward that ideal it seems to me that every lawyer ought to seek an
understanding of economics。 The present divorce between the schools of
political economy and law seems to me an evidence of how much progress
in philosophical study still remains to be made。 In the present state
of political economy； indeed； we come again upon history on a larger
scale； but there we are called on to consider and weigh the ends of
legislation； the means of attaining them； and the cost。 We learn that
for everything we have we give up something else； and we are taught to
set the advantage we gain against the other advantage we lose； and to
know what we are doing when we elect。
There is another study which sometimes is undervalued by the practical
minded； for which I wish to say a good word； although I think a good
deal of pretty poor stuff goes under that name。 I mean the study of
what is called jurisprudence。 Jurisprudence； as I look at it； is simply
law in its most generalized part。 Every effort to reduce a case to a
rule is an effort of jurisprudence； although the name as used in English
is confined to the broadest rules and most fundamental conceptions。 One
mark of a great lawyer is that he sees the application of the broadest
rules。 There is a story of a Vermont justice of the peace before whom a
suit was brought by one farmer against another for breaking a churn。
The justice took time to consider； and then said that he has looked
through the statutes and could find nothing about churns； and gave
judgment for the defendant。 The same state of mind is shown in all our
common digests and textbooks。 Applications of rudimentary rules of
contract or tort are tucked away under the