Numero Uno—“When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.The means of the study are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years, and now increasing annually by hundreds. In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what properly have been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort of legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system. The process is one, from a lawyer’s statement of a case, eliminating as it does all the dramatic elements with which his client’s story has clothed it, and retaining only the facts of legal import, up to the final analyses and abstract universals of theoretic jurisprudence. The reason why a lawyer does not mention that his client wore a white hat when he made a contract, while Mrs. Quickly would be sure to dwell upon it along with the parcel gilt goblet and the sea-coal fire, is that he foresees that the public force will act in the same way whatever his client had upon his head. It is to make the prophecies easier to be remembered and to be understood that the teachings of the decisions of the past are put into general propositions and gathered into textbooks, or that statutes are passed in a general form. The primary rights and duties with which jurisprudence busies itself again are nothing but prophecies. One of the many evil effects of the confusion between legal and moral ideas, about which I shall have something to say in a moment, is that theory is apt to get the cart before the horse, and consider the right or the duty as something existing apart from and independent of the consequences of its breach, to which certain sanctions are added afterward. But, as I shall try to show, a legal duty so called is nothing but a prediction that if a man does or omits certain things he will be made to suffer in this or that way by judgment of the court; and so of a legal right.
The number of our predictions when generalized and reduced to a system is not unmanageably large. They present themselves as a finite body of dogma which may be mastered within a reasonable time. It is a great mistake to be frightened by the ever-increasing number of reports. The reports of a given jurisdiction in the course of a generation take up pretty much the whole body of the law, and restate it from the present point of view. We could reconstruct the corpus from them if all that went before were burned. The use of the earlier reports is mainly historical, a use about which I shall have something to say before I have finished.
I wish, if I can, to lay down some first principles for the study of this body of dogma or systematized prediction which we call the law, for men who want to use it as the instrument of their business to enable them to prophesy in their turn, and, as bearing upon the study, I wish to point out an ideal which as yet our law has not attained.
The first thing for a businesslike understanding of the matter is to understand its limits, and therefore I think it desirable at once to point out and dispel a confusion between morality and law, which sometimes rises to the height of conscious theory, and more often and indeed constantly is making trouble in detail without reaching the point of consciousness. You can see very plainly that a bad man has as much reason as a good one for wishing to avoid an encounter with the public force, and therefore you can see the practical importance of the distinction between morality and law. A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.
I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law. For that purpose you must definitely master its specific marks, and it is for that that I ask you for the moment to imagine yourselves indifferent to other and greater things.
I do not say that there is not a wider point of view from which the distinction between law and morals becomes of secondary or no importance, as all mathematical distinctions vanish in presence of the infinite. But I do say that that distinction is of the first importance for the object which we are here to consider—a right study and mastery of the law as a business with well understood limits, a body of dogma enclosed within definite lines. I have just shown the practical reason for saying so. If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience. The theoretical importance of the distinction is no less, if you would reason on your subject aright. The law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds. The law talks about rights, and duties, and malice, and intent, and negligence, and so forth, and nothing is easier, or, I may say, more common in legal reasoning, than to take these words in their moral sense, at some state of the argument, and so to drop into fallacy. For instance, when we speak of the rights of man in a moral sense, we mean to mark the limits of interference with individual freedom which we think are prescribed by conscience, or by our ideal, however reached. Yet it is certain that many laws have been enforced in the past, and it is likely that some are enforced now, which are condemned by the most enlightened opinion of the time, or which at all events pass the limit of interference, as many consciences would draw it. Manifestly, therefore, nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law. No doubt simple and extreme cases can be put of imaginable laws which the statute-making power would not dare to enact, even in the absence of written constitutional prohibitions, because the community would rise in rebellion and fight; and this gives some plausibility to the proposition that the law, if not a part of morality, is limited by it. But this limit of power is not coextensive with any system of morals. For the most part it falls far within the lines of any such system, and in some cases may extend beyond them, for reasons drawn from the habits of a particular people at a particular time. I once heard the late Professor Agassiz say that a German population would rise if you added two cents to the price of a glass of beer. A statute in such a case would be empty words, not because it was wrong, but because it could not be enforced. No one will deny that wrong statutes can be and are enforced, and we would not all agree as to which were the wrong ones.
The confusion with which I am dealing besets confessedly legal conceptions. Take the fundamental question, What constitutes the law? You will find some text writers telling you that it is something different from what is decided by the courts of Massachusetts or England, that it is a system of reason, that it is a deduction from principles of ethics or admitted axioms or what not, which may or may not coincide with the decisions. But if we take the view of our friend the bad man we shall find that he does not care two straws for the axioms or deductions, but that he does want to know what the Massachusetts or English courts are likely to do in fact. I am much of this mind. The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.
Take again a notion which as popularly understood is the widest conception which the law contains—the notion of legal duty, to which already I have referred. We fill the word with all the content which we draw from morals. But what does it mean to a bad man? Mainly, and in the first place, a prophecy that if he does certain things he will be subjected to disagreeable consequences by way of imprisonment or compulsory payment of money. But from his point of view, what is the difference between being fined and taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is proven by the many discussions which have arisen in the courts on the very question whether a given statutory liability is a penalty or a tax. On the answer to this question depends the decision whether conduct is legally wrong or right, and also whether a man is under compulsion or free. Leaving the criminal law on one side, what is the difference between the liability under the mill acts or statutes authorizing a taking by eminent domain and the liability for what we call a wrongful conversion of property where restoration is out of the question. In both cases the party taking another man’s property has to pay its fair value as assessed by a jury, and no more. What significance is there in calling one taking right and another wrong from the point of view of the law? It does not matter, so far as the given consequence, the compulsory payment, is concerned, whether the act to which it is attached is described in terms of praise or in terms of blame, or whether the law purports to prohibit it or to allow it. If it matters at all, still speaking from the bad man’s point of view, it must be because in one case and not in the other some further disadvantages, or at least some further consequences, are attached to the act by law. The only other disadvantages thus attached to it which I ever have been able to think of are to be found in two somewhat insignificant legal doctrines, both of which might be abolished without much disturbance. One is, that a contract to do a prohibited act is unlawful, and the other, that, if one of two or more joint wrongdoers has to pay all the damages, he cannot recover contribution from his fellows. And that I believe is all. You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with cynical acid and expel everything except the object of our study, the operations of the law.
Nowhere is the confusion between legal and moral ideas more manifest than in the law of contract. Among other things, here again the so-called primary rights and duties are invested with a mystic significance beyond what can be assigned and explained. The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it—and nothing else. If you commit a tort, you are liable to pay a compensatory sum. If you commit a contract, you are liable to pay a compensatory sum unless the promised event comes to pass, and that is all the difference. But such a mode of looking at the matter stinks in the nostrils of those who think it advantageous to get as much ethics into the law as they can. It was good enough for Lord Coke, however, and here, as in many others cases, I am content to abide with him. In Bromage v. Genning, a prohibition was sought in the Kings’ Bench against a suit in the marches of Wales for the specific performance of a covenant to grant a lease, and Coke said that it would subvert the intention of the covenantor, since he intends it to be at his election either to lose the damages or to make the lease. Sergeant Harra for the plaintiff confessed that he moved the matter against his conscience, and a prohibition was granted. This goes further than we should go now, but it shows what I venture to say has been the common law point of view from the beginning, although Mr. Harriman, in his very able little book upon Contracts has been misled, as I humbly think, to a different conclusion.
I have spoken only of the common law, because there are some cases in which a logical justification can be found for speaking of civil liabilities as imposing duties in an intelligible sense. These are the relatively few in which equity will grant an injunction, and will enforce it by putting the defendant in prison or otherwise punishing him unless he complies with the order of the court. But I hardly think it advisable to shape general theory from the exception, and I think it would be better to cease troubling ourselves about primary rights and sanctions altogether, than to describe our prophecies concerning the liabilities commonly imposed by the law in those inappropriate terms.
I mentioned, as other examples of the use by the law of words drawn from morals, malice, intent, and negligence. It is enough to take malice as it is used in the law of civil liability for wrongs what we lawyers call the law of torts—to show that it means something different in law from what it means in morals, and also to show how the difference has been obscured by giving to principles which have little or nothing to do with each other the same name. Three hundred years ago a parson preached a sermon and told a story out of Fox’s Book of Martyrs of a man who had assisted at the torture of one of the saints, and afterward died, suffering compensatory inward torment. It happened that Fox was wrong. The man was alive and chanced to hear the sermon, and thereupon he sued the parson. Chief Justice Wray instructed the jury that the defendant was not liable, because the story was told innocently, without malice. He took malice in the moral sense, as importing a malevolent motive. But nowadays no one doubts that a man may be liable, without any malevolent motive at all, for false statements manifestly calculated to inflict temporal damage. In stating the case in pleading, we still should call the defendant’s conduct malicious; but, in my opinion at least, the word means nothing about motives, or even about the defendant’s attitude toward the future, but only signifies that the tendency of his conduct under known circumstances was very plainly to cause the plaintiff temporal harm.
In the law of contract the use of moral phraseology led to equal confusion, as I have shown in part already, but only in part. Morals deal with the actual internal state of the individual’s mind, what he actually intends. From the time of the Romans down to now, this mode of dealing has affected the language of the law as to contract, and the language used has reacted upon the thought. We talk about a contract as a meeting of the minds of the parties, and thence it is inferred in various cases that there is no contract because their minds have not met; that is, because they have intended different things or because one party has not known of the assent of the other. Yet nothing is more certain than that parties may be bound by a contract to things which neither of them intended, and when one does not know of the other’s assent. Suppose a contract is executed in due form and in writing to deliver a lecture, mentioning no time. One of the parties thinks that the promise will be construed to mean at once, within a week. The other thinks that it means when he is ready. The court says that it means within a reasonable time. The parties are bound by the contract as it is interpreted by the court, yet neither of them meant what the court declares that they have said. In my opinion no one will understand the true theory of contract or be able even to discuss some fundamental questions intelligently until he has understood that all contracts are formal, that the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not on the parties’ having meant the same thing but on their having said the same thing. Furthermore, as the signs may be addressed to one sense or another—to sight or to hearing—on the nature of the sign will depend the moment when the contract is made. If the sign is tangible, for instance, a letter, the contract is made when the letter of acceptance is delivered. If it is necessary that the minds of the parties meet, there will be no contract until the acceptance can be read; none, for example, if the acceptance be snatched from the hand of the offerer by a third person.
This is not the time to work out a theory in detail, or to answer many obvious doubts and questions which are suggested by these general views. I know of none which are not easy to answer, but what I am trying to do now is only by a series of hints to throw some light on the narrow path of legal doctrine, and upon two pitfalls which, as it seems to me, lie perilously near to it. Of the first of these I have said enough. I hope that my illustrations have shown the danger, both to speculation and to practice, of confounding morality with law, and the trap which legal language lays for us on that side of our way. For my own part, I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether, and other words adopted which should convey legal ideas uncolored by anything outside the law. We should lose the fossil records of a good deal of history and the majesty got from ethical associations, but by ridding ourselves of an unnecessary confusion we should gain very much in the clearness of our thought.
So much for the limits of the law. The next thing which I wish to consider is what are the forces which determine its content and its growth. You may assume, with Hobbes and Bentham and Austin, that all law emanates from the sovereign, even when the first human beings to enunciate it are the judges, or you may think that law is the voice of the Zeitgeist, or what you like. It is all one to my present purpose. Even if every decision required the sanction of an emperor with despotic power and a whimsical turn of mind, we should be interested none the less, still with a view to prediction, in discovering some order, some rational explanation, and some principle of growth for the rules which he laid down. In every system there are such explanations and principles to be found. It is with regard to them that a second fallacy comes in, which I think it important to expose.
The fallacy to which I refer is the notion that the only force at work in the development of the law is logic. In the broadest sense, indeed, that notion would be true. The postulate on which we think about the universe is that there is a fixed quantitative relation between every phenomenon and its antecedents and consequents. If there is such a thing as a phenomenon without these fixed quantitative relations, it is a miracle. It is outside the law of cause and effect, and as such transcends our power of thought, or at least is something to or from which we cannot reason. The condition of our thinking about the universe is that it is capable of being thought about rationally, or, in other words, that every part of it is effect and cause in the same sense in which those parts are with which we are most familiar. So in the broadest sense it is true that the law is a logical development, like everything else. The danger of which I speak is not the admission that the principles governing other phenomena also govern the law, but the notion that a given system, ours, for instance, can be worked out like mathematics from some general axioms of conduct. This is the natural error of the schools, but it is not confined to them. I once heard a very eminent judge say that he never let a decision go until he was absolutely sure that it was right. So judicial dissent often is blamed, as if it meant simply that one side or the other were not doing their sums right, and if they would take more trouble, agreement inevitably would come.
This mode of thinking is entirely natural. The training of lawyers is a training in logic. The processes of analogy, discrimination, and deduction are those in which they are most at home. The language of judicial decision is mainly the language of logic. And the logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man. Behind the logical form lies a judgment as to the relative worth and importance of competing legislative grounds, often an inarticulate and unconscious judgment, it is true, and yet the very root and nerve of the whole proceeding. You can give any conclusion a logical form. You always can imply a condition in a contract. But why do you imply it? It is because of some belief as to the practice of the community or of a class, or because of some opinion as to policy, or, in short, because of some attitude of yours upon a matter not capable of exact quantitative measurement, and therefore not capable of founding exact logical conclusions. Such matters really are battle grounds where the means do not exist for the determinations that shall be good for all time, and where the decision can do no more than embody the preference of a given body in a given time and place. We do not realize how large a part of our law is open to reconsideration upon a slight change in the habit of the public mind. No concrete proposition is self evident, no matter how ready we may be to accept it, not even Mr. Herbert Spencer’s “Every man has a right to do what he wills, provided he interferes not with a like right on the part of his neighbors.”
Why is a false and injurious statement privileged, if it is made honestly in giving information about a servant? It is because it has been thought more important that information should be given freely, than that a man should be protected from what under other circumstances would be an actionable wrong. Why is a man at liberty to set up a business which he knows will ruin his neighborhood? It is because the public good is supposed to be best subserved by free competition. Obviously such judgments of relative importance may vary in different times and places. Why does a judge instruct a jury that an employer is not liable to an employee for an injury received in the course of his employment unless he is negligent, and why do the jury generally find for the plaintiff if the case is allowed to go to them? It is because the traditional policy of our law is to confine liability to cases where a prudent man might have foreseen the injury, or at least the danger, while the inclination of a very large part of the community is to make certain classes of persons insure the safety of those with whom they deal. Since the last words were written, I have seen the requirement of such insurance put forth as part of the programme of one of the best known labor organizations. There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong, and that I am certain that his conclusion will not be accepted in practice semper ubique et ab omnibus.
Indeed, I think that even now our theory upon this matter is open to reconsideration, although I am not prepared to say how I should decide if a reconsideration were proposed. Our law of torts comes from the old days of isolated, ungeneralized wrongs, assaults, slanders, and the like, where the damages might be taken to lie where they fell by legal judgment. But the torts with which our courts are kept busy today are mainly the incidents of certain well known businesses. They are injuries to person or property by railroads, factories, and the like. The liability for them is estimated, and sooner or later goes into the price paid by the public. The public really pays the damages, and the question of liability, if pressed far enough, is really a question how far it is desirable that the public should insure the safety of one whose work it uses. It might be said that in such cases the chance of a jury finding for the defendant is merely a chance, once in a while rather arbitrarily interrupting the regular course of recovery, most likely in the case of an unusually conscientious plaintiff, and therefore better done away with. On the other hand, the economic value even of a life to the community can be estimated, and no recovery, it may be said, ought to go beyond that amount. It is conceivable that some day in certain cases we may find ourselves imitating, on a higher plane, the tariff for life and limb which we see in the Leges Barbarorum.
I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious, as I have said. When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened. I suspect that this fear has influenced judicial action both here and in England, yet it is certain that it is not a conscious factor in the decisions to which I refer. I think that something similar has led people who no longer hope to control the legislatures to look to the courts as expounders of the constitutions, and that in some courts new principles have been discovered outside the bodies of those instruments, which may be generalized into acceptance of the economic doctrines which prevailed about fifty years ago, and a wholesale prohibition of what a tribunal of lawyers does not think about right. I cannot but believe that if the training of lawyers led them habitually to consider more definitely and explicitly the social advantage on which the rule they lay down must be justified, they sometimes would hesitate where now they are confident, and see that really they were taking sides upon debatable and often burning questions.
So much for the fallacy of logical form. Now let us consider the present condition of the law as a subject for study, and the ideal toward which it tends. We still are far from the point of view which I desire to see reached. No one has reached it or can reach it as yet. We are only at the beginning of a philosophical reaction, and of a reconsideration of the worth of doctrines which for the most part still are taken for granted without any deliberate, conscious, and systematic questioning of their grounds. The development of our law has gone on for nearly a thousand years, like the development of a plant, each generation taking the inevitable next step, mind, like matter, simply obeying a law of spontaneous growth. It is perfectly natural and right that it should have been so. Imitation is a necessity of human nature, as has been illustrated by a remarkable French writer, M. Tard, in an admirable book, Les Lois de l’Imitation. Most of the things we do, we do for no better reason than that our fathers have done them or that our neighbors do them, and the same is true of a larger part than we suspect of what we think. The reason is a good one, because our short life gives us no time for a better, but it is not the best. It does not follow, because we all are compelled to take on faith at second hand most of the rules on which we base our action and our thought, that each of us may not try to set some corner of his world in the order of reason, or that all of us collectively should not aspire to carry reason as far as it will go throughout the whole domain. In regard to the law, it is true, no doubt, that an evolutionist will hesitate to affirm universal validity for his social ideals, or for the principles which he thinks should be embodied in legislation. He is content if he can prove them best for here and now. He may be ready to admit that he knows nothing about an absolute best in the cosmos, and even that he knows next to nothing about a permanent best for men. Still it is true that a body of law is more rational and more civilized when every rule it contains is referred articulately and definitely to an end which it subserves, and when the grounds for desiring that end are stated or are ready to be stated in words.
At present, in very many cases, if we want to know why a rule of law has taken its particular shape, and more or less if we want to know why it exists at all, we go to tradition. We follow it into the Year Books, and perhaps beyond them to the customs of the Salian Franks, and somewhere in the past, in the German forests, in the needs of Norman kings, in the assumptions of a dominant class, in the absence of generalized ideas, we find out the practical motive for what now best is justified by the mere fact of its acceptance and that men are accustomed to it. The rational study of law is still to a large extent the study of history. History must be a part of the study, because without it we cannot know the precise scope of rules which it is our business to know. It is a part of the rational study, because it is the first step toward an enlightened scepticism, that is, towards a deliberate reconsideration of the worth of those rules. When you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal. For the rational study of the law the blackletter man may be the man of the present, but the man of the future is the man of statistics and the master of economics. It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past. I am thinking of the technical rule as to trespass ab initio, as it is called, which I attempted to explain in a recent Massachusetts case.
Let me take an illustration, which can be stated in a few words, to show how the social end which is aimed at by a rule of law is obscured and 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 modern 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 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 Hegelian dream, but a part of the lives of men. But one may criticise even what one reveres. Law is the business to which my life is devoted, and I should show less than devotion if I did not do what in me lies to improve it, and, when I perceive what seems to me the ideal of its future, if I hesitated to point it out and to press toward it with all my heart.
Perhaps I have said enough to show the part which the study of history necessarily plays in the intelligent study of the law as it is today. In the teaching of this school and at Cambridge it is in no danger of being undervalued. Mr. Bigelow here and Mr. Ames and Mr. Thayer there have made important contributions which will not be forgotten, and in England the recent history of early English law by Sir Frederick Pollock and Mr. Maitland has lent the subject an almost deceptive charm. We must beware of the pitfall of antiquarianism, and must remember that for our purposes our only interest in the past is for the light it throws upon the present. I look forward to a time when the part played by history in the explanation of dogma shall be very small, and instead of ingenious research we shall spend our energy on a study of the ends sought to be attained and the reasons for desiring them. As a step toward that ideal it seems to me that every lawyer ought to seek an understanding of economics. The present divorce between the schools of political economy and law seems to me an evidence of how much progress in philosophical study still remains to be made. In the present state of political economy, indeed, we come again upon history on a larger scale, but there we are called on to consider and weigh the ends of legislation, the means of attaining them, and the cost. We learn that for everything we have we give up something else, and we are taught to set the advantage we gain against the other advantage we lose, and to know what we are doing when we elect.
There is another study which sometimes is undervalued by the practical minded, for which I wish to say a good word, although I think a good deal of pretty poor stuff goes under that name. I mean the study of what is called jurisprudence. Jurisprudence, as I look at it, is simply law in its most generalized part. Every effort to reduce a case to a rule is an effort of jurisprudence, although the name as used in English is confined to the broadest rules and most fundamental conceptions. One mark of a great lawyer is that he sees the application of the broadest rules. There is a story of a Vermont justice of the peace before whom a suit was brought by one farmer against another for breaking a churn. The justice took time to consider, and then said that he has looked through the statutes and could find nothing about churns, and gave judgment for the defendant. The same state of mind is shown in all our common digests and textbooks. Applications of rudimentary rules of contract or tort are tucked away under the head of Railroads or Telegraphs or go to swell treatises on historical subdivisions, such as Shipping or Equity, or are gathered under an arbitrary title which is thought likely to appeal to the practical mind, such as Mercantile Law. If a man goes into law it pays to be a master of it, and to be a master of it means to look straight through all the dramatic incidents and to discern the true basis for prophecy. Therefore, it is well to have an accurate notion of what you mean by law, by a right, by a duty, by malice, intent, and negligence, by ownership, by possession, and so forth. I have in my mind cases in which the highest courts seem to me to have floundered because they had no clear ideas on some of these themes. I have illustrated their importance already. If a further illustration is wished, it may be found by reading the Appendix to Sir James Stephen’s Criminal Law on the subject of possession, and then turning to Pollock and Wright’s enlightened book. Sir James Stephen is not the only writer whose attempts to analyze legal ideas have been confused by striving for a useless quintessence of all systems, instead of an accurate anatomy of one. The trouble with Austin was that he did not know enough English law. But still it is a practical advantage to master Austin, and his predecessors, Hobbes and Bentham, and his worthy successors, Holland and Pollock. Sir Frederick Pollock’s recent little book is touched with the felicity which marks all his works, and is wholly free from the perverting influence of Roman models.
The advice of the elders to young men is very apt to be as unreal as a list of the hundred best books. At least in my day I had my share of such counsels, and high among the unrealities I place the recommendation to study the Roman law. I assume that such advice means more than collecting a few Latin maxims with which to ornament the discourse—the purpose for which Lord Coke recommended Bracton. If that is all that is wanted, the title De Regulis Juris Antiqui can be read in an hour. I assume that, if it is well to study the Roman Law, it is well to study it as a working system. That means mastering a set of technicalities more difficult and less understood than our own, and studying another course of history by which even more than our own the Roman law must explained. If any one doubts me, let him read Keller’s Der Romische Civil Process und die Actionen, a treatise on the praetor’s edict, Muirhead’s most interesting Historical Introduction to the Private Law of Rome, and, to give him the best chance, Sohn’s admirable Institutes. No. The way to gain a liberal view of your subject is not to read something else, but to get to the bottom of the subject itself. The means of doing that are, in the first place, to follow the existing body of dogma into its highest generalizations by the help of jurisprudence; next, to discover from history how it has come to be what it is; and finally, so far as you can, to consider the ends which the several rules seek to accomplish, the reasons why those ends are desired, what is given up to gain them, and whether they are worth the price.
We have too little theory in the law rather than too much, especially on this final branch of study. When I was speaking of history, I mentioned larceny as an example to show how the law suffered from not having embodied in a clear form a rule which will accomplish its manifest purpose. In that case the trouble was due to the survival of forms coming from a time when a more limited purpose was entertained. Let me now give an example to show the practical importance, for the decision of actual cases, of understanding the reasons of the law, by taking an example from rules which, so far as I know, never have been explained or theorized about in any adequate way. I refer to statutes of limitation and the law of prescription. The end of such rules is obvious, but what is the justification for depriving a man of his rights, a pure evil as far as it goes, in consequence of the lapse of time? Sometimes the loss of evidence is referred to, but that is a secondary matter. Sometimes the desirability of peace, but why is peace more desirable after twenty years than before? It is increasingly likely to come without the aid of legislation. Sometimes it is said that, if a man neglects to enforce his rights, he cannot complain if, after a while, the law follows his example. Now if this is all that can be said about it, you probably will decide a case I am going to put, for the plaintiff; if you take the view which I shall suggest, you possibly will decide it for the defendant. A man is sued for trespass upon land, and justifies under a right of way. He proves that he has used the way openly and adversely for twenty years, but it turns out that the plaintiff had granted a license to a person whom he reasonably supposed to be the defendant’s agent, although not so in fact, and therefore had assumed that the use of the way was permissive, in which case no right would be gained. Has the defendant gained a right or not? If his gaining it stands on the fault and neglect of the landowner in the ordinary sense, as seems commonly to be supposed, there has been no such neglect, and the right of way has not been acquired. But if I were the defendant’s counsel, I should suggest that the foundation of the acquisition of rights by lapse of time is to be looked for in the position of the person who gains them, not in that of the loser. Sir Henry Maine has made it fashionable to connect the archaic notion of property with prescription. But the connection is further back than the first recorded history. It is in the nature of man’s mind. A thing which you have enjoyed and used as your own for a long time, whether property or an opinion, takes root in your being and cannot be torn away without your resenting the act and trying to defend yourself, however you came by it. The law can ask no better justification than the deepest instincts of man. It is only by way of reply to the suggestion that you are disappointing the former owner, that you refer to his neglect having allowed the gradual dissociation between himself and what he claims, and the gradual association of it with another. If he knows that another is doing acts which on their face show that he is on the way toward establishing such an association, I should argue that in justice to that other he was bound at his peril to find out whether the other was acting under his permission, to see that he was warned, and, if necessary, stopped.
I have been speaking about the study of the law, and I have said next to nothing about what commonly is talked about in that connection—text-books and the case system, and all the machinery with which a student comes most immediately in contact. Nor shall I say anything about them. Theory is my subject, not practical details. The modes of teaching have been improved since my time, no doubt, but ability and industry will master the raw material with any mode. Theory is the most important part of the dogma of the law, as the architect is the most important man who takes part in the building of a house. The most important improvements of the last twenty-five years are improvements in theory. It is not to be feared as unpractical, for, to the competent, it simply means going to the bottom of the subject. For the incompetent, it sometimes is true, as has been said, that an interest in general ideas means an absence of particular knowledge. I remember in army days reading of a youth who, being examined for the lowest grade and being asked a question about squadron drill, answered that he never had considered the evolutions of less than ten thousand men. But the weak and foolish must be left to their folly. The danger is that the able and practical minded should look with indifference or distrust upon ideas the connection of which with their business is remote. I heard a story, the other day, of a man who had a valet to whom he paid high wages, subject to deduction for faults. One of his deductions was, ‘For lack of imagination, five dollars.’ The lack is not confined to valets. The object of ambition, power, generally presents itself nowadays in the form of money alone. Money is the most immediate form, and is a proper object of desire. ‘The fortune,’ said Rachel, ‘is the measure of intelligence.’ That is a good text to waken people out of a fool’s paradise. But, as Hegel says, ‘It is in the end not the appetite, but the opinion, which has to be satisfied.’ To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas. If you want great examples, read Mr. Leslie Stephen’s History of English Thought in the Eighteenth Century, and see how a hundred years after his death the abstract speculations of Descartes had become a practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed today by Kant than by Bonaparte. We cannot all be Descartes or Kant, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law.” Oliver Wendell Holmes, Jr., “The Path of the Law;” Harvard Law Review, 1897
Numero Dos—“So the objective ‘purpose’ of the Revolution was the creation of a home market, and the abolition of unbearable political conditions. The downfall of the Revolution meant only the postponement of the great social catastrophe and the possibility of a higher ultimate stage of development. Nevertheless the proletarian blood that flowed in 1905 was by no means shed in vain. The old autocracy gave place to a new pseudo-constitutional regime, presenting a certain (though very limited) opportunity to conduct the broader work of revolutionary education among the proletariat.
But even from a purely economical point of view, the first Revolution had consequences that are not unimportant. It was followed by fundamental changes in the national industrial structure, and by a consequent readjustment of class relations.
The large landlords, terrorized by the revolting farmers, sold their possessions, either directly to their tenants or through the agency of so-called ‘farmers’ banks’ (Krestjansky Bank), the government institution that, as a rule, functioned as the business agency of the nobility. In this way a small part of the possessions of the great landed nobility passed into the hands of the wealthier farmers. By his so-called agrarian reform programme, Stolypin, the Czarist minister, dissolved the old ‘Mir’ (peasant communities), and divided the community lands in such a way that the best portions everywhere fell into the hands of a thin strata of agricultural bourgeoisie. The result was a visible strengthening of this new class, whose members organized everywhere on a co-operative basis.
But the status of the great landholders, too, had changed. The modern capitalist wing grew stronger, a phenomena that may be attributed mainly to altered conditions in the world market. The price of wheat and rye were advancing almost hourly. It became more profitable to produce by modern capitalistic methods; the old primitive system went into discard. So agrarian capitalism gained a firm foothold in Russia.
All these changes kept step with the changes that were taking place on the industrial field. “Our” industries before the Revolution had been rather peculiarly constituted. “We” had, on the one side, a primitive system of fragmentary, disorganized, small scale production, on the other, gigantic undertakings which frequently employed 15,000 to 20,000 laborers and employees. After the Revolution the concentration of capital advanced in leaps and bounds. In the era of the counter-revolution mighty manufacturers’ associations, employers’ associations, trusts, syndicates and combinations, banking houses and banking corporations came into existence. In Russia, to-day, monopolization in a few branches of industry is very large indeed; so, for instance, the sugar, the metal, the naphtha, the textile and the coal mining industries, are in the hands of a few syndicates. Thus there grew up in Russia the mighty power of the united bourgeois organizations, the power of financial capital, interested mainly in export and trade.
The Revolution did not create a home market, it is true. This but increased the profit hunger of “our” financiers. Protected by outrageous protective tariffs that enabled them to sell comparatively cheaply in the world market, the Russian capitalist began to sell his wares in Persia, in the Balkans, in Asia Minor, etc., and even in the Far East. Bank operations were augmented, state loans to China, Persia, etc., arranged; transactions that were diametrically opposed to the interests of English, French and German capital were the order of the day.
The first Revolution itself, as we have seen, resulted in no radical upheaval. But the greatest economic phenomena of the counter-revolutionary period is the growth of financial capitalism and its policy of expansion, or Imperialism.
Two classes were emerging out of the social chaos, the liberal bourgeoisie, which gradually developed into an imperialistic bourgeoisie, and the proletariat. During the first Russian Revolution the specific characteristics of the Revolution were already quite evident, although the objective content of the Revolution was wholly in harmony with capitalism. The demands made by the masses were characteristically bourgeois, and purely democratic and republican in their nature; even the economic reforms were compatible with the interests of capitalism–as, for instance, the eight hour day, the confiscation of land, and others. But though the Revolution of 1905 was the bourgeois-democratic Revolution of Russia, the motive power behind this upheaval was by no means the liberal bourgeoisie, but the proletariat, and the revolutionary peasantry who fought in the struggle under the control of the proletariat. This seeming contradiction may be explained by the fact that the Russian revolution came too late, came in an epoch in which the proletariat had already become a mighty factor in social struggles. So our Liberalism was condemned to a vascillating position, between Revolution and Czarism, a policy that finally resulted in the betrayal of the whole revolution. In the most critical period of the revolution, the liberals were already completely contra-revolutionary.
The outbreak of the war almost completely laved the Russian movement. It was the signal of an outbreak, in the ranks of the bourgeoisie (including its liberal as well as its radical elements), an indescribable patriotic fervor. The policy of conquest carried on by the nobility and the landowners was in accord with the thieving plans of the group which controlled the high finance of the nation. Mr. Miljukoff had long been singing the praises of the bloody policy of the Czar’s government in Persia and in the Balkan States. Thus the Russian civil peace was born, though a large part of the proletariat was actively and unalterably opposed to it.
But the calculations of the new liberal class were, after all, at fault. The Czarist administration, in spite of the most energetic support of the Liberals, proved ineffectual on every hand. Corruption, systematic thievery, complete disorganization of the whole administration apparatus became more and more apparent. The needs of warfare had practically ruined the rickety economic organism of Russian national economy. Instead of increasing the production of foodstuffs the territory under cultivation was reduced. The strength of the whole nation was drawn off from productive labor and a shortage in a number of important articles of consumption followed.
Chaos reigned in the finances of the state. Securities for enormous war loans and the payment of interest, staggering sums necessary to pay for all kinds of war manufacturies, all these the Czarist government attempted to cover by a promiscuous printing of paper money. This course was followed, naturally, by a steady depreciation in the value of paper money, until it was worth hardly 50 per cent. of its face value. This meant an unbearable increase in the cost of living. High prices, in Russia, during the war, were caused, therefore, not only by actual shortage of supplies, not only by monopoly speculations, but also, to no small degree, by the ruinous financial policy of the government.
At the same time the collapse of the whole transportation augmented the general calamity by bringing about a complete disorganization of the home market. For lack of means of transportation the sale of products was limited to countless small markets in the immediate locality in which they were produced.
Increased taxes were another consequence of the war; all attempts to tax the wealthier classes as well were pushed back upon the shoulders of the proletariat and the peasantry by means of increased prices, intensified labor and the overthrow of the miserable Russian “labor laws.”
Upon this “economic foundation” was built up a corresponding “political superstructure.”
The central administration, civil as well as military, was in the hands of Rasputin, the Czar, and their followers, the clique of slovenly, religious, superstitious, degenerate idiots and court thieves, who had always looked upon the Russian nation as their family property. The local administration was everywhere in the hands of autocratic governors who ruled their territories like the Satraps of the ancient Orient.
The story of a session of the magistracy of Moscow, in which a serious discussion as to the size of the bribe necessary to persuade the railroad officials of Russia to secure the transportation of Siberian meat to Moscow was the order of business, shows to what lengths corruption had gone.
“Civil peace” in Russia, as in all other countries, was rather peculiar. It meant, in effect, a system of gagging and oppression such as Russia had not known since the failure of the first Revolution. The labor press was suspended, labor unions dissolved, striking workers were sent to the front, were thrown into prison or summarily shot. In Iranovo-Wosnesensk alone more than 100 workers were killed. Proletariat and the peasantry were segregated on the battlefields and mechanically slaughtered. That Russia has been able to hold out against the Central Powers so long is due alone to its almost inexhaustible reservoir of cannon fodder.
These circumstances, which proved that the Czarist regime was unable to realize even its own plans of usurpation, not to mention those of its liberal supporters, called forth the opposition of the liberal imperialists. The downtrodden and suffering proletariat cast its lot under the banner of civil war, assisted by large groups among the peasantry.
The liberal bourgeoisie (the Cadettes and the Octobrists) and with them the social-patriots, who are but their subservient vassals, were organized mainly in Semstwo and in municipal units. They flirted with Grand Duke Nikolai, with their democratic allies, with the ruling circles within the army. In the Duma the so-called “progressive block” was formed, as the parliamentary expression of the imperialistic bourgeoisie.
Their opposition was, as a matter of fact, rather innocent. They stood by the maxim, “No infraction of the law.” In the words of Mr. Miljukoff, “If victory means revolution, I want no victory.”
Not so the proletarian masses. In spite of the “pacifying” manifesto of a few social patriotic traitors, the proletarian “Avantguarde” developed an intense revolutionary activity. Street demonstrations, strikes, the general strike and revolts of workers and military groups that fraternized with them were the methods used in the struggle. These mass actions paved the way for the final overthrow of the Czarist regime. The first wave of the second revolution shattered the Russian throne.
The first step in the Revolution has been taken; the social structure of the state machine has been changed, a new class has come into power. The old, semi-feudal, noble, landowning class is overthrown. In its place stand the new rulers, the modern, capitalist bourgeoisie.
But the second step will inevitably follow: the transformation of the fatherland of the Gutschkoff-Miljukoff into the fatherland of the proletariat.
How did it happen that the Imperialists won the victory, although they were anything but revolutionary? The answer is plain. Everything points to a compromise between the ruling classes. The revolution was not yet strong enough to overthrow the capitalist system; it has only effected a shifting of the elements within the bourgeoisie as a whole, has placed the more progressive wing at the helm, by pushing aside the reactionary nobility.
But the revolution is steadily growing. Even now, while these lines are being written, there exist in Petrograd two governments, one, that of the Imperialist bourgeoisie, which was jubilantly greeted by the bourgeois classes of the other allied nations; the other, the governmental machine of the proletariat, the workingmen’s and soldiers’ council.
The struggle between the working class and the Imperialists is inevitable. Even the reforms that have been proclaimed by the provisional government were concessions made out of fear of the threats of the proletariat. But the liberal government will not be in a position to fulfill the programme that has been forced upon it. The high cost of all necessaries of life and the growing burden of taxation can be decreased to a measurable degree only by the liquidation of the war, by confiscation, by the annulment of state debts, by taxation of the possessing classes, by fixing hours of labor and wages, by organizing public works, etc.
But Miljukoff and his class must pay the debts they have incurred to the English, the French and the American bankers. They must defend the principle of private property, must continue the policy of usurpation, a policy that is suicidal at the present stage of complete disorganization. So the new government is staggering toward bankruptcy, to clear the way for the proletariat.
But the conquest of political power by the proletariat will, under the existing circumstances, no longer mean a bourgeois revolution, in which the proletariat plays the role of the broom of history. The proletariat must henceforth lay a dictatorial hand upon production, and that is the beginning of the end of the capitalist system.
A lasting victory of the Russian proletariat is, however, inconceivable without the support of the west European proletariat. And this support is fully guaranteed by the present international situation. To be sure, the Russian Revolution has its specific abnormalities. But it is, as a product of the world war, only a part of the coming world revolution of the proletariat, whose first step it represents.
Wars and revolutions are the locomotives of history, one of our Socialist teachers once said. And the present war was destined to produce the revolution. The ruin of all national economy and with it the greatest conceivable concentration of capital, the formation of gigantic units of production, the adoption of state capitalism, the advance of great masses upon the scene of history–and the unbearable sufferings of these masses. The oppression of the people–and its armament–all of these conflicts must find their solution in a gigantic catastrophe.
More than 100 years ago, when the French bourgeoisie had cut off the head of its king, it lighted the torch of revolution in Europe. This was the signal for a whole series of capitalist revolutions. To-day the bourgeoisie stands at its grave. It has become the citadel of reaction. And the proletariat has come to destroy its social order.
The call to arms to this great upheaval is the Russian Revolution. Well may the ruling classes tremble before a communist revolution. The proletariat has nothing to lose but its chains; it has a world to gain.” Nikolai Bukharin, “The Russian Revolution & Its Significance;” The Class Struggle, May-June 1917
Numero Tres—“Luddites I think it is a fair guess to say that my role in the pages of TECHNOS is to serve as the resident Luddite. If this is so, then there are two things you need to know. The first is that I do not regard my association with Luddism as, in any way, a disgrace. As perhaps readers will know, the Luddite movement flourished in England between 1811 and 1818 as a response to the furious growth of machines and factories. Notwithstanding the excesses of their zeal, the Luddites seemed to be the only group in England that could foresee the catastrophic effects of the factory system, especially on children. They did not want their children to be deprived of an education—indeed, of childhood itself—for the purpose of their being used to fuel the machines of industry. As William Blake put it, they did not want their children to labor in the ‘dark Satanic Mills.’
It is true that the Luddites busted up some textile machinery from which their unsavory reputation originates, but when did we decide to mock or despise people who try to protect their children and preserve their way of life?
The second thing you need to know is that despite the respect I have for them, I am not at all a Luddite. I have, for example, no hostility toward new technologies and certainly no wish to destroy them, especially those technologies, like computers, that have captured the imagination of educators. Of course, I am not enthusiastic about them, either. I am indifferent to them. And the reason I am indifferent to them is that, in my view, they have nothing whatever to do with the fundamental problems we have to solve in schooling our young. If I do harbor any hostility toward these machines, it is only because they are distractions. They divert the intelligence and energy of talented people from addressing the issues we need most to confront.
Let me begin, then, to make my case by telling you about a conversation I had with an automobile salesman who was trying to get me to buy a new Honda Accord. He pointed out that the car was equipped with cruise control, for which there was an additional charge. As is my custom in thinking about the value of technology, I asked him, “What is the problem to which cruise control is the answer?” The question startled him, but he recovered enough to say, “It is the problem of keeping your foot on the gas.” I told him I had been driving for 35 years and had never found that to be a problem. He then told me about the electric windows. “What is the problem,” I asked, “to which electric windows are the answer?” He was ready for me this time. With a confident smile, he said, “You don’t have to wind the windows up and down with your arm.” I told him that this, too, had never been a problem, and that, in fact, I rather valued the exercise it gave me.
I bought the car anyway, because, as it turns out, you cannot get a Honda Accord without cruise control and electric windows—which brings up the first point I should like to mention. It is that, contrary to conventional wisdom, new technologies do not, by and large, increase people’s options but do just the opposite. For all practical purposes, you cannot go to Europe anymore by boat, which I can report is a thrilling and civilized way to go. Now you have to take an airplane. You cannot work for a newspaper unless you use a word processor, which eliminates me, since I do all of my composing with a pen and yellow pad and do not wish to change. You cannot buy records anymore; you must use CDs. I can go on with a thousand examples which demonstrate the point that new technologies drive old technologies out of business; which is to say that there is an imperialistic thrust to technology, a strong tendency to get everyone to conform to the requirements of what is new. Now, this is not always a bad thing, although sometimes it is very bad. I bring it up to call attention to the fact that what we too easily call “progress” is always problematic. The word comes trippingly to the tongue, but when you examine what it means, you discover that technology is always a Faustian bargain. It giveth and it taketh away. And we would all be clearer about what we are getting into if there were less cheerleading about, let us say, the use of computers in the classroom and more sober analysis of what may be its costs intellectually and socially.
A second point my Honda story illuminates is that new technologies may not always solve significant problems or any problem at all. But because the technologies are there, we often invent problems to justify our using them. Or sometimes we even pretend we are solving one problem when, in fact, the reason for building and employing a new technology is altogether different. There are two expensive examples I can think of on this point. The first concerns the construction of the superconducting supercollider in Texas. It was justified by no less a person than Stephen Hawking, who told us that the research the supercollider would permit would give us entry to the mind of God. Since Hawking is an avowed atheist, he cannot possibly believe this; but even if he were not, it is equally sure he does not believe it. Nonetheless, it was good public relations. A Christian nation would be likely to go for it (though its Congress, after a $2 billion investment, did not), since the mysterious ways of the Lord have always been a serious problem for most of us. This is not to say that there aren’t some interesting problems in cosmology that the supercollider might have solved. But since the people who would have been required to pay for this machine did not have any background or interest in these problems, it was best to talk about the mind of God.
The second example is the information superhighway that President Clinton and especially Vice President Gore are so ardently promoting. I have not yet heard a satisfactory answer to the question “What is the problem to which this $50 billion investment is the solution?” I suspect that an honest answer would be something like this: “There is no social or intellectual problem, but we can stimulate the economy by investing in new technologies.” That is not at all a bad answer, but it is not the answer the vice president has given. He is trying to sell the idea by claiming that it solves the problem of giving more people greater access to more information faster, including providing them with 500 TV channels (or even a thousand).
This leads me directly to the question of schools and technology. In reading Lewis Perelman’s book, School’s Out,* and the work of those who are passionate about the educational value of new technologies, I find that their enthusiasm is almost wholly centered on the fact that these technologies will give our students greater access to more information faster, more conveniently, and in more various forms than has ever been possible. That is their answer to the question “What is the problem to which the new technologies are the solution?” I would suggest a modification of the question by putting it this way: “What was the 19th-century problem to which these technologies are an irrelevant solution?” By putting it this way, I mean to say that the problem of getting information to people fast and in various forms was the main technological thrust of the 19th century, beginning with the invention of telegraphy and photography in the 1840s. It would be hard not to notice that the problem was solved and is therefore no longer something that any of us needs to work at, least of all, become worked up about. If anyone argues that technology can give people access to more information outside of the classroom than could possibly be given inside the classroom, then I would say that has been the case for almost 100 years. What else is new?
In other words, the information-giving function of the schools was rendered obsolete a long time ago. For some reason, more than a few technophiles (like Perelman) have just noticed this and are, in some cases, driven to favor eliminating our schools altogether. They err in this, I think, for a couple of reasons. One is that their notion of what schools are for is rather limited. Schools are not now and in fact have never been largely about getting information to children. That has been on the schools’ agenda, of course, but has always been way down on the list.
One of the principal functions of school is to teach children how to behave in groups. The reason for this is that you cannot have a democratic, indeed, civilized, community life unless people have learned how to participate in a disciplined way as part of a group. School has never been about individualized learning. It has always been about how to learn and how to behave as part of a community. And, of course, one of the ways this is done is through the communication of what is known as social values. If you will read the first chapter of Robert Fulghum’s All I Ever Really Needed to Know I Learned in Kindergarten, you will find an elegant summary of the important business of schools. The summary includes the following: Share everything, play fair, don’t hit people, put things back where you found them, clean up your own mess, wash your hands before you eat, and, of course, flush. The only thing wrong with Fulghum’s book is that no one has learned all these things, along with an affection for one’s country, at kindergarten’s end. We have ample evidence that it takes many years of teaching these values in school before they have been accepted and internalized. Some would say that this function of schooling is the most difficult task educators must achieve. If it is not, then the function of providing the young with narratives that help them to find purpose and meaning in learning and life surely is.
By a narrative I mean a story of human history that gives meaning to the past, explains the present, and provides guidance for the future. If there is a single problem that plagues American education at the moment, it is that our children no longer believe, as they once did, in some of the powerful and exhilarating narratives that were the underpinning of the school enterprise. I refer to such narratives as the story of our origins in which America is brought forth out of revolution, not merely as an experiment in governance but as part of God’s own plan—the story of America as a moral light unto the world. Another great narrative tells of America as a melting pot where the teeming masses, from anywhere, yearning to be free, can find peace and sustenance. Still another narrative—sometimes referred to as the Protestant Ethic—tells of how hard work is one of the pathways to a fulfilled life. There are many other such narratives on which the whole enterprise of education in this country has rested. If teachers, children, and their parents no longer believe in these narratives, then schools become houses of detention rather than attention.
What I am driving at is that the great problems of education are of a social and moral nature and have nothing to do with dazzling new technologies. In fact, the new technologies so loudly trumpeted in TECHNOS and in other venues are themselves not a solution to anything, but a problem to be solved. The fact is that our children, like the rest of us, are now suffering from information glut, not information scarcity. In America there are 260,000 billboards, 17,000 newspapers, 12,000 periodicals, 27,000 video outlets for renting tapes, 400 million television sets, and well over 400 million radios, not including those in automobiles. There are 40,000 new book titles published every year, and every day in America 41 million photographs are taken. And, just for the record (thanks to the computer), over 60 billion pieces of advertising junk mail come into our mailboxes every year. Everything from telegraphy and photography in the 19th century to the silicon chip in the 20th has amplified the din of information. From millions of sources all over the globe, through every possible channel and medium—light waves, air waves, ticker tapes, computer banks, telephone wires, television cables, satellites, and printing presses—information pours in. Behind it in every imaginable form of storage—on paper, on video and audio tape, on disks, film, and silicon chips—is an even greater volume of information waiting to be retrieved. Information has become a form of garbage. It comes indiscriminately, directed at no one in particular, disconnected from usefulness. We are swamped by information, have no control over it, and don’t know what to do with it.
And in the face of all of this, there are some who believe it is time to abandon schools.
Well, if anyone is wondering whether or not the schools of the future have any use, here is something for them to contemplate. The role of the school is to help students learn how to ignore and discard information so that they can achieve a sense of coherence in their lives; to help students cultivate a sense of social responsibility; to help students think critically, historically, and humanely; to help students understand the ways in which technology shapes their consciousness; to help students learn that their own needs sometimes are subordinate to the needs of the group. I could go on for another three pages in this vein without any reference to how machinery can give students access to information. Instead, let me summarize in two ways what I mean. First, I’ll cite a remark made repeatedly by my friend Alan Kay, who is sometimes called ‘the father of the personal computer.’ Alan likes to remind us that any problems the schools cannot solve without machines, they cannot solve with them. Second, and with this I shall come to a close: If a nuclear holocaust should occur some place in the world, it will not happen because of insufficient information; if children are starving in Somalia, it’s not because of insufficient information; if crime terrorizes our cities, marriages are breaking up, mental disorders are increasing, and children are being abused, none of this happens because of a lack of information. These things happen because we lack something else. It is the ‘something else’ that is now the business of schools.” Neil Postman, “Of Luddites, Learning, & Life;” Technos Quarterly, Winter, 1993
Numero Cuatro—“Early Years
At first, the lives of servants and slaves were similar. They were owned by their masters and they worked shoulder to shoulder in the tobacco fields—sometimes even alongside their masters and their masters’ wives. Masters often used the courts to discipline their servants. The English common law, though only sparingly enforced, was meant to protect servants and slaves from mistreatment.
Still, blacks and whites sought relief from their often grueling labor and difficult work conditions by running away, sometimes together. In July 1640, two such cases appeared before the colony’s judges. The decision dated July 9 describes three servants belonging to Hugh Gwyn who ran away to Maryland and were captured there. Victor, ‘a Dutchman,’ and James Gregory, ‘a Scotchman,’ were each sentenced to be whipped, and four years were added to their indentures. The third servant, ‘a negro named John Punch,’ was punished differently. Rather than take on additional years, he was made a slave for life. Scholars have argued that this decision represents the first legal distinction between Europeans and Africans to be made by Virginia courts.
In the second case, dated July 22, six white servants and a black man were caught running away, and their punishments varied. While four of the servants received lesser sentences, the other two were ordered whipped and branded on the cheek with the letter R, and several years were added to their indentures. One of these men was also sentenced to work for a year with a leg shackle. “Emanuel the Negro” suffered the same harsh sentence (and was also assigned a leg shackle), but because he presumably was a slave, he did not receive added years.
Three years later, the problem of fugitive servants still vexed Virginia landowners. During its March 1643 session, the General Assembly reacted to what it termed the “divers loytering runaways in the collony who very often absent themselves from their masters service.” The actions of these servants cost their owners time—”sometimes in two or three monthes [the servants] cannot be found”—and, most important, money: “Whereby their said masters are at great charge in finding them, And many times even to the loss of their year’s labour before they be had.” As such, the legislators enacted a law that added to each captured runaway’s indenture double the time gone. Those caught a second time would receive the branded R in the fashion of “Emanuel the Negro.” And any runaway carrying “either peice, powder and shott, And leave either all or any of them with the Indians,” on conviction, would “suffer death.”
By carefully studying Virginia’s laws, historians have been able to track the continuing problem of runaway servants and slaves. During the General Assembly’s March 1661 session, for instance, lawmakers addressed the circumstance of “English running away with negroes.” Landowners saw blacks and whites working together as threatening because slaves had less to lose if caught. Pressure could be exerted on white servants, who still had a chance at legal freedom. If caught, the servants “shall serve for the time of the said negroes absence as they are to do for their owne by a former act.” This former act, presumably from 1643, called for captured runaways to serve double the time gone; this new act now added additional time for every slave involved.
In September 1663, lawmakers worried about the “unlawful meetings of servants,” and directed masters to “take especiall care that their servants doe not depart from their houses on Sundayes or any other dayes without particular lycence from them.” This action foreshadowed a 1680 law, aimed at preventing “Negroes Insurrections,” that begins by noting “the frequent meeting of considerable numbers of negroe slaves under pretence of feasts and burialls,” suggesting this to be “of dangerous consequence.” The concern was that, if allowed to meet with one another and move freely, servants and slaves were more likely to hatch plots, run away, or even rise up.
In asking masters to “take especiall care,” however, the language of the 1663 act suggests that strict enforcement was not an option for the Virginia government. And in October 1669, still another law was passed, this one complaining that the previous laws “have hitherto in greate parte proved ineffectuall.” This was not due to poor enforcement, according to the burgesses, but to “the wickednesse of servants who at and before their arrivall plott and contrive how they may ffree themselves from their master.” To be sure, there was wickedness to go around: the lawmakers rued those members of the community who, rather than capture runaways, actually helped them. The socioeconomic differences between master and servant were not so stark as they would become later, and servants sometimes found allies among the unindentured. As a result, the new law called for a reward of a thousand pounds of tobacco to anyone who apprehended a fugitive, to be repaid by the servant through his or her own additional service. This, the act’s authors hoped, would discourage runaways “when they know soe many spies are upon them.”
It didn’t. A year later the burgesses revised the law when the reward was deemed too steep for the colony’s coffers. (A large number of runaways may have created a large number of reward claims, prompting complaints.) Rather than a thousand pounds of tobacco, slave- and servant-catchers now would receive two hundred pounds. And rather than be branded, a repeat offender instead would be “enjoyned and commanded to keepe his haire close cut,” and his master fined for putting the colony to the trouble of catching him. In addition, captured runaways were to be whipped by each county sheriff who assumed even temporary custody of the servant or slave on his way back home; the farther fugitives ran, in other words, the harder it was on them if they were caught.
Servants and slaves ran away for a number of reasons. Some fled physically or sexually abusive masters; others meant only to take a break from work or to visit friends. Some left in search of family members from whom they had been separated. Still others were enticed away by other landowners looking to steal their labor. During the summer of 1640, a servant boy named Thomas Wood died, and a subsequent investigation revealed him to have been regularly beaten and whipped by his master, Peter Walker, and Walker’s hired hand, Samuel Lucas. As a result, Wood ran away several times, but each time he was caught and the beatings continued. Witnesses at the inquest suggested that Wood’s treatment was typical for a boy his age, and the court agreed with Walker’s claim that his servant died of disease. His corpse, the court ruled, appeared just as “anie man might be dyeinge of the Scurvey beinge much swelled.”
Late in 1654, “John Casor Negro” fled the service of Anthony Johnson, preferring to work for one of Johnson’s neighbors, Robert Parker. Once away from Johnson, Casor claimed that his master had held him as a slave when he actually was an indentured servant. On March 8, 1655, the Northampton County court ruled in favor of Johnson, who was himself African. At this time, his racial identity didn’t matter as much as his status as a law-abiding landowner. The court ruled that Parker “most unjustly kept” Casor, ordering him to return the slave and even pay Johnson his court costs.
Servants who fled by land were forced to contend with Tidewater Virginia’s wide rivers and often dangerous Indians. One servant, seeking some advantage prior to his escape attempt in 1638, tried to purchase from his master’s son “a booke to learne to speake the Indyan tongue.” Other servants who were experienced on the water stole boats. Most headed north to Maryland, but many others sought to make it as far as New Netherland or New England. Some went south. In 1681, Thomas Culpeper, second baron Culpeper of Thoresway, described North Carolina as “the sink of America, the refuge of renegades.” Masters who could afford it mounted large, expensive search parties. In 1663, seven servants belonging to Edmund Scarborough of Accomack County stole horses, food, clothing, guns, sails, and a boat, and escaped. Scarborough hired twelve men and, for eight days each, two boats to find them. They did, but two of the servants ran away again soon thereafter. On rare occasions, masters paid Indians to find and return runaways.
After Bacon’s Rebellion (1676–1677)
In 1676, Nathaniel Bacon led a rebellion against the colonial government that was fueled by fear and hatred of Indians. Although Bacon served on the governor’s Council and was one of the richest men in the colony, his followers included large numbers of disaffected servants, both black and white. Not long after the rebellion, the number of white indentured servants began to drop and the number of enslaved Africans to increase greatly. At the same time, Virginia began to pass laws that instituted much more rigid distinctions between white and nonwhite, free and slave.
Some scholars have argued that the rebellion forced Virginia’s landowners to acknowledge the danger of a large population of restive servants in their midst, a danger they addressed by relying more on the labor of slaves, whom they considered to be safer. Slaves, after all, were less likely to become free and take up arms against the colony. Other scholars have suggested that the move to slave labor should be linked more to economic than to social causes, but either way, slaves continued attempting to win their freedom by running away.
Virginia landowners found runaway slaves to be more manageable than servants. Because their condition came to be defined by the color of their skin, slaves were more easily identified and captured. For that reason, the law no longer found it necessary to threaten branding or to “enjoyn” offenders to keep their hair cropped short. In addition, slaves were much less likely than servants to find allies outside their masters’ properties, especially in a society primed, as Virginia was, for racial animus. By this time, too, the socioeconomic gulf between rich planters and their servants had widened; by the beginning of the eighteenth century, Virginia was run by an elite planter class. Finally, when nearly all blacks were enslaved, few could do as “John Casor Negro” did in 1654 and attempt to pass for anything other than a slave.
In October 1705, the General Assembly passed a sweeping law entitled “An act concerning Servants and Slaves” that summarized and codified previous laws defining bound labor in Virginia. Regarding runaways, the law called for rewards for their capture (two hundred pounds of tobacco if the slave or servant was ten miles or more from home, one hundred pounds if between five and ten miles), lashes by their various legal custodians on the way home, and stiff penalties for any sheriff who allowed the runaways to escape. The law restricted the movement of slaves by requiring “certificates of leave in writing” and limiting their visits to other plantations to four hours “without the leave of such slave’s master, mistress, or overseer.”
Servants were protected from “immoderate correction”; the law forbade masters to “whip a christian white servant naked, without an order from a justice of the peace.” For slaves, however, the concept of immoderate correction did not seem to exist. Should a slave “happen to be killed in such correction, it shall not be accounted felony”; in fact, the law would treat it “as if such incident had never happened.” Landowners were particularly concerned about slaves that, in the past, had “run away and lie out, hid or lurking in swamps woods and other obscure places, killing hogs, and committing other injuries” to the local populace. To deal with these “outlyers,” as they were called, local justices were empowered to issue proclamations that allowed any inhabitant “to kill and destroy such slaves by such ways and means as he, she, or they shall think fit,” regardless of whether the slaves resisted, and “without accusation or impeachment of any crime for the same.” And lest anyone hesitate to kill over worries about a slave’s monetary value, “the master or owner of such slave shall be paid by the public.”
The law authorized nonlethal punishments as well, the most notable being the “dismembering” of slaves. In 1707, Robert “King” Carter, one of the colony’s wealthiest landowners, asked permission to chop off the toes of “two Incorrigible negroes” named Bambarra Harry and Dinah. Although gruesome, the punishment must have worked, because Carter again obtained court permission in 1725 to dismember two more slaves, Will and Bailey. Still, in 1727, runaways continued to plague Carter. In a letter to one of his property managers, dated October 10, he expressed hope that one slave woman will stay at home “for now she hath tasted of the hardship of the woods.” The slave Ballazore, by contrast, “is an incorrigeable rogue[;] nothing less than dismembering will reclaim him[.] I would have you outlaw him and get an order of court for taking off his toes[;] I have cured many a negro of running away by this means.”
In 1717 Parliament passed a convict transportation act, establishing a procedure by which people convicted of capital crimes in Great Britain might have their sentences commuted to transportation to the colonies, where they would be sold for a term of service, usually fourteen years. Convicts long had been coming to Virginia, and they ran off in greater numbers than ordinary indentured servants.
With the publication of Virginia’s first newspaper, the Virginia Gazette, in 1736, owners began to place advertisements seeking the capture and return of runaway slaves and servants. The notices don’t cover all runaways; masters were more likely to pursue skilled slaves and servants, who were more valuable. Often runaways were captured within a week or two, thus making ads unnecessary. And the ads themselves represent the master’s point of view; their insight into motivations and purposes of flight is therefore suspect. Despite these caveats, the advertisements reveal a remarkable amount of detail about the lives of slaves and servants in colonial Virginia.
Richard Kibble, a convict servant who fancied himself a carpenter and joiner, first ran away from Augustine Washington of Prince William County in April 1738. He is described as being “a middle siz’d young fellow” with a tattoo of a woman and cherry tree on his chest. After he and a group of other servants stole a boat, he somehow made his way back to England, was convicted again “upon Six new Indictments,” and transported back to Virginia. Then, after only three days, he ran away again. He was hanged in England early in the 1740s. Another servant, John Hunter, was described in 1775 as one who “speaks very quick, and has a comical, sly, squinting look, and a bushy head of hair.”
For runaway slaves, the amount of information in the newspaper advertisements is even more striking. Physical characteristics, family ties, the remarkable amount of skills that slaves practiced, and even some degree of motivations of runaways are revealed in the ads. The twenty-two-year-old slave Peter Deadfoot forged a pass to escape from Thomas Mason, brother of George Mason, in 1768. Deadfoot was described as a “tall, slim, clean limbed, active, genteel, handsome fellow, with broad shoulders.” He also, apparently, was a skilled butcher, ploughman, waterman, and scytheman: “in short, he is so ingenious a fellow, that he can turn his hand to anything.” This made him a particular danger, as his owners worried that “such a fellow would readily get employment” and pass as free.
While slave marriages were never recognized by law, their appearance in the advertisements provides telling evidence that masters recognized and allowed slave unions. Husband and wife Tony and Phillis, for example, ran away from master Cuthbert Bullit of Prince William County in 1770. Bullit thought they may have traveled to Lancaster County, where they both previously lived with former owners, or they may have gone to Culpeper, Frederick, or Augusta counties, where their several children had been “sold and dispersed.”
In 1769, Thomas Jefferson advertised for the return of his slave Sandy, whom he had hired to a neighbor. A shoemaker, horse jockey, and carpenter, Sandy nevertheless was ‘greatly addicted to drink,’ Jefferson wrote, ‘and when drunk is insolent, disorderly, in his conversation he swears much, and in his behaviour is artful and knavish.’ Sandy was caught and subsequently sold.
Between 1736 and 1783, landowners advertised in the Virginia Gazette for more than 3,500 fugitive runaways. These advertisements illustrate the slaves’ unceasing desire for freedom. They continued to flee until the institution was abolished at the conclusion of the American Civil War in 1865.” Tom Costa, “Runaway Slaves & Servants in Colonial Virginia;” Encyclopedia of Virginia, 2011