The following year, 1893, he dissented yet again, this time joining Justice Marcus Perrin Knowlton in declining to overturn a law requiring railroads in the state to accept tickets from other lines on an equivalent per-mile basis. As in the other cases, the majority found the law an unconstitutional violation of property rights.60
His larger point was that “the present has the right to govern itself so far as it can.” In only one case in his twenty years on the Massachusetts bench did he hold a statute unconstitutional.61 Before a judge took such a step, he wrote in a dissenting opinion in which he argued that a statute permitting a referendum would be constitutional, “We should remember that [a constitution] is a frame of government for men of opposite opinions and for the future, and therefore not hastily import into it our own views, or unexpressed limitations derived merely from the practice of the past.” He saw no grounds for courts to declare that the state’s constitution allowed the government to provide education, but not wood, to its citizens; or to take land for railroads and public markets, but not to write rules governing their operation. The question to ask was not whether the constitution specifically authorized a certain power, he said, but only whether it prohibited it.62
THE DEATHS OF his mother, sister, and brother within a few years of one another cast a shadow on his otherwise busy and energetic life at the time. “My spirit is somewhat collapsed and flat for the moment,” he told Owen Wister. His brother, Edward Jackson Holmes Sr., had died in 1884, at age thirty-seven, leaving a wife and an eleven-year-old son. Edward had been ill ever since contracting malaria in Washington, where he had gone just after law school to work as Senator Charles Sumner’s secretary and clerk of the Foreign Relations Committee. After that he had dabbled in archaeology, traveling to Italy for his health and to research antiquities. He died in his sleep, having just finished correcting the proofs for a report of the examining committee he chaired to recommend improvements to the Boston Public Library.63
There were other melancholy reminders of the disappearing world of Holmes’s youth. Walking through Montgomery Place one day in 1885, his father had seen workmen tearing out the insides of their old house, preparatory to its demolition. “We Americans live in tents,” Dr. Holmes had joked in relaying the news. The house in Cambridge the doctor had grown up in had been sold to Harvard after the death of his mother in 1870, and it too had recently been demolished. A “case of justifiable domicide” Dr. Holmes acknowledged in his usual facetious way, but there was unmistakable sadness in his finding that “not a vestige is left to show where our old Cambridge house stood.”64
In 1888 a neighbor at Mattapoisett started a fire that swept across a dry stubble field and burned down Holmes’s summer house on Buzzard’s Bay. After that, Holmes and Fanny began joining Dr. Holmes in the summers at the place he rented each year at Beverly Farms, on the North Shore. Dr. Holmes had been amused by the pretentiousness of his neighbors who had stationery printed announcing their address as “Manchester-by-the-Sea,” and began heading his letters “Beverly-by-the-Depot”—this was in the days he had first summered there, and rented a cottage near the train station.65
Beverly Farms
But the house he now had each summer was a few hundred yards from the water, a large and rambling Victorian clad simply in clapboards and shingles, with eight bedrooms and a wide wraparound porch. Set on a secluded three-acre hillside lot of lawn and pines and dramatic granite outcroppings, it was swept with salt air breezes, and a glimpse of the sailboats and ocean could be seen from the second-floor windows. It would become Holmes’s own summer residence for the rest of his life.
In October 1894 Dr. Holmes died at his home on Beacon Street, at age eighty-five. The British humor magazine Punch published a eulogy in verse with the lines,
From that Boston breakfast table,
Wit and wisdom, fun and fable,
Radiated
Through all English-speaking places.
When were Science and the Graces
So well mated?66
“My father’s death although of course a very great event in my life seems to me to have come at a fortunate moment,” Holmes wrote to James Bryce. “I was fearing many things for him and he painlessly avoided them—having had all that he could expect from life. . . . I expect that we shall keep on living at 296 Beacon St. for though I don’t wholly like the house, my parents built it and died in it and my brother and sister were buried from it.”67
The deaths of his father and sister made Holmes, for the first time in his life, an independently wealthy man. His salary as a justice of the Massachusetts court in 1894 was $6,500 plus a $500 travel allowance. His sister had no children, and she left him in her will a $130,000 trust that almost doubled that income. (She had inherited a substantial fortune from her husband, Turner Sargent, a member of the famous family of artists.) She also left him her house at 59 Beacon Street, which, along with some commercial property on State Street that he inherited from his father, brought in $4,000 a year in rental income. The sale a few years later of Cambridge properties Holmes inherited with his cousins from his Uncle John netted him $33,000 cash.68
And when Fanny’s father died a few years later, he left an estate of over $300,000. All told, by the late 1890s their income was some $20,000 a year, at a time when the average household in Massachusetts earned less than $700.69
All his life Holmes kept his Yankee attitudes toward money. “I am not stingy—but I am canny. I like to be a little richer at the end of the year,” he told Lady Castletown. In particular, he never lost the old-money abhorrence of dipping into capital. He once chided Tommy Corcoran when his secretary returned from the drugstore with a roll of Life Savers. Corcoran offered the justice one. He took it, then sharply demanded, “Sonny, do you know what you’ve done?”
“I bought a package of Life Savers,” Corcoran replied.
“Do you know how much you paid for it?”
“I paid five cents.”
“Do you know how much you really paid? You paid out the interest on one dollar for a year.” Corcoran was similarly amused by Holmes’s Yankee frugality in recording his annual list of books read on the scattered blank pages he had left unused when making his original notes for The Common Law in his by then half-century-old Black Book.70
That said, Holmes never stinted on his household or indulging his interests after he came into money. “When in doubt do it is a general rule of life, and when in doubt buy it,” he told Mrs. Gray. He and Fanny always had a cook, maids, a gardener, and other servants. He spent hundreds of dollars a year ordering whatever books he wanted, while Fanny loved to shop at an importer of oriental wares on Summer Street, picking up exotic screens, tables, baskets, and other items that struck her fancy. They were able to take over the $1,000 rent for the Beverly Farms house each summer, and always went first class and stayed in the best hotels wherever they traveled. “I couldn’t live as I do on my salary,” he remarked years later, when his income as a U.S. Supreme Court justice was $20,000, the equivalent of about $300,000 today.71
He had done nothing to seek wealth, but his inheritances guaranteed that financial concerns would not be a factor in any of his career decisions to come.
CHAPTER 9
Ideals and Doubts
In his first ten years as a judge there were few hints of the eloquence in his judicial writing that the later Justice Holmes would be renowned for. In part, he was learning himself. As he later confessed, he did not always spend enough time organizing his thoughts before leaping in. “In Massachusetts they pitched into me for writing obscure opinions. I used to say I took for granted that a man understood his business, and I didn’t need to put in the platitude—but then I decided there was another thing, to have each thought follow in sequence and avoid sticking a thing in when you think of it. I said to myself, I have been guilty of this, and I have had it in mind since.”1
But there was also the constraint of having to accommodate himself to his colleagues, which at time
s put a crimp in his aspirations to philosophic eloquence or originality. He noted more than once having to trim his sails to meet the objections of his fellow justices, who were uneasy whenever he tried to elaborate more general ideas about the law. “I think this is the ground of a great number of cases,” he told Pollock about an 1891 decision that had turned on whether a person could be held liable for the actions of an intervening party, “but I only gave a hint of my general view which is all I can do now.”2
The case was of a husband who had sued two of his wife’s friends who had advised her to leave him. Holmes thought it belonged to a special class of cases where intent did matter, an important exception to his general ideas about external standards. But, as he subsequently related to Pollock, “It was thought advisable to cut down the discussion in which I aired some of my views.” He confined himself in his opinion to the matter at hand, ruling that for a person to be answerable for his advice having been followed, it was necessary to prove that it had been given dishonestly or malevolently.3 He would end up having to save most of his larger ideas on the subject for an article he published three years later in the Harvard Law Review, “Privilege, Malice, and Intent,” that presented his theory of malicious intent being the key consideration in finding fault in otherwise privileged actions.
The court’s tradition of collegiality and unanimity sometimes led to opinions being narrowly drawn to steer clear of controversy when the judges had differed on the reasoning behind the conclusion, which left even less scope for Holmes to elaborate on basic ideas about the law. “As there is considerable difference of opinion among the members of the court, we shall not discuss this case further than to say that, in the opinion of a majority, . . . the plaintiff was guilty of gross or wilful negligence,” Holmes wrote in one such case. In a number of his opinions for the court Holmes even wrote a decision he himself disagreed with: “Had the decision rested with me alone I probably should have ruled the other way,” he stated in one opinion before presenting the majority’s conclusion.4
Behind the scenes things were not always collegial. “We are in a long consultation in which every man’s hand is more or less against everyone else,” Holmes wrote Lady Castletown during a break in the middle of one lengthy day of deliberations. “I walk into my neighbors and intimate in more or less polite language that they are talking what Brooks Adams delicately terms hogwash—and when they go for me (but my turn hasn’t come yet, as my cases are later) I am ready to maintain that every word is better than any part of the 10 Commandments.”5
He later candidly described Chief Justice Field’s maddening habit of wanting to explore every possible question and remove every possible doubt before reaching a decision:
His mind was a very peculiar one. In the earlier days of my listening to him in consultation he seemed to me to think aloud, perhaps too much so. . . . It was hard for him to neglect the possibilities of a side alley, however likely it might be to turn out a cul-de-sac. He wanted to know where it led before he passed it by. If we had eternity ahead this would be right and even necessary. But as life has but a short number of working hours, we have to choose at our peril; we have to act on the presumptions afforded by our present knowledge as to what paths are most likely to lead to desired goals. . . . One has to try to strike the jugular and let the rest go.6
Still, Holmes made a point of maintaining cordial relations with all of his colleagues, and he spoke admiringly of Field’s kindness and “heroic temper,” the “greatest thing” about him: “I used to notice, even in little matters, that he always looked his own conduct in the face and did not equivocate, apologize, or disguise.”7
The two also shared a gift of repartee that created a camaraderie between them. “I used to delight in giving him opportunities to exercise it at my expense, for his answers were sure to be amusing and they never stung,” Holmes recalled. He related one such instance to Mrs. Gray: “Field told my father in law the other day that I was a born pagan and repeated a mot which seems to have pleased him as much as it did me when he got it off originally. An ass had been spouting godliness at us and in the consultation room I let off my disgust at his cant—whereupon the C.J., ‘Holmes hates virtue so much that he can’t stand even the pretence of it.’ ”8
Field also ragged Holmes about his notorious handwriting, saying once, “Holmes, you are indictable as a fraud at common law because your handwriting looks legible but it isn’t!” Holmes always had a comeback to that. “It is not enough to be able to write,” he would primly observe. “One must learn to read also.”9
BY THE 1890S Holmes was finding his judicial voice, and also finding more opportunities to bring his ideas about the law to expression in his decisions.
The flashes of Holmesian epigrammatic insight and wit began to appear with regularity in his written opinions. “A horse car cannot be handled like a rapier.” “The plaintiff has no copyright on the dictionary.” “A man cannot justify a libel by proving that he has contracted to libel.” “When a man makes such a representation, he knows that others will understand his words according to their usual and proper meaning, and not by the accident of what he happens to have in his head.” “General maxims are oftener an excuse for the want of accurate analysis than a help in determining the extent of a duty or the construction of a statute.”10
In one of his rare dissenting opinions, he took issue with the full court’s refusal to enforce a contract made by a married man who promised his estranged wife he would create a trust for her if she returned to him. Noting that prenuptial agreements were enforceable, he archly disposed of the majority’s reasoning: “No one doubts that marriage is a sufficient consideration for a promise to pay money. I do not quite understand why it should be more illegal to make such a promise for the resumption than for the assumption of conjugal relations.”11
The notion of the external standard and the reasonable man as the test of legal culpability which he had developed in The Common Law he slowly but steadily began weaving into his appellate decisions as well. One early case that reached the full court on appeal gave him the chance to extend the same test to the criminal law. “If my opinion goes through it will do much to confirm some theories of my book,” he told Pollock with satisfaction.12
Commonwealth v. Pierce was an appeal of the manslaughter conviction of a doctor who had kept a patient wrapped for three days in flannels soaked with kerosene. Her skin was severely burned and blistered, and she died a week later. The doctor’s attorney cited an old Massachusetts case in which the court held that “there is no law which prohibits any man from prescribing for a sick person with his consent, if he honestly intends to cure him by his prescription.”
But in his opinion upholding the conviction, Holmes made a pointed parallel to the law of negligence in civil actions, where
it is very clear that what we have called the external standard would be applied, and that, if a man’s conduct is such as would be reckless in a man of ordinary prudence, it is reckless in him. . . . The law deliberately leaves his idiosyncrasies out of account, and peremptorily assumes that he has as much capacity to judge and to foresee consequences as a man of ordinary prudence would have in the same situation. . . .
The recklessness of the criminal no less than that of the civil law must be tested by what we have called an external standard. . . . We cannot recognize a privilege to do acts manifestly endangering human life, on the ground of good intentions alone.13
Or, as he put it in an attempted murder case a few years later, “the aim of the law is not to punish sins, but to prevent certain external results.”14
He consistently sought to apply the external standard to other cases that came to the full court on appeal. He ruled that a man was bound at his peril as “one of the first principles of social intercourse” to know what words commonly mean and how they will be understood in a business contract; that a streetcar passenger cannot expect a conductor to make special allowances for her nervous disposition when carrying out the
necessary and legal act of ejecting a drunk from the car; and that the circumstances “of a large part of the community may be taken into account” in deciding whether an impoverished mother exercised due care in leaving her children briefly unattended on the front steps of her house.15
In that last case a four-year-old boy was killed at a grade crossing when a freight car—which had come detached and was rolling on its own some distance behind the train—struck the boy as he stood on the tracks waving “good-by” to the train that had just passed. The railroad maintained that, owing to the mother’s negligence, there was no case for the jury to consider, and the trial judge had agreed.
But Holmes in his opinion found that the case should have gone to the jury, explaining, “The poor cannot always keep their children in the house or always see that they are attended when out of doors. In this case the evidence warranted a finding that the mother reasonably might expect her children to obey her, and that leaving them where she did for the short time that she left them there, occupied as they were, was not negligence.”
For the most part, however, Holmes in his opinions in tort cases took every chance to narrow the scope for juries to determine negligence. He once sardonically observed to Lady Pollock that the only real purpose of a jury “is to let a little popular prejudice into the administration of law—(in violation of their oath).” In his view, it was for the courts to define standards of conduct for guilt or negligence under the law. As he asserted in one opinion, “It is not necessary to go on forever taking the opinion of the jury in each new case that comes up.”16
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