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science to sustain the former hypothesis。 The statistics of the
relative increase of crime in crowded places like large cities； where
example has the greatest chance to work； and in less populated parts；
where the contagion spreads more slowly； have been used with great force
in favor of the latter view。 But there is weighty authority for the
belief that； however this may be； 〃not the nature of the crime； but the
dangerousness of the criminal； constitutes the only reasonable legal
criterion to guide the inevitable social reaction against the criminal。〃
The impediments to rational generalization； which I illustrated from the
law of larceny； are shown in the other branches of the law； as well as
in that of crime。 Take the law of tort or civil liability for damages
apart from contract and the like。 Is there any general theory of such
liability； or are the cases in which it exists simply to be enumerated；
and to be explained each on its special ground； as is easy to believe
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 Heg