Oliver Wendell Holmes

by Stephen Budiansky

  13.Memorandum of talk with Mrs. E. J. Holmes, October 22, 1954, MDHM, 22-7; Katharine Bundy interview, 13–14, JSMP, 1-1.

  14.OWH to HJL, October 30, 1921, H-L, 1:378.

  15.OWH to NG, August 7, 1895, MDHM, 3-15. Holmes identifies her only as one of “two little girls—cousins of mine,” but Dorothy would have been thirteen at the time, as he mentions.

  16.LH to MDH, April 29, 1959, MDHM, 22-26.

  17.OWH to LE, August 31, 1928, H-E, 289.

  18.Katharine Bundy interview, 14–15, JSMP, 1-1.

  19.MDH note of luncheon with Sam Morison and Lewis Einstein, April 5, 1961, MDHM, 22-26; OWH to FP, July 27, 1899, MDHM, 11-8. I am grateful to Dr. Lee Ponsky, professor of urology at Case Western Reserve University, and Dr. Adam S. Kibel, chief of urology at Brigham and Women’s Hospital, for their explanations of benign prostatic hyperplasia and their insights into Holmes’s condition.

  20.Based on a single letter in which Fanny wrote, “You have a wife once a week,” Novick concluded, “Holmes and his wife had a vigorous if somewhat routinized sex life, as surviving letters between them clearly indicate” (Novick, “Holmes’s Philosophy,” 731). Although Novick stated that Fanny’s words “cannot really be misunderstood” (Novick, “Art of Biography,” 1232), it is unlikely they were meant in a sexual sense, and they certainly were not an accounting of the couple’s “routinized sex life”: she was writing from Beverly Farms at the end of the summer when Holmes was attending court in Boston and rejoining her on the weekends, and she was referring to the fact that they were only seeing each other once a week (Fanny Holmes to OWH, n.d., Beverly Farms, OWHP, 18-19; although the letter is undated, it is on Beverly Farms stationery, and she refers to events that place it during the time the court was in session).

  21.OWH to Lucy Hale, May 21, 1858, MDHM, 18-35.

  22.OWH to EC, January 25, 1903, and February 25, 1904, MDHM, 14-21; OWH to CC, March 12, 1897, MDHM, 13-23.

  23.OWH to John T. Morse Jr., June 9, 1887, MDHM, 16-38; Wister, Roosevelt, 130. (“I have been in the habit for years of calling at the Grays on Tuesday—to see Mrs. G. and John if he happens to be in”: OWH to EC, January 7, 1901, MDHM, 14-21.)

  24.Katherine P. Loring to MDH, June 10, 1942, MDHM, 22-28.

  25.Phillips, Frankfurter Reminisces, 23.

  26.OWH to NG, August 29, 1899, MDHM, 3-18; “Charles P. Curtis, Boston Lawyer, 87,” NYT, April 28, 1948; “American Boat Wins,” NYT, September 3, 1913; OWH to NG, July 26, 1900, MDHM, 3-19.

  27.“What Is Doing in Society,” NYT, August 3, 1899; “J. S. Stevens Dead on Hunting Trip,” NYT, March 23, 1935.

  28.Memorandums of talks with Charlie Curtis, January 28, 1955, MDHM, 22-7, and Sherwood Rollins, December 8, 1955, MDHM, 28-7.

  29.James H. Rowe interview, 4, JSMP, 1-15; Monagan, Grand Panjandrum, 93; Biddle, Casual Past, 288; Isabella Wigglesworth interview, 14, JSMP, 1-16; Katherine P. Loring to MDH, June 4, 1942, MDHM, 22-28; Katharine Bundy interview, 4, 8, JSMP, 1-1.

  30.OWH to LE, August 4, 1923, H-E, 216.

  31.Howe, Shaping Years, 254.

  32.OWH to Margaret Bevan, September 7, 1913, and December 26, 1914, OWHA, 1-1.

  33.Ibid., September 7, 1913.

  34.Rollins, Threads of Life, 45–47, 51–53.

  35.“Easter Sonnet,” CSRS to OWH, OWHP, 22-17.

  36.CSRS to OWH, [December 31, 1899], OWHP, 22-17.

  37.ES to OWH, September 30, 1896, OWHP, 22-1.

  38.Memorandum of talk with Austin Clark, May 1948, MDHM, 22-27. Katherine P. Loring was one who said she had never observed any signs of jealousy in Fanny: Loring to MDH, June 10, 1942, MDHM, 22-28.

  39.Fanny Holmes to OWH, n.d., Beverly Farms, OWHP, 18-19 (see also n. 20 above).

  40.Memorandums of talks with Mrs. James B. Ayer, October 25, 1955, MDHM, 23-2, and Charlie P. Curtis Jr., January 28, 1955, MDHM, 22-7.

  41.Katharine Bundy interview, 4–5, JSMP, 1-1.

  42.Hale, Table Talk, 11.

  43.“The Breakfast Table,” BDA, May 7, 1888; “In and About Portland: Prominent Bostonians Coming,” Morning Oregonian, May 25, 1888; “A Beautiful Trip,” ibid., May 28, 1888. In his address to the Chicago Bar Association in 1902, Holmes recounted meeting Fuller in Chicago on this 1888 trip: CW, 3:532.

  44.OWH to Owen Wister, June 8, 1888, MDHM, 18-22; WJ to Henry and Alice James, October 14, 1888, TCWJ, 1:409; OWH to CM, January 9, 1915, MDHM, 20-1.

  45.Holmes Sr. to Elizabeth Ward, April 13, 1889, LLH, 2:264; OWH to Wister, April 14, 1889, MDHM, 19-4; entry for May 30, Diary of European Trip, 1874, OWHP, 25-13; Diary, 1882, OWHP, 57-26.

  46.TCWJ, 1:411; entry for June 16, 1889, Alice James, Diary, 35.

  47.Ethel Grenfell to OWH, June 27, 1892, OWHP, 16-22.

  48.HJ to OWH, November 13, 1891, Howe, “Letters of James to Holmes,” 417.

  49.CC to OWH, February 19, 1892, OWHP, 15-3. (“I was staying at Wilton for Easter, & found Lord and Lady Pembroke still full of pleasant recollections & thoughts of a visit from you when you were here in England last”: Charles Bowen to OWH April 9, 1891, MDHM, 13-12.)

  50.Anna K. Codman to MDH, August 11, 1942, MDHM, 14-11.

  51.OWH to NG, August 7, 1891, MDHM, 3-14.

  52.Montgomery, “Strikes in Nineteenth-Century,” 91–93; Rosenbloom, Economic Maturity, 28.

  53.Rosenbloom, Economic Maturity, 30–31, 33, 36.

  54.July 2, 1924, B-F, 328; Post, “Dissent in Taft Court,” 1341–42; Holmes, dissenting opinion, Vegelahn v. Guntner, 167 Mass. 92 (1896), at 104.

  55.Holmes, dissenting opinion, Commonwealth v. Perry, 155 Mass. 117 (1891), at 123–24.

  56.Holmes, “Ideals and Doubts,” 3; OWH to HJL, May 24, 1919, H-L, 1:207, and August 6, 1917, H-L, 1:96; “The Soldier’s Faith,” CW, 3:487.

  57.Holmes, “Path of the Law,” 467–68; Address to Middlesex Bar Association, December 3, 1902, CW, 3:536.

  58.OWH to FP, January 20, 1893, H-P, 1:44.

  59.Opinions of the Justices to the House of Representatives, 155 Mass. 598 (1892), at 607; OWH to NG, May 10, 1892, MDHM, 3-14; OWH to James Bryce, July 17, 1892, MDHM, 13-17.

  60.Holmes, dissenting opinion, Attorney General v. Old Colony Railroad Co., 160 Mass. 62 (1893), at 94.

  61.Speech at Harvard Law School Association, June 25, 1895, CW, 3:492. The one case where Holmes found a Massachusetts statute unconstitutional was Lorden v. Coffey, 178 Mass. 489 (1901).

  62.Opinions of the Justices to the House of Representatives, 160 Mass. 586 (1894), at 594. For Holmes’s view on powers versus prohibitions, see OWH to JBT, November 2, 1893, MDHM, 18-1.

  63.OWH to Owen Wister, April 14, 1889, MDHM, 19-4; Memorial Sketch of Edward Jackson Holmes, EJHC, 2-4.

  64.LLH, 1:195; Holmes Sr., Mortal Antipathy, 23.

  65.OWH to Mrs. Charles S. Hamlin, October 12, 1930, MDHM, 15-16; Hale, “Afternoon with Holmes,” 108; Dow, Old Days, 64.

  66.LLH, 2:96.

  67.OWH to James Bryce, November 5, 1894, MDHM, 13-17.

  68.Davis, History of Judiciary, 177; Amelia Jackson Sargent will and trust accounts, OWHA, 6-5; statements of rent on Boston properties, July, 1904, OWHP, 55-8; account of sale of 12 Plympton St. and 7 Bow St. properties, Cambridge, September 13, 1901, OWHA, 6-6.

  69.Probate appraisal, estate of Epes Sargent Dixwell, March 15, 1900, OWHA, 6-4; Bureau of Labor Statistics, Consumer Spending, 6.

  70.OWH to CC, June 18, 1897, OWHC, 1-3; Thomas G. Corcoran in Louchheim, New Deal, 24.

  71.OWH to NG, September 26, 1903, MDHM, 3-23; miscellaneous bills and receipts, 1895, OWHP, 28-1; receipt for house rent, Beverly Farms, A. O. Marshall to Justice Holmes, October 15, 1897, OWHP, 29-9; OWH to HJL, January 1, 1927, H-L, 2:911.

  CHAPTER 9: Ideals and Doubts

  1.Belknap, “Justice Holmes,” 15.

  2.OWH to FP, January 17, 1891, H-P, 1:34–35.

  3.OWH to FP, March 22, 1891, H-P, 1:35; Tasker v. Stanley, 153 Mass. 148 (1891).

  4.Debbins v. Old Colony Railroad Company, 154 Mass. 402 (1891)
; In re Welsh, 175 Mass. 68 (1900). On the court’s institutional norms favoring unanimity, see Tushnet, “Holmes on Supreme Judicial Court,” 978, 1002.

  5.OWH to CC, May 20, 1897, MDHM, 13-23.

  6.“Walbridge Abner Field,” November 25, 1899, CW, 3:495.

  7.Ibid., 497.

  8.Ibid., 496; OWH to NG, August 3, 1893, MDHM, 3-15.

  9.Belknap, OH, 12; OWH to CSRS, April 28, 1907, MDHM 17-38.

  10.Hamilton v. West End Street Railway Company, 163 Mass. 199 (1895), at 200; American Waltham Watch Company v. United States Watch Company, 173 Mass. 85 (1899), at 87; Weston v. Barnicoat, 175 Mass. 454 (1900), at 458; Nash v. Minnesota Title Insurance and Trust Company, 163 Mass. 574 (1895), at 586; Ryalls v. Mechanics’ Mills, 150 Mass. 190 (1889), at 194.

  11.Merrill v. Peaslee, 146 Mass. 460 (1888), at 465.

  12.OWH to FP, November 2, 1884, H-P, 1:26.

  13.Commonwealth v. Pierce, 138 Mass. 165 (1884), at 175, 177–79.

  14.Commonwealth v. Kennedy, 170 Mass. 18 (1897), at 20.

  15.Nash v. Minnesota Title Insurance and Trust Company, 163 Mass. 574 (1895); Spade v. Lynn and Boston Railroad Company, 172 Mass. 488 (1899); Butler v. New York, New Haven, and Hartford Railroad Company, 177 Mass. 191 (1900).

  16.OWH to Lady Pollock, April 11, 1897, H-P, 1:74; Commonwealth v. Sullivan, 146 Mass. 142 (1888).

  17.OWH to NG, June 16, 1896, MDHM, 3-15.

  18.OWH to Lady Pollock, April 12, 1901, MDHM, 30-9. This letter was omitted from the published Holmes-Pollock correspondence.

  19.CC to OWH, Saturday [July] 4, [1896], OWHP, 15-3.

  20.Entries for July 11, 15, 22, 27, Diary, 1896, OWHP, 57-26. (“It was in the middle of July that we went to the Exhibition and I noted that you had a quick eye for pictures”: OWH to CC, July 6, 1897, MDHM, 13-24.)

  21.Monagan, Grand Panjandrum, 71; Castletown, Papers, finding aid, p. 26; Castletown, Ego.

  22.Letters from Clare to Bernard Castletown, Castletown, Papers, Ms 35,295(2–5). The arrangements for Castletown’s mistress, Mrs. E. Palgrave, are described in Doneraile Papers, Ms 34,187(6).

  23.Howe, “Letters of James to Holmes,” 419–20; entry for August 16, Diary, 1896, OWHP, 57-26.

  24.A brief contemporary description of the house and park during the Castletowns’ time is in White, “Notes on Buttevant, Doneraile,” III:46–49. I am most grateful to Rosemary Collier, director of national historic properties in Ireland’s Office of Public Works, and to the staff at Doneraile Park for allowing me to tour the interior of the house, which was under restoration at the time of my visit in 2017.

  25.CC to Bernard Castletown, September 6, 1896, Castletown, Papers, Ms 35,295(4); OWH to CC, January 29, 1897, and September 17, 1896, MDHM, 13-23.

  26.OWH to CC, August 22 and 23, 1896, OWHC, 1-1, and December 4, 1896, MDHM, 13-23; entries for August 23, 24, 27, Diary, 1896, OWHP, 57-26; Nancy J. B. Morton to MDH, June 3, 1942, MDHM, 22-28. A brief biographical sketch of Gordon McCabe is in Gordon, McCabe Memoir.

  27.OWH to CC, September 5, 1896, OWHC, 1-1; December 19, 1896, MDHM, 13-23.

  28.OWH to CC, September 5, 1896, OWHC, 1-1; item for August 29, “Pr Horses to Boston $12.00,” Standley & Larcom, bill to Mrs. O. W. Holmes, September 2, 1896, OWHP, 28-19. Holmes was listed among the passengers who arrived in New York on August 29 on the Etruria: “Arrivals from Europe,” NYT, August 30, 1896.

  29.OWH to CC, September 17 and 30, November 21, and December 19, 1896, MDHM, 13-23.

  30.John S. Monagan, “The Love Letters of Justice Holmes,” Boston Globe Magazine, March 24, 1985; Monagan, Grand Panjandrum, 71–94.

  31.OWH to CC, December 4, 1896, MDHM, 13-23, and, October 7, 1896, OWHC, 1-1.

  32.OWH to CC, May 7, 1897, MDHM, 13-23. La Touche’s letters, which are in private hands, were the remarkable discovery of G. Edward White and are quoted in White, Justice Holmes, 233–34, 236–37.

  33.CC to Bernard Castletown, August 30, 1896, Castletown, Papers, Ms 35,295(4).

  34.Ibid., September 6, 1896.

  35.CC to OWH, n.d., OWHP, 15-3.

  36.“In Favor of Strikers,” BDA, May 29, 1895.

  37.Vegelahn v. Guntner, 167 Mass. 92 (1896).

  38.Ibid., at 106.

  39.Ibid., at 105, 106.

  40.Holmes, “Privilege, Malice,” 3.

  41.Vegelahn v. Guntner, at 107–8.

  42.Holmes, “Path of the Law,” 467.

  43.OWH to HJL, February 19, 1920, H-L, 1:243; Holmes, “Path of the Law,” 466.

  44.OWH to CM, September 1, 1908, MDHM, 19-20; OWH to FP, May 26, 1919, H-P, 2:13.

  45.Holmes, “Path of the Law,” 461.

  46.Ibid., 459–61; Holmes, Common Law, 110, 214. In his discussion of contracts on p. 317 of The Common Law, Holmes introduced the idea of a man with “no scruples” to illustrate that the only real consequence of a contractual condition is the “greater or lesser possibility of having to pay money.”

  47.Holmes, “Path of the Law,” 459.

  48.OWH to CC, January 11, 1897, MDHM, 13-23.

  49.Horwitz, “Holmes in Legal Thought,” 69.

  50.Patnoude v. New York, New Haven, and Hartford Railroad Company, 180 Mass. 119 (1901).

  51.American Waltham Watch Company v. United States Watch Company, 173 Mass. 85 (1899).

  52.Horwitz, “Holmes in Legal Thought,” 57.

  53.Richard W. Hale to MDH, May 17, 1939, MDHM, 22-18; Holmes, dissenting opinion, Plant v. Woods, 176 Mass. 492 (1900), at 505.

  54.OWH to CC, December 8, 1897, MDHM, 13-24; OWH to CC, March 5, 1897, MDHM, 13-23.

  55.OWH to CC, June 3, 1897, MDHM, 13-23, and May 28, 1897, OWHC, 1-3; “Heroic Deed and Noble Cause Immortalized in Bronze,” Boston Globe, June 1, 1897.

  56.OWH to NG, July 25, 1897, MDHM, 3-16.

  57.OWH to NG, September 2, 1895, MDHM, 3-15.

  58.OWH to CC, January 10, 1898, MDHM, 13-24.

  59.OWH to CC, March 1898, Doneraile Papers, Ms 34,166(1). I am very much obliged to Ralph Erskine for providing me copies of these letters in the National Library of Ireland from Holmes to Lady Castletown.

  60.OWH to CC, April 1, 1898, OWHC, 1-4.

  61.OWH to CC, April 15, June 6, 7, and 9, 1898, MDHM, 13-25.

  62.OWH to NG, June 20, 1898, MDHM, 3-17; OWH to CC, June 18, 1898, MDHM, 13-25.

  63.Entry for July 11, Diary, 1898, OWHP, 57-26; OWH to Lady Burghclere, September 17, 1898, MDHM, 13-21.

  64.Entry for August 22, Diary, 1898, OWHP, 57-26.

  65.OWH to CC, September 5, 1898, MDHM, 13-25; entries for August 25 and 27, Diary, 1898, OWHP, 57-26; OWH to FP, December 9, 1898, H-P, 1:89–90.

  66.OWH to CC, September 5 and 8, 1898, MDHM, 13-25.

  67.OWH to CC, May 19, 1899, OWHC, 1-5. Her letter is not extant, but Holmes quotes her words in his reply.

  68.CC to Bernard Castletown, April 23, 1899, Castletown, Papers, Ms 35,295(5).

  69.White, Justice Holmes, 243; Bernard Castletown to OWH, June 18, 1899, OWHP, 15-3.

  70.Diary, 1901, OWHP, 58-1; OWH to NG, September 15, 1901, MDHM, 3-20.

  71.OWH to NG, July 27, 1899, MDHM, 3-17.

  72.OWH to EC, December 4, 1901, MDHM, 14-21.

  73.Devlin, “Judges in Robes”; Causten Browne to OWH, January 15, 1901, OWHP, 58-15; Alfred Rodman Hussey to MDH, August 8, 1942, MDHM 22-29.

  74.OWH to CSRS, July 19, 1902, MDHM, 17-38.

  75.George Hoar to Henry Cabot Lodge, July 29, 1902, quoted in Garraty, “Holmes’s Appointment,” 297.

  76.Hoar to Lodge, August 11, 1902, quoted in ibid., 299; Hoar to Lodge, August 7, 1902, MDHM, 22-25.

  77.Eben S. Draper to Lodge, March 7, 1902, quoted in Garraty, “Holmes’s Appointment,” 293; Wagner, “Holmes and Roosevelt,” 119–21.

  78.Theodore Roosevelt to Lodge, July 10, 1902, Morison, Letters of Roosevelt, 3:288.

  79.Ibid., 289.

  80.OWH to NG, August 17, 1902, MDHM, 3-21.

  81.Roosevelt to OWH, August 19, 1902, Morison, Letters of Roosevelt, 3:.315.


  82.OWH to FP, May 17, 1925, H-P, 2:161; Garraty, “Holmes’s Appointment,” 295 and n. 10; Roosevelt to OWH, August 21, 1902, Morison, Letters of Roosevelt, 3:319.

  CHAPTER 10: “So Great and So Different”

  1.OWH to CSRS, September 8, 1902, MDHM, 17-38; OWH to John Chipman Gray, August 17, 1902, MDHM, 3-8.

  2.OWH to CSRS, October 17, 1902, MDHM, 17-38.

  3.Editorial, New York Evening Post, August 12, 1902, quoted in White, Justice Holmes, 306; OWH to FP, September 23, 1902, H-P, 1:106.

  4.OWH to LE, March 25, 1927, H-E, 265.

  5.Speech to Bar Association of Boston, March 7, 1900, CW, 3:498.

  6.OWH to John Chipman Gray, August 17, 1902, MDHM, 3-8.

  7.Address to the Chicago Bar Association, October 21, 1902, CW, 3:532; Address to Middlesex Bar Association, December 3, 1902, CW, 3:537.

  8.King, Fuller, 287.

  9.Address to Middlesex Bar Association, CW, 3:536.

  10.Acheson, Memoir, 41–42.

  11.Biddle, Casual Past, 271; Acheson, Memoir, 41.

  12.Derby, “Recollections,” 347.

  13.Hofstedt, “Court Messengers,” 260–61; Lowry, “Justice at Zero.”

  14.“Uncle Jim Burke,” Washington Bee, January 5, 1907; information to author from Marshal’s Office and Curator’s research files, Supreme Court of the United States, January 2017; “Funeral of John Craig,” Washington Bee, January 11, 1908; Derby, “Recollections,” 347. I am very grateful to Matthew Hofstedt, Office of the Curator, U.S. Supreme Court, for providing me information from the Court’s archives on Holmes’s messengers and the history of the Court messengers.

  15.Lowry, “Justice at Zero”; Schwartz, History of Supreme Court, 101; Baldwin, “Supreme Court Justices,” 156.

  16.Schwartz, History of Supreme Court, 101.

  17.JRG, 81–82 and n. 319.

  18.OWH to HJL, January 7, 1924, H-L, 1:579–80. The lunchbox is now in the OWH Object Collection at Harvard Law School.

  19.JRG, 81.

  20.Entry for November 28, 1933, Howe, Diary, 12–13; JRG, 80–81.

  21.Acheson, Memoir, 56; Baldwin, “Supreme Court Justices,” 159.

  22.Butler, Century at Bar, 65–66.

  23.OWH to EC, December 21, 1902, MDHM, 14-21.

  24.Ibid., February 7, 1903.

  25.John E. Lockwood interview, April 1, 1981, LJPP, 1-26; OWH to NG, March 2, 1903, MDHM, 3-22.