The divorce, inheritance, and murder cases he presided over, however, offered the real window on human nature at its rawest. That fall of 1883 he heard his first divorce cases, sitting in Pittsfield—where the local newspaper reported the arrival on the bench of the new justice, referring to him as “a son of the poet O. W. Holmes, and looking much younger than his 42 years.”24
Divorce in Massachusetts was possible at the time only on the grounds of desertion, cruelty, adultery, or “gross and confirmed habits of intoxication,” and the testimony in divorce cases accordingly tended toward the salacious. More than once Holmes allowed the wife in a divorce case to offer her testimony in a low voice, or told the reporters in the courtroom that “if out of respect for delicacy” they would move out of earshot, “I should think it very proper.” (“I should not have felt right in requiring it,” he said, but the reporters complied.)25
In other instances he intervened to protect a wife from legal consequences she did not want or anticipate. In a case in Pittsfield, he dismissed the husband’s claim that his wife had deserted him after she testified that she did not want a divorce, and that the only reason she would not share his bed was that he refused “to wash himself and change his filthy and soiled and bad smelling clothing” and could not get near him “without making herself sick.”26
In a high-profile divorce case his first year on the bench involving a prominent Back Bay couple—he was described in a newspaper account as “the president of a large manufacturing company,” she “a buxom, comely woman of 30 or thereabouts, stylish, accomplished, and a general society favorite”—the wife did want a divorce, but the only grounds available were her own adultery. Despite a lengthy deposition from a “lady detective” who had followed the woman and her lover from their rendezvous at the Christian Science Church on Park Street, to the Boston Common, onto a streetcar to Upham Corner, and then into the woods where they had lain behind a stone wall—where the detective “saw them in the act of adultery”—Holmes somewhat implausibly ordered the case dismissed for lack of proof. He explained in a memorandum, which he ordered “not to be filed among papers in the court,”
With regard to the charge of adultery . . . in no event could I find it sustained without insisting that Mrs. Seaver should be represented by counsel and an opportunity given to put in such evidence and make such cross examination as should be thought necessary. Mrs. Seaver does not appear to understand that so far as the case before me is concerned the divorce which she says she wants can only be decreed on the ground that the disgrace she says she does not deserve and wishes to avoid, is proved . . . or that if it were granted she might not be allowed the custody of her child.27
He broke legal ground in several of his divorce cases. In a landmark case on visitation rights, he took lengthy testimony from both parents, as well as relatives, the family physician, and the child’s nurse, to work out a detailed arrangement for the father to see his daughter once a week at his expense at a hotel in Boston.28
In another case, he ruled that a husband, in arranging to have a telegram sent to him so he could pretend to go out of town on a business trip, did not “connive” in his wife’s adultery when he returned that night with a witness and surprised her in bed with their lodger. The wife appealed, arguing that a husband had a common law duty to guard his wife from unchastity. But the full court upheld Holmes’s decision, agreeing that “by modern law and usage the right of a husband to control the conduct of his wife has largely, if not wholly, disappeared . . . if she commits adultery against his wishes, and without his procurement, he ought to be permitted to obtain evidence of it.”29
On the U.S. Supreme Court, Holmes once snapped in conference to a fellow justice who had praised their arriving at a “just” decision, “Hell is paved with just decisions”: he explained to Mrs. Curtis at the time, “I am in the habit of saying to my brethren I hate justice—meaning thereby that when I hear a man appealing to that I expect to find it an apology for not playing the game according to the rules—dodging some settled principle without articulate discrimination.”30 Yet as a trial justice in Massachusetts he seemed willing, at least at times, to stretch a point to avoid a manifest injustice.
In two cases involving beneficiaries of a fraternal order’s fund for widows and orphans, he showed an understanding of the problems of daily life in ordering an equitable result despite the strict letter of the law. In both cases the lodge members had named as their beneficiary a nondependent—obviously a longtime, unmarried girlfriend—which fell afoul of the organizations’ charters and Massachusetts insurance law. To make matters worse, one of the men had submitted a sworn affidavit to his order’s supreme lodge falsely declaring that the woman was his dependent. But Holmes found a way around even that, noting that the local lodge had seemed to be aware of the subterfuge, and ruling, “I must assume that this affidavit was not true, but there is no evidence other than its untruth that it was fraudulent”—and ordered the death benefits to be paid to the members’ chosen beneficiaries.31
In one of the last trials he conducted on the Massachusetts court, he set a new precedent on the witnessing of a will that loosened the traditional, draconian standard. Holmes ruled that if it was even physically possible that the witnesses could have been within the line of sight of the signer of the will, it deserved the benefit of the doubt:
The only question tried before me was whether the codicil was signed by two of the witnesses in the presence of the testatrix. She lay in bed in one room, two of the witnesses signed in another on the other side of an entry, and the codicil immediately thereafter was shown to the testatrix. The doors were open. The distance from door post to door post diagonally along the line of vision was about nine and one half feet. The table at which the witnesses sat was just inside the door of their room, and the distance from the table to the bed of course was a few feet greater. The evidence as to the exact positions of the table and of the bed was conflicting and somewhat uncertain. I was satisfied, however, that the doors were open, and that the bed was in such a position that the testatrix, by rising slightly, her legs remaining in the same place, could have seen into the other room and could have seen the witnesses as they signed. Whether she could have raised herself so as to see is more doubtful. I did not find that she could have done so. I ruled that these facts did not exclude a finding that the codicil was witnessed in the presence of the testatrix, and I found as matter of fact and also ruled as matter of law that the witnesses signed in her presence.32
In a number of other will cases he likewise consistently placed the manifest interests and intentions of the deceased ahead of whatever was said on paper. There was the case of a huge bequest left by a ninety-five-year-old widow to her remarkably named sons Verrazano, Odanathus, and Longinus, under a will that Verrazano had obviously drafted himself, leaving almost everything to him alone, which Holmes invalidated; and an almost-as-large estate of one Ann White Vose, to be distributed to two dozen different charitable institutions and more than fifty individuals under a voluminous codicil containing thirty-six sections “which seems to have been drawn without the help of a lawyer, and which raises difficulties of the kind to be expected under such circumstances,” Holmes drily wrote in his findings. He spent fourteen pages untangling its contradictory and imprecise instructions, answering nineteen specific questions the bewildered executors had asked the court (“To whom shall the Vose clock, mentioned in section fifth of said memorandum or codicil of June 10, 1895, be given by the executor?”), and ruling that the testatrix had probably not really meant to exclude from the $2,500 bequests, designated for each of her first cousins not otherwise “remembered by a legacy,” the two cousins who had been singled out to receive, respectively, a hat-stand and a chromolithograph print.33
IN TWO LENGTHY courtroom trials, Holmes had the opportunity to make the acquaintance of a pair of exceptionally talented con artists who almost certainly would never have crossed the normal path of life of a Boston Brahmin.
> Deshon v. Wood involved an affable wheeler-dealer named John F. Wood who put on air of prosperity to court a divorcée even as he was plunging into bankruptcy. On the witness stand he continued to breezily insist that his financial affairs were in perfect order, brushing off evidence presented in cross-examination of his increasingly desperate pleas for advance payment of rents he tried to collect—“do try and save me,” read one—as merely the “usual form” “common in mercantile usage.”34
The crux of the case was his promise to give his wife-to-be $20,000 in bonds in the Exeter Wood Pulp Company, a sawmill he owned in Maine. He had shown her the property, placed the bonds in her hands, and promised he would transfer ownership when they were wed. In fact, he was deeply in debt, leaving behind him a trail of dubious transactions—pledging stock from one venture to borrow for another and serving as vice-president of an insolvent manufacturer of emery wheels that had nonetheless paid out a 35 percent dividend to its officers after the factory burned down, and a $60,000 insurance payment collected. Shortly after his marriage he was declared insolvent and his assets placed in the hands of a receiver.35
Like Wood’s other property, the sawmill had also burned down in the meanwhile, yielding a $6,000 insurance payment, which remained one of his few tangible assets. The receiver was now suing to recover the bonds, alleging that the transfer to Mrs. Wood was little more than a sham to hide his assets from his creditors.36
Holmes agreed, ruling that the statute of frauds required prenuptial agreements to be made in writing to be valid against a third party. It was a fine point of law, ultimately turning on whether the bonds were transferred as a gift or through a contract, and the full court narrowly divided 4–3 in upholding his decision.37
The most bizarre slice of human experience Holmes probably witnessed in his courtroom was the case of a fifty-year-old unmarried woman, who, to the astonishment of her family, suddenly changed her will, naming as her sole beneficiary a thirty-eight-year-old man whom she had recently met—whom she then also legally adopted as her son. She had been a believer in spiritualism and, when her aunt died and left her the house they had shared, had refused to allow any of her aunt’s belongings to be touched. But after meeting the younger man, she sold all of the aunt’s prized possessions, moved out of the house, grew suspicious and hostile to her family, and changed her legal adviser.
When she died, her sisters sued to have the will invalidated, telling a sordid tale of her having been kept in isolation by the adopted son in her last days, confined to a room in her house as she was dying of cancer, and denied visits of friends or even medical attention.
The case presented a paradoxical legal problem: if the will was invalid, the son would still inherit her estate as her sole heir, which meant that the sisters had no legal standing to challenge the will in the first place. There was little basis in law to challenge an adoption unless a fraud had been perpetrated on the probate court, and even then it seemed as if the sisters would first have to have the will invalidated, to gain standing to be a party to any action there. Holmes denied a motion to present the case to a jury on the question of the will alone, and the full court again agreed with his judgment.38
Shortly after Holmes joined the court in 1883, its trial caseload was lightened by dividing jurisdiction over equity cases with the Superior Court; in 1887 divorce cases were transferred to the lower court as well; and in 1891 the legislature ended the high court’s role in murder trials.39 Holmes presided at the trials of four particularly lurid murders before the change was made: there was the ex-policeman who shot his estranged and pregnant wife, who had left him because of his extreme drunkenness; the murder of a man on an egg-buying trip, killed for the thirty dollars in his pocket; the elderly couple who did in their eighty-eight-year-old lodger with an axe; and the drunken doctor who shot a cab driver in a dispute over change from the fare. The trials lasted only a few days, all but the last ending in a death sentence (the doctor was convicted of manslaughter).40
Two years after joining the court, in a speech to the Suffolk Bar Association, Holmes asked in what other profession but the law “does one plunge so deep in the stream of life,—so share its passions, its battles, its despair, its triumphs, both as witness and actor?”41 In seeking to live life on the firing line, he had realized his ambition in presiding over the daily drama of the courtroom.
PAYING TRIBUTE TO a departed judicial colleague, William Crowninshield Endicott, toward the end of his own term on the Massachusetts Supreme Judicial Court, Holmes praised the qualities that Endicott had embodied, a perfect balancing of intellect and heart:
He sat without a thought of self, without even the unconscious pride or aloofness which seemed, nay, was, his right, serenely absorbed in the problems of the matter in hand, impersonal yet human, the living image of justice, weighing as if the elements in the balance were dead matter, but discerning and collecting those elements by the help of a noble and tender heart.42
It was clearly a reflection of his own model of the ideal trial justice, and Holmes relished the challenge of issuing judgments on the fly, sizing up a witness’s credibility, and being absorbed in a living drama of the moment even while maintaining a rigorous intellectual independence. Hiller B. Zobel, who served on the Superior Court in Massachusetts a century after Holmes’s time, and who made a thorough study of Holmes’s trial records, wrote that he was an “exemplar” of a highly efficient and active trial justice, with a command of both the law and his courtroom. “He issued difficult, complicated legal rulings from the bench,” Zobel noted, “explained evidentiary decisions as he made them,” and “charged juries clearly,” never using boilerplate instructions but carefully explaining how they were to weigh the evidence before them.43
Holmes also liked to run a tight ship when it came to courtroom decorum. Once, on circuit in Worcester, a young lawyer—it was Webster Thayer, who would later be notorious as the judge who presided over the Sacco-Vanzetti murder trial in 1921—was “lounging” in the courtroom with his feet up on the bar toward the bench. After a while Holmes beckoned to the court officer. “Tell that feller I’m tired of looking at his ass,” he said. The message was relayed in more decorous language, and Thayer took his feet down.44
The one thing he did not like about the job was the tediousness of lawyers. “Dear me, hardly anyone knows how to argue a case,” he confided to Mrs. Gray. “You can twig in one minute what a man will take from 5 to 15 minutes to utter with due rhetorical emphasis.” Waiting for lawyers to catch up with his understanding of their case, he often busied himself writing letters to friends. “I now am listening to an argument which is to determine who shall be Mayor of Worcester—an impertinent distraction when one is writing to a lady,” he wrote to Mrs. Curtis on another occasion. He later acknowledged to Dean Acheson that his letter writing on the bench gave him “an undeserved reputation for attention and industry,” as courtroom observers understandably assumed he was taking meticulous notes of the case he was hearing.45
He wrote to Lady Castletown one day from the courtroom that the lawyer arguing an insurance case before him at the moment made him think of the interminable Wagner opera he had been to the night before (“If anyone has to go down stairs each step takes a quarter of an hour, and a kiss is as long as a Puritan sermon”). Another time he wrote her from the bench,
Just now I am holding court . . . and am suffering from a take down in the hint that the younger men—or I daresay the bar generally, think I talk too much on the bench and don’t give ’em chance enough to develop their ideas. I will be a monument hereafter but I think it uncivilized to have to listen to speechifying instead of telling at once where my trouble is when I am the man they want to convince.46
The few complete transcripts of his trials that exist show Holmes frequently trying to move the case along, cutting off repetitive questioning or taking over the examination of witnesses himself to try to get to the point more quickly. “Is it worthwhile pressing that any further, Mr. Rich
ardson? Of course I understand the thing,” he impatiently interrupted one lawyer while questioning a witness. “Cannot you abridge these long preliminaries a little?” he asked another who was too enamored of the sound of his own voice.47
The bar nonetheless thought well of him. “I like to try a case before Judge Holmes,” one prominent lawyer, a retired federal judge, told a committee of the legislature that was considering ending the Supreme Judicial Court’s trial jurisdiction altogether. “He is open-minded, magnanimous and lets you know what is the matter.”48
His experiences in the trial court may not have made him sympathetic to long-winded counsel, but it did give him a perspective of the trial judge’s role that he carried with him as an appellate judge, both in Massachusetts and later on the U.S. Supreme Court. In a number of his appellate decisions he stressed that it is not enough for an appeals court judge to say that he would have reached a different conclusion on the original evidence: many questions had to be left to the discretion of the trial judge for the system to work at all, and it would only sow chaos and uncertainty to second-guess the man on the spot absent a clear finding of legal error.
“Petitioners have had their day in court,” he ruled in denying a further hearing on a case he had already dealt with while sitting as a single justice. He held that the award of costs was in a trial judge’s discretion and not reviewable; that having an inept lawyer who failed to appear in court, and did not notice the default judgment entered in the case, was no excuse for missing a one-year deadline for a rehearing; that in the absence of “manifest injustice” a court would not intervene merely to revise an unfavorable tax assessment; and that a will accepted by the probate court, and then affirmed on appeal, cannot subsequently be challenged, even with new evidence.49
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