Oliver Wendell Holmes

by Stephen Budiansky

  Henry James’s feeling of inadequacy next to Holmes was so palpable it overshadowed everything in their relationship. Their friendship had begun with the exuberance of youthful confidence; Henry’s first letter inviting him to North Conway begged him to come as a relief to Henry’s spiritual isolation: “It’s tolerably cool; there are woods; there are women. Put two and two together. The woods are not vast; neither are the women; but they will perhaps hold you a week or so. . . . If you disappoint me, you kill me—or rather, I kill you.”60

  But Henry’s jealousy was never far from the surface. When Holmes was away in London in August 1866 “on his 1st flushed and charming visit to England,” Henry wrote in his diary, he had stopped in at the house on Charles Street “and saw his mother in the cool dim matted drawingroom of that house (passed, never, since, without the sense), and got the news, of all his London, his general English, success and felicity, and vibrated so with the wonder and romance and curiosity and dim weak tender (oh, tender!) envy of it.” He traced his own impulse to settle in England ten years later to that moment of envy.61

  Over the next few years Henry alternated between professions of friendship and pique toward Holmes, sometimes in the same breath; he wrote his brother more than once threatening simultaneously never to speak to Holmes again, and to write to him at once:

  I get no news at all of O.W.H. jr.—Tell him—I hate him most damnably; I never knew till the past few months how much; but that I yet think I shall write to him.

  Do tell me something about Wendell Holmes. One would think he was dead. Give him my compliments and tell him I’m sadly afraid that one of these days I shall have to write to him.62

  Holmes’s relationship with William was more nuanced. They, too, would drift apart over the years, but their intense shared interest in questions of fundamental philosophical truth was one of the last great formative experiences of his youth. Early in their friendship Holmes wrote him,

  Ah! dear Bill, do me justice. My expressions of esteem are not hollow nor hyperbolical. . . . In spite of my many friends I am almost alone in my thoughts and feelings. And whether I ever see you much or not, I think I can never fail to derive a secret comfort and companionship from the thought of you. I believe I shall always respect and love you whether we see much or little of each other.63

  Overwhelmed by the problem of free will in a world apparently meaningless, “void,” and “evil,” in 1869 William James plunged into deep depression. He exhibited a raft of psychosomatic ills—insomnia, backaches, gastrointestinal disturbances, exhaustion, panic attacks so severe he could not walk alone in the dark—and began thinking of suicide. “The difficulty: ‘to act without hope’ must be solved,” he wrote in his diary.64 Throughout his life he attempted to reconcile his skepticism with the possibility that man’s beliefs still mattered in a world without God. He posited a “duty to believe,” then “the will to believe,” and later “the right to believe.”65

  Around the time he began to pull out of his depression, James, along with Holmes and a few other like-minded radical thinkers, began meeting regularly to argue over their skeptical ideas. “[Holmes], my brother, and various other long-headed youths have combined to form a metaphysical club, where they wrangle grimly and stick to the question,” Henry James told Charles Eliot Norton. “It gives me a headache merely to know of it.” Naming it “a metaphysical club” was more than half-sarcastic: it was if anything an antimetaphysical club.66

  Holmes later paid tribute to the lasting influence that one member of the group, Chauncey Wright, had in shaping his basic philosophical views. Wright was a mathematician whose day job was calculating astronomical data for nautical almanacs, but he mostly devoted his time, when not drinking and brooding, to inventing card tricks, juggling and making mechanical toys, writing impenetrably dull book reviews—and tirelessly arguing philosophy. President Eliot tried to help this troubled but obviously brilliant young man by letting him teach a class at Harvard on mathematical physics. One student enrolled.67

  Holmes in 1929 described Wright to his old friend Pollock as “a nearly forgotten philosopher of real merit” who “taught me when young that I must not say necessary about the universe, that we don’t know whether anything is necessary or not.” Wright himself summarized his argument thus: “No real fate or necessity is indeed manifested anywhere in the universe—only a phenomenal regularity.”68

  Holmes would distill those ideas in his oft-repeated aphorism that “I mean by truth simply what I can’t help accepting”—adding, “My can’t helps are not necessarily cosmic can’t helps.” But more than that, Holmes thought true skepticism meant recognizing that the universe cares nothing about our existence, and that man ought to return the favor, and get on with life. The question that drove his friend William James to the edge of suicide he considered a waste of time. The universe was predictable enough from a statistical point of view that one could operate on the basis of likelihood even in a world where no certainty existed. He liked to say he considered himself not a necessitarian but a “bettabilitarian.” Being able to make a reasonable bet on the outcome was good enough.69

  He also thought there was something absurd in arguing the limits to knowability from a philosophical position that itself was presented as the final word, as he thought James always tried to. “I heartily agree with much,” he wrote James after reading his book Pragmatism in 1907—“but I am more sceptical than you are. You would say that I am too hard or tough minded. I think none of the philosophers sufficiently humble.”

  Philosophy generally seems to me to sin through arrogance. It is like the old knight-errants who proposed to knock your head off if you didn’t admit that their girl was not only a nice girl but the most beautiful and best of all possible girls. I can’t help preferring champagne to ditch water,—I doubt if the universe does.70

  Or as he explained in another letter to his old philosophical sparring partner, “I think the demands made of the universe are too nearly the Christian demands without the scheme of salvation. . . . This you will recognize as my ever recurring view ever since we have known each other.”71 Holmes said he thought railing against the universe was like damning the weather or firing a gun at the sky; the only change it produced on the relation between man and the cosmos was the kick of the gun on the man who fired it. “It seems to me that the only promising activity is to make my universe coherent and livable, not to babble about the universe,” he wrote James in 1907.72

  On the way down from one of their climbs in the Alps, Holmes and his lapsed-minister friend Leslie Stephen had talked “comfortably of metaphysics.” Holmes later sent Stephen a criticism of one of his articles, noting his “bitterness.” Stephen admitted “it is quite true that I generally am too savage,” but “having wasted a large part of my life in the damnable fetters of the Thirty-nine Articles,” had reason to be.73 Stephen, like William James, having been brought up with God, was like the agnostic who an English writer of the next generation would describe as furious at God for not existing.

  Holmes’s agnosticism was milder because it encompassed even itself: it was possible to live a moral and useful life without even worrying about the question. It was part of why he always managed to get along with devout believers like his friend John Wu, who converted to Catholicism, or the Irish priest Canon Patrick Sheehan, whom he met near Lady Castletown’s home in County Cork and warmly corresponded with for years. Wu admiringly said of Holmes after his death that he was always “skeptically skeptical,” never “dogmatically skeptical.”74

  Holmes’s skeptically philosophizing friend Chauncey Wright died in 1875, age forty-five, of a stroke brought on by his dissolute life; Henry James was at his bedside.75 Wright was one of the few influences Holmes ever openly acknowledged in his intellectual development, and Wright’s clarifying insights completed what the war had more practically taught him, that certainty not only leads to dangerous consequences, but is not even necessary to life.

  Before Holmes had even
begun to think of developing a comprehensive philosophy of law, he had worked out a philosophy of life.

  CHAPTER 6

  The Common Law

  In later years Holmes often recalled the uncertainties and doubts that are a young man’s lot. Remarking on his own nephew in 1897, he observed, “Just now he is in the great fog bank that lies around 25 and thinking poorly of himself.” Reading Proust in his eighties, Holmes was struck by its evocations of that still-familiar existential loneliness of youth. “Other melancholy and lonely lads,” he told Ethel Scott, “had had the same futile yearnings.”1

  But he also often mentioned the more acute feelings of isolation that he had experienced from his determination to blaze his own trail through the law from the start. “One cannot cut a new path as I have tried to do without isolation,” he told Lady Castletown in 1896. “I have felt horribly alone.” And he confessed to John Wu, “I had many black years.”2

  Original work by its very nature means cutting oneself loose from the usual sources of encouragement and reassurance to one beginning a career—and it also means constantly having to overcome doubts about failure. His dream of making his mark as a legal thinker meant he was seeking to blaze a trail through a wood he was not sure even existed.

  In the midst of the intense scholarly research that would culminate a few years later in his public lectures and book on the common law that would make his reputation, Holmes wrote his old mentor Emerson, “I have learned, after a laborious and somewhat painful period of probation that the law opens a way to philosophy as well as anything else, if pursued far enough, and I hope to prove it before I die.” A decade later, in a lecture to Harvard undergraduates on “The Profession of the Law,” he was able to declare, “I say no longer with any doubt—that a man may live greatly in the law as well as elsewhere; that there as well as elsewhere his thought may find its unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable.”3

  He told a number of people that he had felt he had to accomplish something by age forty.4 One night, working late at the law library at the Suffolk County Court House, he invited a younger lawyer he often saw there, George Upham—he was a distant cousin by marriage—to join him for a walk across Boston Common on their way home when the library closed. Upham recalled their talk sixty years later, in 1936, a year after the justice’s death:

  He told me he had a theory that anyone could accomplish anything he wished, if he only wished it hard enough, continuously, morning, noon, and night, and perhaps subconsciously while sleeping. . . .

  I asked what he wished to do. He replied he was trying to write a book on the common law which he hoped would supplant Blackstone and Kent’s Commentaries. Pressing him to tell me of further ambitions he said he wished to become chief justice of the supreme court of Massachusetts, and eventually, impossible as it might seem, a justice of the Supreme Court of the United States.5

  It sounds too pat a story, remembered only after all its prophecies had come true. But Holmes repeated that same general advice, at least, to others. He counseled John Wu, a half century later, that to achieve anything of importance “takes time, the capacity to want something fiercely and want it all the time, and sticking to the rugged course.” And none of his friends doubted he was destined for great things. In 1869, noting his preternatural dedication to his legal studies, William James prophesied, “This must lead to Chief Justice, U.S. Supreme Court.”6

  Even before his admission to the bar in March 1867, Holmes had taken on a major new task in legal scholarship, contributing regular book reviews to a new journal that Ropes and Gray had just founded. The American Law Review, though aimed at practitioners, was unusual in publishing theoretical essays on the law and covering legal developments in England as well as America. Within a few years, Holmes had become one of its coeditors as it rose to become the preeminent legal publication in America. At the same time, he was beginning the practice of law himself, while still finding time to wrangle philosophy late into the night. “In comes Bill James and we had the Cosmos hot and heavy till half past eleven,” he recorded in his diary on February 14, 1867.7

  Admission to the bar in Massachusetts in 1867 involved being examined in person by two current members of the bar named by a judge. “Made a devilish poor show I thought,” Holmes wrote after his second interview. But he did well enough to pass, and recorded the great milestone in his life on March 5: “My first day as a lawyer . . . The rush of clients postponed on account of weather.”8

  While preparing for his examination Holmes had begun working for one of Boston’s leading law firms, Chandler, Shattuck and Thayer. The firm specialized in litigation for major commercial clients, notably railroads, banks, and mercantile houses. Holmes would remain with them for the next three years, arguing his first cases. He would later say, “I owe to Mr. Shattuck more than I ever have owed any one else in the world, outside my immediate family.”9

  In his own way as a practitioner, George Otis Shattuck, who was just twelve years older than Holmes, impressed on his new associate the absolute need, as Holmes wrote in his diary, “to immerse myself in law completely—wh[ich] Shattuck says, a man must at some period of his career if he would be a first rate lawyer, though of being that I despair.”10

  George Otis Shattuck

  Shattuck, in his prime, was “the ablest advocate I ever knew,” Holmes recalled many years later. He had both the law and a deep understanding of human nature at his fingertips. Holmes would write upon Shattuck’s death at age sixty-eight in 1897 that “young men in college or at the beginning of their professional life are very apt to encounter some able man a few years older than themselves who is so near to their questions and difficulties and yet so much in advance that he counts for a great deal in the shaping of their views or even of their lives. Mr. Shattuck played that part for me.”11

  He taught me unrepeatable lessons. He did me unnumbered kindnesses. To live while still young in daily contact with his sweeping, all-compelling force, his might of temperament, his swiftness (rarely found with such might), his insight, tact, and subtlety, was to receive an imprint never to be effaced. My education would have been but a thin and poor thing had I missed that great experience. . . .

  His work may not always have had the neatness of smaller minds, but it brought out deeply hidden truths by some invisible radiance that searched things to their bones.

  He seemed to like to take great burdens upon himself,—not merely when there was a corresponding reward, but when his feelings were touched, as well. He was a model in his bearing with clients. How often have I seen men come to him borne down by troubles which they found too great to support, and depart with light step, having left their weight upon stronger shoulders. But while his calm manner made such things seem trifles, he took them a good deal on his nerves. I saw the ends of his fingers twitch as he quietly listened and advised. He never shunned anxiety, and anxiety is what kills.

  Shattuck’s skill in cross-examination was a model of force and tact. He never asked a question he did not already know the answer to, Holmes noted—and from his later experience as a trial judge, he had seen all too many lawyers “hurt their case” with ill-prepared cross-examinations—and his closing arguments to the jury “carried everything before them like a victorious cavalry charge.”12

  Holmes’s eulogy of his old mentor, delivered from the bench of the Supreme Judicial Court thirty years after beginning his own career, was a mirror of the human qualities Holmes would prize throughout his life in the law. Shattuck had tested his abilities on the firing line, where real consequences were at stake. “Many of those who are remembered have spared themselves this supreme trial, and have fostered a faculty at the expense of their total life,” Holmes said. “It is one thing to utter a happy phrase from a protected cloister; another to think under fire—to think for action upon which great interests depend.”13

&
nbsp; Working for Shattuck, and later with him as a partner of the firm Shattuck, Holmes and Monroe that Shattuck would establish in 1873, Holmes regularly appeared before the Massachusetts Supreme Judicial Court and the U.S. District Court, arguing maritime, insurance, and tax cases for Boston’s downtown business interests. He argued one case all the way to the U.S. Supreme Court, a complex admiralty matter involving the liability of partners for an unpaid prize claim on a vessel captured during the Civil War. In that single appearance before the highest court of the land, he won a victory against the government’s attempt to recover the money—if relying on a highly technical argument to do so.14

  Shattuck was both a close friend and a partner in their years at the bar together. Holmes was a frequent visitor to his senior partner’s summer home in Mattapoisett on Buzzard’s Bay, just west of Cape Cod, and a few years later Holmes bought a place nearby himself. An enthusiastic sailor, Shattuck often took Holmes on his yacht on expeditions across the bay to the closer islands, or even to Nantucket or Provincetown at the very tip of Cape Cod. He was enough of an old Yankee farmer in his roots—he grew up on a farm in West Andover that had been in the family since 1725—that he always loved to ride and drive and to try to “subdue the stubborn soil of his rough acres” by the sea. “I think he had a sympathy with the great, quiet forces which he saw at work, and a sympathy with the animals of his farm,” Holmes said.15

  In the midst of everything else going on in his life then, Holmes got married. He wrote his old savior Mrs. Kennedy in Hagerstown on March 11, 1872, with the news. “I am engaged to Miss F. B. Dixwell who has been for many years my most intimate friend and who will now I hope soon be my wife.” Three months later, he recorded in his reading-list notebook, among the books on Early Roman Law, Principles of General Jurisprudence, and a French translation of Kant, Eléments metaphysiques de la Doctrine du Droit, that he was reading, two noteworthy events: