The Long Life And Broad Mind Of Mr. Justice Holmes


James Bradley Thayer, who collaborated with Holmes in the editing of Kent’s Commentaries , felt that Holmes had treated him badly in arrogating to himself most of the credit, and Charles W. Eliot, the president of Harvard, was indignant when Holmes in 1882 resigned a professorship, which he had just accepted at the Law School, to accept the governor’s appointment to the Supreme Judicial Court of Massachusetts. But on Holmes’s side it must be pointed out that he indeed had done the major work on the Commentaries , and that he had written a letter to President Eliot when he accepted the Harvard appointment, reserving the privilege to resign it if appointed to any judicial post.

It seems, on balance, that Holmes’s friends were severe on him in this period. He had to support himself, and he would have had to give up his greatest goal in life had he not used every available minute for hard work. He was not a man of overweening ambition, but when it was a question of those things about which he cared, such as the credit for a book which he had largely written, or the acceptance of a j udicial post which might never be offered again, he could act with a speed and determination that may have had an air of ruthlessness. Once Holmes was convinced that what he was doing was the right thing, judged entirely by his own standards, he did not give a damn what anyone else thought.

Holmes, in The Common Law , explored the origins of civil and criminal liability in Anglo-Saxon, German, and Roman law. His famous statement, on the very first page, that the life of the law has not been logic but experience, seems obvious enough today, but we must remember that he was a pioneer. He sought to articulate a theoretical basis for fundamental legal doctrine in a way that differed significantly from the attempt of many of his contemporaries to deduce legal rules from absolute principles. Such theorists had a tendency to idealize law, to see it as a constantly perfected process emanating from j udicial inductions and deductions, possibly inspired, if not directed, from a higher sphere. Holmes would have none of this. Law was simply the product of history and legislation. Its substance at any given time pretty nearly corresponded with what was then “understood to be convenient.”

Convenience, that was the key—convenience of the majority. Accidents were bound to happen, with damage to some, and the most convenient solution for society was to let the loss lie where it fell. Holmes points out that in early law the damaging thing could be surrendered to the plaintiff as a total compensation: the body of the debtor to his creditor, the biting dog to the bitten person. As civilization advanced, the debtor was allowed to buy back his body, and the owner of the dog his animal. The absolute liability of the thing became the absolute liability of its owner. Thus, initially, a moral responsibility was at the bottom of the defendant’s liability to pay. He had owned the offending thing at his peril.

Holmes now embarks on the development of his great thesis: that the development of law is, in the last analysis, the transmutation of this moral standard into an external one. Society may start with moral responsibility, but that is soon found to be practically inadequate. Actual intent cannot be the test; it must be imputed to persons who behave in a certain way: “A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty of arson if one of the other houses is burned in consequence. In this case, an act which would not have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not.”

This is true, as Holmes proceeds to establish, in civil as well as criminal liability. The law frequently penalizes, or forces to pay, “those who have been guilty of no moral wrong and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned.” Under the common law, a man acts at his peril. But it would have been going too far for courts to hold a man responsible for all the consequences of his acts. He was only responsible for the foreseeable consequences, not those that he had actually foreseen but those which a prudent man (as defined by a judge or jury) would have foreseen. Thus, conduct which is criminal or tortious is conduct which the average member of the community would regard as such. Such conduct we must all avoid, or pay the damages or be jailed or even hanged. But “the tests of liability are external, and independent of the degree of evil in the particular person’s motives or intentions.”

Holmes rode his horse of the external standard a bit hard through other fields of law. He seemed intent on obliterating the entire question of morality. In contracts he argued that there was no duty on the part of a promissor to perform, but simply an election to choose between performance and the payment of damages. And a “right,” he claimed, was nothing but a prophecy: a prognostication that society would back one up if one took such and such a stand. In later years he liked to quote his old professor at Harvard, Louis Agassiz, who had said that in parts of Germany there would be a revolution if one added two cents to the cost of a glass of beer. Presumably, the privilege to buy beer at a certain rate had become a right in that place and time.