Oliver Wendell Holmes

by Stephen Budiansky

  61.James, Notebooks, 239. Sheldon Novick’s improbable suggestion that Henry James and Holmes had a homosexual encounter at this time is based on an extraordinarily fanciful reading of the pages in James’s notebook in which he recounts this visit to Holmes’s mother (Novick, Young Master, 470–71 n. 42). Novick’s sole evidence is James’s use of the words l’initiation première at the start of a long preceding passage in which he describes his first success as a writer, and his nostalgic remembrances of the Boston literary world. Novick insists that “the passage seems impossible to misunderstand.” But, on the evidence, it would appear that impossibility, like sexual innuendo, is in the eye of the beholder.

  62.HJ to WJ, October 16, 1869, Edel, Selected Letters, 49; HJ to WJ, April 26, 1869, ibid., 32.

  63.OWH to WJ, December 15, 1867, TCWJ, 1:505.

  64.Anderson, “William James in 1869,” 369, 374.

  65.Menand, Metaphysical Club, 220–21.

  66.HJ to Charles Eliot Norton, February 4, 1872, Edel, Selected Letters, 92. “The Metaphysical Club” has had a legendary aura that far outstrips the reality of its existence. Henry James provided the only contemporary account of the club, and no one except the philosopher Charles Peirce, writing thirty-five years later, ever said that that was its official name (Menand, Metaphysical Club, 201–2).

  67.Menand, Metaphysical Club, 206–7, 230–31.

  68.OWH to FP, August 30, 1929, H-P, 2:252; Chauncey Wright quoted in Menand, Metaphysical Club, 211.

  69.OWH to LE, June 1, 1905, H-E, 16–17; OWH to HJL, January 25, 1918, H-L, 1:131.

  70.OWH to WJ, October 13, 1907, MDHM, 16-18; OWH to WJ, March 24, 1907, TCWJ, 2:459.

  71.OWH to WJ, May 24, 1896, TCWJ, 2:458.

  72.OWH to LE, January 6, 1908, H-E, 32; OWH to WJ, March 24, 1907, TCWJ, 2:460.

  73.Entry for July 9, Diary of Trip to Europe, 1866, MDHM, 28-23; Leslie Stephen to OWH, July 4, 1870, Maitland, Leslie Stephen, 218.

  74.Wu, Review of Holmes-Laski, 950.

  75.Menand, Metaphysical Club, 231.

  CHAPTER 6: The Common Law

  1.OWH to CC, April 30, 1897, MDHM, 13-23; OWH to ES, May 21, 1923, MDHM, 17-29.

  2.OWH to CC, October 7, 1896, OWHC, 1-1; OWH to John C. H. Wu, March 3, 1930, Wu, “Letters,” 298.

  3.OWH to Ralph Waldo Emerson, April 16, 1876, MDHM, 14-32; “The Profession of the Law,” address to Harvard undergraduates, February 17, 1886, CW, 3:472.

  4.OWH to Mrs. Charles S. Hamlin, October 12, 1930, MDHM, 15-16; OWH to HJL, October 18, 1925, H-L, 1:793.

  5.Howe, Shaping Years, 281.

  6.OWH to John C. H. Wu, March 3, 1930, Wu, “Letters,” 298–99; WJ to Henry P. Bowditch, May 22, 1869, TCWJ, 1:297.

  7.Diary, 1867, OWHP, 57-25.

  8.Entries for March 2 and March 5, ibid.

  9.“George Otis Shattuck,” Answer to Resolutions of the Bar, May 29, 1897, CW, 3:492.

  10.Entry for November 24, Diary, 1866, OWHP, 57-25.

  11.Holmes, “Memoir of Shattuck,” 367.

  12.“George Otis Shattuck,” CW, 3:492–93.

  13.Ibid., 494.

  14.United States v. Ames (1878).

  15.Howe, Proving Years, 23; Holmes, “Memoir of Shattuck,” 361–62, 365.

  16.OWH to Frances Kennedy, March 11, 1872, in Findlay, “The Captain,” 121; Little, “Early Reading of Holmes, 184.

  17.Howe, Proving Years, 6–7.

  18.White, Justice Holmes, 105, 513 n. 101.

  19.Details of their trip here and below are from Fanny’s Diary of European Trip, 1874, OWHP, 25-13; many of the passages from her diary are quoted in Howe, Proving Years, 97–100.

  20.H-P, 1:xv.

  21.Puelo, City So Grand, 88–89, 93–94.

  22.Howe, Proving Years, 106, 254–55, 255 n. 4.

  23.Nancy J. B. Morton to MDH, June 3, 1942, MDHM, 22-28; OWH to HJL, November 5, 1926, H-L, 2:893.

  24.OWH to John G. Palfrey, February 6, 1905, MDHM, 17-10; OWH to LE, June 7, 1904, H-E, 10.

  25.Novick, Honorable Justice, 433 n. 44.

  26.WJ to HJ, November 24, 1872, Hardwick, Selected Letters, 93; WJ to Henry P. Bowditch, May 22, 1869, TCWJ, 1:297.

  27.WJ to HJ, October 2, 1869, TCWJ, 1:307; Anderson, “William James in 1869,” 378.

  28.OWH to Mrs. Charles S. Hamlin, October 12, 1930, MDHM, 15-16.

  29.WJ to HJ, July 5, 1876, TCWJ, 1:371.

  30.Howe, Proving Years, 13.

  31.Ibid., 11; OWH to JBT, December 10, 1869, quoted in ibid., 12.

  32.Ibid., 16.

  33.Kent, Commentaries, 2:374; Holmes’s note on implied warranties is on 2:491 of the twelfth edition, reprinted in CW, 2:182–85. See also Howe, Proving Years, 21–22.

  34.Note on easements, 3:419 of the twelfth edition, reprinted in CW, 2:355–57; Holmes, “Theory of Torts,” CW, 1:326–34.

  35.OWH to JBT, July 15, 1872, OWHA, 1-23.

  36.TCWJ, 1:519.

  37.Fiechter, “American Aristocrat,” 21–22.

  38.Note of conversation with Charles Evans Hughes, November 5, 1942, MDHM, 22-7.

  39.JBT to James Kent, December 16 and 17, 1873, OWHA, 1-23.

  40.Kent to OWH, December 16, 1873, OWHP, 19-19; Kent to JBT, December 16, 1873, OWHA, 1-23. Holmes had written in the preface, “The notes which have been added to former editions since the author’s death have not been retained, with the exception of one by Mr. Justice Kent, the Chancellor’s son, and several by the last and very able editor, Judge Comstock.” The two words Kent wanted removed were “very able,” which he took as disparaging his father by comparison.

  41.OWH to JBT, “Private,” n.d., OWHA, 1-23; Kent to OWH, December 20, 1873, OWHP, 19-19.

  42.JBT Memorandum Book D, 143–44, MDHM, 15-29.

  43.OWH to NG, April 30, 1905, MDHM, 3-27.

  44.OWH to CM, January 9, 1915, MDHM, 20-1.

  45.OWH to HJL, June 1, 1922, H-L, 1:429–30.

  46.OWH to James Bryce, August 17, 1879, MDHM, 13-16.

  47.Frank, “Learned Hand,” 679.

  48.Menand, Metaphysical Club, 341; Howe, Proving Years, 156.

  49.OWH to Morris R. Cohen, February 5, 1919, Cohen, “Correspondence,” 14; OWH to Lady Pollock, July 2, 1895, H-P, 1:58. Holmes mentioned reading the book in a letter to Clara Stevens in 1907 (“I rather think that I last wrote before reading for the first time Darwin’s Origin of Species”: OWH to CSRS, April 28, 1907, MDHM, 17-38), and the book is on his 1907 reading list (Holmes, Black Book, 136).

  50.Holmes, Common Law, 1–2.

  51.Ibid., 1–2, 36.

  52.Ibid., 37.

  53.Ibid., 24–28.

  54.Ibid., 35.

  55.Ibid., 153.

  56.Ibid., 138–39.

  57.Ibid., 38.

  58.Ibid., 108.

  59.Ibid., 149.

  60.Smith, History of Lowell Institute, 25–26; “Lowell Institute Lecture,” BDA, November 24, 1880.

  61.“The Common Law,” BDA, January 1, 1881; OWH to HJL, October 18, 1925, H-L, 1:793; OWH to Mrs. Charles S. Hamlin, October 12, 1930, MDHM, 15-16.

  62.Howe, Proving Years, 249–50.

  63.OWH to EC, April 26, 1908, MDHM, 14-22.

  64.OWH to HJL, January 25 and February 1, 1919, H-L, 1:180, 184.

  65.Hughes, Autobiographical Notes, 172; OWH to ES, May 27, 1910, MDHM, 17-28.

  66.OWH to ES, May 27, 1910, MDHM, 17-28.

  67.OWH to Lady Askwith, March 3, 1915, MDHM, 13-1.

  CHAPTER 7: Holmes J.

  1.Charles Eliot to OWH, November 4, 1881, MDHM, 29-17. His salary as a lecturer is mentioned in OWH to Eliot, January 25, 1870, MDHM, 22-21.

  2.Urofsky, Brandeis, 49, 78–79.

  3.Entry for January 29, 1882, JBT Memorandum Book D, 103–6, MDHM, 15-29; Urofsky, Brandeis, 79.

  4.Charles Eliot to OWH, February 11, 1882, quoted in Howe, Proving Years, 265.

  5.Howe, Proving Years, 272; Speech to Bar Association of Boston, March 7, 1900, CW, 3:498.

  6.The events are related in the en
try for December 18, 1882, JBT Memorandum Book D, 140–44, MDHM, 15-29, reprinted in Howe, Proving Years, 265–67.

  7.OWH to James Bryce, December 31, 1882, MDHM, 13-17.

  8.OWH to FF, July 15, 1913, H-F, 12.

  9.Entries for December 18 and 22, 1882, JBT Memorandum Book D, 140–44, MDHM, 15-29, reprinted in Howe, Proving Years, 265–68.

  10.Ibid.; OWH to Charles Eliot, October 24, 1881, and Eliot to OWH, November 4, 1881, MDHM, 29-17; E. W. Hooper to William F. Weld Jr., January, 1883, quoted in Howe, Proving Years, 269–70.

  11.F. W. Parker to OWH, December 17, 1882, MDHM, 29-17.

  12.LDB to OWH, December 9, 1882, OWHP, 14-23.

  13.OWH to FP, August 27, 1883, H-P, 1:22.

  14.Holmes, “Law in Science,” 452.

  15.Oakes Ames to OWH, December 11, 1882, OWHP, 14-2; Wister, Roosevelt, 129; OWH to FP, August 27, 1883, H-P, 1:22; “William Crowninshield Endicott,” Answer to Resolutions of the Bar, November 24, 1900, CW, 3:527.

  16.OWH to CC, September 30, 1896, MDHM, 13-23.

  17.L. Kinvin Wroth, memorandum, Holmes’s Single Justice Sittings, 1–2 and Appendix I:1, MDHM, 24-2; Calendar of Assignments of the Justices of the Supreme Judicial Court of Massachusetts, for the Year Beginning September 1, 1899, ibid.

  18.Wroth, memorandum, Holmes’s Single Justice Sittings, Appendix II and III, MDHM, 24-2.

  19.I am greatly indebted to Hiller B. Zobel, who generously shared with me a literal lifetime’s research on Holmes’s trial cases. Details of Holmes’s trials are mostly to be found in the appeals of his decisions that went to the full court, but even there documentation is often sparse: it was not usual as today to prepare a complete transcript of a trial, and the appellate record generally consists only of a brief agreed statement of facts and a filing known as a bill of exceptions setting forth the specific legal grounds the losing party is alleging as the basis of its appeal.

  In equity cases, where an appellate court has the power to reconsider a case afresh and not merely correct procedural errors that occurred at trial, there was sometimes a more complete “report” of the case prepared by the trial judge that can be found in the case records.

  Besides the final appellate decisions published in the Massachusetts Reports, which sometimes will directly quote Holmes’s findings and orders at trial, the principal primary sources are Holmes’s trial reports in the bound volumes of SJC, Records on Appeal, at the Social Law Library, Boston, arranged by case name and session; and the many scattered files of his trial cases found in the dockets of the various county courthouses in Massachusetts, many of which Zobel searched out and copied. Reports of two of Holmes’s trials with unusually complete transcripts, Deshon v. Wood and Lamson v. Martin, are in the Holmes papers, OWHA, 7-9 to 7-13.

  Zobel has presented some of his findings in Zobel, “Holmes in Trial Court,” and Zobel, “Holmes, Trial Judge.” The Boston Daily Advertiser published a spare but regular account of court news that mentions occasional cases Holmes heard as a trial justice, with fuller coverage of his more sensational trials.

  20.August 4, 1924, B-F, 334–35.

  21.Clapp v. Jenkins (Docket # 1171, Suffolk County, Equity, 1883); “Legality of the Standard Time,” BDA, November 24, 1883; “In Chambers—Holmes, J.,” BDA, December 5, 1883. Examples of national coverage of the case are “The New Standard Time Legal,” NYT, December 5, 1883, and “Standing by Standard Time,” Milwaukee Sentinel, December 5, 1883.

  22.Briggs v. Canal Company (Docket # 945, Equity, Suffolk County, 1883), Wroth, memorandum, Holmes’s Single Justice Sittings, Appendix II:5, MDHM, 24-2; Dexter v. Campbell, 137 Mass. 198 (1884); Beals v. Case (Docket # 346, Equity, Suffolk County, 1883), Wroth memorandum, Appendix II:8; Russell v. Cole (Docket # 865, Equity, Suffolk County, 1883), Wroth memorandum, Appendix II:6.

  23.Jacobs v. Rouse (Docket # 588, Equity, Suffolk County, 1883), Wroth memorandum, Appendix II:2; Boston Standard Cab Association v. Nichols (Docket # 947, Equity, Suffolk County, 1883); “Court Calendar—In Chambers—Holmes, J.,” BDA, December 12, 1883.

  24.Pittsfield Sun, September 11, 1883, MDHM, 24-5.

  25.OWH to FP, December 15, 1912, H-P, 1:204; OWH to LE, January 29, 1914, H-E, 88.

  26.Drake v. Drake (Docket # 403, Berkshire County, 1887); libellee’s answer, Drake v. Drake, MDHM, 24-5; Zobel, “Holmes, Trial Judge,” 26.

  27.Seaver v. Seaver (Docket # 499, Suffolk County, 1883); “Marital Misery: A High-Toned Boston Couple in the Divorce Court,” St. Louis Globe-Democrat, June 3, 1882; Zobel, “Holmes in Trial Court,” 39.

  28.Oliver v. Oliver, 151 Mass. 349 (1890) and SJC, Records on Appeal.

  29.Robbins v. Robbins, 140 Mass. 528 (1886) and SJC, Records on Appeal.

  30.McCormack, “Law Clerk’s Recollections,” 713; OWH to EC, December 12, 1919, MDHM, 14-22.

  31.Gibson v. Imperial Council of the Order of United Friends, 168 Mass. 391 (1897) and SJC, Records on Appeal; Sargent v. Supreme Lodge of the Knights of Honor, 158 Mass. 557 (1893) and SJC, Records on Appeal.

  32.Raymond v. Wagner, 178 Mass. 315 (1901).

  33.Jones v. Simpson, 171 Mass. 474 (1898), and SJC, Records on Appeal; White v. Massachusetts Institute of Technology, 171 Mass. 84 (1898), and SJC, Records on Appeal.

  34.Transcript, 29, 33, Deshon v. Wood, In Equity, Before Holmes, J., Boston, May 23, 1887, OWHA, 7-9.

  35.Ibid., 6–7, 13–18, 39, 43–45.

  36.Ibid., 73.

  37.Deshon v. Wood, 148 Mass. 132 (1888).

  38.Fiske v. Pratt, 157 Mass. 83 (1892), and SJC, Records on Appeal.

  39.Dimond, Superior Court, 88–89, 92–93.

  40.Commonwealth v. Nicholson (Suffolk County, 1884); Commonwealth v. Besse, 143 Mass. 80 (1886); Commonwealth v. Baker (Middlesex County, 1886); Commonwealth v. Allen (Suffolk County, 1885). The trials all received extensive daily coverage in the BDA: Nicholson, June 16–19, 1884; Besse, May 19–21, 1886; Baker, December 14–18, 1886; Allen, February 3 and 5, 1885.

  41.“The Law,” Speech to Suffolk Bar Association, February 5, 1885, CW, 3:469.

  42.“William Crowninshield Endicott,” Answer to Resolutions of the Bar, November 24, 1900, CW, 3:527.

  43.Zobel, “Holmes in Trial Court,” 44.

  44.Anecdotes, Judge John V. Spalding, January 12, 1946, MDHM, 22-27.

  45.OWH to NG, October 2, 1896, MDHM, 3-16; OWH to EC, January 7, 1901, MDHM, 14-21; Acheson, Memoir, 58.

  46.OWH to CC, March 3, 1898, MDHM, 13-24; OWH to CC, June 3, 1897, MDHM, 13-23.

  47.Transcript, 205, Chase v. Hubbard, 153 Mass. 91 (1891), SJC, Records on Appeal; transcript, 104, Deshon v. Wood, 148 Mass. 132 (1888), SJC, Records on Appeal. The transcript of Wood v. Bullard, 151 Mass. 324 (1890), SJC, Records on Appeal, also contains numerous examples of Holmes intervening in testimony to admonish witnesses and counsel; see also Zobel, “Holmes in Trial Court,” 38–39.

  48.“Judge Lowell: Says He Likes to Try Cases Before Judge Holmes,” BDA, February 19, 1897.

  49.Mason v. Pomeroy, 154 Mass. 481 (1891); Stillman v. Whittemore, 165 Mass. 234 (1896); Amherst College v. Allen, 165 Mass. 178 (1896); Sears v. Mayor and Aldermen of Worcester, 180 Mass. 288 (1902); Record, 5, Gale v. Nickerson, 144 Mass. 415 (1887), SJC, Records on Appeal.

  50.I was able to locate 156 appeals of Holmes’s trial cases in the Massachusetts Reports. In 75 cases his decision was affirmed entirely or substantially by the full court, in 14 he was overruled. In another 67 cases, at the request of one or both parties, he reported the case to the full court without a decision. The cases where he overruled himself on appeal were Wood v. Cutter, 138 Mass. 149 (1884), and Hunting v. Damon, 160 Mass. 441 (1894).

  51.O’Connor, Boston Irish, 113–15; Rosenbloom, Economic Maturity, 24.

  52.Puelo, City So Grand, 49, 218–23; Rosenbloom, Economic Maturity, 25.

  53.Rosenbloom, Economic Maturity, 5, 8–13.

  54.Ibid., 27–28; O’Connor, Boston Irish, 151–53.

  55.Middlesex Company v. City of Lowell, 149
Mass. 509 (1889).

  56.Anchor Electric Company v. Hawkes, 171 Mass. 101 (1898) and SJC, Records on Appeal.

  57.Harvey v. Merrill, 150 Mass. 1 (1889), and SJC, Records on Appeal.

  58.“Walbridge Abner Field,” November 25, 1899, CW, 3:496.

  59.Crowell v. Cape Cod Ship Canal Company, 168 Mass. 157 (1897), and SJC, Records on Appeal.

  60.Towne v. Eisner (1918); Johnson v. United States, 163 Fed. 30 (1st Cir. 1908).

  61.Bent v. Emery, 173 Mass. 495 (1899). The question in the case was whether the dredging of mud flats by the city required compensation to the owners.

  62.Hubbard v. City of Taunton, 140 Mass. 467 (1886).

  CHAPTER 8: Labor, Capital, and Dames

  1.OWH to LE, March 31, 1922, H-E, 204. Holmes misremembered one detail in recalling these events forty years later, telling Einstein that Fanny “sent me to Europe” for the summer while she got the house ready; in fact, after their 1882 trip abroad together, Holmes did not travel to Europe again until 1889. Holmes was writing letters from 9 Chestnut Street in March 1884 (see the original letter from OWH to FP, March 9, 1884, OWHP, 10-3) but was still at 10 Beacon Street the previous November (OWH to FP, November 5, 1883, ibid.).

  2.OWH to LE, October 28, 1912, H-E, 74–75.

  3.OWH to LE, June 1929, H-E, 297; OWH to ES, January 6, 1912, MDHM, 17-28.

  4.Katherine P. Loring to MDH, June 4, 1942, MDHM, 22-28; memorandum of talk with Thomas Barbour, January 5, 1946, MDHM, 22-7.

  5.Entry for June 16, 1889, Alice James, Diary, 35.

  6.Thomas G. Corcoran interview, 7–8, JSMP, 1-3; LE to OWH, May 5, 1919, and May 31, 1929, H-E, 186, 296.

  7.John E. Lockwood to FF, October 1, 1928, OWHP, 58-27; Katharine Bundy interview, 12, JSMP, 1-1

  8.Thomas G. Corcoran to FF, November 4, 1926, OWHP, 58-27.

  9.Sutherland, “Recollections,” 20–21; Alger Hiss interview, 30, JSMP, 1-8.

  10.Graham, Washington, 191; Meyer, Roots, 171–72.

  11.OWH to FP, May 24, 1929, H-P, 2:243; memorandum of talk with FF, August 10, 1964, MDHM, 22-26.

  12.OWH to ES, September 24, 1910, MDHM, 17-28.