own lights no matter what people or forces might stand in his way.

He was one of eighty in the Harvard Class of 1861, graduating just as the Civil War began. Although he was repelled by what he saw as the excesses of the abolitionists and although he was always fond of many Southerners, there was no question in his mind but that the Union had to be preserved, and he enlisted at once in the 20th Massachusetts Regiment, known as the “Harvard Regiment,” in which he was soon commissioned. Many of the intellectuals of his generation, including Henry and William James, did not take up arms in the war. Holmes did not seem particularly critical of such men. He believed that each man should make up his own mind. During his three years’ service, he was three times badly wounded: in the chest at Ball’s Bluff, in the neck at Antietam, and in the heel at Predericksburg.

After Antietam the enthusiastic and emotional Dr. Holmes rushed to his son’s side, taking care to record the dramatic events of his journey in an article for The Atlantic Monthly, “My Hunt After ‘The Captain.’ ” The son noted this, as he also noted his father’s undoubted affection. He was always just, but his father’s florid style was not to be his. As he later said, the Harvard Regiment never wrote about itself in a newspaper.

Holmes always regarded his military service as the most intensely lived part of his existence. In later years when commercial greed seemed to engulf America, he was to feel that the long absence of the cruel test of warfare was making people soft. On the whole, although he admired men like the railroad tycoon James J. Hill, whom he regarded as representing “one of the greatest forms of human power,” he preferred warriors to stockbrokers. And in a Memorial Day address at Harvard in 1895 he made a statement which today sounds remarkably bellicose: “War, when you are at it, is horrible and dull. It is only when time has passed that you see that its message was divine.… For high and dangerous action teaches us to believe as right beyond dispute things for which our doubting minds are slow to find words of proof. Out of heroism grows faith in the worth of heroism. The proof comes later, and even may never come. Therefore I rejoice at every dangerous sport which I see pursued. The students at Heidelberg, with their sword-slashed faces, inspire me with sincere respect. I gaze with delight upon our polo players. If once in a while in our rough riding a neck is broken, I regard it, not as a waste, but as a price well paid for the breeding of a race fit for headship and command.” I

In light of the above, the way that his own military career ended may seem curious. The 20th Regiment had been enlisted for three years, and Holmes was

entitled to be discharged in the summer of 1864. In July of that year, when the war had still eight of its bloodiest months to run, he resigned his commission and returned to Boston to study law. But Holmes never sought excuses, and he insisted in this as in all his other actions, on his individual prerogative. Here is what he wrote his parents: “I started this thing as a boy. I am now a man and I have been coming to the conclusion for the last six months that my duty has changed. I can do a disagreeable thing or face a great danger coolly enough when I know it is a duty—but a doubt demoralizes me as it does any nervous man—and I honestly think the duty of fighting has ceased for me—ceased because I have laboriously and with much suffering of mind and body earned the right… to decide for myself how I can best do my duty to myself, to the country, and, if you choose, to God.”

As an old man Holmes came to question the validity of this decision. But it was certainly consistent with his concept of independence. He never shrank before the enemy, nor did he shrink before the prospect of what his family and friends might think of his packing up and going home before Richmond had been taken. Certainly he never regarded this decision as qualifying his right to extol the military virtues to youth.

After Harvard Law School, Holmes was admitted to the Massachusetts bar in 1867. He practiced for a short time with his brother, Edward Jackson Holmes, and then joined the firm which became known as Shattuck, Holmes & Munroe, the Boston partnership with which his name has been predominantly associated. He had a general practice, with considerable litigation, but his great passion was exploring the origins of law to establish a theoretical basis for fundamental legal doctrine. In the course of the decade and a half before his appointment to the bench, Holmes dedicated most of his nights and weekends to this scholarship. Thus, even as a busy lawyer, he was able to edit the twelfth edition of Kent’s Commentaries on American Law in 1873, and in 1881, just before his fortieth birthday, he brought out his own enduring classic, The Common Law .

These years of law practice and scholarship constitute a rather arid period in the history of Holmes’s personality. The man who in 1897 could write to a friend of the divinity of vitality, the wonderful capability of complex and civilized man to “lark like a boy,” is scarcely perceptible in the midnight toiler. Yet this was also the period of his marriage, at thirty-one, to Fanny Dixwell, a few months older than himself, daughter of the headmaster of the school he had attended in preparation for Harvard. Mrs. Holmes, who lived almost as long as her husband, had a character that

is difficult to piece out. Her complete devotion to Holmes has always been recognized. But she was a shy woman of few or no intimates. She was an efficient housekeeper, a serious artist in needlepoint, and a woman of strong will, few words, and sharp wit. Her adoration of her husband was probably intensified by the childlessness of their marriage, and she never interfered either with his work or with his pleasures. For example, she rarely accompanied him on his summer trips to England, giving as her excuse her dislike of the Atlantic voyage. But I suspect that she knew how much he loved the intellectual companionship of his English friends and felt that she was a drag on such expeditions.

Holmes and his wife lived at first with his parents, which could not have been easy for Fanny. That he must have considerably neglected her, working so intently, there can be little doubt. In the opinion of William James, at that time one of his best friends, all of Holmes’s noble qualities were poisoned by “cold blooded, conscious egotism and conceit,” and William’s mother, writing to her novelist son Henry in England, said of him: “His whole life, soul and body, is utterly absorbed in his last work [the Kent Commentaries ].”

Henry James was more perceptive than his brother. He was always one to appreciate the necessary loneliness of hard work, and he recognized in early youth that Holmes was destined to a great success, although “in a speciality.” In later years Holmes visited Henry James on trips to England, and the latter perceived that the former’s personality never essentially changed. Henry speculated that this quality of being inalterable might spring from a failure to live. This may seem a strange comment to be made about a warrior and a busy judge by a fussy old literary bachelor who had avoided military service in the Civil War, but its significance will be appreciated by those critics who have found in Holmes’s Olympian detachment a suggestion of occasional heartlessness, or at least indifference, to his fellow man. Henry put it more agreeably when he described Holmes as moving through life “like a full glass carried without spilling a drop.”

James Bradley Thayer, who collaborated with Holmes in the editing of Kent’s Commentaries , felt that Holmes had treated him badly in arrogating to himself most of the credit, and Charles W. Eliot, the president of Harvard, was indignant when Holmes in 1882 resigned a professorship, which he had just accepted at the Law School, to accept the governor’s appointment to the Supreme Judicial Court of Massachusetts. But on Holmes’s side it must be pointed out that he indeed had done the major work on the Commentaries , and that he had written a letter to President Eliot when he accepted the Harvard appointment, reserving the privilege to resign it if appointed to any judicial post.

It seems, on balance, that

Holmes’s friends were severe on him in this period. He had to support himself, and he would have had to give up his greatest goal in life had he not used every available minute for hard work. He was not a man of overweening ambition, but when it was a question of those things about which he cared, such as the credit for a book which he had largely written, or the acceptance of a j udicial post which might never be offered again, he could act with a speed and determination that may have had an air of ruthlessness. Once Holmes was convinced that what he was doing was the right thing, judged entirely by his own standards, he did not give a damn what anyone else thought.

Holmes, in The Common Law, explored the origins of civil and criminal liability in Anglo-Saxon, German, and Roman law. His famous statement, on the very first page, that the life of the law has not been logic but experience, seems obvious enough today, but we must remember that he was a pioneer. He sought to articulate a theoretical basis for fundamental legal doctrine in a way that differed significantly from the attempt of many of his contemporaries to deduce legal rules from absolute principles. Such theorists had a tendency to idealize law, to see it as a constantly perfected process emanating from j udicial inductions and deductions, possibly inspired, if not directed, from a higher sphere. Holmes would have none of this. Law was simply the product of history and legislation. Its substance at any given time pretty nearly corresponded with what was then “understood to be convenient.”

Convenience, that was the key—convenience of the majority. Accidents were bound to happen, with damage to some, and the most convenient solution for society was to let the loss lie where it fell. Holmes points out that in early law the damaging thing could be surrendered to the plaintiff as a total compensation: the body of the debtor to his creditor, the biting dog to the bitten person. As civilization advanced, the debtor was allowed to buy back his body, and the owner of the dog his animal. The absolute liability of the thing became the absolute liability of its owner. Thus, initially, a moral responsibility was at the bottom of the defendant’s liability to pay. He had owned the offending thing at his peril.

Holmes now embarks on the development of his great thesis: that the development of law is, in the last analysis, the transmutation of this moral standard into an external one. Society may start with moral responsibility, but that is soon found to be practically inadequate. Actual intent cannot be the test; it must be imputed to persons who behave in a certain way: “A man who intentionally sets fire to his own house, which is so near to other houses that the fire will manifestly endanger them, is guilty

of arson if one of the other houses is burned in consequence. In this case, an act which would not have been arson, taking only its immediate consequences into account, becomes arson by reason of more remote consequences which were manifestly likely to follow, whether they were actually intended or not.”

This is true, as Holmes proceeds to establish, in civil as well as criminal liability. The law frequently penalizes, or forces to pay, “those who have been guilty of no moral wrong and who could not be condemned by any standard that did not avowedly disregard the personal peculiarities of the individuals concerned.” Under the common law, a man acts at his peril. But it would have been going too far for courts to hold a man responsible for all the consequences of his acts. He was only responsible for the foreseeable consequences, not those that he had actually foreseen but those which a prudent man (as defined by a judge or jury) would have foreseen. Thus, conduct which is criminal or tortious is conduct which the average member of the community would regard as such. Such conduct we must all avoid, or pay the damages or be jailed or even hanged. But “the tests of liability are external, and independent of the degree of evil in the particular person’s motives or intentions.”

Holmes rode his horse of the external standard a bit hard through other fields of law. He seemed intent on obliterating the entire question of morality. In contracts he argued that there was no duty on the part of a promissor to perform, but simply an election to choose between performance and the payment of damages. And a “right,” he claimed, was nothing but a prophecy: a prognostication that society would back one up if one took such and such a stand. In later years he liked to quote his old professor at Harvard, Louis Agassiz, who had said that in parts of Germany there would be a revolution if one added two cents to the cost of a glass of beer. Presumably, the privilege to buy beer at a certain rate had become a right in that place and time.

If one were to assess The Common Law today as a work of legal history, it might receive only indifferent marks. The texts available to Holmes in the 1870’s were often corrupt. The AngloSaxon material, for example, began to reach definitive form only three decades later. Yet the book still remains important for its expression of legal theory. His conception of the external standard has had its logical consequence in our modern tendency to eliminate guilt from liability, as seen in workmen’s compensation laws and in no-fault automobile insurance.

I have dwelt at some length on The Common Law because I believe that it represents the culmination of Holmes’s immersion in matters intellectual. For the next fifty years he was too busy a

judge to write books, but he never changed his fundamental views from those stated in 1881. Idealists have attacked his materialism. Is there not an implication in his legal philosophy that moral standards have no place even in the realm of the conscience? Has a man no obligation to his neighbor but what the average citizen conceives as such? Can morality be reduced to simple good manners? And is a good deed good even if directed by an evil motive? Or a bad deed bad even if directed by a good one? Did Holmes not reject all religion?

He was, it was true, an agnostic, perhaps an atheist. He never considered that man was central, or even necessarily important, to the cosmos. He did not believe in a life after death. When his wife died, it took the persuasion of his brothers on the court, apprehensive of the scandal of such godlessness in high places, to induce him to have any funeral service at all. But there was never any question of his own exacting moral standards. He may have laughed at himself for being the heir to a puritan background, but he did not kick against its restraints. He had a deep sense of the importance of being a gentleman—in the best sense of that word—even in a cold and indifferent universe. How can rational men be Christians? he asked Sir Frederick Pollock, the eminent British legal authority, and here is how he answered his own question: “It is like the justification of conventions—I respect a tall hat or the cult of monogamy not from the internal selfsatisfaction of the accidents of space and time but from the consideration that the inward necessity of man to idealize must express itself in inadequate and transitory symbols of no value in themselves but reverent for the eternal movement of which they are the momentary form.”

Holmes’s work on the Supreme Judicial Court of Massachusetts represented a highly creative period in the development of law, and he came to be a leading, if not the dominant figure of that bench. From the beginning, in 1882, he was happy in his new work. He loved being able to apply his knowledge in the philosophy of law to actual cases, and he found the judicial experience an exciting one. There are few positions in the world of practical affairs where a man can be so much of a scholar and a philosopher as that of judge. Holmes’s life was with ideas; he had no use for facts except insofar as they gave rise inductively to general propositions. Years later, in 1919, he was to describe to Pollock the feelings aroused in him by Justice Louis Brandeis’ criticism of his slighting of economic statistics: “Brandeis the other day drove a harpoon into my midriff with reference to my summer occupations. He said you talk about improving your mind, you only exercise it on the subjects with which you are familiar. Why don’t you

try something new, study some domain of fact. Take up the textile industries in Massachusetts and after reading the reports sufficiently you can go to Lawrence and get a human notion of how it really is. I hate facts. I always say the chief end of man is to form general propositions—adding that no general proposition is worth a damn.”

Holmes was an ambitious man, but his ambition lay along severely restricted lines. When his friend Henry Cabot Lodge suggested that he should run for Governor of Massachusetts as a step toward becoming a senator, he replied simply, “But I don’t give a damn about being Senator.” He said of Napoleon, “I am not interested by men whose view of life does not interest me.” But he was intensely interested in judicial work and looked forward to an even larger opening than was offered by the highest bench of Massachusetts.

Washington was watching him. His reputation for liberalism stood him in good stead under the new administration of Theodore Roosevelt. Holmes’s dissent in Vegelahn v. Guntner had alarmed the capitalist world, although the simple language with which he presented the conflict of capital and labor seems indisputable today: “One of the eternal conflicts out of which life is made up is that between the effort of every man to get the most he can for his services, and that of society, disguised under the name of capital, to get his services for the least possible return. Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpart, if the battle is to be carried on in a fair and equal way.”

However, when Theodore Roosevelt appointed Holmes an Associate Justice of the United States Supreme Court in 1902, it was only after careful consultation with Holmes’s and Roosevelt’s good friend Lodge, who was then a senator. The President was characteristically candid. He wanted to be sure that Holmes was a good party man, in entire sympathy with Roosevelt’s views. Lodge was reassuring, and the appointment was made. Everything went well, from the President’s point of view, until the case of Northern Securities v. United States , two years later, when Holmes dissented from the opinion of the majority, which held that the merger of the Northern Pacific and Great Northern railroads was in violation of the Sherman Antitrust Act. Holmes refused to be swept along in the wake of Roosevelt’s trust busting. He pointed out that the supposed evil countered by the statute was a union between parties to exclude strangers, a combination to keep rivals out of the business and to ruin those already in it. The statute in no way prevented a combination of companies with the object of increasing the total amount of business performed. Size alone was not objectionable. If it were, he observed, either the Great Northern or the Northern Pacific might already be considered too large.

Theodore Roosevelt was

irate. He made his opinion known that Holmes had truckled under to the power of big business, and exclaimed in disgust that he could carve a judge with more backbone out of a banana. It was said that he even contemplated excluding Holmes from further invitations to the White House. Holmes cared little. He always professed a liking for Theodore Roosevelt and an admiration for his way of getting things done, but he never had much respect for his intellect.

Holmes remained on the Supreme Court for thirty years, resigning when he was ninety, in 1932. Meanwhile, he and Justice Brandeis became famous for their dissents against majority opinions. It is a truism to point out that many of these dissents have since become the law. What are today regarded the fundamental rights of workers and unions were long denied because of the judicial doctrine of the sacredness of liberty of contract. Holmes had no particular predisposition toward legislative regulation of business or in favor of labor unions, but his old belief that law represented the convenience of the majority induced him to be very strongly of the opinion that legislatures must be given a wide latitude to experiment.

Dissenting from a majority opinion which denied the power to New York State to set a fifty-cent limit for the markup of theater-ticket prices, Holmes said: “Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Admendment, notwithstanding the Fourteenth, to enable a State to say that business should end.… What has happened to lotteries and wine might happen to theaters in some moral storm of the future, not because theaters were devoted to a public use, but because people had come to think that way.”

He was inclined to take a more narrow look at state or federal statutes which cut down on freedom of speech. Where this occurred in time of war, he had to be convinced that there was a clear and present danger to the state in the prohibited utterance. Here, in Abrams v. United States , is one of his most eloquent arguments in favor of the “experiment” of the Constitution: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every

year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

The rather fuzzy, sentimentalized picture of Holmes, developed by the great claque of his admirers in his old age, as a persistently fighting liberal, always on the side of the underdog, can be misleading. Holmes was first and foremost a judge. Because he did not think it proper for a court to weigh the wisdom of a statute and to superimpose upon a legislature the court’s own economic or social predilections, he was inclined to sustain rather than throw out new laws. As a good percentage of such laws during his long tenure on the Supreme Court tended toward the restraint and regulation of big industry, he is sometimes thought to have been in favor of a regulated society. Yet in his correspondence he again and again denies any such predisposition.

He scoffed at socialism, claiming that “the crowd” already had pretty much of the national wealth and asserting that the palaces and yachts of the rich amounted only to a drop in the bucket. He repeatedly expressed his admiration for the giants of industry who seemed to strike him as bigger men than dogooders and uplifters. And more than once, in defending free speech in his correspondence, he said that it was the right “of a fool to drool.” Once even, in a moment of impatience, he exclaimed to the lady sitting next to him at dinner that he “loathed” most of the things that he decided in favor of.

There were times, indeed, when Holmes struck some of his contemporaries as the very reverse of liberal. He regretted the prosecution by the government of cases against antiwar propagandists, but he sustained its right to bring them, and after the Debs decision a package addressed to him with a bgmb was intercepted in the post office. He defended the right of the state of Washington to prosecute the publishers of a pamphlet celebrating the glories of nudism because it encouraged “a disrespect for the law,” and in Bailey v. Alabama he dissented from the majority opinion and argued the constitutionality of an Alabama statute (the so-called Negro peonage law) which made a worker’s refusal to perform labor as agreed presumptive evidence of an intent to defraud the employer. Holmes here refused to admit the climate of local prejudice: “We all agree that this case is to be considered and decided in the same way as if it arose in Idaho or New York. Neither public document nor evidence discloses a law which, by its administration,

is made something different from what it appears on its face, and therefore the fact that in Alabama it mainly concerns the blacks does not matter.…”

But the opinions just cited are intended only to demonstrate the variety of his thinking. If he loathed some of the things he decided for, it must be remembered that he also loved deciding things that he loathed. He knew that the law could only develop healthily in the way that it had always developed—as a combination of history and legislation, and that for such development judicial restraint was essential. Justice Felix Frankfurter, who succeeded Benjamin Cardozo, who succeeded Holmes, was Holmes’s closest disciple in this philosophy, and lived to see his principles discredited by liberals.

Holmes was always an omnivorous reader. Books seemed to provide him with a life that was as necessary as his work on the Court. Again and again in his letters we find him yearning for the summer vacation at Beverly Farms, when he would be able to read all day. His list of titles is so long and various that it is hard to make many generalizations about it, but one may note a primary interest in current books by philosophers of law, history, and science. Holmes wanted to know every possible theory of man’s role in the cosmos. Yet he was always willing to try any other work that a trusted fellow reader suggested, and his efforts in this respect were nothing if not thorough. We see him, for example, plunging into the famous French critic SainteBeuve at the suggestion of British political scientist Harold Laski and not really much enjoying the experiment, yet refusing to give up until he had read fourteen volumes of the Causeries du Lundi and all of that mammoth work, Port-Royal . He read fiction with less enthusiasm but with considerable insights. He admired the young Ernest Hemingway with reservations, and Willa Gather without them. He read Alfred North Whitehead and Morris Cohen and Bertrand Russell and Oswald Spengler—and also Milt Gross and Anita Loos.

His wide reading brings one inevitably to his correspondence, which is closely bound up with it. Five volumes of this have now been published, including the Holmes-Pollock letters and the Holmes-Laski letters. Holmes and Sir Federick Pollock were contemporaries and lifelong friends, and both were legal scholars, philosophers, and aristocrats. Both were reserved, independent, strong-minded men. In the correspondence, which covers nearly sixty years, their minds met on every kind of legal, political, social, or literary problem. The letters make fascinating reading even for those not versed in law.

Holmes’s letters to Harold Laski are a bit less interesting. Laski was a generation younger and treated his correspondent with marked deference. Holmes was very fond of him, but he was inclined to use him as a literary retriever. He wanted the names of all the books Laski was reading, and he was supplied with a feast.

Yet he did not always, as with Pollock, follow up on topics which Laski evidently wished to discuss. At rare moments, however, Holmes would let himself go in a bit of natural description. One can only wish that there were more of such passages as the following: “The event of the week has been the opening of the Freer gallery in the Smithsonian grounds—a beautiful building—with a square in the middle a patch of green, a little fountain and two peacocks and a peahen. The lady it is said will have nothing to do with one of them and he flocked apart and took the sunlight. The other displayed his fan and shivered with amorous anticipations.”

Fanny Holmes died in 1929 at the age of eighty-nine, and Holmes wrote to his friends that she had made life poetry for him. He said that he was glad that she had gone first, for he felt—and one is sure correctly—that she would have been worse off without him than he without her. It was only too evident that he had constituted her entire life, whereas she had hardly expected—or even wanted—to constitute all of his. In the following year Charles Evans Hughes was appointed Chief Justice, and Holmes wrote to Laski that he had lunched at the White House, and that Mrs. Hoover had told him that the President would have liked to appoint him but had thought that he should not be burdened. Indeed, he did not want the appointment; he no longer cared for anything that anyone could give him. On January 12, 1931, he retired from the Court. Harvard Law School continued to send him one of its brightest graduates each year, to be his law clerk and secretary, until his death in 1935, just before his ninety-fourth birthday.

In the final years Holmes became a national hero and was inundated, almost to the point of asphyxiation, with laudations. His fame extended far beyond the legal field, and he was elevated into a kind of old national darling to thousands who could not have understood a page of The Common Law . Holmes’s attitude about this outburst of fame was amiable enough, but he was never one to value highly any praise that was not discriminating. A word of approval from Sir Frederick Pollock was worth a thousand hosannas. His life had been a happy one, because he had had his chance and had used it, the chance to break his heart “in trying to make every word living and real.” The only tragedy would have been to have missed it, a thought which had haunted him in the long campaigns of the Civil War. He never forgot the friends of the 20th Regiment who had lost their chances at Ball’s Bluff, or Antietam, or Fredericksburg.

OBITER DICTA FROM JUSTICE HOLMES