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TO THE HONOURABLE
OLIVER WENDELL HOLMES, JUNR.,
A JUSTICE OF THE SUPREME JUDICIAL COURT OF THE
COMMONWEALTH OF MASSACHUSETTS.
MY DEAR HOLMES,
A preface is a formal and a tedious thing at best ; it is at its worst when the author, as has been common in law-books, writes of himself in the third person. Yet there are one or two things I wish to say on this occasion, and cannot well say in the book itself; by your leave, therefore, I will so far trespass on your friendship as to send the book to you with an open letter of introduction. It may seem a mere artifice, but the assurance of your sympathy will enable me to speak more freely and naturally, even in print, than if my words were directly addressed to the profession at large. Nay more, I would fain sum up in this slight token the brotherhood that subsists, and we trust ever shall between all true followers of the Common Law here and on your side of the water; and give it to be understood, for my own part, how much my work owes to you and to others in America, mostly citizens of your own Commonwealth, of whom some are known to me only by their published writing, some by commerce of letters; there are some also, fewer than I could wish, whom I have had the happiness of meeting face to face.
When I came into your jurisdiction, it was from the Province of Quebec, a part of Her Majesty's dominions which is governed, as you know, by its old French law, lately repaired and beautified in a sort of Revised Version of the Code Napoleon. This, I doubt not, is an excellent thing in its place. And it is indubitable that, in a political sense, the English lawyer who travels from Montreal to Boston exchanges the rights of a natural-born subject for the comity accorded by the United States to friendly aliens. But when his eye is caught, in the every-day advertisements of the first Boston newspaper he takes up, by these words 66 Commonwealth of Massachusetts: Suffolk to wit”- no amount of political geography will convince him that he has gone into foreign parts and has not rather come home. Of Harvard and its Law School I will say only this, that I have endeavored to turn into practical account the lessons of what I saw and heard there, and that this present book is in some measure the outcome of that endeavor. It contains the substance of between two and three years' lectures in the Inns of Court, and nearly everything advanced in it has been put into shape after, or concurrently with, free oral exposition and discussion of the leading cases.
My claim to your good will, however, does not rest on these grounds alone. I claim it because the purpose of this book is to show that there really is a Law of Torts, not merely a number of rules of law about various kinds of torts — that this is a true living branch of the Common Law, not a collection of heterogeneous instances. In such a cause I make bold to count on your sympathy, though I will not presume on your final opinion. The contention is certainly not superfluous, for it seems opposed to the weight of recent opinion among those who have fairly faced the problem. You will recognize in my armoury some weapons of your own forging, and if they are ineffective, I must have hundled them worse than I am willing, in any reasonable terms of humility, to suppose.
It is not surprising, in any case, that a complete theory of Torts is yet to seek, for the subject is altogether mod
ern. The earliest text-book I have been able to find is a meagre and unthinking digest of “ The Law of Actions on the Case for Torts and Wrongs,” published in 1720, remarkable chiefly for the depths of historical ignorance which it occasionally reveals. The really scientific treatment of principles begins only with the decisions of the last fifty years; their development belongs to that classical period of our jurisprudence which in England came between the Common Law Procedure Act and the Judicature Act. Lord Blackburn and Lord Bramwell, who then rejoiced in their strength, are still with us.* It were impertinent to weigh too nicely the fame of living masters; but I think we may securely anticipate posterity in ranking the names of these (and I am sure we cannot more greatly honor them) with the name of their colleague Willes, a consummate lawyer too early cut off, who did not live to see the full fruit of his labor.
Those who knew Mr. Justice Willes will need no explanation of this book being dedicated to his memory. But for others I will say that he was not only a man of profound learning in the law, joined with extraordinary and varied knowledge of other kinds, but one of those whose knowledge is radiant, and kindles answering fire. To set down all I owe to him is beyond my means, and might be beyond your patience; but to you at least I shall say much in saying that from Willes I learnt to taste the Year Books, and to pursue the history of the law in authorities which not so long ago were collectively and compendiously despised as “ black letter.” It is strange to think that Manning was as one crying in the wilderness, and that even Kent dismissed the Year Books as of doubtful value for any purpose, and certainly not worth reprinting. You have had a noble revenge in editing Kent, and perhaps the laugh is on our side by this time.
* We have now (1892) to lament the loss of Lord Bramwell.
But if any man still finds offence, you and I are incorrigible offenders, and like to maintain one another therein as lovg as we have breath; and when you have cast your eye on the historical note added to this book by my friend Mr. F. W. Maitland, I think you will say that we shall not want for good suit.
One more thing I must mention concerning Willes, that once and again he spoke or wrote to me to the effect of desiring to see the Law of Obligations methodically treated in English. This is an additional reason for calling him to mind on the completion of a work which aims at being a contribution of materials towards that end; of materials only, for a book on Torts added to a book on Contracts does not make a treatise on Obligations. Nevertheless this is a book of principles if it is anything. Details are used, not in the manner of a digest, but so far as they seem called for to develop and illustrate the principles; and I shall be more than content if in that regard you find nothing worse than omission to complain of. But the toils and temptations of the craft are known to you at first hand; I will not add the burden of apology to faults which you will be ready to forgive without it. As to other readers, I will hope that some students may be thankful for brevity where the conclusions are brief, and that, where a favourite topic bas invited expatiation or digression, some practitioner may some day be helped to his case by it. The work is out of my hands, and will fare as it may deserve: in your hands, at any rate, it is sure of both justice and mercy.
I remain, yours very truly,
FREDERICK POLLOCK. LINCOLNS INN, Christmas Vacation, 1886.