in a hurry, but always making steady progress with whatever he had before him. His wonderful physique enabled him to pursue successfully his varied activities. After he retired from teaching in 1913 he told me that until he had passed the age of seventy he never saw any occasion to change the habits of life which he had formed at thirty; that he had been able to work as he liked, eat as he liked, smoke as he liked and go to bed only when he chose. A reasonable temperance doubtless guided him in these matters, but he certainly could and did frequently, if not habitually, work all day and read literature which was not generally of the lightest variety during a long evening.

At the death of Professor Thayer in 1902, Gray, while retaining his advanced course on Property, dropped his other two courses and took up the subjects of Evidence and of Constitutional Law, which Thayer had made his own. This change from his own specialty to another man's shows Gray's persistent desire for a broad field of knowledge. He was past sixty at the time, an age when most men are content to remain in the grooves they have worn for themselves. It was especially remarkable, since Gray's activities in Boston were increasing rather than diminishing. Ropes had died, and Loring had gone on the Supreme bench, and more heavy trusts had come into Gray's hands. Another striking illustration of the same tireless search for knowledge is his attendance eight years later on a course in Roman Law given by a junior colleague, same man to whom Gray had recommended Sohm's "Institutes," twenty years before. With all his activities, Gray carried out what he undertook. His judgment of his own capacity and possibilities was as sound as if he had been gauging another's, and wide as was the orbit in which he moved, it was justly calculated.

the

Shortly after Professor Thayer's death, a portrait of him was presented to the Law School, and Gray received it on behalf of the School. In the course of the few remarks he made upon the occasion he spoke somewhat as follows: "There is an old saying that 'manners makyth man,' and I have always thought that Professor Thayer had the best manners of any man I have ever known. He would have been at his ease if sitting at table between the Pope of Rome and the Czar of all the Russias, and he was equally at his ease in talking with the shyest of young men without condescension and without strained familiarity.”

What Gray truly and gracefully said of his colleague might equally well have been said of himself. His simple, direct, and kindly manner was the same to everybody, and the form and substance of his speech was fit for any company. His large tolerance also makes his added words of Thayer applicable to himself.

"He was the best type of a New Englander, without the creaking of the joints that sometimes marks and mars that estimable personage. It has been said that the difference between a good Bostonian and a good Philadelphian is that the Bostonian thinks everything wrong that is not right, and the Philadelphian thinks everything right that is not wrong. In this matter, Mr. Thayer was of the Philadelphian school."

Though his success in the world of affairs, great as it was, might undoubtedly have been vastly increased had he given his whole time to practical matters, he never seems to have even considered surrendering his professorship. In the last conversation I had with him he said: "I cannot imagine any more delightful work than teaching intelligent young men things which you know and which they do not know but desire to know."

Early in the year 1913 he had a sharp illness, and never regained his physical strength, though his mind remained clear and active till the end. To many men who have enjoyed robust health and great capacity for work the sudden deprivation of these accustomed blessings comes with such crushing force as to be almost insupportable. Gray, however, showed the same calm philosophy which was characteristic of him throughout his life. To one who ventured a few words of sympathy for his lessened activity, he replied merely, "It is wonderful how the back accommodates itself to the burden."

The last time I saw him was but a few weeks before his death. He had then for months been unable to get about much, and except for a drive on pleasant days was mostly confined to his room. His manner, however, was the same as ever, his intellectual interests as keen; he was planning a little further revision of his lectures on Jurisprudence. He said nothing of his disabilities, nor betrayed by manner or expression that his lot had become a hard one. The courage he showed in the Civil War half a century before did not desert him.

Samuel Williston.

A typical man of law, on whose face wisdom, judgment, probity were joined with good sense, coolness and logical precision; this was Gray as we saw him first in the professor's chair, and we never needed to revise this impression. The qualities that further acquaintance showed us were the qualities of the man, courtesy, kindliness, wit, consideration for others.

In those days, when Austin Hall was still very new, Gray had not yet accepted the study of cases as the basis of instruction. He gave out weekly a list of authorities to be consulted, and then in class lectured to us with a clearness, precision, and perfection of form that was all his own. His mind was well adapted to teaching law in this way: his sense of form and proportion, his skill in exposition, his certainty of using just the right word, made even Formedon in Reverter and the Statute of Uses as interesting as Ashwell's case or the "last clear chance." During the first ten minutes of a lecture he was in the habit of giving a summary of the preceding lecture, and these summaries were far from the least instructive parts of his lectures. It is hard to see how his method of instruction could have been improved by the use of a case book, though he himself was already coming to believe that the use of a case book was the only satisfactory method of study from the student's point of view. A few years later he prepared his own series of books, and he became one of the most vigorous and effective defenders of Langdell's system of instruction.

Probably his most striking characteristic as a lawyer and teacher of law was the authority with which he spoke. It never occurred to any of his students that there could be a doubt about his conclusions. His partner Ropes is reported to have said that "John Gray's mind is a logical machine; you put your facts in the hopper and the correct legal conclusion will come out." In his latter days, at least, more than one court of supreme jurisdiction seemed to hang upon his words with the same sense of conviction as if it had been his class in Property. His counsel was sought in all sorts of affairs. Testators and clergy accused of heresy, cotton mills and colleges, millionaires and poor widows in trouble, came to him for advice, and his opinion seldom proved wrong. It used to be said of his "Restraints on Alienation" that Gray lost a case and wrote a book to prove that the court erred. He perhaps lost other cases; sed quaere.

The exact precision of his mental processes was illustrated in his lectures. Year after year he began and ended in precisely the same place. One mark in his case book served to mark the stopping place of each lecture, though he used the book for fifteen years. He lectured for two years, in the early seventies, on the Conflict of Laws. The manuscript of his lectures, written in his neat fine handwriting and tied with a blue ribbon, was marked at the end of each day's work, and the marks for the two years were

the same.

He never seemed to us very young, and he never seemed to grow old. He lived to be the connecting link between the older faculty and the younger. The beginning of his service antedated by more than a score of years that of any of his colleagues. He had been the teacher of us all. Yet he had no characteristic of the last leaf. Though his voice was weaker, and his step had begun to halt, he was as wise and intellectually as virile in the last year of his service as in his first. As Dean Thayer has elsewhere called him, in noble phrase, he was "a rock of trust."

The characteristic of him that most clings in the memory, after all, is virility, power of mind, power of body, power of character. There were giants in his generation; and about each of his qualities there was something immensely human. He was a man, and his like, take him for all in all, we shall never see.

Joseph H. Beale.

CONTRACTUAL LIMITATION OF LIABILITY FOR NEGLIGENCE

THE

HE method of growth of the common law, by which its different branches are evolved somewhat independently, and with no specific relation to other branches, does not invite discussion of abstract questions which may have a like bearing in two or more of these independent branches. But the common-law method of reasoning by analogy and the practice of seeking assistance in the solution of questions pertaining to one branch of the law by adopting reasoning which has been applied in the solution of questions more or less similar in other branches, justify the ultimate search for a guiding principle not peculiar to any one legal division when analogous considerations have been taken into account in different divisions for the solution of somewhat similar questions. It may be that in course of time a large number of principles recognized as common in different divisions of the law will thus be differentiated from the mass of the aggregate law to form the framework for a statement of its ruling principles. Such an aggregation of abstract principles subjected to some formal arrangement might be given the rather pretentious title of general "jurisprudence,"pretentious for the reason that in fact it would furnish a reliable guide for the solution of but few of the actual controversies which would be presented to the courts for decision. Such a possibility hardly justifies the hope that the body of the law can ever be reduced to a strictly scientific arrangement, for such arrangement is constantly being interfered with by change in the relative potency of the forces which are molding it. Perhaps not much more can be hoped for than that a somewhat wider generalization than that now deemed admissible may be resorted to in the solution of some of the problems involved in the adjudication of cases arising in particular branches of the law.

It is scarcely imaginable that any Roman jurisconsult ever had propounded to him the question whether tort liability could be modified or affected by preceding contractual agreement; for a Roman jurisconsult would have been totally unable, from his point of view as to the nature and content of the law, to understand either