Yankee From Olympus: The Story of Justice Holmes

by CATHERINE DRINKER BOWEN

FOREWORD. — The story of Justice Oliver Wendell Holmes is the story of his country. The narrative cannot begin with the flat date of his birth — 1841. This was a man whose presence carried tradition; over his shoulder one catches sight of his ancestors. His roots reached deep into American earth; it was the strength of these roots that permitted so splendid a flowering.

To know Judge Holmes at eighty — courtly, witty, scholarly, kind — it is well to have acquaintance with his Calvinist grandfather, Abiel Holmes, with his handsome, worldly great-grandfather. Judge Wendell, with his mother from whom he inherited, he said, “a trace of melancholy.” Above all, it is well to know his father—professor of anatomy, talkative five-footthree Autocrat of the Breakfast-Table, who lived on applause and said so with engaging frankness, and who looked down his nose at his son’s choice of a profession.

21

ON THE seventeenth of June, 1872, in Christ Church, Cambridge, Fanny Bowditch Dix well married Oliver Wendell Holmes, Jr. Phillips Brooks was the clergyman. Fanny herself had picked out the church. “The biggest one,” she had said. “So that we can invite all your old girls, Wendell.”

By September the two were settled with the senior Holmeses at 296 Beacon Street. They had the third floor to themselves. There had been no choice of where they would live; there was no money for a separate establishment. Dr. Holmes was enormously pleased to have a new daughter under his roof. A fresh audience was a godsend, he said. “You may find me a trifle egotistical,” he told Fanny, beaming on her, his eyes bright as buttons, the crow’s-feet deep around his eyes. “The reason I have to take so much interest in myself, my dear, is that I have a good deal to do, I must put my spirit into it — and that makes a person more or less of an egotist.”

Fanny had always got on well with Dr. Holmes. Before she came to live in his house she had been continually amused by his industry and his vanity. Now amusement gave way to a kind of amazement. More or less of an egotist, Dr. Holmes had said. There was no less about it. Nor was there any doubt that Dr. Holmes was a genuine celebrity. Letters came to him from all over the country and from abroad, too — huge piles of them, day after day. Extraordinarily personal letters, enclosing poems to be crit icized; asking the Autocrat if it was wrong for a woman to leave a brutal husband, and whether the doctor advised voting for Grant or Greeley in November.

Most of the letters were flattering to a degree. Dr. Holmes read them aloud, laughing delightedly. “I purr very loud over a good honest letter that says pretty things to me,” he told Fanny. “A man bears superlatives about his own productions with wonderful fortitude.”

“Your father is like a child,” Fanny told her husband. “His vanity is harmless and charming.

On a November afternoon of 1880, at the Lowell Institute, Wendell Holmes gave the first of his lectures on the Common Law. The bare, gas-lighted hall was perhaps three-quarters full. There was a sprinkling of law students, and most of their professors. John Gray and James Barr Ames, James Bradley Thayer. Dean Christopher Columbus Langdell was there, his long dark beard flowing over his shirt front, his fine eyes level and searching behind his spectacles. Langdell, as Holmes well knew, was all for logic and hated references to anything outside of it, but he was a superb teacher. A noble old swell, Holmes called him.

President Eliot was there, sitting straight in his chair, his arms folded. There were not many practicing lawyers present. Run-of-the-mill lawyers were still suspicious of historical analyses of the law. Holmes’s law partner, George Shattuck, was there of course, and Munroe and Captain Manitzky from the office. Henry Parkman and Joseph Warner, Fessenden and Brooks Adams, Charles Barnes, young Louis Brandeis.

There was also a contingent from the world of banking and large business affairs. Higginsons, Lees, Wigglesworths— friends of the Holmes family. The rest of the audience was made up of the usual Institute followers, elderly men and women who pursued culture even in its more formidable aspects. That these lectures on the Common Law would be formidable they had not a doubt. But surely a son of Dr. Holmes would leaven the lump with a quip or two, some homely, local reference.

Dr. Holmes’s feelings this afternoon were mixed. Long ago, he had become convinced that Wendell would never make a public speaker. Wendell’s manner was not easy; when he was interested in a subject he was uncompromising, making no effort to charm his audience. When Wendell’s mother demurred at this, the doctor had ended by saying a trifle irritably that Wendell’s neck was too thin for platforms. Public speakers should be robust.

The doctor thought of it now. Wendell had begun to speak. His voice was certainly agreeable; it was soft but it had resonance, and carried well. His neck was indubitably thin, even at forty. He was thin all over, with the figure of a man of twenty-five; he held bis shoulders like a soldier. He had no notes and spoke slowly, continuously, as though telling a story that he himself found enormously interesting. “ The life of the law has not been logic; it has been experience,” the quiet voice went on, gathering depth,

George Shattuck turned his head abruptly and looked at Professor Langdell. What Holmes bad just said was in direct opposition to Langdell’s beliefs. Shattuck s own outlook on the law was more like Langdell’s than like Holmes’s. But this had not deterred Shattuck from saying openly that Holmes should have a Harvard professorship — and a judgeship later on. If it was the business of a lawyer to know law (this was Shattuck’s favorite phrase), it was the business of a professor and a judge to know even more law. Wendell Holmes probably knew more law than any other man in Massachusetts.

Langdell’s expression was unfathomable behind heard and glasses. But President Eliot had unfolded his arms; he leaned forward, his face raised toward the speaker. Holmes had walked round from behind the lectern and was standing at the edge of the platform; his voice rang with the slow, quiet assurance of a man who speaks from a conviction born of knowledge, and who knows that only time is needed to bring other men to his view. “ The very considerations which judges most rarely mention,and always with an apology, are the secret roots from which the law draws all the juices of life. I mean, of course,considerations of what is expedient for the community concerned.”

In the audience a Wigglesworth, a Lee, a Higginson — bankers all — stirred a trifle uneasily. “Expedient for the community concerned.” What did the lecturer mean by “the community”? The bankers and businessmen, who were the rightful leaders, or the mass of people? If the latter, it was a notion no man of business would tolerate for a moment. It smacked of legislative interference.

So far, however, the lecturer had said nothing actually anarchistic. Merely, a suspicion was born. But surely, this fellow Holmes belonged in the right camp! He was a Wendell, an Oliver, a Holmes, a Jackson. Maybe these were just the notions of a theoretically-minded man. Holmes had never made any real money in the law.

When it was over, Eliot, Langdell, and Ames moved up the aisle toward the platform. So did Louis Brandeis. Wigglesworths and Higginsons, after shaking Dr. Holmes by the hand, disappeared. The bulk of the audience filed out onto dark November streets, looked at their watches, and thought about supper. Dr. Holmes’s son was a pretty good lecturer Certainly, although a trifle learned for everyday consumption. But after all, was not the law the driest subject on earth? The lecturer, obviously, did not think so. The lecturer was plainly in love with the law.

It was this quality, perhaps, that brought the audience back, Monday after Monday until the twelve lectures were done. The general conviction was that the whole thing had been learned, elevating, and dry. What Eliot and Langdell thought, would become apparent later on. What the Wigglesworths, Higginsons, and Lees thought — what indeed the entire non-legal audience thought — was a matter of indifference to Wendell Holmes.

What he did care about enormously was the book that he was making out of the lectures, and the response to this book he might expect from the legal world. By February, 1881, the book was finished and in the printer’s hands. On the third of March — five days before his fortieth birthday — Wendell and Fanny Holmes walked down Beacon Street to the parental mansion. Under Holmes’s arm was a new, brown-covered book. The Common Law. He handed it to his father. On the flyleaf was written: —

0. W. Holmes,

from his affectionate son, O. W . Holmes, Jr.

March 3, 1881.

How many books on Wendell Holmes’s shelves bore a like inscription — but reversed! The inscriptions went all the way hack to 1848, when Wendell was seven. Each of his father’s works as it came out. But Dr. Holmes had never abbreviated the names; be had written them in full, with a flourish. “Oliver Wendell Holmes, ,Jr., from his loving father, Oliver Wendell Holmes.” Most fathers would have stopped with the word “father.” But not the doctor. Posterity, he knew, would want to know who this father was. It had never ceased to irritate Wendell Holmes. Now at last the inscription was reversed; now the son could pay ihe father in his own coin.

22

IN January, 1882, a Harvard graduate named William Weld confided to President Eliot that he had some money to dispose of. He would like it to go to the Law School. Four professors were not enough for a school of the scope and standing of this one. Would ninety thousand dollars endow a fifth professorship?

Ninety thousand dollars for the Law School. Eliot had not countersigned the check before he knew where the new salary was going. Oliver Wendell Holmes, Jr., was the man for the place. Brilliant, and with the scientific outlook. A man who would produce bocks as well as teach — a combination that Eliot insisted upon. A Harvard graduate, son and grandson of Harvard graduates, married to a Bowditch, his roots in good Massachusetts soil. A man of solid, distinguished background.

When Holmes was notified of his appointment he went straight to his partner. Shattuck was in no way surprised. Shattuck knew everything that went on. “Take the job,” he said instantly. “ It is your kind of job and your kind of life, Holmes. You will never make money in the law; your heart is not in the right place to make money. I always suspected it, but after I sat through those Lowell Lectures I was sure of it.”

Shattuck paused, then went on vigorously. “On the Massachusetts Supreme Court, Otis Lord is sick. He can’t last much longer. You are the man to succeed him. And don’t tell me you haven’t thought of it yourself.”

Shattuck grinned through his beard. “ Don’t let Eliot tie you to more than a year’s contract,” he went on. “ Have it in writing that if you are offered a judgeship you can resign. It’s highly unusual. Eliot won’t like it. He isn’t an easy man to bargain with. But I have never observed that the Holmes family lacked stubbornness, itself.”

Holmes laughed. But he followed Shattuck’s advice about the Law School contract. Eliot agreed to the proviso. After all, a Harvard professorship was a thing seldom relinquished.

Holmes looked forward eagerly to his new job. The Law School, he well knew, was a very different place from the days when he himself had gone there to “read law” behind the white painted pillars of Dane Hall, entering with no academic requirements, and leaving after three years, without examination, Langdell’s “case system” was well established now, but it had taken eleven years of battle to establish it. Holmes approved the case system. Law only ends with a theory; it begins with a concrete case. Naturally, a student remembers an actual instance more vividly than a general principle. The judgeship seemed remote. In the academic world, time moves slowly. Shattuck and his resignation clauses! Most likely it had all been unnecessary. He would be at Harvard Law School, thought Professor Holmes, forever.

On the morning of December 8, 1882, Professor Holmes was called out of his classroom. In the foyer stood George Shattuck, hat in hand, his eye alight with news.

“Otis Lord has sent in his resignation,” he said. “Governor Long wants you for the judgeship. He has to submit your name to the Council by twelve o’clock, and he has to have your consent first.”

Shattuck took out his watch. “It’s eleven now,” he said.

The Supreme Court! So it had come at last. In his heart, Holmes had hoped always — but he had never really expected it. It left him stunned, speechless.

“Why are you standing there?” Shattuck asked. He was almost as excited as Holmes. “An hour is not long to get ourselves to Eliot’s office and then across the river to the Court House.”

Holmes got his hat and coat. The two walked down the steps of Austin Hall, turned left on Harvard Square toward the president’s house. The sky was a brilliant blue. Gusts of dry snow, blowing along the bricks, touched their faces.

“How will Eliot take this?” Holmes asked.

“Badly,” Shattuck replied, his voice cheerful with the prospect of imminent battle.

One week later, on December 15, Holmes was formally appointed to the Court. His resignation was accepted at Harvard on January 8. There was some reason for Eliot’s displeasure. Ordinarily a resigning professor gave the Corporation time to fill his place before he left.

On the third of January, 1883, Holmes took his seat in the Supreme Court, the youngest of seven judges. He was forty-one. Field was fifty. The other five—Morton, Devens, Colburn, the two Allens — were white-haired, white-bearded. Charles Devens (Harvard, ‘38) had commanded the Fifteenth Massachusetts Infantry and fought through the same battles as Holmes. Devens knew Holmes well, trusted him as one soldier trusts another.

Badly, the Supreme Court needed men of vision in 1883. These were times of vast social change. With extraordinary rapidity, a pioneer economic individualism was giving way to the collectivism of corporate trade — and the transition was attended by groaning and travail. A country that in Holmes’s youth had been rural in tone now rushed to build new cities. Jefferson’s fears had come to pass. Men lived piled upon one another, struggling for survival under smoking factory chimneys of which Jefferson could not have dreamed. By 1883, the transition from a rural to an industrial economy was gathering momentum; in the nineties the ills attending it would be acute. Had Abiel Holmes been alive, once more he would have said the country was growing too fast for its heart.

But this time it was more than a change: it was a revolution. Holmes recognized it. He had studied the formation of great states and the causes of their dissolution. When the pattern of society changes, legislation meets the change — or the state perishes. In The Common Law, Holmes had said repeatedly that the best judge bears in mind public policy, the felt necessities of the time.

When Holmes came to the Bench, the burning issues of the day were labor’s grievance against the employer, and the people’s grievance against the corporations: two manifestations of the individual’s battle for survival in a collectivist world. The battle was just beginning; it would rage all during Holmes’s lifetime and beyond.

Once America had looked to the Declaration of Independence. But the Declaration was a trifle vague — to a Massachusetts businessman, almost transcendental. By 1880, there was more than a suspicion that in spite of the hopes of the Fathers, political liberty would never result in economic equality. Men became less interested in being born free and equal, more interested in regulating commerce. If the Declaration had been a profession of faith, the Constitution was its working instrument, and America looked now to the Constitution.

The trouble was that the courts gave this working instrument no elasticity; they regarded it as immutable, written in stone on Sinai. Desperately, the people needed judges who possessed historical as well as judicial awareness, judges whose social prejudices were leveled by the long view of the scholar. Holmes was such a man.

23

AT SEVENTY-FIVE Dr. Holmes did not seem a day older than at fifty-five. He had taken to wearing brown suits with a plaid bow tie, bright Scotch colors, scarlet and green. Thirty-five years of a black coat every morning to lecture at the Medical School was black enough for one man, he said. He had lately got out a new volume of poems; he was writing a book-length memoir of Emerson. His love of flattery had by no means diminished. “You know I am a trifle deaf,” he would say quickly when someone praised his latest work. “Won’t you please repeat that a little louder?”

Every Sunday Dr. Holmes managed to get down to King’s Chapel for morning service. “They say I fell asleep this morning in church,” he told a visitor one Sunday afternoon. “Possibly, possibly. But when I woke up, the minister was preaching very well.”

In the summer of 1804, Dr. Holmes failed visibly. Wendell and Fanny Holmes watched the frail old figure day by day, tried not to help him rise when he struggled from his chair. How thick his hair was, and how bright his eye! But obviously, it was very hard for him to see, and when he sat down at the desk, his hand knotted and he could not write. On a table by the fire the pearly nautilus shell sat, gleaming with iridescent color: —

Did his father know, Wendell Holmes wondered, that the end was near? Surely, his medical knowledge must tell him daily, hourly, the meaning of this film before his eyes, this helplessness when the pen dropped from his fingers. On these October afternoons his father sat in his chair, gazing into the fire, his tiny wrinkled hands crossed on his knee. Outside, autumn winds ruffled the bright waters of the river; along the street, leaves scurried, golden, wine-red, driven early from the trees.

“Wendell,” his father said one day, suddenly, sitting thus by the fire in the October dusk. “ What is it for me — King’s Chapel?”

Fanny Holmes, sewing by the table, looked up.

“Wendell, what is it, I said. King’s Chapel?”

“Yes, Father.”

“All right then, I am satisfied. That is all I am going to say about it.”

The days moved swiftly. Fanny, reading to her fatherin-law at teatime, rose to draw the curtains and saw across the river, beyond the spires of Cambridge, beyond Mount Auburn and the northern range of hills, the sky alight with the colors of the setting sun. How Dr. Holmes loved that view! “I seem to look out on all creation,” he had said. Could there be, for this man, a heaven that did not contain Bunker Hill and Boston Common, the State House and Harvard Yard?

Fanny moved back to her place by the lamp. Wendell came in and the three talked quietly of the day’s events. The white head sank a little lower. “Father is going to sleep,” Wendell thought, and saw his wife get up and move swiftly to the old man’s side. Wendell got up himself. Leaning over the chair the two waited, motionless.

The frail shoulders moved with an even breathing. The white head sank a little lower. Wendell Holmes, putting out his hand, knew suddenly that the shoulders had ceased to move.

It was extraordinary that among all the notices, the telegrams, letters, eulogies, the kindest came from England. Boston was so used to the doctor’s verses and his jokes and his articles in the Atlantic that the city could not seem to realize that he was gone. The doctor had been so cheerful, Boston said, so good to meet on the paths across the Public Garden.

But it was London Punch that struck, somehow, the notes nearest to the doctor’s own chord. The nine verses dedicated “ To the Autocrat ” might have been written by the Autocrat himself: —

24

IN JULY of 1899, Chief Justice Field died. The Governor immediately appointed Holmes as his successor. No one was surprised: it was the logical move.

But what did surprise Boston — and especially the judges — was the ease with which Holmes, from the very first, filled his place. The judges had known that this was a brilliant mind, a forceful and persuasive character. But Holmes was independent, impatient of slower miuds. In the consultation room alone with the other judges, how would he behave? Had he the tact, the poise, to carry it, assign the opinions to be written, resolve differences, preserve judicial harmony?

Chief Justice Holmes, it seems, had all these qualities. And he loved the position. At fifty-nine, it was extraordinary how young the Chief Justice looked. His face with its high color was lined and showed all the marks of living. But the deep gray eyes were more searching than ever and there was a quickness about him that seemed to stem from far within, from a wellspriug unending and joyful. Young Judge Loring in particular looked upon his chief with amazement. One day, worried over an opinion Holmes had assigned him to write, Loring took it to Beacon Street, carrying along all the papers of the case.

Holmes glanced through the material, turning the pages. Then he got up and went to the high old desk in the comer. Standing, he wrote ten lines, handed them to Loring. The younger man was appalled. Surely, the Chief Justice was not going to let this cursory examination suffice?

But when Loring submitted the report it was accepted by the others as the opinion of the Court, and incorporated without question in the records. In ten minutes, Holmes had seen to the heart of the matter.

Early in September, 1901, President McKinley went to Buffalo to greet holiday throngs at the Exposition. Theodore Roosevelt, aged forty-two, was up in Keene Valley climbing mountains, enjoying the st renuous life. In Music Hall, McKinley put out his hand to greet a citizen who was standing in line; the man raised his hand, a shot was fired.

McKinley lived for eight days. The country as a whole was ready for Roosevelt — but the conservative Republicans were not. His first message to Congress was moderate but firm, and there was no mistaking the fact that the government was going to assume a new relation to business. The “square deal” for all parties would include labor and the public as well as capital. In words less disturbing and far more judicial, Holmes bad said the same thing when he dissented in the Vegelahn case: “The organization of the world, now going on so fast, means an ever-increasing might and scope of combination. . . , Combination on the one side is patent and powerful. Combination on the other is the necessary and desirable counterpoint, if the battle is to be carried on in a fair and equal way.”

Roosevelt and Holmes were poles apart in temperament; they differed both in their approach to social problems and in their plans for meeting these problems. Yet it was natural, reading the Vegelahn dissent, that Roosevelt should see here a justice who would be his man, who would support the policies he believed in. Without the Court on his side, no President could be effectual: huge issues could depend — as Roosevelt said — on “whether a Judge of the Supreme Court came down heads or tails.”

In June, 1902, one of the judges was ill: Horace Gray of Boston. He was coming home to Nahant, he said, to rest for the summer. Judge Gray was seventy-four. During eighty-two of its one hundred and thirteen years there had been a Massachusetts man on the Court. Newspapers speculated, and in their prophecies the name of the Chief Justice of Massachusetts loomed large.

Henry Cabot Lodge to Theodore Roosevelt

NAHANT, MASS., June 5, 1902
DEAR THEODORE:
I hear on my return that Judge Gray is so much more weak that he has resigned. . . . I want of course to talk with you before you decide. I have not bothered you because I thought it would not come for some time, but I have thought it over a great deal.
Ever yrs,
H. C. LODGE

Theodore Roosevelt to Henry Cabot Lodge

OYSTER BAY, N. Y.
July 10, 1902
DEAR CABOT:
. . . Now as to Holmes: If it becomes necessary you can show him this letter. First of all, I wish to go over the reasons why I am in his favor. . . . His father’s name entitles the son to honor; and if the father had been an utterly unknown man the son would nevertheless now have won the highest honor. . . . The labor decisions which have been criticized by some of the big railroad men and other members of large corporations constitute to my mind a strong point in Judge Holmes’ favor. The ablest lawyers and greatest judges are men whose past has naturally brought them into close relationship with the wealthiest and most powerful clients, and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients. I think it eminently desirable that our Supreme Court should show in unmistakable fashion their entire sympathy with all proper effort to secure the most favorable possible consideration for the men who most need that consideration. . . .
Now a word as to the other side. . . . In the higher sense, in the proper sense, he [a man] is not in my judgment fitted for the position unless he is a party man. . . . Marshall rendered such invaluable service because he was a statesman of the national type, like Adams who appointed him, like Washington whose mantle fell upon him. Taney was a curse to our national life because he belonged to the wrong party and faithfully carried out the criminal and foolish views of the party which stood for such a construction of the Constitution as would have rendered it impossible even to preserve the national life. The Supreme Court of the sixties was good exactly in so far as its members fitly represented the spirit of Lincoln.
This is true at the present day. The majority of the present Court who have, although without satisfactory unanimity, upheld the policies of President McKinley and the Republican party in Congress, have rendered a great service to mankind and to this nation. The minority . . . have stood for such reactionary folly as would have hampered well-nigh hopelessly this people in doing efficient and honorable work for the national welfare. . . .
Now I should like to know that Judge Holmes was in entire sympathy with our views, that is with your views and mine and Judge Gray’s, for instance, just as we know that ex-Attorney General Knowlton is, before I would feel justified in appointing him. . . .
Faithfully yours,
THEODORE ROOSEVELT

P. S. . . . How would it do, if he [Judge Holmes] seems to be all right, to have him come down here and spend a night with me, and then I could make the announcement on the day that he left, after we have talked together?

On the eleventh of August, Holmes’s appointment was announced in the papers. All New England, it seemed, was pleased. Most of the accounts mentioned the Vegelahn dissent; there was a disposition to pronounce the new Judge something of a radical.

25

ON FRIDAY morning, December 18, 1902, in the chamber of the United States Supreme Court in Washington, Fanny Holmes watched the hands of the round clock above the Chief Justice’s chair move toward noon. She had sat here for half an hour; the spell of the old room had settled upon her. Light came benignly from the domed ceiling; judges in marble looked down from their pedestals. On a raised dais, nine tall black leather chairs faced the chamber. In that center chair, under the red canopy, Judge Taney had sat at eighty-seven, reviled and mistrusted by a country he had served for half a century. Daniel Webster had argued here, and Calhoun. It was an awesome sight for the wife of any judge, this quiet room with the round clock ticking above the eagle.

There was a stir to the left; in a long black line the judges came slowly in: Chief Justice Fuller, hale and hearty at sixty-nine, his white hair worn long, after the Western fashion. How tiny he was, in front of Harlan! John Marshall Harlan of Kentucky, the giant who had been in the Court since ‘77. Last of the tobacco-spitting judges, Holmes called him. Next to Harlan was White of Louisiana, the sugar planter, veteran of the Rebel army, dark-haired, with a square, Stubborn head.

Slowly the nine walked to their places. Brewer of Kansas, Brown of Michigan. The judge next to Brown was Peckham of New York, then came somebody Fanny could not place, and then, standing next to Wendell, was a man with a face like Lincoln’s, whiskers all round under his chin. That was McKenna of California.

“Oyezl Oyezl Oyezl The Honorable Court is now sitting/”

Fanny Holmes, looking up at her husband, was swept with sudden, deep emotion. It was not only that Wendell was so handsome, standing there straight and tall in his robes. But they had done right to come. Whatever might arrive, whatever fate had in store for him, — and for her, in this sprawling city of strangers, — they had done right to come. They had done right to leave home, break away, cut off the associations of a lifetime. Fanny Holmes had always felt it. But now she knew it and rejoiced. Gazing up at her husband from under her prim dotted veil, Fanny felt tears surge to her eyes, hot and overflowing.

Washington in 1903 was the most exuberant place on the civilized earth. And in the center of it, in the midst of all this ferment of a new century, a new era, Theodore Roosevelt stirred the mixture with his Big Stick, busting the trusts, curbing monopoly, shaking his fist, grinning from newspaper cartoons, one eye on the matter in hand, one on the Presidential convention next year in Chicago.

Newspapermen had never had a President who was such copy. Everything he did was spectacular. The Sunday afternoon hikes through Rock Creek Park, with the French ambassador panting behind in lavender kid gloves. '‘Pour I’honneur de la Prance,'’ the Ambassador had remarked resignedly, throwing off his clothes preparatory to swimming the Creek after the President.

The country liked it — the plain people especially. The West, almost forgetting Bryan, was glad of a leader who was not afraid of Wall Street. But the captains of industry, captains of railroads, and captains in Wall Street looked with anger and apprehension upon the Dude Cowboy who had promised to continue unchanged the policies of his predecessor, McKinley.

When Theodore Roosevelt did not like a thing, he instantly set about legislating it out of existence. To him the legal and political points of view were one and the same; it did not occur to him that there were men — among them a new Court appointee from Massachusetts — who looked upon the thing far differently.

“What the boys like about Roosevelt,” a Senator said, “is that he doesn’t care a damn for the law.” Neither did the country. What the country desired just now was neither legality nor reason, but revenge. Let T. R. smash somebody big, make an example of him — a meat packer, the sugar trust, anybody or anything so long as there was action.

The country had not long to wait. Looking round, Roosevelt seized upon the biggest, newest railroad merger of them all, — the Northern Securities Company,— asked his Attorney General to investigate its legality under the Sherman Act. Knox went ahead, and in February, 1902, news of a suit against the Northern Securities Company burst upon the captains of industry like a declaration of war.

The stock market plunged downward. “Doesn’t your friend,” a railroad man asked Owen Wister in Philadelphia, “ever think?” In Washington, Henry Adams answered the question. Roosevelt, he said, from head to foot was pure act. And on the other side of Lafayette Square, the new Justice from Massachusetts watched a trifle sardonically while his President wielded the Big Stick. The Sherman Antitrust Act, obviously, was going to be Roosevelt’s favorite weapon — and Holmes had always disliked the Act. “The Sherman Act isn’t fair,” he said often. “It won’t let the strong man win the race.” Besides, mere bigness didn’t make a merger unconstitutional. How it behaved, what it did, made its existence legal or illegal.

Theodore Roosevelt, greeting Holmes in Washington, was well pleased with his new Justice. The Presidential handshake was hearty. What extraordinary charm the man had, Holmes thought, leaving the White House one October afternoon. That wide, infectious grin — there was nothing enigmatic about it certainly. Energy like that, pugnaciousness like that, was a basic talent. And how it served the man! Roosevelt got things done, and there was evident sincerity about him.

Sincerity. The word brought Holmes up short. It was a vague word, and suspect. What had that young fellow from Harvard said the other night that was so good? “One must always remember that T. R.’s sincerityis of a contemporary nature.” Walking through the White House grounds in the clear October sunlight, Holmes quickened his step impatiently. How a man, even an old fellow like himself, got taken in by praise, by friendliness from high or low! T. R. was a politician. He had to be; it was in the nature of his job.

26

ON December 14, 1903, the case of the Northern Securities Company v. The United States reached the Supreme Court. The country turned its eyes eastward; this, obviously, was a test case. Would the Court dissolve the huge railroad merger planned by the nation’s greatest businessmen, or would the merger slip through as so many other corporate plans had slipped through? Never mind legalities and technicalities. The question was whether the government of the United States lay in Wall Street or Washington. This was a good time to find out.

The courtroom was filled, that noonday, with Congressmen, diplomats, judges, lawyers from every state in the Union. All the Justices were present except Brown, who was kept at home by an affliction of the eyes. Reporters noted “a fair number of ladies: Mrs. Roosevelt, Mrs. Lodge, Mrs. Knox, wife of the prosecuting Attorney General, and Mrs. Holmes.” Crowded behind the bar stood the plain people, pushing in until the room would hold no more. The Northern Securities Company had a whole battery of lawyers, and when John G. Johnson of Philadelphia got up to speak, even the reporters from the radical papers conceded the rugged strength and distinction of his appearance. Beside him, the dapper little Attorney General seemed a mere David going out to battle. Reporters noted also Justice Holmes, “handsomest man on the bench. Tall and broad shouldered, carefully dressed, with the manners of a courtier — and the humor of his father. ...”

But today there was time for neither humor nor courtliness. John G. Johnson stood up. In his seat, third from the end. Justice Holmes took out notebook and pencil.

This, Johnson began, was prosecution under a criminal law. Were the achievements of James J. Hill the acts of a criminal? Here was an American who had done extraordinary service to his country. Born to obscurity, almost to poverty, asking favor of no one, he had become perhaps the greatest railroad man in our nation. Through untrodden country he had laid his rails, from Minot to the Great Falls of the Missouri, through the Rocky Mountains down to tidewater at Tacoma, Washington. Now his steamers carried American produce to China and the Far East.

And through all this wild country where his railroads ran, Hill had developed the land, irrigated the dry spaces, bred fine cattle by the thousand, hogs and steers and sheep, giving them to the Western farmers to improve their stock. Here, Johnson implied, was no smug executive sitting at his desk directing the fate of thousands. Here was a man who got out and sweated, working with his hands like any other good American.

This of course was not law, but oratory. Justice Holmes’s pencil poised, waiting. Johnson, describing his hero-client, had by no means reached what Holmes was pleased to call the point of contact: “the formula— the place where the boy got his finger pinched in the machinery.”

Yet what he said interested Holmes, who had always admired Jim Hill of the massive brow, the overwhelming energy, the pioneer’s daring. No one, not even the Bryanites, accused Hill of dishonesty. But they accused him of power, and that was enough. In Holmes’s mind the question hovered: Was power, mere bigness, illegal under the Sherman Act?

“The Northern Securities Company,” Johnson’s voice went on, “is enlarging commerce, not restraining it.”

Holmes’s pencil began to write. The Court would recall, Johnson said, the favorable ruling in the antitrust case of Knight v. the United States.

From time to time, one of the judges interrupted. Reporters came instantly awake; what a judge said might reveal which way he was going to vote. Johnson mentioned the “thousands” involved in the transaction and Justice Harlan bent his huge bulk forward. The figures of the report, he said, spoke not of thousands but of millions.

“Yes, your honor,” Johnson said quickly. “You see I am not given to exaggeration.”

Spectators smiled. Johnson was a wizard —but Justice Harlan, it was pretty certain, would vote with the government. As for the argument of the Attorney General, people scarcely needed to listen. Was not this the public’s own argument, translated into legal terms? When a trust got too big, bust it! Never mind if it called itself a merger, a trust, or a holding company. Never mind the technicalities, the laws of New Jersey and Minnesota. Bust the trust before it strangled its competitors! Prove to the people that Wall Street was not master!

The lawyers finished, gathered up their papers. The judges rose, and the people, standing, waited for them to go, then spread noisily to the street. It might be months before a decision was announced. To hell with all these lawyers and their arguments. If the company won the case, then T. R.’s Big Stick was a willow wand and the party had better nominate Mark Hanna for President in June.

Theodore Roosevelt himself, counting over his nine judges, was well satisfied. He would win by a 7 to 2 decision, or at worst a 6 to 3. A righteously aroused public opinion would surely react upon what T. R. might have called the conscience of the Court. Let the judges look to their conscience and settle this case as it should be settled! The atmosphere was auspicious for victory. Concerning his new judicial appointee from Massachusetts, the President had no doubts. Holmes’s labor decisions in Boston, notably Vegelahn v. Guntner and the later case of Plant v. Woods, showed clearly where his sympathies lay.

The President could not have been more mistaken. To Holmes, the Supreme Court existed for the purpose of interpreting the statutes according to the Constitution of the United States — not as a whipping post for malefactors of great or little wealth. If the Northern Securities Company was proved, under the Sherman Act, to be in restraint of trade, it should be dissolved. If not, it should stand. All this pressure of public opinion served merely to cloud the issue.

Holmes, it was true, had said again and again that judges must bear in mind the economic changes in society, the “felt necessities of the time.” But that was a very different matter from being stampeded by a public opinion which the exigencies of the movement dubbed “righteous.” If the public would come out frankly and say it desired to sock the rich, it would be, Holmes thought, far more admirable than this pretense of using the courts to call the rich illegal simply because they were rich. As for the conscience of the Court, a court that ruled according to its “conscience” would be no court at all. Law was neither morality nor politics nor expediency nor art. Theodore Roosevelt, obviously, chose whichever definition suited the moment.

It was March before the decision was ready. In the intervening three months every precaution had been taken against leakage; the public was not even supposed to know what day to expect the decision. Nevertheless, on March 14, 1904, when the nine Justices walked to their seats at noon, they found the courtroom jammed with spectators.

Justice Harlan began to read the majority opinion. The Northern Securities Company was in restraint of trade. No scheme came more certainly within the words of the Sherman Antitrust Law. This device of Morgan and Hill would suppress free competition among railroads, and it would be impossible for Congress to protect the public against further exactions. . . .

There was a stir in the courtroom. The government had won! What the newspapers wanted to know was, How did the votes lie? They soon found out. The vote was 5 to 4 — in itself a surprise. But to those who considered themselves especially knowing, the greatest surprise of all was Justice Holmes’s dissent. Not merely the fact that he had voted against the government, against dissolution of the Company, but his words, which were outspoken and very strong: —

Great cases like hard cases make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even wellsettled principles of law will bend . . . we must read the words before us as if the question were whether two small exporting grocers shall go to jail. . . .

There is a natural feeling that somehow or other the statute meant to strike at combinations great enough to cause just anxiety on the part of those who love their country more than money, while it viewed such little ones as I supposed with just indifferenee. This notion, it may be said, somehow breathes from the pores of the act. . . .

In the first place, size in the case of railroads is an inevitable incident ... in the ease of railroads it is evident that the size of the combination is reached for other ends than those which could make them monopolies. . . .

Of the majority of the Court, only four concurred in Harlan’s opinion. (Justice Brewer had written a separate opinion.) Holmes was happy to know, therefore, — he went on, — that only a minority of his brethren had adopted an interpretation of the law which in his opinion “would make eternal the helium omnium contra omnes and disintegrate society so far as it could into individual atoms.”

If that were its Intent I should regard calling such a law a regulation of commerce as a mere pretense. It would be an attempt to reconst ruct society. I am not concerned with the wisdom of such an attempt but I believe that Congress was not entrusted by the Constitution with the power to make it and I am deeply persuaded that it has not tried.

I am authorized to say that the Chief Justice, Mr. Justice White and Mr. Justice Peckham concur in this dissent.

Theodore Roosevelt heard the decision of the Court and was jubilant. The suit, he said, was one of the greatest achievements of his administration. The Knight case had been overruled, the Northern Securities Company was dissolved, the power of the government against the monopolies was established. The government — Roosevelt called it “we” — had gained the power.

But it was a crime that the decision had been so close. Judge Holmes’s dissent in particular was outrageous. What did the man mean, turning against him that way? Obviously, Holmes had simply lost his nerve. “I could carve out of a banana,” shouted T. R., “a judge with more backbone than that !”

Holmes himself cared nothing whatever about the Presidential reactions. He was, in fact, as angry as the President. Years later, he wrote to Pollock about it. “It broke up our incipient friendship, however, as he looked on my dissent . . . as a political departure (or, I suspect, more truly, couldn’t forgive anyone who stood in his way). We talked freely later but it was never the same after that, and if he had not been restrained by his friends, I am told that he would have made a fool of himself and would have excluded me from the White House. . . . I never cared a damn whether I went there or not. He was very likeable, a big figure, a rather ordinary intellect, with extraordinary gifts, a shrewd and I think pretty unscrupulous politician. He played all his cards — if not more.”

In March, 1904, feeling ran high after the Northern Securities decision, not only in Washington but all over the country. Wall Street had been dreading the decision. Now that it came, stocks went down. Most certainly, this would be only the prelude; T. R. would not stop with one victory. There was to be a Presidential election in the fall. As usual the Roosevelt luck held, and his only formidable rival in the party, Mark Hanna, died in February. In June the Republican convention met in Chicago and nominated the Trust Buster by acclamation. Four months later, Roosevelt was elected over Bryan by the largest popular and electoral majority to date.

And on March 4, 1905, nine Supreme Court Justices sat on a windy platform outside the Capitol building while the President was sworn in. The older a Justice got, the more he dreaded this quadrennial exposure; it was a matter for pneumonia and the ague. Oliver Wendell Holmes, shivering, watched a trifle sardonically while Chief Justice Fuller, his white hair lifted by an icy wind, administered the oath.

The Dude Cowboy was back in the White House, with the people’s mandate behind him. There would be no stopping the slaughter now. In cartoon after cartoon, newspapers took up the crusade, lhe fat trusts in their traditional costume of checked waistcoat and fancy watch chain — the Cheese Trust, the Meat Trust, the Sugar Trust — talked behind their hands, watching across the room nine black-gowned figures. “The Supreme Court,” they whisper, “is a nervy bunch. Those judges should be abolished.”

The Anti-rebate Law went through, the Employers’ Liability Act. “The door to the White House,” T, R. shouted, “shall swing open just as easily to the poor as to the rich — and not one bit easier.” The Hepburn rate law went through. In Philadelphia, Holmes’s friend Owen Wister, desiring to ride to New York in the engineer’s cab, went to Dewitt Cuyler for a pass. Wister must buy a ticket, Cuyler said genially. The halcyon day of free passes was done. 11 We have to be good now.”

We have to be good now. But if Theodore Roosevelt was out to bust the trusts, the corporations themselves were out to bust the labor unions and to outwit also, where they could, the new state laws regulating the hours of workmen. Ten-hour laws, eight-hour laws — why, if the employers didn’t look sharp, the courts would lorget all about “freedom of contract”; the police power of the states would prevail over that sacred and conveniently misty phrase of the Fourteenth Amendment - “due process of law. ”

To Justice Holmes, combination on the one side was as lawful, within limits, as on the other. In the Northern Securities dissent he had upheld the side of capital — although he would have disliked to hear it called a “side. Now, a year later, he was to uphold the other — the right of a state to regulate the hours of labor. Holmes’s dissent in the Lochner case was among his most significant utterances in Court. It heralded a long and noble list of such dissents, opinions which were to prove him, old though he was, far younger in spirit than his brethren, at once prophetic in vision and tough-minded in the law.

The fact that Holmes’s most famous opinions were dissenting opinions by no means sets him down as a rebel or a no-sayer. Holmes always regretted the necessity of dissenting, believing that too many dissents detract from the prestige of the Court. But the blunt fact remained that in a period of vast and almost revolutionary social change, Holmes found himself on the Bench with a majority so conservative as to be not merely stubborn but blind. He had to voice his dissent: to remain silent would have been to shirk his duty.

Moreover it was not the number of his dissents that won for Holmes the title of the Great Dissenter. Some of his brethren dissented more often than he did. It was the quality of Holmes’s dissents that made them famous; it was what he said and how he said it. When a judge writes a majority opinion, he is speaking for the Court. But when he dissents he has a chance to say what he really thinks, and these individual expressions play a very significant part in the function of the Supreme Court. “A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed.”

The Lochner dissent was most certainly such an appeal — and as certainly it became, years later, the majority opinion and therefore the law of the land. The Lochner case concerned moreover a conviction that Holmes held very deeply: the conviction that under the Constitution, the states have a right to make their own social experiments. When these experiments — these state laws — conflict with Federal authority, then let the case be decided not on the basis of whether the Supreme Court believes the law concerned to be a good law or a bad law. Let it be decided solely on the basis of whether the Constitution forbids it. “I strongly believe,” Holmes said from the Bench, “that my agreement or disagreement (with a certain economic theory) has nothing to do with the right of the majority to embody their opinions in law.”

Whether these theories, these economic experiments, resulted in disaster was not, Holmes thought, a judge’s business. Just now, in 1905, the experiments tended all towards combination, collectivism. And whether the combination was of capital, as in the Northern Securities case, or of labor wishing to protect itself by state laws, as in the Lochner case — at all events let the experiments be made. Let those men who, fearing experiment, desire to preserve the status quo — be they judges, capitalists, or laboring men — not hide behind the Sherman Act or the vague phrases of the “due process” clause.

The Lochner suit was a perfect case in point. New York State had passed a law prohibiting more than ten hours’ work a day in bakeries. A bakery in Utica, belonging to a man named Lochner, broke the law twice and was fined for it. Lochner appealed on the ground that the tenhour law was class legislation, favoring the workers. It denied, said Lochner’s counsel, “equal protection of the laws.”

Justice Holmes, listening to the defendant’s long harangue, summed up the case before Mr. Lochner’s lawyer had been at it ten minutes. The judges went into conference, voted 5 to 4 in favor of Lochner. Justice Beckham wrote the majority opinion, and on April 17, 1905, announced it in Court. The ten-hour law, he declared, was a “meddlesome interference”; the spread of such laws in the various states was deplorable. The men who passed this particular law had called it a health protective measure. But surely their real motive had not been the manufacture of healthy bread! Their motive had been to regulate the hours of labor. Which then should prevail, the police power of a state, or “freedom of contract”? In other words, should the individual be a slave to the state, or should he remain free, under the Constitution, to manage his factory as he pleased?

What Justice Peekham defended was not merely the right of one employer to work his bakers more than ten hours a day. He was defending a whole social system. He did not once use the words laissez faire. He did not need to. Obviously, laissez faire was the social system he favored — was indeed the only system he recognized. Revolutions bad been fought to achieve it; Herbert Spencer had endorsed it. It had sufficed for a hundred years and more; under it our country had grown great and fat. Why endanger the system, then, with these interfering laws? “Clean and wholesome bread, said Justice Peckham serenely, “does not depend on whether a baker works but ten hours per day or only sixty hours a week.”

Almost anywhere else, Rufus Peekham could have spoken these words with little harm done. But the majority opinion of the Supreme Court becomes the law of the land. It creates a precedent that may sway future courts for decades. Justice Peekham, giving voice to the majority opinion in favor of Mr. Lochner who worked his bakers more than ten hours a day, was fixing the fate of workingmen for a generation to come.

Oliver Wendell Holmes was only three years younger than his esteemed colleague from New York. It was not youth, then, which told him that economic systems are far from indestructible. He had been brought up, like Peckham. under the most favorable circumstances which the social concept of laissez faire could create. Yet Holmes felt that the system was dead at heart, A giant industrial society was busy making its own new pattern.

When Justice Peekham had finished, Holmes rustled his papers, leaned forward, and began to read his dissent. The first line of it gave the gist of what he was going to say: —

This case is decided upon an economic theory which a large part of the country docs not entertain. ... It is settled by various decisions of this Court that State constitutions and State laws may regulate life in many ways which we as legislators might think . . . injudicious. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well-known writers, is interfered with by the school laws, by the Post Office, by every State or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteent h Amendment does not enact Mr. Herbert Spencer’s Social Statics. The other day we sustained the Massachusetts vaccination law. . . . The decision sustaining an eighthour law for miners is still recent. . . . Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

There were fighting words, and to that portion of the nation which understood them, they were words of hope. OntheCourt there was no other man equipped to say them. “ The people have a right to make their own mistakes.” A man poles apart from Holmes had spoken these words a decade earlier: William Jennings Bryan, demagogue and inspired rabble-rouser who was far closer to the people than Holmes was when he gave the Lochner dissent in 1905. Yet in different ways and from different spheres the two had said the same thing. But the conviction that breathes from the Lochner dissent is neither the oratory of the demagogue nor the hot fury of the reformer — of a Brandeis, angry because laboring men are being exploited. It is rather the cold, clear anger of the intellectual who believes that freedom means, above all, the right to experiment.

This was Holmes’s stand. In the past thirteen months he had given voice to two important dissents, one on the side of capital, one on the side of labor. The people did not think of him, so far, as one of their great judges, their great men. It would be a long time indeed before the people became really aware of Justice Oliver Wendell Holmes.

But he had taken his stand. It was calm; it was consistent. It stemmed from intellectual conviction. And it was a stand the nation could count on him to sustain for twenty-six years, until at the age of ninety he would leave the Court forever.

With this installment, which ends in the year 1905, the Atlantic brings to a close the serialization of Mrs. Bowen’s book. The chapters selected for the magazine comprise approximately 40 per cent of the entire text; every interested reader will wish to know that the book to come carries the story of Mr. Justice Holmes up to the year 1935. Yankee from Olympus has been selected by the Book-of-the-Month Club and will be published in book form next spring.

Beginning in the January Atlantic

LEFT HAND, RIGHT HAND! by Sir Osbert Sitwell