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Massachusetts Historical Review
The Massachusetts Historical Review (MHR) publishes essays, photo-essays, historical documents, and review articles each autumn. Every issue offers pieces rich in narrative detail and thoughtful analysis, prepared for all readers interested in the history of the Commonwealth, from its settlement to the 21st century.
Beginning with a new series in 2021, each issue of the MHR will focus on a specific theme connected with Massachusetts history, although essays in the volume need not be limited to Massachusetts or New England topics. See Submissions at bottom of page for more information.
Harvard Law Review/Volume 10/The Path of the Law
published in Harvard Law Review, Vol. 10, pp. 457-478.
W hen 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 forsees 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 text-books, 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 to 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 business-like 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 stage 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 should 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 whatnot, 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 his 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 being taxed a certain sum for doing a certain thing? That his point of view is the test of legal principles is shown 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 the 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 other cases, I am content to abide with him. In Bromage v. Genning,  a prohibition was sought in the King's 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 Harris 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 you 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 the known circumstances was very plainly to cause the plaintiff temporal harm. 
In the law of contract the use of moral phraseology has 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 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 neighbor? 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 to-day 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 the question how far it is desirable that the public should insure the safety of those 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. Tarde, 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, toward 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 black-letter 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 wrongdoer gets possession by a trick or device, the crime is committed. This really was giving up the requirement of a 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 there is a general theory to be discovered, although resting in tendency rather than established and accepted. 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 have 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 could 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 this 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 to-day. 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 to 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 had 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 text-books. 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 be explained. If any one doubts me, let him read Keller's "Der Römische Civil Process und die Actionen," a treatise on the prætor's edict, Muirhead's most interesting "Historical Introduction to the Private Law of Rome," and, to give him the best chance possible, Sohm'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 of 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 the 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 to-day 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 beside 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.
How’s the design of the Redmi Note 10?
There’s something to be said about Xiaomi’s constant iterations with design. Gradients are passé, and the Redmi Note 10 ushers in a design language that is supremely clean, and chic.
The Redmi Note 10 eschews the glass back for plastic owing to its budget positioning but nowhere does it look or feel cheap. In fact, I’d go as far as saying that this is the best-looking phone in the budget segment, despite the plastic mid-frame and back panel. There’s no sign of flex and the matte finish looks gorgeous — especially in white. Elsewhere, the camera island doesn’t stand too proud of the frame, and the dual-tone finish adds to the pleasing aesthetics.
Like most Redmi phones, the button layout and port selection are more than adequate for the money. Of note is a USB-C port and a 3.5mm audio jack, as well as stereo speakers.
The speakers stood out to me for the overall volume as well as the well-balanced setup. There’s not much bass, but that’s to be expected at this price. More importantly, vocals tend to distort at the top 20% of the volume. Anything below that will do just fine.
The Redmi Note 10 also has an IP53 rating for splash resistance — a rare and very welcome addition at this price point.
I like that Xiaomi has opted for side-mounted fingerprint scanners for much of its current mid-range portfolio. These tend to be a lot more reliable than cheap in-display scanners. That continues to be the case here, and I had no issues at all during my time with the phone. The side-mounted scanner successfully unlocked the phone each and every time.
The switch over to an OLED panel on the front has done wonders for this year’s standard Redmi Note phone. The Redmi Note 10 packs a 6.43-inch Super AMOLED Full HD+ screen that looks glorious. It’s also protected by Gorilla Glass 3 for scratch resistance.
The lack of a high refresh rate panel is questionable at a glance. After all, other budget phones like the Poco X3 have started pushing 120Hz refresh rates. However, many of these devices ship with IPS LCD displays instead of the high-quality AMOLED you get with the Redmi Note 10. We’re still a ways from getting a high refresh rate AMOLED panel in this category, and the one here should please most users even at 60Hz.
The display has excellent contrast and saturation levels with a very accurate tuning with the natural preset activated. Claimed brightness levels go as high as 1100nits, though I found that to be inaccurate. In my testing, I found the display to peak at about 650 nits which is still more than sufficient for outdoor viewing. The only real caveat here is the lack of HDR support.
Overall, the Redmi Note 10 shows that Xiaomi means business, and unlike some competing phones, it is willing to go the extra mile to deliver quality and polish in the design stakes.
The 10 Best Books of 2017
The year’s best books, selected by the editors of The New York Times Book Review.
The extraordinary friendship of an elderly songwriter and the precocious child of his single-parent neighbor is at the heart of this novel that darts back and forth through the decades, from the 1960s to the era of Brexit. The first in a projected four-volume series, it’s a moving exploration of the intricacies of the imagination, a sly teasing-out of a host of big ideas and small revelations, all hovering around a timeless quandary: how to observe, how to be.
A deceptively simple conceit turns a timely novel about a couple fleeing a civil war into a profound meditation on the psychology of exile. Magic doors separate the known calamities of the old world from the unknown perils of the new, as the migrants learn how to adjust to an improvisatory existence. Hamid has written a novel that fuses the real with the surreal &mdash perhaps the most faithful way to convey the tremulous political fault lines of our interconnected planet.
Lee’s stunning novel, her second, chronicles four generations of an ethnic Korean family, first in Japanese-occupied Korea in the early 20th century, then in Japan itself from the years before World War II to the late 1980s. Exploring central concerns of identity, homeland and belonging, the book announces its ambitions right from the opening sentence: “History has failed us, but no matter.” Lee suggests that behind the facades of wildly different people lie countless private desires, hopes and miseries, if we have the patience and compassion to look and listen.
Grand Central Publishing. $27.
Alderman imagines our present moment &mdash our history, our wars, our politics &mdash complicated by the sudden manifestation of a lethal “electrostatic power” in women that upends gender dynamics across the globe. It’s a riveting story, told in fittingly electric language, that explores how power corrupts everyone: those new to it and those resisting its loss. Provocatively, Alderman suggests that history’s horrors are inescapable &mdash that there will always be abuses of power, that the arc of the universe doesn’t bend toward justice so much as inscribe a circle away from it. “Transfers of power, of course, are rarely smooth,” one character observes.
In her follow-up to “Salvage the Bones,” Ward returns to the fictional town of Bois Sauvage, Miss., and the stories of ordinary people who would be easy to classify dismissively into categories like “rural poor,” “drug-dependent,” “products of the criminal justice system.” Instead Ward gives us Jojo, a 13-year-old, and a road trip that he and his little sister take with his drug-addicted black mother to pick up their white father from prison. And there is nothing small about their existences. Their story feels mythic, both encompassing the ghosts of the past and touching on all the racial and social dynamics of the South as they course through this one fractured family. Ward’s greatest feat here is achieving a level of empathy that is all too often impossible to muster in real life, but that is genuine and inevitable in the hands of a writer of such lyric imagination.
If a science book can be subversive and feminist and change the way we look at our own bodies &mdash but also be mostly about birds &mdash this is it. Prum, an ornithologist, mounts a defense of Darwin’s second, largely overlooked theory of sexual selection. Darwin believed that, in addition to evolving to adapt to the environment, some other force must be at work shaping the species: the aesthetic mating choices made largely by the females. Prum wants subjectivity and the desire for beauty to be part of our understanding of how evolution works. It’s a passionate plea that begins with birds and ends with humans and will help you finally understand, among other things, how in the world we have an animal like the peacock.
Even those who think they are familiar with Ulysses S. Grant’s career will learn something from Chernow’s fascinating and comprehensive biography, especially about Grant’s often overlooked achievements as president. What is more, at a time of economic inequality reflecting the 19th century’s Gilded Age and a renewed threat from white-supremacy groups, Chernow reminds us that Grant’s courageous example is more valuable than ever, and in this sense, “Grant” is as much a mirror on our own time as a history lesson.
A former public defender in Washington, Forman has written a masterly account of how a generation of black officials, beginning in the 1970s, wrestled with recurring crises of violence and drug use in the nation’s capital. What started out as an effort to assert the value of black lives turned into an embrace of tough-on-crime policies &mdash with devastating consequences for the very communities those officials had promised to represent. Forman argues that dismantling the American system of mass incarceration will require a new understanding of justice, one that emphasizes accountability instead of vengeance.
Fraser’s biography of the author of “Little House on the Prairie” and other beloved books about her childhood during the era of westward migration captures the details of a life &mdash and an improbable, iconic literary career &mdash that has been expertly veiled by fiction. Exhaustively researched and passionately written, this book refreshes and revitalizes our understanding of Western American history, giving space to the stories of Native Americans displaced from the tribal lands by white settlers like the Ingalls family as well as to the travails of homesteaders, farmers and everyone else who rushed to the West to extract its often elusive riches. Ending with a savvy analysis of the 20th-century turn toward right-wing politics taken by Wilder and her daughter, Rose Wilder Lane, Fraser offers a remarkably wide-angle view of how national myths are shaped.
Metropolitan Books/Henry Holt & Company.
In this affectionate and very funny memoir, Lockwood weaves the story of her family &mdash including her Roman Catholic priest father, who received a special dispensation from the Vatican &mdash with her own coming-of-age, and the crisis that later led her and her husband to live temporarily under her parents’ rectory roof. She also brings to bear her gifts as a poet, mixing the sacred and profane in a voice that’s wonderfully grounded and authentic. This book proves Lockwood to be a formidably gifted writer who can do pretty much anything she pleases.
Current Issue: Second Series, Volume 2, Issue 4 (Fall 2014)
Founded in 1992, the Colonial Latin American Historical Review (CLAHR) is proud to present the Second Comprehensive lndex for volumes 11-17 of the First Series, representing the years 2002- 2008. During those years, CLAHR's staff edited 96 articles, 120 book reviews, and 325 book notes. The present Comprehensive lndex is designed as a finding aid for the many significant studies, individual contributors, topics, publications, and geographical references. Together with the first CLAHR Comprehensive Index that covered publications for volumes 1-10 during the period 1992-2001 the Second Comprehensive Index aims to facilitate accessibility to information found in CLAHR for researchers, students, and the general reader.
For 23 years, CLAHR owed its success to the support of our many authors, book reviewers, and, especially, peer reviewers who unselfishly gave of their time and expertise in assisting our editors. The many CLAHR supporters and subscribers deserve much credit for sustaining its publication. Similarly, CLAHR's international editorial board, whose members dedicated much time and energy toward collaborating, promoting, and participating in making CLAHR the top notch scholarly journal on Latin American colonial history, deserves much credit for their stellar dedication. Indeed, in that time, CLAHR has been one of the very few journals dedicated to Spanish colonial history and culture that has contributed toward a better understanding of our colonial heritage and culture shared throughout the Americas.
Although CLAHR ceased publication in 2015, those who contributed to its successes know that they inspired a resurgence of interest in colonial studies. Future plans discussed include the possibility of digitizing the entire 23-year run of CLAHR for future use by students, researchers, and the general reader. It is our hope that CLAHR will, in that way, continue to be an inspiration to future researchers and writers of our Latin American colonial past and its heritage.
The Innes Review is a fully peer-reviewed journal promoting the study of the history of Catholic Scotland. It covers all aspects of Scottish history and culture, especially ones related to religious history.
Published continuously by the Scottish Catholic Historical Association since 1950, it contains articles and book reviews on a wide field of ecclesiastical, cultural, liturgical, architectural, literary and political history from earliest times to the present day. It is named after Thomas Innes (1662-1744), a missionary priest, historian, and archivist of the Scots College in Paris whose impartial scholarship stood out amongst the denominational prejudices of the time.
Editors and Editorial Board
Dr John Reuben Davies (University of Glasgow)
Dr Linden Bicket (University of Edinburgh)
Dr Miles Kerr-Peterson (University of Glasgow)
Please send books for review to Miles Kerr-Peterson, c/o 45 Grovepark Street, Glasgow, G20 7NZ
Professor Dauvit Broun (University of Glasgow)
Professor S. J. Brown (University of Edinburgh)
Professor Thomas Owen Clancy (University of Glasgow)
Professor David N. Dumville (University of Aberdeen)
Professor John J. Haldane (University of St Andrews)
Professor Máire Herbert (University College, Cork)
Dr S. Karly Kehoe (Saint Mary's University, Canada)
Professor Michael Lynch (University of Edinburgh)
Professor Graeme Morton (University of Dundee)
Professor Clotilde Prunier (Université Paris Nanterre)
Dr Steven Reid (University of Glasgow)
Professor Daniel Szechi (University of Manchester)
Dr Eila Williamson (University of Glasgow)
The Scottish Catholic Historical Association promotes the study of Scotland's religious past in all its facets. It does this primarily through its journal The Innes Review which has been published continuously since 1950.
The Innes Review is dedicated to the study of the part played by the Catholic Church in the history of the Scottish nation. It is named after Thomas Innes (1662-1744), a missionary priest, historian and archivist of the Scots College in Paris whose impartial scholarship and helpful cooperation did much to overcome the denominational prejudices of his age.
The Scottish Catholic Historical Association holds annual conferences. Please click here for further information on the Association conferences. Previous conferences have focused on 'Glasgow - a story worth telling' (2008), 'Diaspora' (2009) and 'Liturgy and the Nation' (2010).'
Individual subscriptions to The Innes Review include membership of the Association. Click here for information on how to subscribe to the journal and join the Association.
Please click here for further information about the Scottish Catholic Historical Association.
How to use Windows 10's File History backup featureMichael Homnick/IDG
Picked by PCWorld's Editors
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Windows 10’s File History is an easy way to get started with backing up your personal files since it comes built-in to your system.
File History takes snapshots of your files as you go and stores them on an external hard drive either connected over USB or your home network. Over time, File History builds up a library of past versions of your documents that you can recover if need be. Say, for example, you really liked a paragraph from the first draft of an essay, but you deleted it long ago and are now battling regret. You can dip into File History, retrieve the right version of your document, and copy the paragraph.
Windows 10’s File History is an essential part of any PC backup strategy, but it’s only
Editor's choice: Best backup drive
one part. Ideally, you’d have your files in three places: the working copy on your internal hard drive, a local backup that you can access straight away, and a remote backup that keeps your files safe offsite. That way, if anything ever happens to your house such as a fire, flood, or tornado, the third copy is still safely tucked away in the remote location.
The easiest way to take care of the remote backup is to use an online backup service. We’ve got a separate article dedicated to reviews and purchasing advice for online backup. While you’re at it, check out our look at the best external drives for backup, storage, and portability to get a quality drive for your local File History backups.
To get started with File History in the latest version of Windows 10, open the Settings app and go to Update & Security > Backup.
File History before it’s activated in Windows 10.
Once you’re there, hook up your external hard drive to Windows and then in the Settings app click the “+” next to Add a drive. You’ll see a prompt to choose an external drive, choose the one you want, and that’s it. File History is now archiving your data. An on/off slider will now appear under a new heading called “Automatically back up my files.”
Click on More options to change File History’s defaults.
By default, Windows 10’s File History will back up all the folders in your User folder, back up your files every hour (as long as the backup drive is available), and keep past copies of your files forever. To change any of those settings click on More options under the on/off slider.
File History via the Settings app makes it easy to remove folders from your backup list.
The next screen you’re taken to is called Backup options. Right at the top is an option to start a manual backup, and below that are drop-down menus to adjust how often you’d like to run your backup with choices ranging from every 10 minutes to once a day. If your backup drive is low on space, you can avoid having File History bug you by clicking on the drop-down menu under Keep my backups and select Until space is needed.
To add a folder to your backup, click the “+” under Back up these folders. To remove a folder, scroll down to find it, click on it to highlight, and then click Remove.
Towards the bottom of this screen (not pictured) you can also create a list of folders to specifically exclude, or stop backing up to the currently selected drive and choose another one—you can only have one designated backup drive at a time.
Once File History is enabled, there’s a handy trick to access older versions of a file: Right-click on a file in File Explorer, and then select Restore previous versions. This is the same as right-clicking the file and going to the Properties > Previous Versions window.
Windows 10 is full of nifty little features like this. For more tips, check out our list of the best tricks, tips and tweaks for Windows 10.
Ian is an independent writer based in Israel who has never met a tech subject he didn't like. He primarily covers Windows, PC and gaming hardware, video and music streaming services, social networks, and browsers. When he's not covering the news he's working on how-to tips for PC users, or tuning his eGPU setup.
Vol. 115, No. 2, January 2021
- Remembering the Ste. Genevieve Race Riot of 1930: Historical Memory and the Expulsion of African Americans from a Small Missouri Town, By Patrick Huber
- “The Terrors and Trials of War”: The Civil War Papers of Henry and Cimbaline Fike, Edited and Annotated by Jeremy Neely and Trevor Martin
- Reconstructing the Founding of St. Louis, By Thomas C. Danisi
From the Stacks
Research Center–Cape Girardeau
- Commemorations of the Founding of Cape Girardeau: The Weiss Family Papers, Mary Jane Barnett Papers, and Eddleman Family Papers, By Bill Eddleman
- The Broken Heart of America: St. Louis and the Violent History of the United States, By Walter Johnson
Reviewed by Kevin Boyle
- Commonwealth of Compromise: Civil War Commemoration in Missouri, By Amy Laurel Fluker
Reviewed by Matthew E. Stanley
- Household War: How Americans Lived and Fought the Civil War, Edited by Lisa Tendrich Frank and LeeAnn Whites
Reviewed by Bonnie Laughlin-Schultz
- The Scourge of War: The Life of William Tecumseh Sherman, By Brian Holden Reid
Reviewed by Zachery A. Fry
- Boom and Bust in St. Louis: A Cardinals History, 1885 to the Present, By Jon David Cash
Reviewed by Benjamin G. Rader
- The Missouri-Illinois Railroad: Missouri Pacific’s Route through the Lead Belt and Little Egypt, By Charles A. Duckworth
- Missouri: An Illustrated Timeline, 200 Years of Heroes and Rogues, Heartbreak and Triumph, By John W. Brown
- Unwanted Spy: The Persecution of an American Whistleblower, By Jeffrey Sterling
- Becoming Truman: 26 Years of Impersonating Our 33rd President, By Niel M. Johnson
- Route 66 in Missouri, By Joe Sonderman
- St. Louis Jazz: A History, By Dennis C. Owsley
- Sedalia, By Rebecca Carr Imhauser
News in Brief
Rocheport View, by Robert F. Bussabarger (1922–2013). Oil on hardboard, c. 1990. Gift of the Estate of Robert F. Bussabarger. [SHSMO Art Collection, 2016.0277]
Childhood and child labour in the British industrial revolution †
Quantitative and qualitative analysis of a large number of autobiographies by working men who lived through the industrial revolution has demonstrated that there was an upsurge in child labour in the late eighteenth and early nineteenth centuries with children's work entrenched in traditional sectors as well as spreading in newly mechanized factories and workshops. I have interpreted this rise in terms of the appearance of a new equilibrium in the early industrial economy with more and younger children at work. The new equilibrium, in turn, was related to a number of co-incidental developments including: an increase in the relative productivity of children as a result of mechanization, new divisions of labour, and changes in the organization of work the dynamics of competitive dependence linking labour market and families high dependency ratios within families stumbling male wages and pockets of poverty family instability and breadwinner frailty. The establishment of these links forges a new synchronization between revised views of the industrial revolution and a revisionist history of child labour.
The West Virginia Law Review is a professional, student-governed legal journal that publishes articles of interest to legal scholars, students, legislators, and members of the practicing Bar.
The publication, which includes notes, comments, and articles of scholarly and practical value to the legal community, is published by a student editorial board three times per year.
Founded in February 1894 by West Virginia University College of Law Professor William P. Willey, under the name The West Virginia Law Review is the fourth oldest law review in the country. Only the law reviews of the Harvard Law School (1887), University of Pennsylvania (1852), and Yale University (1891) have an older lineage.
Professor Willey served as editor-in-charge from 1894 until his retirement in 1917, working closely with the editorial board of the West Virginia Bar Association. According to the “Forward” in Volume 25, at the time of Professor Willey’s retirement in June 1917, serious consideration was given to continuing publications of the West Virginia Law Quarterly and THE BAR.
The resignation of Professor Willey as editor of THE BAR in June 1917 made it necessary for The West Virginia Bar Association to decide at its July 1917 meeting whether to discontinue the further publication of THE BAR or to secure other editors. After careful consideration, and in accordance with the report of a special committee which had been appointed at the previous meeting to consider and report upon the question, it was decided to transfer the editorial work of THE BAR to the faculty of the College of Law and to change the official organ of the Association to a quarterly law magazine.
Professor Willey was succeeded by an editorial board consisting of the entire faculty of law ex officio, with associate Bar Association editors, followed, in turn, by individual editors-in-charge of the highest professional reputation.
During Professor Willey’s tenure, student participation was introduced in Volume 22. Then, beginning with Volume 27 in 1920-21, a chairman of the Student Board of Editors was designated. From 1931-32 through 1934-35, Volumes 38-41, a president of the Student Board of Editors was named, followed by a president of the Association of Student Editors, which began in 1935-36 and continued through 1950-51, Volumes 42-53. In the 1951-52 school year, the first student editor-in-chief of the West Virginia Law Review was named.
With the publication of Volume 52 in 1949-50, the name West Virginia Law Quarterly and THE BAR was changed to the West Virginia Law Review, which continues today.
Read inReview, the newsletter of the West Virginia Law Review.