Yankee From Olympus: The Story of Justice Holmes

by CATHERINE DRINKER BOWEN

15

SEPTEMBER,1864. A young man walks up the steps of Dane Hall on Harvard Square, up between the white columns, through the wide doors, and takes his seat in the lecture room of Judge Joel Parker. He is eager, but he is also more than a little confused. He is by no means sure of himself. He has only the stubborn, hazy conviction that the law is what he is going to do next and do with all his might. Within the boundaries of this conviction he is slated for hours, days, years, of doubt and bitter uncertainty.

“Law student,” Holmes had written with a flourish three years ago in his army identification papers. On his return from the war in July of 1864 he would have liked to go over to Cambridge immediately and enroll in the Law School. But he hesitated. It was a serious step. Was the law really his objective in life — not merely the “starting point” he had called it in his class autobiography? There was one other possibility; philosophy, with the eventual goal a professorship at Harvard. Since his undergraduate days and his prize essay on Plato, Holme’s s passion for philosophy had grown steadily deeper. Metaphysics, dialectics, formal logic, theories of government and theories of sovereignty: these things fascinated him. And in 1864 these were the things that lay behind the law.

The question was: Should such knowledge be pursued with only itself as goal, or was it better to have a focus, a boundary, some clinical application outside the classroom, such as a money-making law practice that brought a man up against the world and the living problems of the world? Cousin Robert Morse, who had a very good law practice on Pemberton Square, said Wendell was born for the law.

Wendell received this statement with skepticism. The only thing he felt bora for was to use his powers to the full. Even more clearly than when he was in the army, Holmes recognized that his powers were intellectual, that he was an “internal” man to whom ideas were more interesting than things. For three years he had lived a life as external as it would be possible to live. He had slept on the ground, had killed men with his own hand, saved men’s lives by his own hand. Now he was free, and the life of pure scholarship beckoned. But if he embraced it, if he followed in the footsteps of such a man as Emerson, might he not, at forty, find himself dwelling in a cloudland of pure speculation, his own vital force dilute in this rarefied region?

At home he said nothing of his plans, aware that his father had long ago studied the law and hated it. Dr. Holmes liked philosophy no better, having the scientist’s mistrust for abstract speculation. It seemed to him that lawyers went about solving their problems — and what dreary problems! — in a manner both unreal and devious. He had a quotation from Gulliver about lawyers, which he loved to air: “It is a maxim among these lawyers, that whatever hath been done before may legally be done again: and therefore. . . .” Recollection of it kept Wendell’s lips sealed. He had no wish to be preaehed at concerning the uselessness of lawyers and philosophers in a hard, practical world.

“What are you going to do?” Dr. Holmes asked continually. “What about science? Science is the coming thing. What about teaching? It’s true the professor’s chair has an insulating quality that cuts it off from contact with reality. But combined with writing or some more practical application, teaching is a very satisfactory way to make a living.”

He had talked until his wife cautioned him to be still, let Wendell alone, give him a chance for a rest and a few months’ vacation before making his decision. If the war was not over by spring the boy would probably re-enlist whether he was physically fit or not. bet him have a winter free of responsibility. Give him time to look round, get flesh on his bones, heal up his nervous system.

On the first of August, Holmes had been mustered out of the Twentieth Regiment in a ceremony on the Common with the other three-year men. He carried the title of Lieutenant Colonel, breveted for “gallant and meritorious service at the battle of Chancellorsville.”Afterward the Regiment marched around Faneuil Hall behind the brass band, ending up at the Apollo Gardens for beer and an excellent supper provided by the Citizens’ Committee.

Wendell sat with Captain Magnitzky, an older man, a Pole from out near Lowell who had volunteered as a private and served right through the war. Wendell was immensely fond of him. “Do not look so troubled,” Magnitzky told him now. “You have done your part. You were a good soldier, Captain Holmes. And you were not born for it. In six months, eight months, if we do not beat the Rebels you can perhaps re-enlist. Now it is time for you to forget soldiering and be a scholar. It is time for you to do for a little while the things you were born to do.”

A few days later, Holmes knocked on the door of his father’s study. “I am going to the Law School,” he said without preamble.

Dr. Holmes looked up from his desk. “ What’s the use of that, Wendell? A lawyer can’t be a great man.”

The remark was instinctive. But if he had tried, Dr. Holmes could not have devised a statement more provocative to his son. A lawyer can't be a great man. To Wendell the statement combined a paternal cocksureness concerning the universe and its arrangements with a bland assurance that any son of Dr. Oliver Wendell Holmes could be a great man if he started out right. The words struck home, pointed, steel-shafted. If there had been doubts, they were resolved now. Wendell would go over to Cambridge and sign his name on the rolls at Dane Hall. He would prove that the profession of the law was not a way to make money on Court Street. The law was not merely a door opening into knowledge. It was a window, opening out on all mankind.

16

SITTING in Judge Parker’s lecture room on a bright day of September, Holmes took out his notebook as the Judge began to speak. It was a large class: the war had not caused college enrollments to fall off. The last class graduated from the College had in fact been much larger than Wendell’s own class of ‘61. Peter Olney sat just across the aisle, Robert Lincoln next to him. Strange to be a student once more — to sit, notebook in hand, waiting for the professor’s voice.

What an impressive-looking man Judge Parker was! Senior professor and Dean of the Law School, he had been Chief Justice of New Hampshire. His black eyes shot lightning, his features were strong, he carried himself very straight. When he strode through the room and onto the platform he looked as if he were going to walk right on through the other side. He was sixty-nine; he had lectured at the school for sixteen years. A good fight was meat and drink to Parker. He was much concerned with politics and for the past two years had bitterly condemned Lincoln’s use of wartime powers. Everyone knew what Judge Parker had said to the president of Dartmouth. “Sir!” roared Parker. “This modern education is all a humbug!” President Lord had only sighed. “Judge Parker,” he replied, “it is.”

There was no other way to converse with Judge Parker. His knowledge of the law was vast. It was also exact, formal, and involved to the point of obscurity. Holmes had been warned not to try to understand Parker’s lectures. Just get what he said into a notebook and then learn it by heart. Wendell had been scornful of this. He was no undergraduate trying to skim through college. He was a man of twenty-three who had been to war and desired knowledge.

But after the first twenty minutes of Joel Parker, Holmes was not so scornful of his adviser. He could not make sense of one word the Judge was saying. Holmes glanced around. Everyone else had stopped writing too. Peter Olney’s eye was glassy. Only Robert Lincoln leaned forward, intent, frowning. Was this the frown of understanding or the anxious pucker that goes with hopeless incomprehension? Holmes hoped it was the latter. Only last night Harry James had told him that he had sat through an entire winter of lectures at the Law School without understanding a single word. Then he had joyfully abandoned the law. Father, Uncle John, Harry James — not stupid men.

At home that night Wendell Holmes was unusually silent. Next day Professor Parsons lectured. And Professor Parsons, fortunately, was a different matter altogether. Parsons hated the more technical parts of the law, such as pleading and property, and did not hesitate to say so. His father had been Chief Justice of Massachusetts, his own book on Contracts was being readied for its fifth edition and was so much used in the courts that a student was heard to ask if there was a statute making Parsons an authority. Even so he seemed more litterateur than lawyer. Holmes was drawn to him immediately.

Parsons always gave his first lecture of the year on the ethics of the profession and it always opened with the same words. The students grinned with anticipation: “ If a young lawyer pays for his sign the first year and hisoffice rent the next, he can tell himself he is doing very well.“

The third professor, Emory Washburn, was a strikingly handsome man in his late sixties. In the early days of the war Holmes had been much impressed by seeing him march up and down, gun on shoulder, guarding Cambridge Arsenal with his students. Like the other two professors, Washburn was descended from a long line of patriots. He himself had been State Senator, Judge, Whig Governor of the Commonwealth. This summer Holmes had twice seen him walking behind soldiers’ funerals in the uniform of the Home Guard. The bushy gray eyebrows and side whiskers of the former Governor looked strange under a private’s cap, and somehow touching. “Oh, I like to help when I can,” Washburn said. He was the best lecturer in the school, he could breathe life even into Coke on Littleton and the dreadful logic of Fearne on Contingent Remainders. When he laughed you could hear him across the Yard, and the students loved him. Holmes said it was Washburn who taught him the meaning of the phrase, “enthusiasm of the lecture room.”

So far, so good. Under teachers of first-rate minds, strong characters, and contagious personalities, Holmes could start off with enthusiasm. He lived at his father’s house on Charles Street, going back and forth to Boston in the crowded horsecars over the West Bridge, carrying large brown books to study at home — Spence and Fearne and Austin. Austin’s Jurisprudence was new. Austin was a Utilitarian. Lawyers said his book attempted to untangle law from ethics, to separate old theories of political sovereignty from the historical foundations of society. But the book made very unpleasant reading. Later, in London, Frederick Pollock said that Austin “dogmatized overmuch,” and with typical Pollockian candor declared the author to be “uncouth and excessive,” his literary manner so repulsive that even at his most accurate it was difficult to believe what he said.

Not all the books Holmes studied were British. From the Law School itself came some of the best ones: Story’s Commentaries, Greenleaf on Evidence, Stearns on Real Actions, Parsons on Contracts. For American jurisprudence Holmes had a book he liked: Walker’s Introduction to American Law. It was, he said afterward, one of the two books that gave him a glimpse of what he was seeking — the law in its general, historical aspect. The other was the first volume of Spence’s Equitable Jurisdiction.

Timothy Walker, a student at the Law School under Judge Story, had written his book as a very young man, apologizing in the preface because somebody older and wiser had not written it instead. In it he examined American law from the Bill of Rights to Civil Procedure, discussed the conflict of laws and from state to state quoted case and precedent to support him. He advised the student to shun delights and live laborious days. “Genius without toil,” Holmes read on page nineteen, “may, to some extent, distinguish a man elsewhere; but here he must labor, or he cannot succeed. No quickness of invention can supply the place of patient investigation. A clear mind might determine at once what the law ought to be, but actual inspection alone can determine what the law is.”

Wendell Holmes did not spurn this investigation, He reveled in it, pursued it mightily. In the students’ law club — the Marshall Club, it was called — he argued cases with Olney and Lincoln. At home he continued the argument until his father, rebelling, said if Wendell went on talking law he would get out his fiddle and play against him right there in the library. Wendell laughed.

How much pleasanter his father was to get on with, now that the decision was made and he was actually committed to the law! Wendell had not looked forward to living at home. After being a captain in the army, how could he submit even outwardly to his father’s authority? Yet he had no choice. He had no money, he was twentythree. It was his business to get through Law School as cheaply as possible.

Mrs. Holmes’s pleasure in having her eldest son once more under her roof was extreme. It touched Dr. Holmes, made him suddenly more tolerant. When Mrs. Holmes heard Wendell’s voice she came quickly into the room and sat down, watching him with an expression of such bright pleasure that Wendell turned instinctively, addressing the rest of his remarks to her. Once, while Wendell was speaking, his father got up and, putting an arm over his wife’s shoulder, patted her gently, then left the room.

Mrs. Holmes was interested in every detail her son brought home from the Law School. She did not want to talk about the war, she said. She had had enough of war. Wendell had earned the right to use his mind. Let him use it then, while the chance was given him. The Rebels were not beaten; God knew what lay ahead. Mrs. Holmes was especially interested in the Marshall Club debates. Wendell had a talent for speaking, she said. Dr. Holmes did not agree, but for once he kept silence. The law was a bowl of sawdust; Wendell had undertaken to swallow it down. Let him swallow it then. His father wished him well. But what exactly was that phrase? Sawdust without butter. Some English barrister had said it to a young aspirant. “If you can eat sawdust without butter, young man, you will be a success in the law.“ He must look the phrase up, have it ready for Wendell next time the boy began to orate on the virtues of jurisprudence, over against medicine, as a mind trainer.

17

ONE evening in December, Cousin Robert Morse stopped in to see Wendell. He had a proposition to make. How would Wendell like to come into his office for the rest of the winter, part time of course, and see a little practical application of all this theory he was reading in Cambridge? Might do him good to handle a real writ, acquire a practical conviction of the difference between assumpsit and trover. After all, lawyers weren’t made in libraries. The old apprentice system had had its points.

Wendell did not hesitate. Next Monday afternoon he sat on a high stool behind a desk in Barristers’ Hall and copied wills, deeds, trusts, for three hours. He could not pretend it was invigorating work. But as the weeks wore on he was continually surprised at the speed with which Morse moved when a question was brought to him. At Law School it had seemed that such questions would require weeks of argument, reference, and cross-reference before a decision could be reached. It left Wendell openmouthed, he told the family at supper, to see the swift certainty with which a master of his business turned it off.

Dr. Holmes, helping himself to butter from the dish on the table, paused, knife in hand. “Sawdust!” he murmured. “Sawdust without butter.” He looked up. The old gleam was in his eye. “Wendell, have you heard what the English judge said to the young man who asked how a person could recognize a real vocation for the law?”

Under the table Neddy kicked his brother swiftly. Across the table his sister Amelia watched, her brown eyes quick as a bird’s. Mrs. Holmes poured Wendell’s tea, handing it to him serenely. Wendell looked at his mother; their eyes met without expression.

“No, Father,” Wendell said gravely. “I haven’t heard. What did the judge say to the young man who wanted to be a lawyer?”

In the autumn of 1865, beginning his second year at the Law School, Wendell Holmes looked at his courses with a. dispassionate eye — and found them wanting. In the catalogue the course called “Instruction for the Bar” was listed briefly: “various branches of the Common Law and Equity; Admiralty; Commercial, International and Constitutional Law; and the Jurisprudence of the United States.”Holmes still had no fault to find with his teachers. They were admirable men.

But when you had mastered the subjects they presented, where did it lead? Holmes had thought to make all knowledge his province, walking from ignorance to light through a door labeled THE LAW. Now he found himself wandering in a maze of technicalities, a nightmare of doors that opened only to close silently upon themselves, with no progress made, no path revealed. With one or two exceptions the books that were put into his hand gave no perspective beyond the intricate learning they presented, appeasing not at all Holmes’s curiosity, his passion for an ordered intellectual vision of the connection of events. Any man of ambition is willing to labor unceasingly to master the tools of his profession — provided the tools are adequate to the job that will follow.

The trouble was that in 1865 the tools of legal education were dishearteningly inadequate. The law was not presented to the student with its sociological implications; he was not taught history, economics, or given any sense of continuity in the law, of past, present, or future. Year after year the same ancient books were given the student, the same rules to learn by rote. Wendell Holmes entered Law School only six years before Christopher Columbus Langdell brought the case system of study to Harvard. But when Holmes was in school, in 1865. the case system was as unknown to Cambridge as the telephone. Holmes had to learn the law the way his grandfather, Judge Jackson, had learned it, by fumbling through detached and unrelated books on legal specialties and by studying such meager reports as the United States courts had lately gathered.

The temple of the law, Dr. Holmes had said, was very cold and cheerless about the threshold. With violence, his son repudiated this statement. But the farther he went in the law, the stronger grew his own doubts. And as always, doubt engendered challenge. Durant, a highly successful lawyer in the city, said the law was simply a system of fossilized injustice, with not enough intellectual interest to occupy an intelligent man for an hour. Holmes himself gave testimony to the hardships of his search: —

“One found oneself plunged in a thick fog of details — in a black and frozen night, in which were no flowers, no spring, no easy joys. Voices of authority warned that in the crush of that ice any craft might sink. One heard Burke saying that law sharpens the mind by narrowing it. One heard in Thackeray of a lawyer bending all the powers of a great mind to a mean profession. One saw that artists and poets shrank from if as from an alien world. . . .”

And yet, observing Holmes at twenty-four as he pursues his way through the law, one has the impression that the blind seeking, the lack of compass, chart, and rudder, was for him a not unfavorable circumstance. Lack of tools may cause the weak to abandon their project. But to the strong it is a constant, irksome challenge. Chancellor Kent said he owed his reputation to the fact that when studying law during the Revolution he had but one book — Blackstone — and that one book he mastered. Paucity of material forced him to be not only thorough but imaginative, to exercise his mind far beyond the program.

As for tools, had not Holmes’s forefathers made their own? When John Holmes the Connecticut GoOuter desired clapboards, he made a sawmill. Abiel Holmes, yearning to read the history of his country and finding none available, sat down and wrote his own Annals of America, taking twenty-six years to do it. Wendell’s father, angered by the mysterious death of young mothers in childbed, sought through uncharted regions of a medical tradition that knew no Lister, no Pasteur, no germ theory, and no antisepsis, until he found the contagiousness of puerperal fever. What pioneer ever had chart and lighthouse to steer by?

Wendell Holmes could not know that in the field of historical jurisprudence he was to be a pioneer. He sought a perspective based on that ordered precedent which is history. No wonder he could not find it. He was himself to be its spokesman.

18

William James to Thomas W. Ward in New York
BOSTON, March 27, 1866
The only fellow here I care anything about is Holmes, who is on the whole a first-rate article, and one which improves by wear. He is perhaps too exclusively intellectual, but sees things so easily and clearly and talks so admirably that it’s a treat to be with him.

William James was boarding near the Medical School. Not only was the attraction mutual between him and Wendell, but Dr. Holmes also was charmed with this student of medicine whose imagination went so far beyond the facts of anatomy. Dr. Holmes would have agreed with James that Wendell was too exclusively intellectual. But the doctor would not have used such flattering terms. He would have said that Wendell took himself too seriously — that for a man of twenty-five he had far too little sense of the amenities. Half of Dr. Holmes’s success in life lay in the charm with which he imparted his knowledge.
Mrs. Holmes insisted that Wendell also had a talent for speaking, for expression, a talent for debate that would be much to his advantage as a lawyer. Dr. Holmes did not agree. His son was quick; there was no denying it. Swift as lightning his mind penetrated to the meaning of a subject, swift as lightning reduced it to manageable terms. But the terms themselves were cold, ruthless, intellectual. Once he seized upon a subject, Wendell could not let it go. He worried it until the bare bones showed. If someone broke in with a pun, a quip, Wendell not only did not laugh but he ignored it and talked on without so much as a decent interval. Nobody could stop him.
“Wendell puts a but at the end of every sentence,” John Gray said, “so that he can keep on without a pause.” There was fire in Wendell’s eye while he talked; even his father saw it. Wendell shouted, waving his arms, striding up and down, banging out his pipe against the mantel as if his pipe were the common enemy and he must smash it. But the words he spoke were cold, logical.
“Feeling counts,” James said one night. The doctor applauded. Wendell’s reply was quick. “To know is not less than to feel,” he said.
But it was not to his father that Wendell Holmes expounded his views on the universe. Upstairs under the gas lamp that smelled and sputtered, he and James argued passionately about the existence of an external world — a question that has occupied philosophers since the beginning. On evenings when Chauncey Wright and Charles Peirce joined them, Holmes was hard put to it to hold his own. Peirce had a kind of grim common sense that was wanting in most philosophers. At twenty-six he was smart, fiercely combative. His angry black eyes, his square chin, gave him the look of a man of action. His lectures at Cambridge were making the town angry. He stood and hurled at his audience unintelligible phrases about the Firstness of Firstness, Secondness, and Thirdness and then suddenly said something that woke up the hall like a fire gong. “The demonstrations of the metaphysicians are all moonshine!” he had shouted the other night. “Classical German philosophy is of little weight except as suggestion.” This was heresy to a generation that had evolved its moral values from Kant.
But it was Wright who taught Holmes never to say necessary about the universe. “How could you know,” he asked Holmes, his extraordinary pale-blue eyes alight with a cold passion, “— how could you know what the universe considers necessary?”
It was, in truth, a time of extraordinary intellectual ferment. The Origin of Species had been published only seven years before. In America its repercussions, delayed by the tumult of the Civil War, were just being felt — and felt for the most part as a threat to Genesis I. The Harvard Divinity School was in a turmoil. One of its professors lectured on the topic; “Can a man believe in Darwinism and remain a Christian?” From a Boston pulpit a preacher shouted, “If I could not believe that Joshua made the sun stand still in the heavens, I should lose faith in the Bible and in God!”
But in these torments endured by the faithful, Wendell Holmes had no part. For him the core had been taken out of Christian theology a generation ago, when the Unitarians disavowed the doctrine of original sin. Man lost his fear of hell-fire — and on that day gave back Christian doctrine to the preacher as irrelevant to life. After that, disbelief in Genesis I was a small thing. Wendell Holmes had achieved it without the least struggle. He was born to it. Dr. Holmes’s frantic efforts to free himself from Calvinism had failed. But they freed his son.
The English-speaking world was going through a complete rebirth in science, theology, economics, sociology, and, last of all, law. New terminologies were forming everywhere; it was no wonder Wendell Holmes sat up all night practicing them upon his friends. Very soon, his ideas were to have but one focus. Very soon the terminology of the law would exclude from his mind every other subject — and his friends would be driven from him by this passionate single-mindedness. But just now he was trying his wings, was exercising tongue and brain upon every subject, every person available. Fanny was twenty-five. She was the girl a fellow could take his troubles to, talk to by the hour. She was the girl a man could count on as his partner for the sleighing party, the summer picnic, the country walk. She was always stimulating, never demanding. Holmes saw plenty of girls: Susie Shaw, handsome and clever, who was getting ready to enter the women’s college at Oxford. Minnie Temple, who rumor had it was in love with John Gray. Wendell said it was James that Minnie had her eye on; Gray said it was Holmes.

William James, writing to Tom Ward in New York, and to his brother Wilkinson in the South, spoke often of Holmes and of their mutual friends. “I made the acquaintance the other day, ” he wrote in the spring of 1866, “of Miss Fanny Dixwell of Cambridge (the eldest), do you know her? She is decidedly A 1, and (so far) the best girl I have known. I should like if possible to confine my whole life to her, Ellen Hooper, Sara Sedgwick, Holmes, Harry, and the Medical School, for an indefinite period, letting no breath of extraneous air enter.”

“Miss Dixwell,” James confided to his brother, “is about as fine as they make ‘em. That villain Wendell Holmes has been keeping her all to himself out at Cambridge for the last eight years; but I hope I may enjoy her acquaintance now. She is A 1, if anyone ever was.”

That villain Wendell Holmes would have been astonished at this description of his relationship with Fanny Dixwell. He saw Fanny two or three times a week. She was perhaps his most intimate friend. He had known her since they were children. Seven years ago when he was a freshman at Harvard he had formed the habit of dropping in at the big frame house on Garden Street after classes, in the evening, or whenever he happened to be near. Going to the Dixwells’ was almost like dropping in on one’s family. Often enough he and Uncle John met at the white wicket gate and walked up the Dixwells’ path together.

The Dixwells’ house itself was full of girls. After Fanny came Esther, then Susan, then one brother, John. Then Arria, then Mary Catherine who at twelve was an imp, casting eyes at every man that entered, Dixwells were noisy and merry and unpredictable. In Cambridge you did not ask why a member of that family had done thus and so. It was understood that nobody was entitled to a why about a Dixwell.

Mrs. Dixwell was a comfortable, lively, handsome woman. Uncle John Holmes adored her. On her wedding day, he had brought her a little white silk bag containing eight one-dollar gold pieces. Mrs. Dixwell liked to tell about it. She was always trying to marry off John Holmes and getting nowhere. John lived just off Garden Street now, in a little alley he had named, grandiloquently, The Appian Way. His house wore an air of dilapidation; it was filled with cats, books, birds in cages; his mother’s old housekeeper took care of him.

“You should move to better quarters, John,”Mrs. Dixwell told him severely.

“Oh, I can’t move to better quarters,” John Holmes replied gravely, “until I have a better half.”

The remark went all over Boston. Tom Appleton heard it and took it to London, and the first thing Boston knew, it read the words in London Punch, under a drawing of a slim, whiskered young man who did not look like John Holmes at all.

The Scientific Club met every week at the Dixwells’. If Wendell happened to call on Wednesday night he ran into the professors Wolcott Gibbs, Agassiz, Asa Gray, Jeffries Wyman. They were all very old friends. Mrs. Dixwell had a wedding-day story about Gray, too. He was passionately fond of flowers and hated to pick them. Mrs. Dixwell said he must love her very much because on her wedding day he had appeared with two sprays of white lilac broken from his own bush. Sometimes when there was an evening party in Cambridge, Wendell spent the night at the Dixwells’. On these occasions Mr. Dixwell had a stock remark he always made next morning. Walking briskly into the breakfast room, he would take his place at the head of the long table, beam at the company through his spectacles, and remark heartily, “Well! Did the evening’s enjoyment bear the morning’s reflection?”

Wendell loved it, felt as much at home as he did on Charles Street. This spring he talked much to Fanny about his approaching trip to England. He had been plan ning it for years; he was to sail early in May when his course at the Law School was over. Fanny herself had never been abroad; her travels were limited to summer trips to Nahant, or Mattapoisett on the Cape. “I am to meet John Stuart Mill in London,” Holmes told her eagerly. “And Hughes, the jurist, the fellow that wrote Tom Brown. I have letters from Motley and Sumner. Leslie Stephen will cross over with me to Switzerland. He has some really hard climbing mapped out. Do you remember my telling you about it in the spring of ‘63 when Stephen was in Boston?”

After the manner of women listening to masculine plans they may not share, Fanny’s expression and words were enthusiastic. It. would be splendid, she said, the clear color high in her cheeks. Wendell needed to get away, see other countries, meet other men and women. “Mind you stand up for this country,” she said, “with your fancy friends in the West End of London. Stephen and Hughes and Mill were on our side in the war. But your father tells me you will have entree to some very big houses. Do you think you will be able to hold your own?”

At home that evening, Wendell repeated Fanny’s words. “She says they will spoil me in London. Fanny says I will lose my Yankee ways and come home with an Oxford lisp.”

Around the table a queer little silence fell. It was Neddy who broke it. Neddy was a junior at Harvard now, and often went to the Dixwells’ to see Susie. Neddy was too bright, for his bones, the family said. He had grown very fast; he was thin as a rail and much bothered by asthma. He read omnivorously and brought home marks that his brother and father had never equaled in their undergraduate days. Wendell loved him. He had a precise way of speaking; his voice was quiet, a little husky. “You are not very discerning about Fanny Dixwell, Brother,” Neddy said now, reaching a long arm for the bread platter across the table. “It’s not necessary to ask me what I mean. You just aren’t very discerning about her, that’s all.”

Wendell grinned. He did not want to know what Neddy meant. Neddy was at an age to see romance everywhere. Today as Wendell came out of Dane Hall at his usual hour of one o’clock, Fanny Dixwell had happened to be walking just across the street. She had hailed him, invited him to supper tomorrow night. Susie Shaw was coming, she said. Wendell would enjoy talking to her about Oxford. Fanny was the best friend a man ever had.

“Not smart about the girls — I?” Wendell said to his brother. “Young fellow, when you learn to manage the ladies as well as I do, you can start giving advice to your old Uncle Wendell.”

Dr. and Mrs. Holmes smiled, their eyes meeting down the length of the table. But as the family rose from supper and made its way up the long stairs to the library, Mrs. Holmes told herself with a slightly troubled air that Neddy had been right. Fanny Dixwell was a marvelous girl, a girl among thousands. She was devoted to Wendell. For how many years had they been close friends? People linked their names. Wendell did not seem aware of it; he was totally unconcerned. He had more girls than you could count on ten fingers. Stepping into the library, stooping to turn up the flame in the lamp on the center table, Mrs. Holmes told herself again that Neddy was right. Wendell was not very discerning about Fanny.

Toward the middle of May, Holmes sailed for England. Before he left Boston, George Shattuck asked him to come into his office next winter and read for his Bar examination. Holmes accepted gladly. The firm ol Chandler, Shattuck, and Thayer was famous as a training ground. Holmes looked forward to Shattuck’s practical wisdom, his skill in handling men, and to Thayer’s scholarship.

19

RETURNING to Boston in September, 1866, Wendell Holmes expected somehow to find the whole face of nature changed. What had happened to him was important, exciting. He had seen London, Scotland, had met great men, had crossed the Channel and climbed great mountains with Leslie Stephen. Excitement filled him, and, like many a returning traveler, he never doubted the excitement would be reflected everywhere.

But it was not reflected. Wendell returned, it is true, to a different house; during the summer his family had moved a few blocks north on Charles Street; the address was 164 instead of 21. It was pleasanter here near the river. But inside the house things were remarkably the same. Dr. Holmes went off to Grove Street every day to lecture. He had ceased — mercifully — to play the violin, but he was writing a new novel and burned to talk about it. Neddy, a senior at Harvard, came home over the week-ends. Amelia was brisk and cheerful, helping her mother with the housekeeping, going to her Sewing Circle and to such festivities as the season afforded.

The supper table listened for a night or two to the elder brother’s adventures abroad, then turned eagerly to its own affairs. They had been to Nahant in the summer, in a cottage near Longfellow and Agassiz. Dr. Holmes had suffered his usual Nahant asthma. The Indians had been a real nuisance, coming in swarms for the fishing, pitching their dirty tents right against the Lodges’ hedge on the Point.

Ben Butler down in Washington wanted to impeach the President, Neddy interposed. But of course, Wendell never had been interested in politics. In England, had he continued his absurd habit of not reading the newspapers?

Nobody waited for Wendell’s reply. Fourteen chapters of his new novel were finished, Dr. Holmes said eagerly. The Guardian Angel, he was going to call it. It was a kind of sequel to Elsie Venner, on the same theme of heredity. But he was taking a hard crack at the old-fashioned, hellfire type of clergy. Dr. Bellamy Stoker, the villain of the story, had three sermons on hell — his sweating sermon, his fainting sermon, and his convulsion-fit sermon. He hadn’t made that up, the doctor added quickly. He had got it from an actual instance in a town in Maine back in his lecture-circuit days. The Atlantic would probably publish the novel serially.

“You had better be careful,” Wendell told his father. “There was trouble enough about Elsie and the Autocrat. People will be calling you a freethinker all over again.”

Dr. Holmes rubbed his small hands delightedly. “In New England they weld iron bands around the sapling elms to keep them within bounds. Your Uncle John and I, Wendell, were banded with iron in our youth. My books help me to get the iron of Calvinism out of my soul.'

“Uncle John.” Neddy said irrelevantly, “only goes abroad so that he can have the extreme pleasure of coming back to Boston. In Venice he used to go every day to some perfectly commonplace spot and stand there. He said it reminded him of the junction of Broadway and Cambridge Streets in Cambridgeport. Mr. Appleton told me.”

Boston people were hopelessly provincial, Dr. Holmes said genially. Had Wendell noticed it, after being ahroad? As he had once written Motley, your Boston man carries the Common in his head as a unit of space, the State House as the standard of architecture, and measures off men in Edward Everetts as with a yardstick. He himself had often been accused of provincialism. But he was not at all sure, for a literary man, that it was a weakness.

“They are still trying to name the new hotel,” Amelia said, complacently pursuing her own line of conversation. “It is nearly finished and it is enormous. It will have a passenger elevator as big as a room. They cannot decide between The Hub Hotel and Everett House. Father, if they name it The Hub you will have to be godfather and assist at the christening. Wasn’t it you who called Boston the hub of the universe?”

Looking around the table, Wendell was amused. This family could not hold its peace for two consecutive moments. Yet, listening now to their talk, Wendell recognized, with the fresh eye of the returned traveler, that his family, while undoubtedly irritating, was very far from dull. This was not the wit of London dinner tables, but whatever it was, it had life. Provinciality! There was something good about it, something vigorous and plain.

“Mother!” Wendell said suddenly. His strong voice came out easily above the rest. “Did you hear what St. Peter said to the Boston man at the pearly gates?” Surprisingly, the table was silent, waiting. “He said, ‘You won’t like it here.’”

On a Monday morning. Holmes went down to Court Street to the office of Chandler, Shattuck, and Thayer. Mr. Shattuck greeted him heartily. Peleg Chandler, the senior partner, came out. Gray whiskers grew all around under his chin; his wing collar came up to his ears. He shook Wendell’s hand. “How is your father?” he said. “No candidate from this office ever failed a Bar examination, my boy.” He bowed slightly and disappeared.

George Shattuck winked. It would take a half-wit to fail the Bar examination, he said. If Holmes had sat three years in this office he would be admitted without examination. As it was, he had been to Law School instead, and the Commonwealth took no account of law schools. “Make sure you don’t know too much,” Shattuck said. “The examiners don’t like smart young men from the Law School. I’ve known them to fail a man because he tried to show off. I’ve also known them to drive a nice little bargain, promising not to ask the candidate any question he couldn’t answer if the candidate would do the same by them.” A client came in. George Shattuck vanished.

The inner door opened. James Bradley Thayer came out. He was ten years older than Holmes. He had got his LL.B. at Harvard in ‘56. Rumor said he was aiming for a professorship at the Law School. He wore his fine dark hair rather long; he had the dreamy, gentle eye of the scholar. Shattuck, it appeared, had turned over the student end of the office to Thayer.

“Sit down,” Thayer said. “Now, what are you after, Holmes? Admission to the Bar or perhaps a trifle more education with it? No thinking will be required at the Court House. Judge Shaw used to make them think, but the rules are changed. Only memory is required. But they can lay it on pretty thick. If you get old Asaph Churchill, he is partial to Coke. Wasn’t Churchill in college with your father? Do you know the rule in Shelley’s Case?”

Sitting in the outer room of Chandler, Shattuck, and Thayer, the Spirit of the Laws open on his knee, Holmes was struck anew with the awful power of ideas to change a world. Montesquieu commanded the future more surely from his study than Napoleon from his throne. A valid idea was worth a regiment any day. The man of action has the present, yes — but does not the thinker control the future? Perhaps a man had to fight in a war to find that out. When you were twenty it was the Henry Abbotts, the Caspar Crowninshields — external men all — who seemed to rule the world.

But this picture Montesquieu drew of the government of England — was it valid? Montesquieu divided it into three distinct parts, the legislative, executive, judicial. Surely that was a fiction, even two centuries ago! Holmes got up, knocked on Thayer’s door.

“Find out for yourself,” Thayer said. “How well do you know Stephens on English criminal law? Have you read Reeves?”

An enormous impatience began to possess Wendell Holmes. He could not find what he wanted fast enough. From the Athenaeum he took home Argyll’s Reign of Law, Gladstone’s Reform Speeches, McCosh’s Mill’s Philosophy. Holmes read Lecky, Phillimore’s Principles and Maxims of Jurisprudence, Forsyth’s History of Trial by Jury, Reeves’s History of the English Law, Palgrave’s English Commonwealth. It seemed no more than a drop in the bucket of knowledge. His age had begun to worry him. He was nearly twenty-six. He had lost three years by the war. Men younger than he were well along now in law offices, done years ago with such puerilities as Bar examinations.

“When will you come up for examination?” Dr. Holmes asked just before Christmas. He had asked at least three times in the past month. “In the January term of Court,”Wendell replied.

Actually, it was the twenty-seventh of February before George Shattuck wrote the conventional letter of recommendation, testifying to his good moral character. Holmes took it to the Court House. His petition was filed. Asaph Churchill and Charles W. Huntington were appointed his examiners.

On a Wednesday morning, by appointment. Holmes walked up a flight of dark stairs to Mr. Churchill’s office. He felt more curious than apprehensive. “Good morning. Holmes,” Churchill said. “ How is your father? We were at college together. Afterward, I believe he was not so successful at law as at writing verse.”

Behind Churchill, Charles Huntington grinned broadly. He was a much younger man, graduate of Harvard in '56. but he had not been to Law School. Asaph Churchill motioned Holmes to be seated, across the big desk. He put on his glasses. His face was serious but Holmes was conscious that Churchill was enjoying himself. “We might as well begin,”Churchill said. “Huntington, with your permission. Now, Holmes, who owns the land between high and low water mark?”

“In Massachusetts and nowhere else,” Holmes replied with equal gravity, “the land belongs to the owner of the adjoining land. . . .”

An hour later, Holmes walked out on Court Street. He felt exhilarated. They had let him off too easily, he thought. After one or two routine questions, the three had simply sat and talked law. He could have got through with a third of his knowledge, a fifth of it. There were six hundred lawyers in Boston. Had they all slipped through so easily?

He turned in at 4 Court Street. George Shattuck whacked him on the shoulder. “Chandler will take you to Court Monday to be sworn in. Like to go myself, but I have a client coming. This will call for celebration. Come to my house Monday evening. Bring Ropes and Gray. I will ask Packman and Warner and Green. I have a receipt for a new gin toddy. There is nothing better for drinking the healths of newborn counsellors at law.”

Monday morning was dark and gusty, with a threat of rain. Peleg Chandler, his ears entirely hidden inside his stiff white collar, walked to the Court House with Holmes. It was barely a block, on the same side of the street. The pillared granite portico was dark and high. Holmes always entered the place with a quick sensation, not so much of excitement as recognition. This court house was a part of him, of his background and childhood. Here Judge Loring had sentenced the runaway slaves, Sims and Burns. Manacled to these very benches, they had waited for the verdict. Up these granite stairs Higginson had led the mob that tried to rescue Burns. Holmes had been eight years old. He had stood at his bedroom window on Montgomery Place, ten blocks away. There had been shouts, feet running on Tremont Street.

Entering the wide doorway with Peleg Chandler, Holmes did not think of these things. Merely, he was conscious of them. They were part of him, and what he was about to do would make these remembered things, this dark high hallway, even more a part of him.

Holmes and Chandler were early. Court sat at ninethirty. Behind the Judge’s Bench the new oaken panels shone yellow in the gaslight. There were five lawyers in court; they sat facing the Bench. Holmes recognized two of them; they nodded to him. Peleg Chandler walked back and took his seat with the spectators.

Judge Lord came in, thrust back his coattails and sat down, looking toward Holmes, who sat alone on the petitioners’ bench. Lord was nearsighted; he raised his bearded chin, his face straining slightly toward Holmes.

“. . . and God save the Commonwealth and this Honorable Court,” the crier finished.

There was a rustling of papers among the members of the Bar. The Clerk stood up. His voice was loud, monotonous. “The Court will attend to the taking of the oath,” he said.

Holmes came forward. It, was like graduation, like walking up for your diploma, like the brevet-colonelship given him three years ago on the Common. It was absurd to feel so solemn. But Holmes did feel solemn. He liked ceremony. You did your work, and someone in a black gown handed you a piece of paper, bowed to you.

The five lawyers stood up; so did the spectators. The room was silent. Holmes swore true faith and allegiance to the Commonwealth, swore to support the Constitution of Massachusetts and of the United States. Then with his hand on the Bible he took the Attorneys’ Oath: —

I, Oliver Wendell Holmes, Jr., solemnly swear that I will do no falsehood nor consent to the doing of any in court; I will not wittingly or willingly promote or sue any false, groundless or unlawful suit, nor give aid or consent to the same; I will delay no man for lucre or malice; but I will conduct myself in the office of an attorney within the courts according to the best of my knowledge and discretion, and with all good fidelity as well to the courts as my clients. So help me God.

Judge Lord smiled, inclined his head. “Come and sign the Bar Book,” Peleg Chandler said. It was in the next room, on a high desk against the wall. At the bottom of the page was room for one more name. There were thirteen names inscribed in this January term of court. All but three. Holmes noted, were from the Law School.

Holmes signed his name carefully. There was no flourish to the way he did it. Peleg Chandler peered over his shoulder. “Horace Graves,” he read. “Promising fellow, Graves. I knew his father. Well, well, Holmes! You can have a sign on your door now. Be sure you bring us in some clients.”

For Peleg Chandler, this was unusually facetious. Holmes put down the pen, turned, and followed Shattuck’s senior partner to the door. On the portico, rain drove through the pillars, wind blew back the skirts of Chandler’s overcoat. Turning up his coat collar, Holmes descended the steps and followed Peleg Chandler down the gray slope of Court Street.

A week later, the secretary of the class of '61. Harvard University, received a small card in the mail: —

OLIVER WENDELL HOLMES, JR.

Counsellor at Law

4 Court Street, Boston.

20

OLIVER WENDELL HOLMES, JR., Counsellor at Law, was not overwhelmed with business. What had Washburn said at the Law School? “If a young lawyer pays for his sign the first year and his rent the next, he can tell himself he is doing very well.”

All summer he stayed in town, going every day to the office, with an occasional week-end with the Lodges at Nahant. All his friends were out of town it seemed — and Wendell Holmes had need of company. If to Shattuck the practice of law was exciting, to Holmes it was quite horrifyingly dull. This was no sudden discovery: Holmes had long suspected it. But it was not something a young lawyer could go around confessing to his friends. He could have told it to William James.

But James, unfortunately, was in Germany. He had sailed quite suddenly in April. “To study physiology,”he said. In reality he had gone in search of health. He was ashamed of his share in the family “nerves.” Backache, insomnia, eye trouble, deep depression: the symptoms seemed unmanly. He confided in no one, not even his family.

Holmes missed him greatly. James’s very sensitiveness, the overacute perceptions that made him ill, drew Holmes to him. In September James wrote, confessing his complete prostration — inability to work, study, sometimes even to read. To Holmes, loving action above all else, this was a purgatory almost inconceivable. He knew James to be no moody neurotic, but a man like himself, ambitious, desiring work and the companionship of his fellows.

You had better believe [James wrote] that I have thought of you with affection at intervals since I have been away, and prized your qualities of head, heart and person, and my priceless luck in possessing your confidence and friendship in a way I never did at home; and cursed myself that I didn’t make more of you when I was by you, but, like the base Indian, threw evening after evening away which I might have spent in your bosom, sitting in your whitelylit-up room, drinking in your profound wisdom, your golden gibes, your costly imagery, listening to your shuddering laughter, baptizing myself afresh, in short, in your friendship. . . .

But pray, my dear old Wendell, let me have one letter from you — tell me how your law business gets on, of your adventures, thoughts, discoveries (even though but of mares’ nests, they will be interesting to your William); books read, good stories heard, girls fallen in love with — nothing can fail to please me, except your failing to write. . . .

. . . Give my very best regards to your father, mother and sister. And believe me ever your friend,

W.M. JAMES.

P. S. Why can’t you write me the result of your study of the vis viva question? I have not thought of it since I left. I wish very much you would, if the trouble be not too great. . . .

Vis viva — the vital forces? Holmes sat down, wrote page after page. Then he lit a cigar, tilted back his chair, read over what he had written — and tore it up. Easy enough to see that force is not destroyed — but not easy to master the formula. Translating mathematics into English was no simple exercise.

In November, as Junior Counsel to Shattuck, Holmes tried his first ease in court. A passenger on the New York Central died intestate; his widow claimed $5000 from the railroad. Shattuek and Holmes were counsel for the plaintiff. Holmes sat at a long table below the judge’s desk while Shattuck talked; occasionally he jumped up to hand Shattuck a needed paper. Shattuck, he observed, was nothing short of magnificent. Needing the excitement of advocacy to waken his interest, Shattuck’s mind, once roused, moved like lightning, like lightning struck and struck again. A stranger, coming into court, would have thought, watching him, that Shattuck was arguing for some great principle, some question of American rights, free speech, honor.

They lost the case. But Judge Hoar, delivering his opinion, leaned his handsome, bearded face across the bench and said the argument of the plaintiff had been both ingenious and impressive.

Walking back from the office late that afternoon, Holmes reflected on all this. He had worked hard on the case, preparing his statement of facts, looking up law. Yet even in court, he had been a trifle bored. If the excitement of advocacy awakened George Shattuck’s powers, it by no means awakened the powers of Wendell Holmes. How small a goal lay at the end of these huge legal efforts! Better, like the scholar, to have no goal at all, pursuing doggedly the unknown end.

“So you lost the ease?" Fanny Dixwell said that night.

Wendell had come over to Cambridge in the horsecars, stopping by prearrangement for Uncle John on the way. They had had tea with the Dixwells. Now they sat round the library fire.

“You lost the case?” Fanny repeated.

“Yes,” Wendell said. “Shattuck was magnificent.” He was silent. John Holmes looked thoughtfully at his nephew. A generation ago, John had sat in a law office himself, for two mortal years. Twenty-four months too many, he often said. Today, W endell had acted as counsel in his first case in court. Wendell was very far from reserved. Yet all he had to say now was that Shattuck had been magnificent. Wendell would never make a lawyer. Clients meant nothing to him. His father had better stop pushing him.

Fanny inquired no further concerning the lost case. “Wendell,” she said, “I meant to ask you long ago, did you answer Bill James’s letter? About — what was that, thing he wanted to know about?”

“ Vis viva?” Wendell said. “No. I tried three times. All I could wring out was diluted moonshine. It wouldn’t come right. There seems to be an insufficiency of facts.”

Fanny made a gesture of impatience. “Bill James is your friend,”she said. “He is alone and he is ill. I think I have written him more letters than you have. He loves you. Write to him without vis viva.“

Wendell shrugged. Fanny got up, went to the table for something. In a moment she turned to John Holmes, her color high. “Mr. Holmes,”she said. Her voice was urgent. “Has your nephew, all his life, professed to care more for ideas than he cares for people? ”

Wendell Holmes to William James

BOSTON, Dec. 15, 1867
DEAR BILL,—
I shall begin with no apologies for my delay in writing except to tell you that since seeing you I have written three long letters to you at different intervals on vis viva, each of which I was compelled to destroy because on reflection it appeared either unsound or incomplete. But I was talking yesterday with Fanny Dixwell and she told me to fire away anyhow — that she thought it would please you to hear from me even without vis viva. So here goes. Writing is so unnatural to me that I have never before dared to try it to you unless in connection with a subject. Ah! dear Bill, do me justice. My expressions of esteem are not hollow nor hyperbolical — nor put in to cover my neglect.
In spite of my many friends I am almost alone in my thoughts and inner feelings. And whether I ever see you much or not, I think I can never fail to derive a secret comfort and companionship from the thought of you. I believe I shall always respect and love you whether we see much or little of each other. . . .
For two or three months I debauched o’ nights in philosophy. But now it is law-law-law. My magnum opus was reading the Critique of Pure Reason. . . .

And Holmes is off to paragraphs of pure logic — exercise that for him was obviously salutary, rousing him as the excitement of advocacy could arouse George Shattuck. Yet even as he wrote, even as he quoted, Holmes was aware that it was only exercise.

February, March, April. On Boston Common the gaunt outlines of the elm branches softened. Color crept slowly down the giant oaks; the cracks along the sidewalks showed a brilliant, yellow green. Piles of blackened, muddy snow still lay in the gutters, high as a man’s waist. But Holmes, swinging down Beacon Hill from the office in the late afternoon, raised his head and felt his step quicken, the blood move faster in his veins. On Saturday he would take Fanny for a walk in Cambridge, up around Fresh Pond. Arbutus would be out under the leaves, and bloodroot. For how many Aprils had they gone together to search for it? Holmes did not ask himself this question. Merely, it was spring, high time Fanny sent him a message about the bloodroot being up, in the woods around Cambridge.

(To be concluded)

With each twelve months of the Atlantic

THREE GREAT BOOKS OF THE YEAR