Oliver Wendell Holmes

by Stephen Budiansky

  Fanny kept her feelings about all of these flirtations and friendships to herself, and friends and relatives had varying impressions of how much she was affected by her husband’s carryings-on. Several thought she was very hurt, even if she mostly hid it. Austin H. Clark, a prominent zoologist who married one of Holmes’s young cousins, told Mark Howe that Fanny was “greatly troubled,” extremely jealous, suspicious even of Holmes’s young cousin Dorothy Upham when she lived with them. But others said they never saw any signs of jealousy on Fanny’s part, and took her occasional arch comments about her husband’s “charmers” as proof she had rightly sized up all of these young beauties as no real threat to her or her marriage.38

  Only one letter of Fanny’s hints at her feelings; it was an undated letter to her husband written while she was staying at Beverly Farms at the end of the summer while he was working in Boston and joining her at the shore for the weekends. She concluded with a tart reminder that just because they were apart during the week, he should not think he was free to gallivant about as if he were a single man. “I don’t suppose you intend to go to New York after Miss Bradley’s friend, she herself being well out of the way. If the fancy has come into your mind banish it. You have a wife once a week.”39

  With Ethel Scott, in Ireland

  Outwardly, she put on an air of stoicism. Many of her acquaintances noted how Fanny made no effort to improve her appearance. “In her later years she really did look like a little monkey,” observed one friend, her hair pulled back from her forehead as tightly as possible. Charlie Curtis thought her “studied effort to be plain and to wear unbecoming clothes” was a shrewd way to “defy the notion that she was jealous of his philanderings, an effort to show that she didn’t care—though of course she did.”40

  Fanny was sensitive enough about her looks, however, to refuse ever to be photographed, though remained self-mocking enough that when her husband kept asking her to have her portrait taken so he could have a picture of her, she finally presented him with a postcard of an ancient Buddha.41

  And every once in a while, with studied deadpan humor, she would stick a monkey wrench in her husband’s attempts to impress pretty young things. Once, Holmes was pouring out a stream of beautiful philosophical talk to an attractive young woman in the drawing room at Beverly Farms (she was the wife of a young Boston lawyer friend, Richard W. Hale). Just as Holmes paused for his conclusion, Fanny interjected—“like a needle against a balloon,” Hale would always remember—“George! You do talk pretty!”

  Holmes, to his credit, delighted in telling the story on himself. “That woman!” he would say, “she took me just as I was well satisfied that I had plumbed the universe and—look what she did to me!”42

  IN 1888 THEY traveled across the country to California as George Shattuck’s guests in a private railcar. He was a director of the Atchison, Topeka & Santa Fe and, as the Boston Daily Advertiser noted on their departure from Boston on May 5, “The judge has been looking overworked of late and as if just such an ideal mode of travel and new sights were needful.” In Chicago they were introduced to Melville Fuller, who had been just nominated by Grover Cleveland as chief justice of the United States, then traveled on to San Francisco and Oregon, where they were taken on a steamboat that shot the rapids to Portland. Holmes gave the local newspaper a diplomatic quote, saying they had never seen anything in Europe to equal the grandeur of the scenery.43

  “Home again. 9000 miles in one car!—everything an immense success,” Holmes wrote his friend Owen Wister a month later. They spent two months at Niagara Falls later in the summer, Holmes using his time to read the Bible through, which inspired him to observe that the constant roar of the falls was “like living on familiar terms with the prophet Isaiah.”44

  The following spring, in May 1889, Holmes left on his own for a trip to England. His widowed sister, Amelia Jackson Sargent, had just died that April, at age forty-five, following a few weeks’ illness. She had been living with and looking after Dr. Holmes since the death of their mother the previous year, and Holmes and Fanny decided they now had little choice but to take Amelia’s place in Dr. Holmes’s house, and move back once again to 296 Beacon Street.

  Fanny moved in at once, and Dr. Holmes was grateful for her company, describing her to a friend as “a very helpful, hopeful, powerful as well as brilliant woman,” who kept the household running smoothly and even cheerfully amid his sorrow. But Fanny told her husband she thought it might ease the friction between father and son in the new arrangement “and make the first summer easier” if he were absent. She had sworn never again to go abroad after her first experience at sea on their 1874 trip, but they did go once more together, spending a leisurely three months in Europe in the summer of 1882 touring England, Switzerland, Germany, and Holland. But after that she never again accompanied him abroad. Knowing how much he enjoyed going to England, however, she always afterward took the burden on herself to insist that he go whenever he wanted to, and to come up with reasons that would alleviate him of the guilt of leaving her behind.45

  On the boat going over was William James, to attend a psychological research conference in Paris later in the summer. Holmes “making himself delightful to all hands,” William archly reported. Alice James, who was living in London at the time, added her own catty observation in her diary shortly after Holmes’s arrival: “They say he has entirely broken loose and is flirting as desperately as ever.”46

  Desperately flirting or not, he met a number of charming young women who became lifelong correspondents. Ethel Grenfell, known as “Ettie,” was the twenty-one-year-old niece of Henry Cowper, a Liberal MP whom Holmes had met on his first trip to England in 1866. She visited the Holmeses in Boston in September 1888 and had recently married a member of Parliament twelve years her senior; as Lady Desborough she would be well known as a confidante of prime ministers and as a prominent society hostess in the political and intellectual circles that included Winston Churchill, Oscar Wilde, and H. G. Wells—and known too for her numerous love affairs. On Holmes’s return home that summer, he and Ettie began a warm and vivacious correspondence. She wrote him a few years after his visit,

  My very dear friend . . . what perfect letters you do write. I should like to read one every morning like the “Times”—quite apart from the dear kind personal part which I love, there is no one in this world or ever has been who fills every page he writes with such vivid suggestion, farce, & spontaneity. You fire one afresh with every letter, half with longing to be farther along the road you have travelled, half with a proud joy thinking, “I too in my life have loved the great things passionately, as such fragments of them it was given me to apprehend.”47

  He also met Margot Tennant—later Lady Asquith, famous as author, wit, and wife of a prime minister—who became a faithful correspondent; and was introduced, by Henry James, to Lucy Clifford, a novelist and the widow of a brilliant mathematician and philosopher, William K. Clifford. (“Mrs. Clifford happened to confide to me yesterday how madly she loves you,” James wrote him afterward. “So poor woman now! Damn your greatness, my dear Wendell.”)48

  And at the magnificent country estate of the Earl of Pembroke, Wilton House in Salisbury, he made the acquaintance of a thirty-six-year-old Anglo-Irish noblewoman, Clare, Lady Castletown. Three years later, when he sent her a copy of his book of speeches that he had just had printed, she wrote back,

  I feel quite flattered at your remembering my existence after all this time! I suppose you have been back in England again since that time at Wilton but I have been laid up almost ever since (with a spine that I damaged out hunting) so we haven’t had a chance of meeting. I hope however that if you come over this year you will write & let us know & come & stay with us.49

  ANNA CODMAN, with her novelist’s eye, once observed to Mark Howe that Holmes “is known for his superlative mentality, but the greater the man the more interesting are his minor reflexes.” Holmes, she said, had “tender little weaknesses that he toyed with lik
e a chaplet, and that were as much part of him as the power of his mind and the kindness of his heart.”50

  A letter Holmes wrote Nina Gray in the summer of 1891 was perfectly typical of the lively mind and small reflexes that he revealed in his correspondence with women, as well as capturing a vivid portrait of him halfway through his career on the Massachusetts high court.

  Dear Mrs. Gray:

  . . . Your letter pulls the trigger, and here goes. The day or day before I received it Brooks Adams had been giving me pleasure by speaking ill of [the journalist and editor Edwin] Godkin, who now seems to be a feature in your landscape. He is one of the properties of culture but as I have always avoided associating with the cultured class I don’t know much of him, beyond supposing that he has not done quite all he expected to, of which I am glad.

  The main change since I last wrote has been in the advent of my dear little Brooks. We go into water together and talk sadly of life and man’s futile destiny & then I go home and read Locke on the Understanding. I have written a few sentences for future use touching my departed brother Wm. Allen which I own I think A.1. and which sing in my head—it would serve me right if the programme were changed and I should not be deputed to answer the resolutions of the bar in September.

  I think my health is improving slowly. Sometimes I suspect that I am not so impervious to internal strain as I have supposed and that my various maladies mean that I have overtaxed my nerves with work etc.—but I know not. If I could make up my mind to go away I think that it would be a good plan for me to move either in your direction or toward the serener skies of the South Shore. . . .

  I suppose it to be possible that an exquisite and learned spirit should take true delight in Aristophanes—but I have supposed that most of those who did either were simple pedants or dilated with the wrong emotion as Ruskin did in a passage where he cited and misunderstood according to the late Sophocles whom I consulted. In fact there’s a deal of truth in [William Dean] Howells’ remark that the classics are dead. Only like Aristophanes it is caviar to the general.

  Strange—Here at Bev. Farms we are surrounded by good and gifted beings, yet I see them not nor wish to. I can impart to them neither my aspirations nor my sardonic dislikes—philistine respectables—bourgeois or canaille fashionables. But this also is but the philistine dogmatism of temperament. There is nothing so dogmatic as tastes—and nothing therefore which lays a deeper foundation for the ironic view of man and his destiny. I have a headache this morning or perhaps I should think better of my neighbors. I can’t abide sugar in my coffee—ten years ago I couldn’t abide coffee without sugar. Is all our idealizing equally arbitrary? I could amplify on this theme but I will not. . . .

  My Brooks has come and gone. We have buffeted the bilious interchanged further mediances—so now I am cheerful and happy. Sturgis Bigelow had been trying to persuade him that it was possible to imagine thinking without a body whereat Brooks was justly irate and contemptuous. Also we came to the conclusion that the reason why we didn’t care for people was because they hadn’t genius enough. Also we sized up your sex—ever a diverting theme—and generally played round like young bulls in old china shops. I am fond of Brooks.

  My remarks above as to the people here are not exhaustive. There are some good people in Beverly—I believe the Eliot Cabots to be such. I do not think I should hate them, but then they are not on hand when I want ’em and when they are on hand I don’t want ’em.

  I am dying, Egypt, dying (very gradually)—every man of 50 is—and as I have to take in my skyscrapers and other fancy sails—or less figuratively, limit my interests in various ways, I pitch into my neighbors and try to make out that they are to blame for my not sharing all their sports and joys.

  Goodbye dear Madam I kiss your fair hands and am sincerely yours,

  O. W. Holmes51

  THAT YEAR OF 1891 brought the first of several cases where Holmes would break sharply with his fellow justices over the issue of workplace and economic regulation and the rights of labor. In the 1880s the country was swept by a wave of strikes, reaching a peak in the early 1890s. In 1891, hundreds of thousands of workers in the textile, leather, metal-working, construction, and railroad trades engaged in two thousand strikes in an effort to force employers to accept the right of unions to bargain for wages and working conditions.52

  Most workers labored sixty hours a week, but layoffs were common: factories regularly shut down for months at a time, leaving employees to fend for themselves when demand for products dropped or the rivers that powered the mills froze over in winter. Even during good years as many as a third of all employed workers in Massachusetts were out of a job for an average of three or four months of the year. As confrontations between labor and management intensified, the issue was less wages than control of working conditions, hours, and safety. Between 1888 and 1891 one cotton mill in Lowell recorded seventy-one serious accidents, including two deaths, most occurring because workers were expected to clean, maintain, and remove jams from machinery without first stopping the equipment.53

  In 1891 the Massachusetts legislature passed a law forbidding employers in woolen mills from withholding the wages of workers for imperfections in their weavings. On December 2, the Massachusetts high court declared the law unconstitutional, finding it a violation of the right of property guaranteed by the state constitution, as well as the U.S. Constitution’s prohibition on any state passing a “law impairing the obligation of contracts.”

  Holmes was the lone dissenter. It was only his third dissenting opinion in his nearly ten years on the bench. As a rule, he said, he disliked the practice; he thought it better to “shut up” than file a lone dissent, and in his entire twenty years on the Massachusetts bench he would issue only a dozen written dissents in all: as he wrote in one of those opinions, “when I have been unable to bring my brethren to share my convictions my almost invariable practice is to defer to them in silence.”54 But the majority’s opinion in Commonwealth v. Perry he did not feel he could let pass in silence. “I have the misfortune to disagree with my brethren,” he began, but “considering the importance of the question” felt “bound to make public a brief statement.”

  I do not see that [the statute] interferes with the right of acquiring, possessing, and protecting property any more than the laws against usury or gaming. In truth, I do not think that that clause of the Bill of Rights has any application. . . .

  If . . . speaking as a political economist, I should agree in condemning the law, still I should not be willing or think myself authorized to overturn legislation on that ground, unless I thought that an honest difference of opinion was impossible, or pretty nearly so. . . .

  I suppose that this act was passed because the operatives, or some of them, thought that they were often cheated out of a part of their wages under a false pretence that the work done by them was imperfect, and persuaded the Legislature that their view was true. If their view was true, I cannot doubt that the Legislature had the right to deprive the employers of an honest tool which they were using for a dishonest purpose.55

  Holmes often made clear that “as a political economist,” he did consider such legislation pointless, even counterproductive, in improving the lot of the masses. No “tinkering with the institution of property” was going to change the fundamental fact that “the crowd now has substantially all there is.” He once told Laski, “I never read a socialist yet from Karl Marx down, and I have read a number, that I didn’t think talked drool.” Nor did he look upon as a Utopia a world “cut up into five-acre lots and having no man upon it who was not well fed and well housed,” if the price was to give up all that was great and romantic in the world.56

  But his objection to the court’s decision in Perry was not just a difference over a technical point of law; he was deeply bothered by politics masquerading as objective legal analysis.

  “When socialism first began to be talked about, the comfortable classes of the community were a good deal frightened,” H
olmes observed a few years later. “I suspect that fear has influenced judicial action both here and in England. . . . Something similar has led people who no longer hope to control legislatures to look to the courts as expounders of Constitutions.” But in upholding “economic doctrine which prevailed about fifty years ago,” judges were “taking sides upon debatable and often burning questions.” It was Holmes’s skeptical temperament to the core: he never mistook his own views for eternal truth. Precisely his belief that “certainty is illusion,” he said, made him reluctant to insist that “one rule rather than another has the sanction of the universe. . . . I have noticed the opposite tendency in minds that regarded our corpus juris as an image, however faint, of the eternal law.”57

  He had in fact gone out of the way to understand political views he disagreed with, calling on one Boston labor leader “at his very humble shrine.” He described their meeting to Pollock:

  “Sir,” I said, “I am Judge H. of the Supreme Judicial Court. I have no ulterior motives and no particular questions to ask or observations to make, but I thought in the recently published interviews you talked more like a man of sense than the rest, and as a Judge and as a good citizen I like to understand all phases of economic opinion. What would you like if you could have it?” So we have discoursed several times with some little profit.58

  Holmes was likewise the lone dissenter the year after Perry was decided when the Massachusetts House of Representatives asked the court for an advisory opinion on the constitutionality of a proposed law allowing cities and towns to operate coal and wood yards. “The majority say they can’t—I say they can and so this morning I appear in the newspapers as a blooming communist,” Holmes wrote to Mrs. Gray. He added to his friend Bryce with irritation, “I suppose some people thought I was posing as friend of the proletariat.”59