Torts, as a distinct subject," says Professor Jaggard, in the preface to his Hand-book of the Law of Torts, published in 1895, "was a few years ago a matter of ridicule. . . . The theory of Torts was essentially terra in cognita until the contributions of Oliver Wendell Holmes, Jr., appeared on the subject." These contributions began soon after Mr. Holmes came to the bar. An article from his pen, entitled "The Theory of Torts" appeared in 1873, in the July number of the American Law Review. From time to time other articles explained and amplified the first. In his Lowell Institute lectures, Mr. Holmes developed the general theory of Torts at length, with great wealth of histori cal illustration. Finally, in The Common Law he said: "The theory of torts may be summed up very simply. At the two ex tremes of the law are rules determined by policy without reference of any kind to mo rality. Certain harms a man may inflict even wickedly; for certain others he must answer, although his conduct has been prudent and beneficial to the community. But in the main the law started from those intentional wrongs which are the simplest and most pro nounced cases, as well as the nearest to the feeling of revenge which leads to self-redress. It thus naturally adopted the vocabulary, and to some degree, the tests, of morals. But, as the law has grown, even when its stand ards have continued to model themselves upon those of morality, they have necessarily become external, because they have con sidered, not the actual condition of the partic ular defendant, but whether his conduct would have been wrong in the fair average member of the community, whom he is ex pected to equal at his peril. In general, this question will be determined by considering the degree of danger attending the act or conduct under the known circumstances. If there is danger that harm to another will follow, the act is generally wrong in the sense of the law." With comparatively un
important exceptions, "the known tendency of the act under the known circumstances to do harm may be accepted as the general test of conduct. The tendency of a given act to cause harm under given circumstances must be determined by experience." And on an other page Mr. Holmes said: "The growth of the law is very apt to take place in this way. Two widely different cases suggest a general distinction, which is a clear one when stated broadly. But as new cases cluster around the opposite poles, and begin to ap proach each other, the distinction becomes more difficult to trace; the determinations are made one way or the other on a very slight preponderance of feeling, rather than of articulate reason; and at last a mathematical line is arrived at by the contact of contrary decisions, which is so far arbitrary that it might equally well have been drawn a little farther to the one side or to the other, but which must have been drawn somewhere in the neighborhood of where it falls." Sir Frederick Pollock begins his treatise on "The Law of Torts," published in 1886, with an introductory letter to Mr. Justice Holmes, in the course of which he claims his friend's good will, "because the purpose of this bookis to show that there really is a Law of Torts, not merely a number of rules of law about various kinds of torts-—that this is a true liv ing branch of the Common Law, not a col lection of heterogeneous instances." "You will recognize in my armoury," continues Sir Frederick, "some weapons of your own forg ing, and if they are ineffective, I must have handled them worse than I am willing, in any reasonable terms of humility, to suppose." While the two writers on Torts just named and many others, in books and in the schools of law, have industriously developed, illus trated, amplified, the general theory of torts which Mr. Holmes was the first to state artic ulately, Judge Holmes himself, in the thick of the fight, has again and again brought the general theory to the test of actual decision.
