June 17 Married sole editor of Law Rev. July no. et seq.16
Their friends thought it a perfect match. Dr. Holmes said of Fanny that he and Mrs. Holmes “both knew her well and love her much” and that it had been plain for some time that the couple “were entirely devoted to one another.” A young friend and neighbor of the Holmes family thought that in marrying Fanny, Wendell had shown far more character and substance than she had given him credit for. “O.W.H. has gone up in my opinion most amazingly,” Rose Hooper wrote a friend on hearing of the engagement. “I have always liked him very much but never quite believed in his disinterestedness even in his affections—and I feel quite ashamed now I think I have not appreciated him better. I think she is just the wife for him & I can quite conceive of their being happy ‘ever after.’ ”17
Because of his work and Fanny’s ill health—she was struck with a serious case of rheumatic fever just a month after their marriage, and was bedridden for months—they had to postpone their wedding trip for two years.18 But in May 1874 they set off on a grand tour of England and the Continent. Fanny kept a diary of the trip, filled with humorously caustic observations of the dress and manners of English society: she described their aristocratic host at one evening party as “a twinkling hippopotamus” and recounted a dean of the church, “very disagreeable in black stockings, long coats, black sash and ribbon round his neck,” producing a precious witticism about “St. Peter’s daughter—and he, you know, was not a married man,” causing three matrons “with immense bosoms and larger stomachs both adorned with gold and precious stones” to flip their fans quickly over their faces, while the dean did the same with his hand “to conceal his face from his own joke.”19
Pages from Fanny’s diary of their trip to Europe, 1874
And then there was “Wendell off on the rampage” at intervals to call on some of the “charmers” he had met on his previous trip to London. Fanny did not seem to take any of these rivals very seriously. “Wendell to see his charmer and return the book,” she drily recorded. “Brought the book back with him.”
They dined with the leading lights of the London literary and legal worlds; at one dinner Fanny sat between Anthony Trollope and Tom Hughes, the author of Tom Brown’s School Days. It was on this trip that Holmes formed a number of lifelong friendships within the fraternity of English legal scholars. At a dinner at the Alpine Club with Leslie Stephen, he met Frederick Pollock for the first time. Pollock was four years younger than Holmes and in the midst of his first major legal work, a textbook on contract law that together with a second textbook on torts would modernize legal education in England. “There was no stage of acquaintance ripening into friendship,” Pollock recalled of their meeting; “we understood one another and were friends without more ado.”20
They also saw James Bryce, a leading Liberal politician and legal scholar whom Holmes would see again many times over the coming years, notably in Washington when Bryce was named Britain’s ambassador in 1907; and had breakfast with Sir Henry Maine, the chair of historical and comparative jurisprudence at Oxford and the author of a renowned work of historical legal scholarship, Ancient Law, that sought to explain the evolution of law in society.
They spent three weeks touring Paris, Switzerland, and Italy, returning to Boston in early September.
Holmes had continued to live with his parents ever since his return from the war, and on his marriage Fanny joined him in the new house that Dr. Holmes had bought in 1870 at 296 Beacon Street, part of the new neighborhood created by the Back Bay landfill project. The project had been both public-spirited civic improvement and a calculated bid to keep the wealthy in the city, whose tax base and political institutions the old guard feared were being threatened by the surging population of the “foreign class,” in the words of the state commission that reported on the plan. The centerpiece of the design was a broad tree-lined avenue modeled on Paris’s Champs-Élysées, with parallel avenues of stately Victorian brownstones. The state carefully regulated the sale of the new land to keep prices up; 40 percent of the new space was set aside for parks, squares, gardens, and other “public purposes”; and the legislature stipulated that half the net proceeds would be dedicated to educational and cultural purposes, divided between the public school budget and the state’s universities and museums. In the end the project yielded a profit of $3.5 million after all expenses were paid.21
296 Beacon Street
Following their return from abroad the couple finally moved into their own place, a flat at 10 Beacon Street back in the heart of Old Boston. It was right next to the Athenaeum and a short walk from the library at the courthouse where Holmes spent many of his evenings, while Fanny occupied herself with her fine embroidery work that won prizes in art shows, and the admiration of Oscar Wilde when he once visited.22 “All young couples should begin housekeeping in a tenement, economize on the necessities of life, and indulge in the luxuries,” Holmes once advised a young acquaintance, just before her marriage. A half century later he fondly remembered how they would get the cheap seats to events at the Athenaeum’s museum “and sneer at the snobs” and “was devilish glad to get pine boxes for my books”; he told Laski it was a great moment when, for their summer place in Mattapoisett, “we decided to invest in a wheelbarrow for manure.” 23
Thirty years into his own marriage he wrote another young friend who was about to be married, “Marriage, of course, is one of the most serious steps in life.” But it “makes the world more beautiful,” he said, and “a man as well as a woman finds life enlarged and glorified by marriage. The adjustment of personality is easy to people who think nobly.”24
HOLMES’S FRIENDS WERE at times amused by, and occasionally put off by, the single-minded determination with which he devoted himself to his chosen field in his early years.
In the first years of his marriage Holmes continued to see William and Henry James regularly at a club of young men who, like his father’s Saturday Club, met for dinner once a month at the Parker House. (The members also included his cousin John T. Morse Jr., his legal colleagues John Ropes and John Chipman Gray, and the coeditor of the American Law Review, Arthur Sedgwick.)25 “He grows more and more concentrated upon his law,” William James noted in 1872. “His mind resembles a stiff spring, which has to be abducted violently from it, and which every instant it is left to itself flies tight back.” The picture of a tightly wrapped intellect held together by sheer force of will suggested to James another vivid image on another occasion: “Wendell amuses me by being composed of at least two and a half different people rolled into one, and the way he keeps them together in one tight skin, without quarreling any more than they do, is remarkable.”26
In the midst of his depression James had found himself more violently irritated by Holmes’s intense focus on his work, and once bitterly accused him of “a cold-blooded, conscious egotism” that “poisoned” all of his “noble qualities.” But that probably said more about James’s own wretched feelings of self-loathing and envy of his more accomplished friends during that slough of doubt than anything about Holmes; he lashed out at his other best friend, Thomas H. Ward, in almost identical words at the same time.27
James offered a more measured picture of the way Holmes set himself to the task he had embraced in life in an affectionate description he sent his brother of a visit he made to Holmes and Fanny at their weekend place in Mattapoisett a few years later. The property was thirty-seven acres right on the water, with an old double house, half of which was occupied by the farmer who looked after it for them; it had an ancient fireplace “into which one could put half a tree,” Holmes remembered, and he recalled it always as “a center of romantic delight.”28 James was amused at the picture of a rustic Wendell Holmes:
I spent three very pleasant days with the Holmes’s at Mattapoisett. I fell quite in love with she; and he exemplified in the most ridiculous way Michelet’s “mariage de l’homme et de la terre.” I told him he looked like Millet’s peasant figures as
he stooped over his little plants in his flannel shirt and trousers. He is a powerful battery, formed like a planing machine to gouge a deep self-beneficial groove through life; and his virtues and faults were thrown into singular relief by the lonesomeness of the shore, which as it makes every object, rock or shrub, stand out so vividly, seemed also to put him and his wife under a sort of lens for you.29
Michelet was a French intellectual and historian, and the passage James alluded to was one where he had gone on for pages, as only a French intellectual can, expressing the oneness with nature he had experienced in a mud bath at a spa—and James’s point was that Holmes’s homely surroundings at the shore had similarly worked only to accentuate, to anyone who knew him, the impossibility of forgetting for a moment the intellectual drive and ambition that animated his whole being.
In the first years of his career and marriage Holmes had taken on still another ambitious assignment of legal scholarship, in addition to editing the American Law Review, lecturing on constitutional law at Harvard, and beginning his own legal practice. In 1869 James B. Thayer, the junior partner at Chandler, Shattuck and Thayer, had been approached to prepare a revised edition of Commentaries on American Law. The American counterpart to William Blackstone’s famous Commentaries on the Laws of England, it had been first published in 1826 by Chancellor James Kent of the New York State courts, and had since become the standard reference work of American case law. Like Blackstone, Kent presented a compendium of the major appellate decisions that practicing lawyers needed to be able to cite as precedents. To stay current, however, any such work needed regular updating with recent important judicial opinions.
Kent’s grandson owned the copyright and agreed that Thayer would receive $3,000 to serve as editor of the new, twelfth edition. At the very start, Thayer proposed bringing in his young associate to help. “Mr. Holmes who will have the laboring oar is getting together the material & getting it into shape.”30
It took the oarsman about two weeks to move to the helm. The Commentaries had suffered from an accumulation of notes in previous editions that had done little more than dump recent cases “in sprawling heaps at the bottom of each page,” as Mark Howe aptly put it. Holmes told Thayer he thought they should insist on the right to completely jettison these additional notes and substitute their own—and, more dramatically, to write the new notes not merely to supplement the text with recent developments, but to present a thorough review of the law on matters of “present fighting” interest to the bar.31
Holmes ended up doing even more than that. Kent’s original work was more legal botanizing than analysis: it itemized rules in a long list of specific categories with little larger rhyme or reason or effort to synthesize and contrast how similar concepts were applied across different sorts of cases. “His arrangement is chaotic—he has no general ideas, except wrong ones—and his treatment of special topics is often confused to the last degree,” Holmes observed about halfway through the task.32
Holmes not only began overhauling the notes, but simultaneously writing a series of essays for the American Law Review that dealt with many of the larger points in considerably greater depth, and his new notes for Kent referred readers to these longer articles for those in search of a fuller discussion.
In a voluminous note to Kent’s simplistic rule that “the common law very reasonably” does not hold a seller accountable for the quality of his merchandise, Holmes analyzed more than fifty relevant cases in English and American courts on implied warranties, and offered a crisp categorization of the circumstances under which goods may in fact be returned to a seller for a refund: if they do not reasonably answer the purpose for which they were sold; if they differ in kind from particular bargained-for specifications; or if they fall short of the normal standards of a “merchantable” item in the trade. (Six decades later a leading authority in commercial law cited Holmes’s note as—still—the clearest analysis ever written on the subject, supplanting the “fuddled groping” that preceded his explanations.)33
He similarly clarified a welter of chaotic cases on property easements by comparing easements to other sorts of limited rights on another’s property, such as licenses and leases. He pointed out the common thread in tort law that imposes vicarious liability under certain circumstances even in the complete absence of moral fault, such as on a nonnegligent owner of a ferocious animal that escapes and causes injury, or on an employer for a servant’s negligence.34
The work quickly became something close to an obsession for him. “I have as you know given up all my time to Kent’s Commentaries and during the past year especially have hardly touched any other business,” Holmes wrote to Thayer in July 1872; he said he thought it more important to take the time to do the job thoroughly than meet the original deadline of two years, even though “it has been at considerable pecuniary sacrifice that I have done as I have.”35
As he approached the completion at last in late 1873, he was gripped by the agonizing first author’s fear of losing his manuscript. Mrs. James, in a letter to her son Henry at the time, described Holmes’s haggard appearance:
Wendell Holmes dined with us a few days ago. His whole life, soul and body, is utterly absorbed in his last work upon his Kent. He carries about his manuscript in his green bag and never loses sight of it for a moment. He started to go to Will’s room to wash his hands, but came back for his bag, and when we went to dinner, Will said, “Don’t you want to take your bag with you?” He said, “Yes, I always do so at home.” His pallid face, and this fearful grip upon his work, makes him a melancholy sight.36
While living at 296 Beacon Street, Holmes had had the family and servants practice monthly fire drills: the first mission was to rescue the green bag, which he would place just inside the front door before going to bed each night.37
Whatever their physical and psychological toll, Holmes’s labors gave him an extraordinary familiarity with the leading cases across the entire breadth of the law, from property to admiralty. Years later, Chief Justice Charles Evans Hughes emphasized to Mark Howe that the reason Holmes was able to turn out his decisions so quickly as a judge was a direct consequence of this early and total immersion in the law from his work on Kent, which “had given him an unusual and complete mastery of common law decisions and history. The effect of this in his habit as [a] judge was that, where others would be compelled to devote an enormous amount of time to the rediscovery of law, Holmes needed to make no re-examination—the law was at his finger tips.”38
The original agreement with Kent’s grandson was that Thayer and Holmes would be recognized as coeditors in the preface to the twelfth edition, but not on the title page. Having done all the work, Holmes—without consulting either the copyright holder or the signer of the contract—decided to place his name alone on the title page, as editor.
The week before Christmas 1873, an express package from the publisher, Little, Brown, arrived at Kent’s New York address; inside were finished copies of the book. It was the first news he had that the book was even done. Kent wrote Thayer immediately to say he was “much provoked” and rather candidly confessed that in making the original deal, “I wanted your name” in “first place.” Holmes probably described Thayer’s actual role with complete accuracy in the preface, in which he thanked Thayer for reading and commenting on his drafts, and left it at that. When Thayer declined to contest the top billing, Kent told him, “You are a saint. I am an ordinary mortal.”39
Kent enclosed in this letter to Thayer a rather cold note to Holmes that, while thanking him for his “labor, learning, and research,” informed him that “by a mistake on your part, I have been obliged to change or rather to request that two words, in your preface, shall be dropped. I sent the marked copy to Little & Brown.” Kent was irked by a line in the preface where Holmes seemed to slight the work of his father, William Kent, who had edited a previous edition, and by the fact that “they have left out grandpa’s original preface and introduction, a most stupid blunder. They ar
e not ‘Kent’s Com.’ without that.”40
But four days later, after receiving an apparently mollifying explanation from Holmes himself, Kent wrote to apologize for his initial “annoyance,” and assured Holmes he never suspected him of deliberately wanting “to wound my feelings.” He had made such a point of wanting to know when the book was coming out that to receive the finished copy by express “without a word of warning . . . was too much for one day.” But Kent now conceded that it was best to leave the preface “as it is,” and enthusiastically praised Holmes’s work:
Each time I take up the book, I am impressed with the care & labor you have expended on it, & more & more pleased with the “spirit of law” you have thrown into the notes.
Should lecture business or pleasure bring you to New York, I am sure you will let me know, & permit me to turn our pleasant acquaintance if possible into something stronger.
With my sincere regards
I am my dear sir
Yours very truly
James Kent41
Thayer, however, remained rankled. A decade later, when Holmes abruptly left Harvard Law School to assume his first judgeship, Thayer vented his irritation in a note in his personal memorandum book that revived all his earlier resentments about being shown up by his more able, if less tactful, junior: “My experience with him in editing Kent, which I had been willing to forget, comes all back again and assures me that this conduct is characteristic—that he is, with all his attractive qualities and his solid merits, wanting sadly in the noblest region of human character—selfish, vain, thoughtless of others.”42
But, with some justice, Holmes always insisted that he had never been ambitious in the conventional or craven sense, for money, fame, office, or power. When Henry James, one of the last times he saw him, made some arch comments about his brother’s and Holmes’s accomplishments in life, Holmes sent a slightly irritated account to Mrs. Gray afterward:
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