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