the path of the law-第5章
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only partially attained in consequence of the fact that the rule owes
its form to a gradual historical development； instead of being reshaped
as a whole； with conscious articulate reference to the end in view。 We
think it desirable to prevent one man's property being misappropriated
by another； and so we make larceny a crime。 The evil is the same
whether the misappropriation is made by a man into whose hands the owner
has put the property； or by one who wrongfully takes it away。 But
primitive law in its weakness did not get much beyond an effort to
prevent violence； and very naturally made a wrongful taking； a trespass；
part of its definition of the crime。 In modem times the judges enlarged
the definition a little by holding that； if the wrong…doer gets
possession by a trick or device； the crime is committed。 This really
was giving up the requirement of trespass； and it would have been more
logical； as well as truer to the present object of the law； to abandon
the requirement altogether。 That； however； would have seemed too bold；
and was left to statute。 Statutes were passed making embezzlement a
crime。 But the force of tradition caused the crime of embezzlement to
be regarded as so far distinct from larceny that to this day； in some
jurisdictions at least； a slip corner is kept open for thieves to
contend； if indicted for larceny； that they should have been indicted
for embezzlement； and if indicted for embezzlement； that they should
have been indicted for larceny； and to escape on that ground。
Far more fundamental questions still await a better answer than that we
do as our fathers have done。 What have we better than a blind guess to
show that the criminal law in its present form does more good than harm？
I do not stop to refer to the effect which it has had in degrading
prisoners and in plunging them further into crime； or to the question
whether fine and imprisonment do not fall more heavily on a criminal's
wife and children than on himself。 I have in mind more far…reaching
questions。 Does punishment deter？ Do we deal with criminals on proper
principles？ A modern school of Continental criminalists plumes itself
on the formula； first suggested； it is said； by Gall； that we must
consider the criminal rather than the crime。 The formula does not carry
us very far； but the inquiries which have been started look toward an
answer of my questions based on science for the first time。 If the
typical criminal is a degenerate； bound to swindle or to murder by as
deep seated an organic necessity as that which makes the rattlesnake
bite； it is idle to talk of deterring him by the classical method of
imprisonment。 He must be got rid of； he cannot be improved； or
frightened out of his structural reaction。 If； on the other hand；
crime； like normal human conduct； is mainly a matter of imitation；
punishment fairly may be expected to help to keep it out of fashion。
The study of criminals has been thought by some well known men of
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 preventi
