These two brief remarks, by Holmes and the British legal scholar P. S. Atiyah, separated by a century, bracket the transit of what may be called Holmes's general theory, the historical hypothesis that he wedded to his common law conception after an absorbing period of work in the years 1873–76.

Holmes had joined George Shattuck and William Adams Munroe in a full-time Boston law practice, and pursued his research at night and on weekends. The intensity of effort, leading to eventual publication of The Common Law in 1881, is reflected in letters and later remarks. By 1881 Holmes's intellectual path had gone from critique to construction – toward “une theorie et non un specilege” – but long before its hundredth anniversary the theory had fallen prey to the “deep suspicion” of which Professor Atiyah would speak in his 1981 Holmes Lecture.