its owner lived and did his daily work, Oliver Wendell Holmes, Jr., was born in Boston, on the eighth of March, 1841. Those who believe that special abilities may be inherited will point to the fact that his mother was the daughter of Charles Jackson, judge of the Supreme Judicial Court from 1813 until ill health compelled his resignation in 1823, and sharer with Mr. Parker, afterward Chief Justice Parker, of the leadership of the bar of his generation.

Holmes went to the school kept when he first attended by Mr. T. R. Sullivan, and afterwards by Mr. E. S. Dixwell, whose daughter he was subsequently to marry. He entered Harvard College in the class of 1861. During the last months of his undergraduate life, the great war broke out, and in April Holmes left college to join the Fourth Battallion of Infantry, Major Thomas G. Stevenson commanding, then stationed at Fort Independence in Boston Harbor. His class had chosen him for their poet, and he was fortunately able to deliver on class day the poem which he wrote in quarters.

Captain Holmes' war record is open to all, and only the barest facts need be stated here. Shortly after class day in 1861 he was commissioned first lieutenant of Company A (afterward transferred to Company D) of the famous Twentieth Massachusetts. In the Fall he was wounded twice at Balls Bluff. In the Spring of the next year he was captain of Company G, and in the Fall he was wounded again at Antietam. In May, 1863, he was wounded still again at Marye's Hill near Fredericksburg. In July he was com missioned lieutenant-colonel of his regiment, but the Twentieth was too much reduced by losses in the field for further service, and he was never mustered in. In the beginning of 1864 he was appointed A. D. C. on the staff of Brigadier-General H. G. Wright, commanding the First Division of the Sixth Corps, afterward Major-General commanding the Sixth Corps, and served with Gen

eral Wright during Grant's campaign in the Wilderness, returning to Washington when the capital was threatened in July. On the seventeenth of the same month he was mustered out at the end of his term of enlistment. Many of his comrades, his nearest friends, were dead. But he turned eagerly to the life before him. "It was given to us to learn at the outset," he said, in his Memorial Day address at Keene, in 1884, "that life is a profound and passionate thing. While we are permitted to scorn nothing but indifference, and do not pretend to undervalue the worldly rewards of ambition, we have seen with our own eyes, beyond and above the gold fields, the snowy heights of honor, and it is for us to bear the report to those who come after But, above all, we have learned that whether a man accepts from Fortune her spade, and will look downward and dig, or from Aspiration her axe and cord, and will scale the ice, the one and only success which it is his to command is to bring to his work a mighty heart."

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In September, Holmes entered the Harvard Law School, taking his degree two years later, in 1866. During part of his time in the school he studied also in the office of Robert M. Morse, Esq. In the Fall of '66 he entered the office of Chandler, Shattuck & Thayer as a student. On March 4, 1867, Mr. Holmes was admitted to practice before the bench, where fifteen years later he was to take his seat.

During the fifteen years that followed, Mr. Holmes practiced his profession in Boston, first in partnership with his brother, and after 1873 as a member of the firm of Shattuck, Holmes and Munroe. These years of practice were crowded also with literary, educational and editorial occupation. In the Winter of 1870-71 he gave a series of lectures on constitutional law at Harvard College, and in 1871-72 he was University lecturer on jurisprudence. In June, 1872, he married Miss Fanny Dixwell, daughter of his old

schoolmaster and a descendant of John Dixwell, the regicide. In 1873 he published in four volumes the twelfth edition of Kent's Commentaries, adding elaborate and valuable notes. From 1870 to 1873 he had editorial charge of the American Law Review, then published in Boston. For this review, especially for volumes five, six and seven, which he edited, he wrote many leading articles and innumerable shorter reviews and notes. His longer articles contain the germ of the lectures which he was to deliver in 1880 before the Lowell Institute, and which were in their turn to form the basis of his book on "The Common Law," published in 1881. His articles show the range of his inquiries and the extent of his learning. The principal ones were the following: 1. Codes and the Arrangement of the Law. 2. Ultra Vires. 3. Misunderstandings of the Civil Law. 4. Grain Elevators. 5. Arrangements of the Law. Privity. 6. The Theory of Torts. 7. Primitive Notions in Modern Law, two articles. 8. Possession. 9. Common Carriers and the Common Law. 10. Trespass and Negligence. As has been said, Mr. Holmes delivered a course of lectures in 1880 before the Lowell Institute, and in 1881 Little, Brown and Company published the lectures, somewhat amplified, in book form, under the title of The Common Law. The London Spectator called the book "the most original work of legal speculation which has ap peared in English since the publication of Sir Henry Maine's 'Ancient Law,'" and the little volume at once took its place as a legal classic. It has been translated into Italian by Sig. Francesco Lambertenghi.

In 1882 Mr. Holmes was offered and accepted a new professorship in the Harvard Law School, founded by the late Mr. Weld. He held the position for a few months only, resigning to accept an appointment from Governor Long as associate justice of the Supreme Judicial Court of Massachusetts, vice Judge Otis P. Lord, resigned. Judge

Holmes took his seat on December 8, 1882, and has thus served this commonwealth in judicial capacity exactly twenty years. He was the senior associate justice at the time of the late Chief Justice Field's death in 1899, and succeeded by appointment to Chief Justice Field's position. In 1891 Judge Holmes published, for private circulation, a volume of his occasional speeches. "These chance utterances of faith and doubt are printed for a few friends who will care to keep them." In 1900 he added to the collection a few addresses delivered during the last decade. Since taking his seat on the bench Judge Holmes has written several important articles for the Harvard Law Review; "Privilege, Malice and Intent," published in April, 1894; "Executors," published in April, 1895: and "The Theory of Legal Interpretation," published in January, 1899. The same Review has reprinted two of his most learned and eloquent addresses: "The Path of the Law," delivered at the dedication of the new hall of the Boston University School of Law, in January, 1897, and "Law in Science and Science in Law," delivered at a meeting of the New York State Bar Association, in January, 1899.

Judge Holmes has written something more than twelve hundred opinions since 1882, and a review of his work in this place must necessarily be wholly fragmentary and inadequate. Perhaps the most striking instance of his constructive and co-ordinating. ability is to be found in the domain of torts. It is not too much to say that when Mr. Holmes came to the bar there was no general law of torts. Hilliard on Torts, published in Boston in 1859, treated the law in the old manner, enumerating and discussing in successive chapters the time-honored and apparently unrelated heads of his subject, expatiating in their turn upon assault and battery, false imprisonment, libel and slander, malicious prosecution, nuisance, trespass and conversion. "The idea of a book on

Torts, as a distinct subject," says Professor Jaggard, in the preface to his Hand-book of the Law of Torts, published in 1895, "was a few years ago a matter of ridicule. The theory of Torts was essentially terra incognita until the contributions of Oliver Wendell Holmes, Jr., appeared on the subject." These contributions began soon after Mr. Holmes came to the bar. An article from his pen, entitled "The Theory of Torts" appeared in 1873, in the July number of the American Law Review. From time to time other articles explained and amplified the first. In his Lowell Institute lectures, Mr. Holmes developed the general theory of Torts at length, with great wealth of historical illustration. Finally, in The Common Law he said: "The theory of torts may be summed up very simply. At the two extremes of the law are rules determined by policy without reference of any kind to morality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. But in the main the law started from those intentional wrongs which are the simplest and most pronounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, and to some degree, the tests, of morals. But, as the law has grown, even when its standards have continued to model themselves upon those of morality, they have necessarily become external, because they have considered, not the actual condition of the particular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is expected to equal at his peril. In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. there is danger that harm to another will follow, the act is generally wrong in the sense of the law." With comparatively un

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important exceptions, "the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct. The tendency of a given act to cause harm under given circumstances must be determined by experience." And on another page Mr. Holmes said: "The growth of the law is very apt to take place in this way. Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to approach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than of articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little farther to the one side or to the other, but which must have been drawn somewhere in the neighborhood of where it falls." Sir Frederick Pollock begins his treatise on "The Law of Torts," published in 1886, with an introductory letter to Mr. Justice Holmes, in the course of which he claims his friend's good will, "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." "You will recognize in my armoury," continues Sir Frederick, "some weapons of your own forging, and if they are ineffective, I must have handled them worse than I am willing, in any reasonable terms of humility, to suppose."

While the two writers on Torts just named and many others, in books and in the schools of law, have industriously developed, illustrated, amplified, the general theory of torts which Mr. Holmes was the first to state articulately, Judge Holmes himself, in the thick of the fight, has again and again brought the general theory to the test of actual decision.

Very likely the good sense of courts would generally have led them to the same result in the particular case, articulate theory or none. But it needs no argument to show that unless the place in the law of torts of the particular state of facts under consideration can be viewed in the light of a general theory, the decision, however sensible, must be more or less uninstructive and confusing. The Reports of Massachusetts, beginning with the 134th volume, are full of examples of Judge Holmes' method of dealing with a tort. Two illustrative cases must suffice. In the case of Hawks v. Locke, 139 Mass. 208, the plaintiff's swine were infected with a destructive disease by swine which the defendant had introduced into the plaintiff's pen, under what was equivalent to an implied license from the plaintiff. At this time nobody knew, or had reason to think, that the swine were diseased. In an admirable opinion, Judge Holmes holds the defendant not liable, because his conduct did not under the known circumstances tend to the plaintiff's damage. The court might say so much without the aid of a jury. In Cutter v. Hamlen, 147 Mass. 471, the defendant leased to the plaintiff for occupancy a house in which there had been diphtheria. The plaintiff and several members of his family contracted the disease, and some of them died. The house had been fumigated to the satisfaction of the Board of Health before the plaintiff's occupation began. The drains were defective, and there was evidence that the defendant knew this fact, and that the plaintiff did not know it. In a very interesting opinion Judge Holmes, speaking for the court, declares that, although the defendant was bound at his peril to know only the teachings of common experience, and was not bound to foresee results which only a specialist would apprehend, nevertheless the fact that there had been diphtheria in the house, coupled with the fact that the drains were defective, might have warranted the jury in finding that there was a

special danger from the drains, and that the landlord ought not to have assumed that this peculiar danger was removed by what the Board of Health had done. Here the question of the defendant's liability might have been decided either way. It lay in that penumbra or debatable land which is the region of the jury.

Judge Holmes and the court over which he ultimately came to preside have had a singularly felicitous opportunity to explain one dimension of the true measure of a tort in a remarkable series of cases dealing with the common law rights of employer and employed. The history of the struggle in the courts of Massachusetts between labor and capital (if a somewhat threadbare phrase may be permitted) is of absorbing interest. Limitation of space forbids the analysis of more than the most recent cases. In Vegelahn v. Guntner, 167 Mass. 92, the plaintiff sought to restrain his striking workmen from maintaining a patrol in front of his shop, the purpose of which was to prevent the plaintiff from getting new workmen to fill the strik ers' places, and thereby to prevent him from carrying on any business until he adopted a schedule of prices exhibited to him by the strikers. A preliminary decree was entered, granting in substance the prayer of the bill. At the hearing before Judge Holmes, it appeared that the means adopted for preventing the plaintiff from getting workmen were, first, persuasion and social pressure; secondly, threats of personal injury or unlawful harm to persons seeking employment or employed. Judge Holmes made final the preliminary injunction in so far as it prohibited actual or threatened violence, or persuasion to break existing contracts. Declining otherwise to enjoin the employment of persuasion and social pressure, he reported the case to the full court. After elaborate argument, a majority of the court ordered that the injunction should stand as originally issued, without the modifications introduced by

Judge Holmes. Their opinion seems to be mainly attributable to a feeling that, as a matter of fact, a patrol must carry with it a threat of bodily harm. The late Chief Justice and Judge Holmes wrote powerful dissenting opinions. Judge Holmes indicated what he believed to be the proper mode of approaching the question. He agreed that the plaintiff had shown a cause of action when he had proved that the defendants had conspired to injure his business, and had actually injured it, unless the defendants could show some ground of excuse or justification. What constitutes such justification? The principles of free competition justify a man who sets up a second store in a country town too small to support more than one, although he expects and intends thereby to ruin some one already there, and succeeds in his intent. "The reason, of course," says Judge Holmes, "is that the doctrine generally has been accepted that free competition is worth more to society than it costs, and that on this ground the infliction of the damage is privileged." Do not the same principles justify one workman in persuading another, not under contract to work, by appeals to the interest of his class, by social pressure, by whatever peaceable argument is likely to prove effective, not to help out the other side in the universal struggle for life? How otherwise can the game be played fairly? The question of what shall amount to a justification is to be decided on considerations of policy and social advantage. "It is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes." Judge Holmes concludes: "It is plain from the slightest consideration of practical affairs, or the most superficial reading of industrial history, that free competition means combination, and that the organization of the world, now going on so fast, means an ever increasing might and scope of combination. It seems to me futile to set our faces against this tendency.

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The case of Vegelahn v. Guntner has been stated at this length, not because of the admirably explicit confession of Judge Holmes' economic faith just quoted, but because in it Judge Holmes states with so much perspicuity the proper method of attacking these questions, the method of approach which, it is believed, must ultimately prevail everywhere. It did prevail in the later Massachusetts case of Plant v. Woods, 176 Mass. 492, decided four years later, in 1900. That case arose out of a contest for supremacy between two labor unions of the same craft. members of the defendant union conspired to force the members of the plaintiff union to amalgamate with them, and in order to carry out their purpose threatened employers of members of the plaintiff union with strikes and boycotts, unless they asked their employees to enter the defendant union, on implied pain of discharge. The majority of the court thought that strikes and boycotts designed to benefit the strikers not directly, by raising wages or shortening the hours of labor, but merely indirectly by strengthening their union, ought to be enjoined. Judge Holmes again dissented, thinking that strikes were as lawful for the purpose of strengthening the union "as a preliminary and means to enable it to make a better fight on questions of wages or other matters of clashing interests" as for the final purpose to which strengthening the union was a means. It is hardly to be expected, perhaps it is hardly desirable, that all the members of the court should think alike on the question of policy and economics involved in this deci