IN LATE 1895 or early 1896 Fanny became seriously ill again with rheumatic fever. She lost much of her hair, adding to her plain appearance, and her recovery was painfully slow. He had been looking forward to traveling to England that summer of 1896, but now hesitated. He wrote to Mrs. Gray,
I almost hate to go when it comes to the point because my wife has had the rheumatic fever and although much better still seems weak. But I reflect that it will rub off one’s rust to get among a new lot of people with different modes of thought, although when I try to state to myself any specific benefit to be expected, I fail. . . . Perhaps it is well for a recluse to realize the charms of the world the flesh and the devil—a moral advantage which London offers in its plentitude.17
He finally decided to go, and made a reservation at Mackellar’s Hotel on Dover Street. It was one of the most expensive in London, but he had stayed there before, and “the advantage of this place,” as he later remarked to Lady Pollock, was that he could get a bedroom and parlor on the ground floor and “a lady could come into the parlor so conveniently. When one has to climb, it seems more questionable.”18
His calendar in London was jammed with his usual lunches and dinners. A week after arriving, he left his card for Lady Castletown at her London residence at 101 Eaton Place. That same day he received a reply from her. “Dear Mr. Holmes I remember you well & am so sorry to have missed you this afternoon—but do come to luncheon one of these days? perhaps W-dy.? We may be away on Monday & Thursday—Yours sincerely, Clare Castletown.”19
He had lunch with her several times, took her to an exhibition of pictures, and then received an invitation to her Irish estate, Doneraile Court, for mid-August when all of fashionable London retreated to the countryside.20
Clare, Lady Castletown
She was twelve years Holmes’s junior, the descendant of an old Anglo-Irish family, the St. Legers, who were a legendary name in the horse world; the St. Leger Stakes horserace was founded by a distant ancestor and the first steeplechase race was run from Doneraile in 1752. She was a classic aristocratic beauty, who had married at age twenty into an equally wealthy and venerable Anglo-Irish clan. Her husband, Bernard Edward Barnaby FitzPatrick, the 2nd Baron Castletown of Upper Ossory, had inherited a huge estate of his own, consisting of 22,000 acres in Queen’s County, with his principal residence at Granston Manor at Abbeyleix, and they divided their time between their two Irish estates, their London townhouse, and frequent foreign travels.
Lord Castletown had all the air of the none-too-bright British aristocrat. He had been elected to Parliament in 1880, then served in the House of Lords after acceding to his hereditary title three years later. But as one contemporary observed, “No one except Lord C. himself can, I think, say what his political principles are: I should make even that reservation with reservations.” At various points in his political life he was listed as Conservative, Liberal, Liberal Conservative, and Liberal Unionist. His memoir, Ego, published in 1923, is devoted mainly to accounts of his travels to distant locales and the various large animals he shot there.21
The Castletowns’ marriage was friendly, but with little evidence of deep passion. Lord Castletown scarcely mentions his wife in his memoir. In her private letters to him she calls him “my old big bear” or “old man,” and mostly writes about arrangements for shooting parties, entertaining guests, and the usual problems of the landed nobility in dealing with servants and managing the estate. They had no children of their own, though he had had a mistress who had borne his child; she was now ensconced in Paris and the recipient of a regular and secret annuity from him.22
During Holmes’s two months in London, Henry James had sent him a blizzard of gushing letters about visiting him at his cottage in Rye, two hours away, then repeatedly canceling the arrangements with elaborate explanations of his complicated schedule and other guests; they finally saw each other at the very end of Holmes’s stay in the metropolis: “H. James to tea—stayed & saw me off for Ireland,” Holmes wrote in his diary on August 16.23
Holmes had jotted down in his diary Clare Castletown’s instructions for getting to Doneraile: the night train at 8:25 from Euston Station to Holyhead, then the boat to Kingstown on Dublin Bay, then on the next morning by the train to Maryborough to Buttevant. At the station he was met that afternoon for the drive to Doneraile through the tiny bowered lanes and improbably green fields of the Irish countryside. The entrance to Doneraile Court was through a triumphal arched gate at the end of the village, then along a curving drive over a stone bridge that crossed the river Awbeg, sited to give a dramatic view of the house on a low rise ahead.
Clare’s maternal grandfather had been a foreign officer in the British government and collected seeds for Kew Gardens wherever he traveled, sending some to his daughter at Doneraile at the same time, and the grounds were an exemplar of the English landscape style and filled with specimens of beautiful exotic trees.
Doneraile Court
The house dated to the late seventeenth century, built in the grand Georgian style, with curving window bays on each end, soaring ceilings filled with ornate plasterwork, an Ionic-columned entrance hall, and a three-story-high floating elliptical staircase that rose to a dome at the top. An early St. Leger had had the river rerouted so a shimmering waterfall formed the distant focal point looking out the front windows. A sunken ha-ha fence left an uninterrupted vista of the fields beyond and the grazing cattle and roe deer.24
There were only a few other guests staying at Doneraile, and Lord Castletown was off to Norway, elk hunting. Holmes later twitted Clare for having had one fellow “who was invited for fear the Yankee experiment should prove tedious.” But, he triumphantly recalled, “it was not I who was sent to shoot rabbits.” He stayed five days, and left hopelessly in love.25
“It is the stopping so sudden that hurts,” he wrote her the evening he left, as he ate his solitary dinner at his hotel in Queenstown, the port near Cork where he was to embark on the Etruria the next morning. He had Room S, the “best on the ship,” he noted in his diary, but that was little consolation. He filled the six days’ passage chatting to an Irish priest and to an ex-Confederate officer, Gordon McCabe, who ran an Episcopal boys’ school in Richmond and who amused him with stories of the war and insults to the Yankees. (“I’m afraid—no I’m not—I think we are friends for life,” he told Clare three months later, after receiving what he humorously described as “a regular love letter” from McCabe.) He was roped into giving an after-dinner speech at a charity concert one night, but his mind was not on it. A young, newly married couple he knew, who he ran into, found him pacing the deck one evening trying to come up with his speech. “Morton,” Holmes told the young husband, “the perfect after-dinner speech should contain an introduction, an anecdote, and a cosmic observation. I have the first and the last, but cannot get the second.” But he wrote Clare that at least it was a distraction from his misery: “If I try to think of something to say I shall not have to think of you.”26
He landed in New York on Saturday, August 29, and took the train to Boston. Fanny, and his nephew and newly engaged fiancée, were expecting him at Beverly Farms at seven-thirty that evening—“all was prepared to receive me,” he knew—but worn out, and his head full of his “curly headed early Norman angel,” as he called Clare, he simply went to 296 Beacon Street, and to bed.27
He woke the next morning to find Fanny there: she had hired a carriage and driver and pair of horses and had posted through the night the forty miles to meet him, arriving at one-thirty in the morning, not waking him. It was a sign of his guilt and confusion that he told the whole story to Clare in his first long letter to her on arriving home. “Imagine my joy—but also my shame to have her make the effort rather than myself,” he wrote her.28
He wrote to Clare every few days, calling her “My dear Lady” or “Beloved Hibernia,” always asking her to write more often, reminding her of the time they had sat in the conservatory at Doneraile together, of how intimate
ly their minds had met so quickly, begging for a reassuring word that he was not being a fool in feeling more for her than perhaps she did for him, given her “whims.” One night at dinner he ordered an Irish whiskey to remind him of her, and was disappointed that the waiter brought him a Scotch; he asked for her picture and had it framed and hung it in “a place of honor” in his library.29
When Holmes’s letters to Lady Castletown were discovered among Mark Howe’s collection of Holmes materials in the 1980s by a former congressman and amateur historian, John S. Monagan, and excerpts from them published, they naturally caused a sensation over the secret “affair” of Mr. Justice Holmes.30
To “Beloved Hibernia,” June 28, 1897
But while there was no denying his feelings for Clare went far beyond those for his other young women friends, to read them after reading his letters to Ellen Curtis and Clara Stevens and Ethel Scott and Anna Codman and a half dozen others makes the difference seem more of degree than of kind. He wanted her love and attention and to feel she was opening her mind and soul to him, but he did not write to her as a real lover any more than he did to any of the others; he wrote of “kissing her hand” but never anything more, and bridled when she apparently teased him with a bit of sexual banter, complaining of her “blague,” of her playing the usual game of the “war between man and woman and each to get as much as they can,” of trivializing his desire for “the infinite” with her suggestion he cared only for “the finite”—“a nasty dig,” he riposted. “You do me wrong.” Even as he begged her not to spurn his “romantic feeling”—which it would “cut me to the heart to have you repudiate,” he told her—at the very start he also made a point of telling her, “My life is in my wife and my work.”31
There is good reason to think that Clare never took any of it as seriously as Holmes did, even as a romantic excursion. For one thing, she already had a lover, a fellow foxhunter and equestrian named Percy La Touche. His letters to her crackled with the rude possessiveness that only a man in a sexual relationship usually dares to use. Holmes was jealous when he heard about La Touche (“has he happily demised?” he inquired a few months later), but La Touche told Clare he really wanted to kill her Yankee admirer. “I don’t know how much you will do or how far you will go and I am not happy,” La Touche wrote her. He called her “a snake” in one letter, and roughly told her, “I have played for the highest stake for which ever man gambled.” Holmes wrote of kissing her hand; La Touche rapturized about her breasts.32
In any case, Clare took her flirtation with Holmes lightly enough that she teased her husband with it, writing him about her mock-heartbreak a week after Holmes’s departure at the end of August:
The conservatory is really very nice now, with its fountain & comfy seats & sweet smells—& I am sure you will like it—though I am afraid you wont read to me erotic poetry—& make love to me generally as the surroundings decidedly demand!! My Yankee suited it exactly—& I mourn his departure more & more & dont see how anything is ever going to comfort me.33
There was no physical connotation to “make love”: that was a Victorian way of saying whispering sweet nothings. The next line of Clare’s letter to her husband was to ask whether he was getting his newspapers. Mostly she wrote about the troubles she had had those last few weeks of August organizing the village bazaar. “I am still disconsolate about my Yankee,” she teased him a week later.34
Only a very few letters from Clare to Holmes survive; in one she expressed her unhappiness that he had presumed to begin his last letter to her “Dear Clare,” and asked him not to do it again. “I do like to be given my name by you but not in that bold sort of way!” She asked him to “go back to the old ‘Hibernia’ or to no name at all.”35
FOR ALL HIS anxiety over her feelings for him, his love for her invigorated him with a renewed zest for everything in life that fall of 1896 upon his return home. An invitation to deliver an address to Boston University’s law school was a chance again to make a major statement about his ideas of the law, and he poured himself into the task with an intellectual vigor unequaled since The Common Law.
As he organized his thoughts, one recent case was very much on his mind. Sitting as single justice in the Boston equity session in the spring of 1895, Holmes had heard a request by the owner of a furniture factory for an injunction against a group of striking upholstery workers. The owner, Frederick Vegelahn, had refused a demand for higher wages and fired the group’s leader, George Guntner. In response, the workers called for a boycott of the business by other tradesmen and began picketing the factory, pressuring replacement workers not to cross their lines.
Holmes issued an injunction against physical intimidation by the strikers, but refused Vegelahn’s request to halt the picketing altogether: as long as they refrained from violence or threat of bodily harm, they were free to use persuasion or social pressure to achieve their aims.36
Vegelahn appealed, and on October 26, 1896, the full court reversed Holmes’s decision, issuing a sweeping injunction barring picketing and persuasion of any kind that interfered with the employer’s “right to engage all persons who are willing to work for him, at such prices as may be mutually agreed upon.”37
This time Holmes wrote a lengthy dissent, laying out his strongest case yet that whenever judges considered questions like this, “The true grounds of decision are considerations of policy and of social advantage, and it is vain to suppose that solutions can be attained merely by logic and the general propositions of law which nobody disputes. Propositions as to public policy rarely are unanimously accepted, and still more rarely, if ever, are capable of unanswerable proof.”38
It was a theme he had begun to develop in his 1894 article “Privilege, Malice, and Intent,” and which would form the impassioned core of his dissent in Vegelahn and his upcoming lecture at Boston University. There were many instances, Holmes noted, in which the law carved out a privilege for intentional infliction of damage “because it regards it as justified” on policy grounds. The classic illustration was economic competition. “It has been the law for centuries that a man may set up a business in a country town too small to support more than one, although he expects and intends thereby to ruin some one already there, and succeeds in his intent,” he wrote in his dissent in Vegelahn. “The reason, of course, is that the doctrine generally has been accepted that free competition is worth more to society than it costs, and that on this ground the infliction of the damage is privileged.”39
But that, like almost all instances of privilege in the law, reflected a policy choice, a fact judges could disguise only by resorting to circular reasoning. “Questions of policy are legislative questions, and judges are shy of reasoning from such grounds,” Holmes observed in “Privilege, Malice, and Intent.” “Therefore, decisions for or against the privilege, which really can stand only upon such grounds, often are presented as hollow deductions from empty general propositions . . . or else are put as if they themselves embodied a postulate of the law and admitted of no further deduction, as when it is said that, although there is temporal damage, there is no wrong; whereas, the very thing to be found out is whether there is a wrong or not.”40
Moreover, the conflict between labor and management was every bit as much economic competition as the competition between rival businesses, and it was hard to see why one should be privileged and not the other, he wrote in his dissent in Vegelahn:
I have seen the suggestion made that the conflict between employers and employed is not competition. But I venture to assume that none of my brethren would rely on that suggestion. If the policy on which our law is founded is too narrowly expressed in the term free competition, we may substitute free struggle for life. Certainly the policy is not limited to struggles between persons of the same class competing for the same end. . . .
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.41
Previously Holmes had suggested that the law generally absorbed through gradual and unconscious evolution the necessities of the times. But now he was advancing a much bolder idea: that judges had a duty to make thinking about social need an explicit part of their decisions. Avoiding the policy questions did not make judges impartial: it only disguised their prejudices.
In his talk to the students at Boston University on January 8, 1897, he laid out the entire argument. Entitled “The Path of the Law,” the lecture reflected the culmination of his thinking about the purpose of law in society and the role of judges.
There is a concealed, half conscious battle on the question of legislative policy, and if any one thinks that it can be settled deductively, or once for all, I only can say that I think he is theoretically wrong. . . .
I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage. The duty is inevitable, and the result of the often proclaimed judicial aversion to deal with such considerations is simply to leave the very ground and foundation of judgments inarticulate, and often unconscious.42
He made two other points that were equally intended to rattle the complacency of his listeners. The first was what would become his subsequently oft-repeated insistence that general propositions do not decide concrete cases. Later, sitting on the U.S. Supreme Court, Holmes would like to needle his fellow justices in conference by saying, “I will admit any general proposition you like and decide the case either way.” But the law, as he observed in “The Path of the Law,” is fundamentally empirical, not theoretical: “The logical method and form flatter that longing for certainty and for repose which is in every human mind. But certainty generally is illusion, and repose is not the destiny of man.”43
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