Oliver Wendell Holmes, Jr., has been called the greatest jurist and legal scholar in the history of the English-speaking world. In this collection of his speeches, opinions, and letters, Richard Posner reveals the fullness of Holmes' achievements as judge, historian, philosopher, and master of English style. Thematically arranged, the volume covers a rich variety of subjects from aging and death to themes in politics, personalities, and law. Posner's substantial introduction firmly places this wealth of material in its proper biographical and historical context.
"A first-rate prose stylist, [Holmes] was perhaps the most quotable of all judges, as this ably edited volume shows."—Washington Post Book World
"Brilliantly edited, lucidly organized, and equipped with a compelling introduction by Judge Posner, [this book] is one of the finest single-volume samplers of any author's work I have seen. . . . Posner has fully captured the acrid tang of him in this masterly anthology."—Terry Teachout, National Review
"Excellent. . . . A worthwhile contribution to current American political/legal discussions."—Library Journal
"The best source for the reader who wants a first serious acquaintance with Holmes."—Thomas C. Grey, New York Review of Books
THE ESSENTIAL HOLMES
Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.The University of Chicago Press
Copyright © 1992 The University of Chicago
All right reserved.ISBN: 978-0-226-67554-1Contents
Introduction....................................ix1 Aging and Death...............................32 Joie de Vivre.................................223 Culture and Personalities.....................484 The Life Struggle.............................735 Metaphysics...................................1076 The Social Struggle...........................1207 The Activity of Law...........................1498 The Common Law................................2299 Interpretation................................28710 Liberty......................................303Index...........................................337
Chapter One
AGING AND DEATH To Alice Stopford Green
October 14, 1911
My dear friend,
Your letter was forwarded to me here and has warmed my heart. Bless your flattering Irish tongue! No matter, I always believe you mean the dear things you say, and gain confidence from them. You have done me no little good in that as well as other ways—for the American public does not waste much time in praisingjudges, though I have no right to complain. I had expected to end a fatiguing week by a laborious conference of the judges this p.m. but this morning Harlan the Senior Justice died and everything is put off. The old boy had outlived his usefulness—but he was a figure the like of which I shall not see again. He had some of the faults of the savage, but he was a personality, and in his own home and sometimes out of it was charming. On my 70th birthday who but he bethought himself to put a little bunch of violets on my desk in Court? He dissented alone in the Standard Oil and Tobacco cases and showed most improper violence towards his brethren, but I regarded it as partly senile. Peace to his ashes. This is a year of anniversaries—Saturday the 21st, about the time that you will receive this, will be 50 years from my first battle and wound—Ball's Bluff. I have just been looking up a letter from old Francis Lieber dated June 16, 1872, in which he says "57 years ago our company came out of the battle (of Ligny) with but 18 men whole and hale." So that the two of us cover nearly a century. Yet when I am talking with my secretary (as usual a lad fresh from the Harv. Law School) I don't feel much older than he. Well—Sunday p.m. I was interrupted yesterday afternoon—and then came the news of the death of my dear though rarely seen friend Owen Wister (grandson of Fanny Kemble) and this morning has begun with letters to his widow and Mrs. Harlan—not a cheerful start. However as one grows older one gets like the eels accustomed to being skinned. Indeed the war accustomed me to it when I was young, and it makes one feel that perhaps it is time to take the lesson home—but I hardly believe it. I dare say that the best way is not to bother about death until it comes, but just crack ahead. I often say that to live sublimely the line of one's life must end outside the frame like a Japanese drawing. I remember getting the same impression as a little boy before Japanese drawings were heard of from the cover of my copy of Jack and the beanstalk; the beanstalk was cut off by the top of the cover and Jack was climbing—to one could not see what mysterious end. The picture has stuck by me through life. Everything seems an illusion relatively to something else—as green relatively to vibrations—until on further thought one sees that the whole great illusion is all of a piece and that the root and perhaps the flower of [—] are not for us ... What of it? The cell has its life as well as the larger organism in whose unity it is a part—and our subrealities are no doubt in some sense part of all the reality there is. I am told that the Papuans delight in cat's cradle—and if they have become uneasy from your looking too hard at a human head on a stick you restore good humour by producing a string. Philosophic race! Perchance when the cosmic pull is given to all the knot of personalities and worlds they will all disappear and comfortable nothing will reign supreme—though Bergson says there ain't no such thing as nothing and that it's a bogus conception. "To what a depth my spirit is descending." While the illusion lasts I send you my love and gratitude. Let us hang on while we can.
Reflections on the Past and Future Remarks at a Dinner of the Alpha Delta Phi Club, Cambridge, September 27, 1912 OS 163
When I was a small boy and was allowed to see the celebrations of the day—it may have been on the introduction of the Cochituate water into Boston, or the funeral of John Quincy Adams, or I know not what—I was most impressed by the part played by a carload of veterans. I got the notion, which has persisted, that the glory of life was to be carried in a civic procession, in a barge, as a survivor—I did not inquire too curiously of what. Now I am beginning to realize that somber joy, and to feel something like the old gentleman of whom I overheard Judge Hoar tell, who remembered George Washington before dinner—and after dinner remembered Christopher Columbus. Take this Club. In my day, after having been saved from extinction by two members of the Class of 1860, it used to meet, I think rather oftener than elsewhere in my room, at Danforth's in Linden Street, which had the advantage of being outside the College Yard. If I am not mistaken, the last meeting that I attended before this was there in 1860 or 1861. In those days the Club used to listen to essays by its members before the business of the bottle began. Without yet going back to Columbus it may connect you with the past if I mention that at that time my grandmother was alive and that she remembered moving out of Boston when the British troops came in, before the Revolution. I spoke of the introduction of Cochituate water. When I was a boy there were pumps in the back yards. The closets that depend upon the pipes were not—we had no such luxuries even at Danforth's—and the illustrious Gayetey and his compeers had not yet replaced the newspaper with their tissues. The light was from candles and whale oil lamps that it always was a bore to get started. The water of the Back Bay came up to Arlington Street and the Public Garden was a dreary waste. You got from Cambridge by omnibus—and might return part way by rail from the Fitchburg station and then by horse car (not street car) to the neighborhood of the Law School Building. This was all before the war, when I was a boy. Some things that happened after it would seem rather ancient history to most of you. It would seem remote to the lawyers when I say that I have sat on the Bench with Lord Chancellor Cranworth and have dined with Baron Parke. It will have a meaning to everyone when I say that I have talked with a schoolmate of Byron's and a friend of Charles Lamb's—Barry Cornwall. The war itself, though it started the changes that almost have made a new art of warfare—such as the field telegraph, breech loaders, and ironclads—sounds nowadays pretty remote in its methods. We fought in two close ranks, the rear rank firing over the shoulders of the front. A regiment would be wiped out if it tried it now. Yet I remember seeing what I suppose was the germ of that which made it impossible, in the shape of a little go-cart with a gunbarrel on top that it was said would grind out a stream of bullets like a hose, on the Peninsula, at Malvern Hill. I never heard that it succeeded and at the time I supposed that it stood on the plane of Christian Commission Crackers that I also saw, with Come to Jesus printed on their side.
But after all our interests are in the present and the future—not in the past. They are our real topics and for any man who is not superannuated the question is what he has to say about them. I have learned to distrust the melodramatic completeness of simple formulas and do not put much faith in prophecy. Twenty years ago I was much stirred by Pearson's prediction that by mere spread of population in the torrid and middle zone the yellow race would come out ahead of us in the long run and that we should be put on the defensive. And to this day I am by that of James J. Hill as to the exhaustion of our resources. But Pearson's denouement is too far ahead and I console myself even when I think of Mr. Hill's. If he is right we shall support a smaller population than otherwise and there may be less scope for abilities like his which seem to me one of the greatest types of human power. But little peoples and small populations have done things in their day and may again. Athens could not have kept New York going for ten days, I suppose, but it counts for more than the United States. Perhaps in the future we shall care less for quantity and more for quality and try to breed a race. There would be compensations even if we had to drop from James Hill to Aeschylus and Aristotle. Perhaps by the self-defeat of nature to which Hegel called attention civilization will cut its own throat, or as Flinders Petrie thinks there may [be] discoverable cycles of its rise, decline, and fall. But even then we hope that some survivors will pass on the torch as the two men of '60 passed on the vital current of this Club. Whatever else we learn from nature we learn from it a mystic faith.
I have been reading lately a golden book, or rather books, for there are ten volumes of it: Fabre's Souvenirs Entomologiques. It is a seed book. There I am very sure is the source of that echo from behind phenomena that for a moment we think we hear in Maeterlinck's Bees. I think it must have inspired one of the most noticeable traits in Bergson's philosophy. It is simply the exquisitely told tale of a life-long watch of beetles and wasps, but from it we learn the faith I spoke of if we had it not before. I heard the doctrine years ago from Dr. Bartol. He spoke of the hen hatching her eggs in obedience to a destiny she did not understand. Fabre tells us of grubs born and having passed their whole lives in the heart of an oak that when, after three years, the time for metamorphosis comes, build a chamber that as grubs they do not need with a broad passage for the beetle that is to be. They obey their destiny without any sight of the promised land. The law of the grub and the hen is the law also for man. We all have cosmic destinies of which we cannot divine the end, if the unknown has ends. Our business is to commit ourselves to life, to accept at once our functions and our ignorance and to offer our heart to fate. When one is drawing near the end it is a great happiness to be assured for a moment by friends such as I see around me that one has borne one's part and has not failed in the faith.
To Lewis Einstein
Beverly Farms, August 30, 1908
My dear Einstein,
... Life seems very short to the old, the past part of it, but the length of the future (ici bas) after all is but an induction; perhaps our case will be the exception. Newman I believe was less sure of the sunrise than of his faith. One may be wrong even in thinking one is a poor creature.
To Patrick Sheehan
Beverly Farms, September 3, 1910
Dear Canon,
... Sadness comes with age—or ought to, I suppose. I sometimes try to force myself to feel worse than I do remembering that my next birthday will make me 70. When you speak of infirmities and my friends here die, I really do feel gloomy, but my interest in life is still so keen, I still want to do so much more work, that in the main I feel pretty cheerful. Especially candor compels me to admit when I am led to think that my work is valued as I should like it to be—and here you will discern the [vanity] I am afraid—but as I believe I said I meet him [death] with a grin and cut under him by recognizing that vanity is only a way to get any work out of me, and that my only significance is that which I have in common with the rest of things, that of being part of it.
October 18, 1912
My dear friend,
Your letter gives me the heart ache. I have been thinking so much about you and hoping so much for good news. I wrote from Beverly Farms to you a letter that you seem not to have received, directed to Doneraile. Of course I agree with your dislike of money as an ideal, a domination for which I fear the upper strata of the world are more responsible for than the lower—but unlike you I should not express my dislike in terms of morality. It seems to me that a general fact rather is to be regarded like a physical phenomenon—accepted like any other phenomenon so far as it exists—to be combated or got around so far as may be, if one does not like it, as soon as fully possible. I always say yes—whatever is, is right—but not necessarily will be for thirty seconds longer. I don't know whether I ever mentioned my impressions from rereading Plato—that it was the first articulate assertion of the superiority of the internal life. This summer I was interested to see this point of view more fully developed and no less keenly felt by Epictetus. And if you find yourself able to read books, I got the greatest pleasure from Zimmern's Greek Commonwealth which contrasts strikingly our modern ideal of comfort with that of the Greeks who knew little of it but built the Parthenon and did all the other wonderful things. I feel like repeating to you Hamlet's "Absent thee from felicity a while"—you give such comfort and joy to one at least who loves you. I am old though I can't realize it, and I hope you will stick it out as long as I do, to help in maintaining the high hearted feeling about this life. I tend towards gloomy views from time to time, but set it down partly to age—and partly content myself by reflecting that I am not running the universe—and am not called on to lie awake with cosmic worries ...
To Lewis Einstein
April 17, 1914
Dear Einstein,
... I dined last night with Charles Adams. We mentioned that Howells, he and I were the three or three of the four oldest men now living of the Saturday Club in Boston. We are so near the edge of the void that we can spit into it. But though I say so I don't feel or realize it except by the dropping of leaves from the tree between us and the sky ...
To Harold Laski
March 31, 1920
My dear Laski,
Your decision sounds right to me. Of course I cannot judge with knowledge of all the elements—but it seems plain that you will be in a better milieu for your work and that is the first thing to consider so far as you are concerned. I gather that your wife will like the change, or at least does not object to it, and that being so, I should think the case was pretty clear. But oh, my dear lad, I shall miss you sadly. There is no other man I should miss so much. Your intellectual companionship, your suggestiveness, your encouragement and affection have enriched life to me very greatly and it will be hard not to look forward to seeing you in bodily presence. However, I shall get your letters and that will be much. I shall do my best to hold up my end of the stick, though while the work is on here, as you know, it sometimes is hard to find time or to get free from the cramp to the law—I should say, of the law, in the sense that one's mind after intense preoccupation only slowly recovers its freedom—as the eye only gradually readjusts itself to a new focus—especially with the old. I feel as if I were good for some time yet, but I used to think that the mainspring was broken at 80 and in any event as that hour approaches one is bound to recognize uncertainties even if one does not realize them—as I don't. If we should not meet again you will know that you have added much to the happiness of one fellow-being.
To Frederick Pollock
November 19, 1922
Dear Pollock,
... A while ago I wrote as if writing were impossible; it was the discouragement of having to live in a hotel and lose much time in the adjustment between two places, coupled with the pressure of beginning work. Now I am back in my house and although at this moment I have two decisions to write I am much more serene. I still am rather weak in the joints and perhaps am more tired than I used to be when I come from Court. I drive each way and walk but little. But everything seems to be going as well as possible. I simply avoid all extra fatigue or tasks. Putting in an elevator to save going up the steep front stairs to library and bedroom displaced some of my folios and left less room for them, but I have sent off the 9th English edition of the Encyclopaedia Britannica and Rees's Cyclopaedia dear to my boyhood and got more room. The title Low Countries, Engravers of the was my delight in my teens, and I can recite the abbreviations on the back from Dec–Deg to Yam–Zol. For some reason the first few volumes didn't fix themselves in my memory. I kept them from filial piety, but now have sent them to the Pittsfield Library to which long ago I sent a lot of my father's books. Last year I sent his MSS and autographs etc. to the Congressional Library and in this way gradually am cutting down, and giving permanent place to things of interest. I am not contemplating death and still aim some years ahead, but I had to contemplate it last summer. It isn't the same thing to an old man that is it to a young one—he has had his whack and can't complain. Metchnikof's suggestion of a parallel between the destiny and desires of living creatures illustrated by the éphémères—which I saw once at Niagara Falls—seems to hold good, but living is very pleasant and I mean to do as much of it as I can. What a divine gift is fire. In the clearing up that I have nearly finished I have cut short a thousand hesitations and shut out many fool vistas of possible interest by burning odds and ends. Civilization is the process of reducing the infinite to the finite. I could dilate, but refrain. I have enhanced the circulation in the extremities as one does by cutting one's nails. But I must stop and go to work. This is merely a wiggle of your friend to show that he is still alive.
(Continues...)
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