Oliver Wendell Holmes

by Stephen Budiansky

  Responding to a later legal critic who savaged the book a third of a century after its publication for, as Holmes put it, having had the temerity to point out that “judges make law,” as well as for a series of small alleged errors, he wrote to Laski:

  I think the material thing to be that I gathered the flax, made the thread, spun the cloth, and cut the garment—and started all the inquiries that since have gone over many matters therein. Every original book has the seeds of its own death in it . . . but it remains the original.64

  Shortly after he finished the book Holmes faced a brief panic of mortality. Looking at his exhausted and gaunt appearance, some of his friends were worried he had so worn himself out from his labors that he would not live another five years, and for a few days Holmes feared the same. Noticing blood in his mouth one day while brushing his teeth, he was convinced it “meant the end,” and that like his lost friend Minny Temple he was fated to die of tuberculosis before his time.65

  He happened to come across a reference to Casanova’s memoirs, and went to the Athenaeum library to try to find them; the librarian had to retrieve the ten volumes from the strongbox, where the notorious work, recounting the sexual exploits of an eighteenth-century Italian libertine, was kept safe from casual eyes. “That was just what I wanted then,” Holmes later recounted to Ethel Scott. “I don’t like dirty books or care for indecent ones, but there sometimes goes with the freedom that they imply, a temperament—a smack—a gusto . . . that puts life into one.”66

  As he told the story to another young English woman friend, Lady Askwith, “I took that book and it put a wiggle into me and then the doctor said that at that age the tooth brush often made the gums bleed and people think that something had happened—and that was the end of that.”67

  CHAPTER 7

  Holmes J.

  In the fall of 1881, still basking in the triumph of his Lowell Institute lectures and the publication of The Common Law, Holmes was asked by President Eliot if he would consider joining the faculty of Harvard Law School full time. The salary would be $4,500, considerably more than the $300 per course he had been receiving as a part-time lecturer.1

  An endowment first had to be raised for the chair, but James B. Thayer, now a professor at the law school, offered to take charge of the effort, assuring Holmes and Eliot it would not be difficult. He had the more than able assistance of an enthusiastic and very-well-connected recent graduate of the school. Louis D. Brandeis had met Holmes two years earlier, when he returned to Boston from St. Louis to become legal secretary to Massachusetts’s chief justice, Horace B. Gray. The two men had celebrated Brandeis’s admission to the Massachusetts bar that year together, drinking champagne and beer late into the night. Since then, Brandeis had launched a successful career in commercial law in partnership with Samuel Warren, who had earlier worked with Holmes at Shattuck, Holmes & Monroe, and had also begun teaching classes part-time at the law school, where he had gotten to know both Holmes and Thayer as academic colleagues.2

  Brandeis assured Thayer that he could raise the $100,000 needed to endow the chair from some of his fellow alumni: he knew, he said, “a number of young fellows as likely to help and perhaps as likely to give it all.” A few days later, Brandeis was crossing Boston Common when he ran into William Weld Jr. Brandeis had been his tutor a few years earlier when Weld was a law student at Harvard, and struggling to complete his last year of studies. Weld had left the school without graduating. But in the meanwhile he had inherited $3 million under his grandfather’s will. Brandeis and Thayer clinched the deal with their well-heeled former student the next day.3

  Boston Daily Advertiser, December 9, 1882

  On February 11, 1882, the Harvard Corporation confirmed Holmes’s appointment as the Weld Professor of Jurisprudence. Eliot wrote to Holmes, “So begins happily a relation which, I trust, will prove lasting, fruitful and fortunate.”4

  He was mistaken on all three counts. Holmes had barely begun his teaching duties, delivering his first classes on torts, agency, mortgages, and jurisprudence in the fall of 1882, when he was hit by “a stroke of lightning which changed the whole course of my life,” as he later described it.5

  On Friday, December 8, while having lunch with his law school colleague James Barr Ames, his old mentor and partner George Shattuck suddenly appeared. He had just come from the governor, John Davis Long, a Republican who was to be succeeded in four weeks by the Democratic victor in the fall election, Benjamin Butler.

  Shattuck reported that the governor was prepared to offer Holmes the seat on the state’s Supreme Judicial Court vacated that day by the resignation of Justice Otis P. Lord. But he had to give his answer by three o’clock. Shattuck had rushed to Cambridge, stopping only to pick up Fanny Holmes, who was now waiting outside in the carriage. It was one-thirty: there was not a moment to lose. Shattuck bundled Holmes into the carriage and they tore back to Boston.6

  Upon seeing the governor, Holmes accepted on the spot. He explained his decision to his friend and British legal colleague James Bryce a few weeks later.

  My motives so far as I could disentangle them in half an hour which is all the time I had to decide the momentous question—were in a word that I thought the chance to gain an all round experience of the law not to be neglected and especially that I did not think one could without moral loss decline any share in the practical struggle of life which naturally offered itself and for which he believed himself fitted. I had already realized at Cambridge that the field for generalization inside the body of the law was smalI. . . . I was however as happy as a man could desire but I felt that if I declined the struggle offered me I should never be so happy again—I should feel that I had chosen the less manly course.7

  Holmes never looked back with an ounce of regret at leaving the law school. He admitted that his brief stint in the ivory tower had done little more than leave him feeling trapped. “My wife thinks I unconsciously began to grow sober with an inarticulate sense of limitation in the few months of my stay at Cambridge,” he told Frankfurter many years later.8

  Thayer, however, was incensed that Holmes would abandon his job so soon, and in the middle of the academic year, and took it as a personal betrayal. Thayer poured out his bile in a long memorandum to himself. He acknowledged that Holmes had every right to take the judgeship, and that Governor Long had in fact insisted on an immediate answer, but faulted Holmes for having “made no struggle for more time” so that he could properly inform President Eliot before the appointment was publicly announced. That sounded petty, and it was: Thayer had spent days poking into the matter, hoping to dig up something discreditable to Holmes.9

  But, as Eliot informed Thayer when he saw him about it, Holmes in his original letter of acceptance to Harvard had explicitly reserved the right to resign at any time if he had a chance for judicial appointment. “If a judgeship should be offered me I should not wish to feel bound in honor not to consider it,” he had written, and Eliot had agreed, “You remain free to accept a better position or more congenial employment elsewhere.” The treasurer of the university also backed Holmes: “As he expressly reserved the right to accept a judgeship, we cannot complain,” he wrote to Weld. That failed to satisfy Thayer, however, who cattily wrote in his memorandum book: “Holmes, of course, is entitled to the excuse which this may furnish!” and continued to insist that Holmes had behaved in “an unhandsome, and indecent” manner. “He lost his head perhaps?”10

  Holmes felt enough of a pang of conscience himself that on taking his oath of office he enlisted an outside legal consultant to review the entire matter and tell him if he was under any legal or moral obligation to repay part of his salary to Harvard. The lawyer, Francis E. Parker, concluded he was not: he had earned his pay the previous spring not only “in consideration of service to be rendered,” but as compensation for the income he had given up by leaving his lucrative legal practice. And however disappointed the law school might be in losing Holmes, Harvard was still “the gainer,” having
raised $90,000 on “the attraction of Mr. Holmes’s name.”11

  If anyone might have felt embarrassed by Holmes’s abrupt departure it was Brandeis, given his personal role in soliciting Weld’s gift. But on reading of Holmes’s appointment to the Supreme Judicial Court in the newspaper, Brandeis immediately sent a brief, gentlemanly, and graceful note that bore none of Thayer’s rancor. “As one of the bar I rejoice,” he told Holmes. “As part of the Law School I mourn. As your friend I congratulate you.”12

  A FEW MONTHS into his new job, Holmes wrote to his friend Pollock, “Well, I like my work far more than I dreamed beforehand. The experience is most varied—very different from that one gets at the bar—and I am satisfied most valuable for an all round view of the law. . . . One sees too a good deal of human nature, and I find that I am interested all the time.”13

  Part of the pleasure, too, he reported, came from the feeling of being on the firing line and getting out of the artificial tranquility of the cloister, where “the professor, the man of letters, gives up one-half of life that his protected talent may grow and flower in peace.” Having to “make up your mind at your peril upon a living question, for purposes of action” was by contrast bracing and filled him with a sense of life.14

  Portrait of Holmes by Clover Adams, 1884

  The workload was, however, overwhelming. His friend Oakes Ames, congratulating him on his appointment, recalled how he had once described the qualifications of the ideal judge: “In the first place he should be a corpulent man,” Holmes had joked. Holmes himself was anything but: Owen Wister remembered him in those days “as lean as a race horse.” The reality for a judge on the Massachusetts high court was that he needed to have the stamina of a trained athlete. “We are very hard worked and some of the older Judges affirm that no one can do all the work without breaking down,” Holmes wrote Pollock shortly after joining the court. He later said that the work—literally—“has killed some men who took it too hard.”15

  But, he added in his letter to Pollock, “I have not yet made up my mind—at all events it is more interesting than if we had less to do.”

  Besides hearing appeals sitting en banc in sessions of the full court at locations around the state, the individual justices of the court each had a heavy caseload of trials to preside over: all divorces, all murders (in which two of the justices sat together), many cases involving contracts and other business disputes, all suits relating to wills and trusts, and the entire body of disputes that came under the heading of equity. Common law courts were limited to awarding monetary damages, but in equity proceedings a court could order other kinds of remedies, including injunctions or revising the actions of public bodies and corporate boards. Following the traditional English practice, some states maintained entirely separate courts of equity—the equivalent of the English Court of Chancery—but even states like Massachusetts that had a single court system held separate sessions in law and equity during Holmes’s time.

  A heavy travel schedule added to the stress of the work. Writing once from Worcester, in the middle of the state, Holmes called the days in early September when the judges went on circuit to hear appeals and sit in trials “one of the hardest weeks of the year”; at the end of each day he went back to his hotel room after dinner too worn out to do anything but “play a game of solitaire on my bed, read a little Hegel and turn in early.”16

  The printed schedule of assignments of the Massachusetts Supreme Judicial Court ran to fourteen printed pages each year, with a series of tables laying out where each of the seven justices was to be each week of the year. In September and October, five of the justices, sitting as the full court, heard appeals at various locations around the state, while rotating duty sitting as single justices at trials of common law actions in each of the counties they visited. The full court then returned to Boston for appellate sessions in November, December, January, and March. There were single-justice equity sittings every Tuesday and Friday for two-month sessions throughout the year in Boston, and on the first Mondays of December, February, June, and August in Springfield, at the far western end of the state. Divorces were heard in May and October by the justice assigned to the Boston equity session during those months, as well by other justices during their travels to the other counties. Finally, in April and May, came the “spring circuit,” with five of the justices each visiting a different county for one or more days to hold law trials.17

  Holmes’s record as a trial judge during his twenty years on the Massachusetts high court has tended to be overlooked, but it was an enormously important influence in shaping his understanding of human nature and the way law actually bears upon life. In his first sitting in the equity session in Boston, in November and December 1883, there were seventy-nine cases on his docket; on the spring circuit in Boston two years later he conducted twenty-two jury trials.18

  Over the course of his time on the Massachusetts court he presided over hundreds of trials, and the experience gave him an acquaintance with a side of life that someone of his background and class would seldom otherwise encounter. To Holmes’s courtroom came an endless parade of cases of scheming lovers, shady stock deals, fraudulent wills, gory accidents, overpromising real estate agents, hysterical streetcar passengers, overflowing sewage ponds, collapsing warehouses, reeking sausage factories, drunken barroom shootings, and the goings-on of assorted gamblers, con men, cranks, women of no visible means of support, and colorfully named fraternal orders. There were also many that involved the increasingly complex world of modern business: insurance, trademarks, intellectual property, futures contracts, bankruptcy, industrial pollution, economic competition and regulation, and the many new conflicts that arose from the rapid growth of cities, railroads, and markets.19

  Years later, when they were colleagues on the United States Supreme Court, Brandeis would express wonder at Holmes’s apparent grasp of real-world problems. “It’s perfectly amazing,” Brandeis told Frankfurter in 1924, “that a man who has had no practical experience to speak of . . . should be so frequently right as to matters that have significance only in their application.”20

  Yet much of Holmes’s understanding of the practical considerations that arise where concept meets application undoubtedly came directly from his two decades of listening to and ruling on the drama and complexity of real life as a trial judge. Writing appellate opinions, a justice never came face to face with witnesses or the parties to a case, and it was all too easy to retreat into theoretical abstractions about the law and forget the human consequences. But in his role as a trial justice, Holmes was on the sharp edge of the law, seeing and hearing firsthand all of the tangled dramas of the courtroom, sizing up the honesty of often conflicting witnesses, rendering decisions that had immediate and dramatic consequences—the breakup of families, financial ruin, even death—to the people standing right before him. It was also a chance for him to demonstrate the breadth of his mastery of the law.

  ONE OF THE CASES he tried his very first year on the bench made headlines almost immediately, and it was a chance to put into action his ideas about external standards. On Sunday, November 18, 1883, railroads across the United States adopted a new uniform system of “standard time” to replace the separate time standards each railroad line had previously used. Most cities and towns, meanwhile, continued the time-honored practice of resetting clocks to noon each day at the sun’s zenith, resulting in a different time in every locality. Boston became the first municipality to order its public clocks to be changed to standard time when the new railroad time went into effect on the eighteenth.

  Two days later a debtor who had been ordered to appear before the Commissioner of Insolvency at nine o’clock arrived at 9:49 a.m. Eastern Standard Time, which would normally be considered within the appointed hour. But by Boston’s old meridian time it was already 10:04 a.m., and the commissioner found the man, Horace B. Clapp, in default and ordered his immediate arrest. Clapp then filed suit in Holmes’s equity court for an order prohibiting the arre
st warrant from being carried out.

  The commissioner argued that his order to Clapp to appear was issued before the new time took effect, that nobody said the courts were bound to use standard time, and that “everyone knows how to correct to Boston mean time.” But Holmes ruled that the only essential point was whether “the new time had been adopted by usage,” which might take a long time or might establish itself in as little as twenty-four hours. Holmes said he had little doubt the usage had changed, but wished to satisfy himself on the point before making a final order; a week and a half later he found for Clapp and issued the writ of prohibition. The case made the New York Times and other papers across the country, the Times story in particular calling attention to Holmes’s use of a community standard in reaching his decision.21

  New York Times, December 5, 1883

  That first autumn on the bench he was plunged at once into the full panoply of human and legal dramas that fill a court of law. He dismissed a suit to halt construction of a canal across a plaintiff’s land, ordered that an agent hired to sell five hundred shares of stock in the American Hoop Dressing Company be paid his commission, allowed a private stable to be constructed on a lot in Back Bay, and issued an injunction against the seller of a milk delivery route from continuing to sell milk himself in violation of his agreement.22 He found for a Jewish family who had been harassed by their landlady into abandoning their lease when she aroused the neighborhood with “racial and religious bias,” and ordered their advance rent repaid. He allowed the Boston Standard Cab Association to regain its lease of an office in Post Office Square after a member of the association tried to claim the space for himself.23