Oliver Wendell Holmes

by Stephen Budiansky

  Even in a narrow sense, the process of formulating general rules in the law was really only as valuable as the data the generalization was based upon. “College boys and girls read clever or brilliant generalizations and then think they are on a level with the man who made them,” he observed to one correspondent. “Whereas the worth of a generalization is only as a shorthand statement of particulars—and one’s knowledge of the generalization is measured by one’s knowledge of the particulars, largely if not wholly.” Or, as he often liked to put it, “I always say that the chief end of man is to form general propositions—adding that no general proposition is worth a damn.”44

  In “The Path of the Law,” Holmes offered his so-called prediction theory of the law, which boiled down this legal empiricism to a simple test: the law, he proposed, is really nothing more than a prophecy of how courts will rule. It was easy to take that as cynicism. The humorist Ambrose Bierce, in his famously cynical Devil’s Dictionary, might actually have had Holmes in mind when he defined lawful as, “Compatible with the will of a judge having jurisdiction.” But Holmes’s point was that the law is what it does; it is not a theoretical collection of axioms or moral principles, but a practical statement of where public force will be brought to bear, and that could only be derived from an examination of it in action.45

  And the best way to understand that, he said—this was his other deliberately provocative point—was to regard the law as would a “bad man” who cares nothing about morals, but only wants to know what he can get away with. “A man may have as bad a heart as he chooses, if his conduct is within the rules,” Holmes had pointed out in The Common Law. And likewise, a legal right is nothing more or less than a description of how far the aid of public force will be given a man in support of a claim he may assert—“and this right is the same whether his claim is founded in righteousness or iniquity.”46

  He elaborated on the idea in “The Path of the Law.” Holmes underscored that in putting forward his hypothetical “bad man,” he was not suggesting that the law does not reflect and embody the moral growth of civilization. But it was a good way to get to “a business-like understanding of the matter,” free from sentiment and self-righteous pieties:

  A man who cares nothing for an ethical rule which is believed and practised by his neighbors is likely nevertheless to care a good deal to avoid being made to pay money, and will want to keep out of jail if he can.

  I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.47

  Three days after the lecture he wrote Clare,

  On Friday I fired off my long projected discourse—on the law—with unexpected success. I had so much to say that I read it in order to get it inside an hour—and to read instead of speaking is bad for the hearers—the room was crowded the air not too good—and I was preceded by more than an hour of prayer and discourse on the finance of the institution (a relatively new Law School) and summaries of the little glories achieved by graduates until I saw the listeners eyes begin to roll with poisoned slumber—and I started sadly enough—but to my great satisfaction I had them all wide awake pretty soon and kept them so.48

  He did more than keep an audience full of law students awake. With “The Path of the Law,” observed the legal historian Morton J. Horwitz, “Holmes pushed American legal thought into the twentieth century.” It was in retrospect a defining moment when belief in the law as independent from politics and separate from social reality—the idea that the law was “discovered,” not made—was dealt the stunning blow from which it never recovered, and the Legal Realist movement born. His talk, published later that year in the Harvard Law Review, came just a year before William James’s first essay on pragmatism, in which James proposed that the only test of an idea is its “practical consequences.” As Horwitz noted, Holmes was in that sense part of a deeper change in the American consciousness that renounced “theological and doctrinal modes of thought” that had dominated the nineteenth century.49

  Holmes’s decisions putting these ideas into action would be among his most lasting legacies as a judge on the Massachusetts high court. Making plain the clashing policy considerations that lay beneath a claim of wrong became a recurring theme in his judicial opinions in the late 1890s. “As in many cases, perhaps it might be said in all, two principles or social desiderata present themselves, each of which it would be desirable to carry out but for the other,” he wrote in a case in which a flapping sheet on a freight car that was being unloaded frightened a passing horse. “It is desirable that as far as possible people should be able to drive in the streets without their horses being frightened. It also is desirable that the owners of land should be free to make profitable and otherwise innocent use of it. . . . A line has to be drawn to separate the domains of the irreconcilable desires. Such a line cannot be drawn in general terms.”50

  When the American Waltham Watch Company sued a competitor for placing the word “Waltham” on its watches, Holmes wrote a decision that became classic in the law of trademarks and unfair competition: “In cases of this sort, as in so many others, what ultimately is to be worked out is a point of line between conflicting claims, each of which has meritorious grounds and would be extended further were it not for the other. It is desirable that the plaintiff should not lose custom by reason of the public mistaking another manufacturer for it. It is desirable that the defendant should be free to manufacture watches at Waltham, and to tell the world that it does so.” Emphasizing again that it is not possible to weigh such competing claims “by abstractions or general propositions,” Holmes found for the plaintiffs on evidence that the name Waltham had come to be associated in the public mind with its particular watches.51

  “Between 1910 to 1920 in virtually all fields of law a balancing test overthrew the earlier system of legal reasoning based on logical deduction from general premises,” Horwitz observed, “marking the demise of the late-nineteenth-century system of legal formalism.” More than any other figure, Holmes provided “the intellectual ammunition” for this revolution in legal thought.52

  WHEN HOLMES’S DISSENT in Vegelahn v. Guntner was published in the fall of 1896, he told a Boston lawyer friend, Arthur D. Hill, “I have just handed down an opinion which has shut off the possibility of judicial promotion.” When the issue of strikes and boycotts came up again a few years later in a case that turned on efforts by a union to enforce a closed shop, Holmes was again the lone dissenter; in Plant v. Woods he repeated his conclusion that it is “lawful for a body of workmen to try by combination to get more than they now are getting”—even as he took pains this time to add that he thought it “pure phantasy” that strikes would do much to achieve that end.53

  He confided to Clare that while it would be nice to sit on the U.S. Supreme Court and know “that my word was always the last,” politics and chance counted for so much in such appointments that “a man w[oul]d be a donkey who allowed himself to bother about such things.” He was also aware that his personality, as much as his perceived political sympathy for unions and strikers, were against him: “Many I dare say, because I have a light way, and like to talk to women, find it harder to suppose me a serious person than if I looked august, wore black, and thought only about business and going to church,” he wrote to Clare.54

  On Memorial Day that spring of 1897 he got out his old Civil War uniform to be present at the unveiling on the Boston Common of the bronze memorial to Colonel Shaw and the Fifty-fourth Regiment created by the sculptor Augustus Saint-Gaudens. “It stirred old memories, I can tell you,” he told Clare. He proudly reported that “unlike most of the fighters,” he was still able to button his uniform
around his waist. But when he got his sword out he found the belt had crumbled away and the sword rusted—“more than thirty years nearly 35 years since I laid it by as a relic because it was covered with blood from my last wound.” William James was one of the speakers, but Holmes thought “the chap that just obliterated all his predecessors in the speaking was a black man.” It was Booker T. Washington.55

  Dedication of the Shaw Memorial on Boston Common, 1897

  That summer, he and Fanny went by horse and carriage to Windsor, Vermont, for the wedding of his nephew, Edward Jackson Holmes Jr. He afterward wrote Mrs. Gray a long lyrical description of what he called “one of the most enchanting times we ever had in our lives”:

  We had a Yankee driver who has driven us for years—with horses from his stable so that we were not bothered with that responsibility—and personally to me delightful Yankee equality with great tact. . . .

  There was room also for a lunch basket out of which Mrs. Holmes (who bossed the whole show with a forethought which never went wrong) produced at psychologic moments all manner of comforting things—from pate de foie gras to chewing gum! The latter not a bad thing by the way in the hot and dusty part of a drive, low as it sounds. We saw all manner of beautiful scenery, including a show of laurel such as I never dreamed of, though I knew it of old in Pittsfield. The hotels and inns were always comfortable and sometimes excellent—we dodged the heat by traveling early and late and dined and snoozed and read about polar regions and played solitaire during the midday hours. We slipped in between showers so that we never got wet, we talked with Yankee landlords and exchanged experiences with old soldiers whom we found scattered about in the hills after having seen the world and a good deal of this continent.

  We took our hand in the wedding and came back by a different route seeing something of the enchanting part of the Connecticut valley with its enriching hints of Indian warfare here and there.

  Oh it was adorable.56

  It was a glorious break from the relentless pace of his life, but he could never find satisfaction very long without having his time filled by some activity. He reported his satisfaction in making progress with his bicycling and had ordered his own bike, happily bragging that he had survived being shot over the handlebars a number of times: “It is no slight thing for an old gentleman to learn that he can tumble off and not break. I was as pleased as a boy at the discovery. It is curious what glee such a physical outlet gives one,” he wrote to Mrs. Gray. He rode about five miles each afternoon in the summers, reveling also in the “great democratic bond” the recreation fostered. “I find myself consulting with laboring men who also are learning on most brotherly terms—and another is my teacher guide philos. & friend.”57

  In the winter of 1898 he began thinking of traveling to London the coming summer to see Clare again. Tormented by Clare’s alternating hints of deeper feeling for him with her “light hardhearted” tone of “blagging” that left him “deeply uncomfortable”; fidgeting over his own state of health; guilty about leaving Fanny on her own, he changed his mind a half dozen times. “I keep saying to myself Oh if I should see her this summer—my wife rather eggs me on to go. It is pure generosity on her part because she thinks I shall enjoy it etc.,” he wrote to Clare in January.58

  In March, after hearing from her that she might not be in London for the summer, he sent her a fevered reply,

  My dear lady I am dreadfully cast down by your letter telling me that everything is less certain. If it is not certain that I shall see you it is not certain that I shall even try to come to England . . . if you are not there what is to hinder my seeing you somewhere in England or in Ireland. Please answer at once if you have the least scrap of doubting our meeting somewhere, if I come over—because the solid earth fairly reeled under me as I read your letter on the bench this morning.59

  The looming possibility of America’s going to war with Spain, and not being sure if he would be excused from the judges’ final conference in June, added to his uncertainty. “England this summer seems more doubtful and everything is shaky except my affection,” he wrote on April 1.60

  On April 15 he reserved a stateroom on the Cunard line’s Umbria. On June 6 he wrote her, “I am dreadfully shaky about going over this year.” The next day he wrote again, reversing course: “Today it looks more as if I should come. The vicissitudes I go through with regard to the chances of seeing you next summer are really very wearing.” Two days later he wrote again, “I am nigh insane with the question of coming to England. I had made up my mind that I ought to put it off and my wife now urges me to and threatens horrid results to me if I do not. I fear I shall be a selfish pig if I do, and I don’t know. . . . Life seems short and its chances few.”61

  Two weeks later he canceled his stateroom reservation, then immediately changed his mind and bought his ticket. “Mrs. Holmes made up her mind that I needed the change, and I deferred, if I did not come round, to her way of thinking,” he weakly explained to Mrs. Gray. He wired Lady Castletown in London, “Just settled sail Umbria June twenty five.” He signed it “Justice.”62

  In London he went for drives in hansom cabs with Mrs. Clifford and dined with Lord Castletown at his club, the Travellers, meeting him for the first time. Making his final arrangements to see Clare alone in Ireland had him again in a nervous dither. “To go to Ireland is a complete diplomatic lesson, in the correspondence for a stateroom—and for a sleeping berth—and the search on the train for your name in the window &c. . . .” he told his friend Lady Burghclere.63

  As before at Doneraile he and Clare spent their days together in the conservatory or strolling in the garden and the lime walk, while the few other guests busied themselves with country pursuits.64

  There was a new intensity in his letters to her afterward. “I am here in the kind of collapse that comes after nervous tension,” he wrote to her on his arrival back at Beverly Farms in September. He had developed a painful condition during his stay, which he first thought was eczema, then gout, but which finally turned out to be shingles. It kept him up at nights; “an ignominious but painful disease . . . and my shoulder still aches and the small of my back does the like,” he told Pollock three months later.65

  He poured out his heart to Clare in letter after letter. “Oh my dear what joy it is to feel the inner chambers of one’s soul open for the other to walk in and out at will. It was just beginning with you. Do not cut it off because of a little salt water.” And just a few days later, “Do assure me that the pain of separation does not outweigh the joy of confidence and belief in the abiding.”66

  When she responded to one of his letters in early May of 1899 by telling him, “It is impossible to really keep in touch,” he indignantly replied, “It is possible to be unchanged after 20 years—I care for you just as much as when we were together and with every year new little roots grow out and bind you tighter. You don’t mean anything to the contrary of that I am pretty sure. For you are a faithful wretch. But I hate any suggestion of less nearness. Write and say that you are not taking back anything that you said when I was there.”67

  But the fact was that Holmes could never be more than a pleasant idea to her; her husband and Percy La Touche were real, and at hand. And whatever the complications of her marriage, its bonds ran deep. Her marriage in fact had been very much on her mind when she tried to brush Holmes away with her remark about the impossibility of their keeping in touch. April 23 was her twenty-fifth wedding anniversary, and that day she had written her husband a touching note of the genuine ties that held them together; she told him she had worn all day the engagement ring he had given her,

  and we have sentimentalised a lot about it all, I & the dogs—& they have sympathised thoroughly in my sorrow at your being away . . . bless you & thank you for all your loving kindness & forbearance during these many years which have not blunted our affection for each other much I think? & I know that I care for & love you more now than I did at the beginning when I hadn’t yet learnt what a good tr
ue brave man you were.68

  When Holmes then did not hear from her for several weeks, he finally wrote Lord Castletown. He answered on June 18. She and Percy La Touche had both taken falls from their horses while out riding in early May; Clare had been seriously hurt, bedridden for weeks with an injury that threatened the use of one eye. She was slowly recovering. “My wife . . . is much charmed by your letters,” Lord Castletown assured him, “& hopes soon to be able to write herself.”69

  Later that year Lord Castletown left for South Africa to join the British campaign in the Boer War, and Clare followed when she was again able to travel; they remained abroad for nearly two years. Holmes would see Clare again in Ireland in 1901, 1903, 1907, and 1913, and briefly in London in 1909 when he traveled to Oxford to receive an honorary degree. None of Holmes’s letters to her from 1900 to 1911 survive. But there is a hint of the inevitable cooling that time and distance wrought in a letter he dashed off to Mrs. Gray at the end of his 1901 visit that sounded very much like a man quickly seeking another woman’s company as consolation for the one who had just disappointed him. He was then sixty, Clare forty-eight. He saw her every few days during his five weeks in London, then stayed at Doneraile from August 9 to 23. “I have had the most complete time of all my times,” he wrote Nina on his return to Beverly Farms. “But nothing impressed me so much as a kind of resentment which I felt in the end at continuing the pursuits of pleasure. . . . I am gladder than ever before to be an American, and I am happy to be back or shall be as soon as I see you.”70

  IN LATE JULY 1899 Holmes learned from a newspaper reporter that the governor had just nominated him to succeed Chief Justice Field, who had died on the fifteenth of the month.71 It was news to him, but no real surprise. Field had been ailing for months and in his absence Holmes had been acting chief and was the obvious person to assume the position.