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Excerpts from letters between Oliver Wendell Holmes, Jr. and Frederick Pollock
1874-1932, from the Holmes-Pollock Letters
Source: Holmes-Pollock Letters, The Correspondence of Mr. Justice Holmes and
Sir Frederick Pollock 1874-1932, edited by Mark DeWolfe Howe, Volumes 1 and 2,
Cambridge, Massachusetts, Harvard University Press 1941, from a facsimile
published by special arrangement with Harvard University Press in 1996 by The
Legal Classics Library, Division of Gryphon Editions, New York.
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The following excerpts are quotes, which the creator of this site finds
interesting, taken from letters written between two great men. The two volumes
of letters are entertaining and informative, great reading for lay persons and
professionals alike. These quotes cannot give the full effect of reading all
the letters from beginning to end. To fully enjoy the exchange of these
letters, the reader is urged to view them in their entirety.
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Pollock (July 3, 1874):
On the notice anent Austin, I thoroughly agree that the only definition of law
for a lawyer's purposes is something which the Court will enforce. As to duty
in cases of contract, I think the enforcement when practicable of specific
performances clearly distinguishes the "sanction" from what you call
a tax on a course of conduct.
...the true theory is that all attempts to get a scientific measure are out of
place and we can only seek a rough measure in "the average opinion of the
community" - or such of the community as are accustomed to dealings of the
kind in question. And by the way not only the juryman's verdict but the judge's
application of "natural justice," "the reason of the law,"
et hoc genus omne, really come to the same thing.
...Your classification of Wrongs falls in partly with a notion I have had in my
head some time, thus: The text-writers say there is no intelligible distinction
between the delict and quasi-delict of the Roman lawyers. I think there is one.
Delict proper being the breach of a general duty, i.e. not arising from any
special position of the party. (Whoever & whatever I am, I may not throw
things on my neighbor's head.) Quasi-delict the breach of a particular duty
(i.e. one which does arise from, etc.). (As a householder, I may not let anybody
throw things out of my window on my neighbor's head.) I think that in English
law the somewhat anomalous action for a "tort arising out of a
contract," as against a carrier e.g., must be explained in this way. Thus
Delict would comprise your "Duties of All" and Quasi-Delict would
coincide or nearly so with your "Duties of Persons in Particular
Situations to All."
Pollock (July 26, 1877):
...the general rule of vicarious liability for a servant's act.... There seem
to me to be two fictions mixed up in the doctrine. (1)The personal fiction that
act of agent = act of principal - which properly belongs to the region of
contract, but has got extended beyond it. (2)The real fiction (as pointed out
by you) that the thing or instrument is liable. In the modern legal notion (1)
prevails; historically I suppose (2) is almost or altogether the original
efficient cause...
...the consideration of case-law as a pure science tends to make one look on
codes as a kind of brutal interference with the natural process of legal
reason.
...Stephen met the supposed scientific objection with (as I think) the right
answer: that laws exist not for the scientific satisfaction of the legal mind,
but for the convenience of the lay people who sue & are sued.
Holmes (June 17, 1880):
I should have written to you before this had I not been very hard driven with
work, day and night. Practice of our mixed sort occupies my days, and my nights
have been largely devoted to preparing a course of lectures for next winter in
which I hope to put together some of the ideas which I deem most important in a
regular order looking forward at a later date to making a little book. But as
you will realize one gets ahead but slowly when his only chance is to sit down
after dinner and after a day or more or less hard work. The frame of mind
needful for successful speculation is so different from that into which
business puts one.
...a suspicion which I have often had that even the Roman law as the Roman
lawyers understood it would give but partial support to the theories of German
philosophers upon possession.
Holmes (March 5, 1881):
...I now send you by mail in the form of a little book The Common Law. When a
man is engaged all day at his office in practise it is a slow business to do work
of this sort by night, but my heart was deeply in it....
Holmes (March 25, 1883):
...I congratulate myself and all interested in the philosopy of law that you
should be in a place which will give us a right to expect contributions from
you which otherwise you could only make by stealing time from other work or
from sleep. I know what that means, and know that no one can stand it long.
Would you not call detinue an action of tort, or if not, would it not be
necessary at least to understand the doctrines worked out through detinue to
master the whole theory of tort?
But in my old age I become less and less inclined to make much use of the
distinction between primary rights duties and consequences or sanctioning
rights or whatever you may call them. The primary duty is little more than a
convenient index to, or mode of predicting the point of incidence of the public
force. You may remember what you and Anson thought an extreme application of
this view when I dealt with contract in the purely legal aspect as only a
conditional liability to pay damages, avoidable by performance. My inclination,
therefore, if I had time, would be, I think, to leave very little to be learned
elsewhere about the primary rights supposed to be infringed by torts.
Holmes (March 12, 1886):
I am struck with what you say as to the continuity with the Saxon period (which
indeed I believed before) because I think we get very little light on the
general law from Saxon sources. I think our forms of action, our notions of contract,
possession, tort, trusts etc., come in the main through Normandy from the
Franks, as I have endeavored to show.
Holmes (December 21, 1886):
This and my mother's breakdown and the fact that I have started wearing eye
glasses all make me realize what otherwise I should often forget, that I have
got well into middle life. But I am very happy and always think that when a man
has once had his chance - has reached the table land above his difficulties -
it does not matter so much whether he has more or less time allowed him in that
stage. The real anguish is never to have your opportunity. I used to think of
that a good deal during the war.
Holmes (January 17, 1887):
I wax impatient sometimes to think how much time it takes to do a little fragment
of what one would like to do and dreams of. Life is like an artichoke; each
day, week, month, year, gives you one little bit which you nibble off - but
precious little compared with what you throw away. I enjoy it as keenly as most
people however, I rather think. And I do despise making the most of one's time.
Half of the pleasure of life consists of the opportunities one has neglected.
But already I have idled too long in making these few cosmical observations.
Holmes (March 4, 1888):
I should write to Maitland if I knew him. I wish you would express to him my
opinion that his work on legal history is of the truly scientific kind -
accurate investigation of details in the interest of questions of philosophical
importance.
...make you realize in a painful way how many clever agreeable men are on the
verge of failure in the battle of life.
Holmes (January 17, 1891):
I watch with a deep interest every step you and Maitland take in history. I
can't help thinking that it will be a mistake to spend much time on Anglo-Saxon
Law. It has seemed to me from all that I have ever read that, however it may be
with institutions, our corpus juris and procedure are Frankish (with a varnish
of Roman), and think the most profitable sources before the Conquest are on the
Continent. Of course there is a generic identity in the Ang. Sax. laws with
other leges barbarorum. But back of the year books I think you learn most from
the Lex Galica and its successors and German commentators. But dear me I am so
absorbed in the actualities and immediacies that I can only envy your learned
explorations....
Holmes (March 22, 1891):
The general criterion of liability in tort for which I have contended as you
know is the tendency of an act under the circumstances known to the actor -
according to common experience. If the probability of harm is very great and
manifest the act is called malicious or intentional. (See White & Duggan,
140 Mass. 18, 20.) If less but still sufficient to impose liability it is
called negligent. But forthwith the objection arises if tendency is the general
test why is not a man who sells firearms liable civiliter & criminaliter
when someone is shot by one of his customers, since it is pretty certain
according to common experience that murderers and trespassers will buy his
pistols for their purposes? It is commonly said that the law stops with the
first responsible cause in the ascending line, which is true generally
speaking. But why? Again it is commonly said because the last actor is in a
legal sense the cause of the results. But an innocent actor intervening later,
is as much a cause as a wrongful one - yet if the intervening actor is innocent
the earlier wrongdoer may be held. E.g. a privileged repetition of a slander.
See Elmer v. Fessenden, 151 Mass. 359, 362, and generally Clifford v. Atlantic
Cotton Mills, 146 Mass. 47, 49. The true ground, I think, is that a man is
presumed not to contemplate illegal conduct of others and is not liable unless
it is shown that he actually did contemplate it, - this class of cases marking
an exception to the general external test of tendency, although no doubt the
Jury may find actual intent from the plainness of the tendency.
Holmes (April 15, 1892):
I always think of the Frenchman's answer when he was asked if a gentleman must
know of Greek & Latin: "No, but he must have forgotten them."
Holmes (April 26, 1892):
I once remarked that ignorance was the best of law reformers.
Holmes (April 11, 1897):
The man who wants a jury has a bad case - as an old Australian Judge said to me
last year. I think there is a growing disbelief in the jury as an instrument
for the discovery of truth. The use of it is to let a little popular prejudice
into the administration of the law - (in violation of their oath).
Pollock (September 17, 1897):
As to the realistic conception of debt, I should have thought the identity in
form of the writ of debt with the writ of right was sufficient proof of
antiquity, though perhaps you might not have to go many centuries back to find
the time when debts could not be recovered at all by secular process.
The oldest theory of contract is I think negative. People in the 12th - 13th
century could of course think and talk about promises, and even about agreement
(pactum) as creating some kind of duty. But they held that promises, as such,
were not enforceable in the King's temporal jurisdiction (inferior courts did
enforce them, even by specific performance, see the King's Ripton and
Littleport Rolls published by the Selden Society). Privatas convenciones non
solet curia domini regis tueri.
As to early Roman law, its analogies are risky unless one is careful to
remember that the earliest Roman law for which we have more than conjectural
restorations (huge volumes of Voigt on the XII. tables) is in many ways less
archaic than our medieval law. I don't believe any Roman lawyer would have
thought of regarding the fraudulent purchaser of goods as stealing the price:
it is his possession of the goods that is fraudulent and therefore, as the
Scots say, "theftuous" - the Roman Law of furtum not being perplexed
by anything like our extremely inconvenient doctrine of trespass and
asportation. But I am speaking without book.
Pollock (November 30, 1898):
The ritual of masonry is a perfect illustration of Selden's wise remark about
the use of ceremonies in his Table Talk: they are like a penny glass to a
cordial, of no value in itself, but the liquor is lost if you break the glass.
Pollock (July 5, 1899):
I am a little bit disappointed that you only say Austin did not know enough
law. The truth is that his law is thoroughly amateurish - his Roman law almost
worse than his English - and this is why he has a reputation among
half-educated publicists. I do think he scored one point in working out the
distinction of political from legal science, viz. that a lawyer, as such, is
not bound to have any theory of politics at all, or one kind of theory more
than another; but he [sic] doubt if he ever knew it, for he wastes many pages
on dogmatic utilitarianism.
Holmes (July 16, 1899):
...the fundamental opposition of poet and philosopher. The man who feels and
the man who explains. No man is both in spite of your Goethes.
Holmes (October 27, 1901):
My uncle John Holmes always had to smoke 5 cent cigars for fear that his taste
should become too refined.
Pollock (January 17, 1903):
As to the Scottish statute it is presumably abrogated by desuetude, which is
recognized in Scots law though not by the Common Law as a real and effectual
mode of repeal.
Holmes (September 24, 1904):
The trouble with all explanations of historic causes is the absence of
qualification: you never can say how much of the given cause was necessary to
provide how much effect, or how much of the cause there was. I regard this as
the source of the most subtle fallacies.
My intellectual furniture consists of an assortment of general propositions
which grow fewer and more general as I grow older.
Holmes (June 23, 1906):
I have sent for a translation of the Nicomachean Ethics. To my shame I have
read but little of Aristotle and I am now old enough to read more. I think it a
humbug to bother boys with the great men of the past. I think one should begin
with books which have our own emphasis and that it takes preparation to read
any others. I have no doubt that most of us miss a good deal even of
Shakespeare's meaning, and the classics are a good deal worse.
Holmes (January 5, 1907):
...although I always say that a sense of responsibility is a confession of weakness
- it means you are not keeping all your thoughts and energy for the problem.
Holmes (June 17, 1908):
I always think of a remark of Brooks Adams that the philosophers were hired by
the comfortable class to prove that everything is all right.
Pollock (October 16, 1908):
Mansfield's later and partially successful endeavours to bring in modern
civilian (i.e. practically canonist) doctrine about founding a promise on
precedent moral obligation, etc., were due, I take it, to a quite new and distinct
movement of cosmopolitan rationalism starting from Grotius and his immediate
successors. If one found anything like them in 16th-17th centuries the canonist
influence would be proved.
Have you ever found any logical reason why mutual promises are sufficient
consideration for one another (like the two lean horses of a Calcutta hack who
can only just stand together)? I have not.
It cannot be assumed that equity was following common law whenever they agreed,
any more than the converse.
Pollock (February 24, 1909):
Now and then I mumble over a chapter of Montaigne: an author who has for a lazy
reader one great merit, that it is no matter where one takes him up.
Holmes (April 4, 1909):
They have a way here of frequently asking for rehearings and filing briefs that
simply reargue the case. I think it an abuse.
If a man keeps a case six months it is supposed to be decided on "great
consideration." It seems to me that intensity is the only thing. A day's
impact is better than a month of dead pull.
Holmes (December 11, 1909):
I long have said there is no such thing as a hard case. I am frightened weekly
but always when you walk up to the lion and lay hold the hide comes off and the
same old donkey of a question of law is underneath.
Holmes (April 13, 1910):
However I am so sceptical as to our knowledge about the goodness or badness of
laws that I have no practical criticism except what the crowd wants. Personally
I bet that the crowd if it knew more wouldn't want what it does - but that is
immaterial.
Pollock (August 23, 1910):
Medieval justice was a quaint thing. When you missed the right criminal you
found reasons for fining the jurymen and suitors all round and consoled
yourself by thinking that anyhow you had collected a little revenue for the
King. Counsel were quite as persistent in taking every possible point, and a
few not possible, as they are now.
Holmes (September 1, 1910):
...showed the arrogance of an outsider who thought no lawyers knew anything
about philosophy and a complete failure to understand the purpose of the law to
fix a line of minimum social conduct required of men at their peril.
Pollock (September 24, 1912):
But as to the wastefulness of nature Berkeley said long ago (in effect, much
more elegantly of course): "Why should the creator economize unlimited
resources?"
Holmes (December 12, 1912):
When a man has made one outlet his only channel of experience for so many
years, and when it is too late to expect to master a new subject and to produce
results from it, it seems wise until one is ready for idleness to try to do as
much as one can in one's chosen way.
Pollock (March 1, 1913):
So far I go with the Socialists as to think it a pretty general rule that,
where monopoly is necessary, it is better in public hands. (And so, I think, is
the spirit of the Common Law.)
Holmes (August 30, 1914):
Think of my never having read the Nicomachean Ethics before. I was amazed to
see how much later thinking and even English law had been affected by him - or
rather had found their seed in him. Even John Adams in the Mass. Constitution
"that this may be a government of laws and not of men" - though he
may have got it indirectly through the French, as I have seen Quesnay quoted
for the same thought.
Holmes (February 18, 1917):
If you don't believe the miracles and think it obvious that speech of diverse
origin is put into Christ's mouth, as all the indecent stories used to be
attributed to Lincoln, I don't see how one can discuss even the character or
life with profit.
Holmes (June 1, 1917):
Long wind hasn't given out on this side any more than on yours, nor so much,
though the tendency is towards shorter opinions. I abhor, loathe and despise
these long discourses, and agree with Carducci the Italian poet who died some
years ago that a man who takes half a page to say what can be said in a
sentence will be damned.
Holmes (October 12, 1917):
I was struck incidentally with the seeming sincerity of Virgil's worship of the
national gods, and with the reflection that very likely it never occurs to him
to question them, and then that the same is true of the run of men today non
obstant modern scepticism in many matters. "I always have heard so"
is a sufficient reason for their belief.
I simply allow myself time to come to the surface and blow (like a whale) and
as soon as I have lunched shall plunge below into the law again.
Holmes (January 24, 1918):
Your Masonic hobby makes me smile. I had supposed that Masonry in these parts
prevailed with people who liked to be called Worshipful or Knight and wear
aprons in processions, and with lawyers who hoped to get an advantage from it
with juries.
Do you lament your failure to ask questions of the old when you were young? I
do from time to time now.
Pollock (May 30, 1918):
By the way, when one considers the halting steps of narrative fiction, in point
of structure, down to Fielding's time, and the prevalent formlessness of
serious historians down to the Renaissance (even in the classical epochs
Thucydides, Livy, Tacitus are rather brilliant exceptions than normal), does
not the Odyssey seem a marvel of pure story-telling art?
Holmes (June 14, 1918):
As John Ropes once remarked, "The Notary Public like the domestic dog is
found everywhere."
Pollock (July 18, 1918):
It is strange how little harm bad codes do. I have not heard that even the New
York abortion has done very much in the States where it has been enacted.
Quaere however what would happen if it were turned loose on a virgin
jurisdiction where there were no professional traditions.
Pollock (December 20, 1918):
...your remarks on Natural Law a set forth by Geny. Not knowing what he says I
cannot fully appreciate your criticism, but if you mean to imply that no one
can accept natural law ( = natural justice = reason as understood in the Common
Law) without maintaining it as a body of rules known to be absolutely true, I
do not agree.
The Roman lawyers made no such assertions about ius gentium, which was simply
general custom and for most purposes equivalent to ius naturale. As to the
exceptional divergences, see opening of the Institutes.
In the Middle Ages natural law was regarded as the senior branch of the divine
law and therefore had to be treated as infallible (but there was no infallible
way of knowing what it was).
If you deny that any principles of conduct at all are common to and admitted by
all men who try to behave reasonably - well, I don't see how you can have any
ethics or any ethical background for law.
Holmes (May 26, 1919):
It seems to me probable that the only cosmic significance of man is that he is
part of the cosmos, but that seems to me enough.
Pollock (July 7, 1919):
The supposed principle of no liability without fault is certainly not to be
found in the medieval Common Law, nor do I see how it can be arguable in any
jurisdiction where Rylands v. Fletcher is received. Noot but what there is some
kind of presumption of fault at the back of most rules of absolute liability.
And how about libel? It is settled by Hulton v. Jones, right or wrong, that
talk of an imaginary J.S. may bring upon me an action at the suit of a real
J.S. whom I know not to be in rerum natura. And if I remember right it is
immaterial whether any diligence I could have known.
Pollock (September 3, 1919):
Rousseau's Contrat Social is awfully clever (I dished that up too): brilliant
development of consequences from assumptions which unfortunately are contrary
to the governing facts. Having read Rousseau you must certainly read Locke's
Essay on Civil Government to observe the contrast of method. It is not long -
of course nobody need at this day read the first part which pulverizes poor Sir
R. Filmer's patriarchal system of divine right (Locke however, I have little doubt,
was aiming at Hobbes through Filmer, who was really a Hobbist in temporal
matters and all but said so). And on the whole it is quite readable though
sometimes the arrangement is rather confused, and a few points I think there is
a wilful smoke-screen (politer term than fog). Consider the Essay as a
political pamphlet on the Revolution side, and the fact that it was the Whig
gospel for a century, and you will see its working merit.
Conscientious resistance is a matter of conscience not of law: for that very
reason, the servants of the law can take notice of it only de gratia or as an
element in guiding judicial discretion. But administrators and law-makers
remember, if they are wise, that bad trouble may come of provoking it.
Holmes (June 21, 1920):
...in what are called great cases (especially if there is a lot of money
behind), a kind of hydraulic pressure is brought to bear that makes or tries to
make just principles seem doubtful.
Pollock (January 24, 1921):
In the Yale Law Review I read something called a "Hohfeld System" of
classifying "jural relations." I do not doubt that the late Prof.
Hohfeld was a learned and ingenious man, and he seems to have had at least the
merit of not inventing new words. But it is strange how many rational beings
believe the ultimate truths of the universe to be reducible to patterns on a
blackboard. Our geometry is not ultimate, we know now, Deo gratias.
Holmes (February 9, 1921):
Hohfeld was as you surmise an ingenious gent, taking, as I judge from flying
glimpses, pretty good and keen distinctions of the kind that are more needed by
a lower grade of lawyer than they are by you and me. I think all those
systematic schematisms rather bores ....
Holmes (February 24, 1923):
Learned Hand, J. ( a good U.S. District Judge, whom I should like to see on our
bench)....
Pollock (July 18, 1924):
Yet when one suspects that a man knows something about life that one hasn't
heard before one is uneasy until one has found out what he has to say.
Holmes (August 9, 1924):
I have finished my last chore, Thucydides, whom I hitherto have shirked barring
the short passages I read in school or college. I read books 1, 2 and 7 in the
Greek, for the rest I mainly contented myself with the translation, as I didn't
care to spend more time on it. It isn't the kind of thing I like to read - just
as I hate to read of our Civil War - and apart from its being the first of its
kind, a most important fact, no doubt, I think it is overvalued in England.
Pollock (August 24, 1924):
Thucydides (Thicksides we familiarly called him) was one of the authors we were
expected to know pretty well at Cambridge: I read him through in my
under-graduate days and still have my notes on the Syracusan expedition (a
great tragic narrative that, surely). In later years I have hardly looked at
him again except for Pericles' funeral oration, which I like to believe in the
main truly reported, as Thucydides most likely heard it (one of the greatest
things again in all books of the world, and full of political wisdom).
Pollock (August 3, 1925):
The element of truth in Socialism is to my mind something the Common Law knew
long before any modern socialists were born: Monopolies are in principle
odious, and when they are necessary they must be under public control: whether
the control shall be central or local, direct as in the post-office, or
indirect by way of regulated franchises, is a matter of means and economic
expediency (thus electric supply now seems capable of centralization on a great
scale and with advantage, and our numerous railway companies are now
amalgamated in a few groups). Our lady the Common Law is a very wise old lady
though she still has something to learn in telling what she knows.
Holmes (September 8, 1925):
Great thoughts need time for adjustment.
Pollock (December 14, 1925):
It is related of Confucius that one day as he walked with his disciples an old
man sitting by the roadside saluted him. But the Master said: "In youth -
not obedient to parents; in mature age - doing nothing worthy to be remembered;
in old age - living on and not dying; this it is to be a pest." Therewith
he hit him on the shank with his staff. You and I have escaped that
malediction, I trust.
Pollock (February 28, 1927):
When did people begin to chatter about a "personal" God? I know no
ecclesiastical authority whatever for such an adjective (Person of the Trinity
being of course quite different), nor literary before the 19th century.
Pollock (May 11, 1927):
It is odd how learned persons fail to see that new terms and definitions are
apt to mean new doubts and litigation.
It is true that, when the law is pretty well settled, adventurous definitions
do less harm than might be expected (Indian Contract Act - and the N.Y. draft
Civil Code in your Western jurisdictions which foolishly adopted it). All which
adds to the aduncity of our lady the Common Law's nose.
Holmes (May 30, 1927):
You always have regarded my notion of contract as a pardonable eccentricity
(that when you commit a tort you incur a liability to damages simpliciter. When
you commit a contract you incur a liability to damages nisi, illustrated by the
fact that in most contracts if not in all you have only a limited, and it may
be no, power over the event). It is a particular case of my general definition
of right as the hypostasis of a prophecy - like gravitation. I should be glad
if we could get rid of the whole moral phraseology which I think has tended to
distort the law. In fact even in the domain of morals I think that it would be
a gain, at least for the educated, to get rid of the word and notion Sin. But
on these themes I fear we are not at one.
Pollock (June 13, 1927):
If you mean by the notion of Sin the habit of condemning actions not because
they tend to destroy the actor's self-respect or cause unjustifiable harm to
others, but because they are deemed to contravene a prohibition laid down by an
external power (gods, or lawgivers claiming to be infallible) which will resent
and punish disobedience, I quite agree that such a habit is irrelevant in law
and mischievous in ethics (the juridical analogue is Hobbism, the denial that
"just" and "unjust" mean anything but what the sovereign
allows and forbids). But I don't think any competent schoolman would admit that
peccatum or any vernacular equivalent really involves this. Anyhow, it is
orthodox doctrine that if your conscience is wrongly informed, so that you
think it right to do that which is in fact (or "materially") wrong,
it is a less sin to follow an erroneous conscience than to do the materially
right thing believing it to be wrong.
If the promise in a contract were held to be in the alternative - perform or
pay damages - then (1) there could be no decrees for specific performance: (2)
there would be no reason for allowing any implied exception of frustration or
the like: (3) (and chiefly) it would not answer reasonable expectations of
promisees. Those are my reasons: I don't see where moral phraseology comes in.
No doubt it might be the law in some other planet.
Holmes (January 19, 1928):
...As to hypostasis - I don't remember ever using it but once; at first as an
intentionally magniloquent and pedagogical answer to Pound's question: What is
a right? And then in an article, as a real reduction of a right to its
rudiments. It starts from my definition of law (in the sense in which it is
used by the modern lawyer), as a statement of the circumstances in which the
public force will be brought to bear upon men through the courts: that is the prophecy
in general terms. Of course the prophecy becomes more specific to define a
right. So we prophecy that the earth and sun will act towards each other in a
certain way. Then as we pretend to account for that mode of action by the
hypothetical cause, the force of gravitation, which is merely the hypostasis of
the prophesied fact and an empty phrase. So we get up the empty substratum, a
right, to pretend to account for the fact that the courts will act in a certain
way.
Pollock (February 6, 1928)
I am glad to know that your hypostasis was a way of talking with schoolmen
according to their scholasticism.
As to the juridical notion of right I quite agree with you. The word is still
ambiguous, meaning an expectation either, in genere (ius), that the Court will
assist you, if duly required, in case of interference with certain of your
lawful liberties or, in specie (actio), that here and now you can call on the
Court for redress in some form.
Holmes (June 20, 1928):
But I shall not easily believe the thesis running through it and started by
earlier works of Beard (An Economic Interpretation of the Constitution, etc.)
to the effect that the Constitution primarily represents the triumph of the
money power over democratic agrarianism & individualism. Beard I thought
years ago when I read him went into rather ignoble though most painstaking
investigation of the investments of the leaders, with an innuendo even if
disclaimed. I shall believe until compelled to think otherwise that they wanted
to make a nation and invested (bet) on the belief that they would make one, not
that they wanted a powerful government because they had invested. Belittling
arguments always have a force of their own, but you and I believe that
high-mindedness is not impossible to man.
Holmes (July 12, 1928):
You know that G. Washington cannot tell a lie business was a fiction in a
popular life of him by an itinerant parson.
Pollock (November 29, 1928):
Crabbed and obscure definitions are of no use beyond a narrow circle of students,
of whom probably every one has a pet one of his own.
Holmes (December 11, 1928):
But as life draws near the end (one never quite believes it) I think rather
more than ever that man has respected himself too much and the universe too
little. He has thought himself a god and has despised "brute matter,"
instead of thinking his importance to be all of a piece with the rest. But the
carnal man still is strong within me and I take a good deal of interest in the
job - the job of life.
Pollock (December 24, 1928):
Not that pleading can be taken as a test, for the forms of action, notably
Debt, ignore the fundamental difference between duties imposed by law and
duties created by the will of the parties. But our lady the Common Law seems to
interpose, with a tolerant slightly bored smile, "My dear little sons
fussing with your systems, why try to be logical when the facts are so often in
a mess with people not stopping to think what they mean or not having the wit
to make it plain? I don't mean O.W.H. who knows better."
Pollock (January 21, 1929):
Imprimis I am fully with you in thinking talk about "primary" and
"sanctioning" rights unprofitable: I have never used those terms
myself and wish we could get rid of the amiguous "Right," meaning
according to the context:
(a)Potential Claim: a liberty or title which the law recognizes and will at
need protect, (something more than mere material freedom to do whatever one is
not hindered from doing - as it were an energy of position), or
(b)Actual Claim: a present cause for calling on the court to enforce someone's
duty (quasi an energy of motion).
Pollock (February 18, 1929):
Many witches were convicted on their own voluntary confessions which they
themselves believed (though also confessions that were not voluntary are said
to have been officially so called). Compare the story of Holt, C.J. and the old
woman whom he asked whether she could fly. When she said, "Yes," he
answered: "Why then, so you may. I know of no law against flying."
Pollock (April 23, 1931):
I am reporting, with some reluctance, a case on the damnable pretended doctrine
of res gestae, and wishing some high authority would prick that bubble of
verbiage: the unmeaning term merely fudges the truth that there is no universal
formula for all the kinds of relevancy.
Holmes (July 16, 1931):
It is good to renew contact with the very great, but when time is limited, new
truth is entitled to a larger share of it than old greatness (I think).
Holmes (April 21, 1932):
I can imagine a book on the law, getting rid of all talk of duties and rights -
beginning with the definition of law in the lawyer's sense as a statement of
the circumstances in which the public force will be brought to bear upon a man
through the Courts, and expounding rights as the hypstasis of a prophecy ....
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For a closer look at the 20th Massachusetts Infantry, known as "The
Harvard Regiment", where Justice Holmes saw action in the Civil War, see
an award winning site full of information.
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