ABSTRACT

In assessing the evolution of the law as of a life it is a mistake, as Oliver Wendell Holmes observed in The Common Law, to start with the man full grown. But it is a mistake that any historical assessment, of an individual or a nation, finds hard to avoid. In Holmes case, the problem is particularly acute.The mysteries of our lives and of ourselves resolve themselves very slowly with the progress of the years", Holmes father had once observed. "Every decade lifts the curtain, which hides us from ourselves, a little further, and lets a new light upon what was dark and unintelligible". But what was a gradual process for Holmes becomes a finished project for the historian, and the danger of too readily reading backwards from the Supreme Court to antebellum Boston is acute; equally risky, however, is the danger of reading forwards, tracing a smooth trajectory that actually proceeded by fits and starts.