298 Mass. 575 (1937)
The Honorable Oliver Wendell Holmes, Jr., an Associate Justice of this court from December 15, 1882, until August 2, 1899, and the Chief Justice from August 2, 1899, until December 8, 1902, when he became an Associate Justice of the Supreme Court of the United States, died at Washington, District of Columbia, on March 6, 1935. On October 9, 1937, a special sitting of the full court was held at Boston, when there were the following proceedings.
James J. Ronan, Esquire, Acting Attorney General, addressed the court as follows:
May it please Your Honors:
Some months ago a committee was appointed by the Bar Association of the City of Boston for the purpose of preparing and presenting a Memorial to the late Mr. Justice Oliver Wendell Holmes. The work of that committee has been accomplished.
In the absence from the Commonwealth of the Attorney General the committee has requested me, as the Acting Attorney General, to present the Memorial.
Oliver Wendell Holmes: A Memorial.
Oliver Wendell Holmes was born at 8 Montgomery Place (now Bosworth Street), Boston, on the eighth day of March, 1841. He was the son of Dr. Oliver Wendell Holmes of revered memory. His mother was Amelia Lee Jackson, daughter of Charles Jackson, an Associate Justice of this Court. In later years and until his death Justice Holmes habitually used Judge Jackson's mahogany desk and desk chair.
Holmes was the eldest of three children; the second child, Amelia, later married Mr. Turner Sargent; the third was Edward Jackson Holmes, whose son of the same name is now the last of the line.
Holmes's roots ran deep in the best soil of New England. His paternal grandfather was Abiel Holmes, Congregational clergyman and historian, who in 1837 became pastor of the First Congregational Church in Cambridge; and the paternal grandmother was Sarah Wendell, daughter of Oliver Wendell of Boston. The maternal grandfather, as has been stated, was Judge Charles Jackson, and his wife, the maternal grandmother, was Fanny Cabot, daughter of John and Hannah (Dodge) Cabot.
All of his grandparents traced descent from early Colonial settlers. These included John Holmes who settled in Woodstock, Connecticut, in 1686 and among whose forebears was Thomas Holmes, a lawyer of Gray's Inn in London in the sixteenth century; Evart Janson Wendell who came to Albany in 1640 from Emden, East Friesland, Holland; Thomas Dudley, Governor of Massachusetts Bay Colony and his daughter Anne, the authoress, who married Governor Simon Bradstreet; Edward Jackson, who settled in Newton in 1643: and John Cabot, who came to Salem about 1700 and was the founder of the Cabot family in New England.
With these antecedents young Holmes's boyhood was spent in the normal manner of a Boston boy. Boston Common, the bricks, alleys and byways of old Boston became a part of him, and to his boy's fancy the stone steps leading from Montgomery Place to Province Street appeared as of unimaginable antiquity. He attended Mr. T. R. Sullivan's School (which afterwards became Mr. E. S. Dixwell's) and was proficient in the accepted curriculum of Latin, Greek and mathematics. Swimming in the Charles River was open to him and a great annual event was the snowball fight on the Common. He took a hand at etching, but was never satisfied with his results. His love for etchings, however, continued throughout his life.
Throughout his boyhood Holmes wandered among the surroundings in which his father moved with the current of the Boston preëminence in philosophy, literature, art and science. Many of the men whose names are conspicuous in the "Flowering of New England" were familiar attendants at the library in Montgomery Place. Young Holmes discussed Plato with Ralph Waldo Emerson; he listened to the militant abolitionism of Theodore Parker. These surroundings were the background against which the boy lived and moved, but even as a boy he early evinced his passion for the hazards of intellectual adventure and lonely pioneer thought.
When Holmes was eight years of age, Dr. Holmes built a house on a tract of land which he owned near Pittsfield and which had been in the family for generations. There seven summers were happily spent. The house and the Berkshire country became an intimate part of his memories.
Harvard College was of course predestined and Holmes entered in the Fall of 1857 with the Class of 1861. In 1858 his father moved to a house on the river side of Charles Street, and this house became the haven of the student's homecoming. His Harvard life was the normal student life of his time. His qualities asserted themselves. He was handsome, distinguished, popular with men and women, brilliant in thought, speech and action. He read the classics, continued his intimate familiarity with the great literature of the world, explored philosophy, and considered devoting his life thereto.
Harvard College and his life at Harvard always endured as a powerful influence, not only because of what Harvard taught, but because as he himself said, "in ways not to be discovered, by traditions not to be written down, it helped men of lofty natures to make good their faculties."
In the Spring of his Senior year came the call to arms and with the call to arms began the great adventure which was destined to become the most profound influence upon his life and thought. In April, 1861, Holmes joined the Fourth Battalion of Infantry, and when stationed at Fort Independence in Boston Harbor he wrote the poem which as class poet he delivered on Class Day. On July 10, he received his commission as second lieutenant of the Twentieth Massachusetts Regiment. On September 4, the regiment started for the scene of the war by way of Philadelphia, Baltimore and Washington, and reached the objective, Poolesville, Virginia on September 14.
It is not practical to recall and review in detail on this occasion the military history of the Twentieth Massachusetts of which Holmes was a part. His baptism of fire was at Ball's Bluff on October 20. There he was struck by a spent ball and sent to the rear. Finding himself but slightly injured he made his way back to the front and was at once struck by a Minié ball which narrowly missed his heart. Unconscious, he was placed on a boat filled with dead and wounded, and carried to Harrison's Island nearby. Next day he was better and on the second day was able to write to his father. He was soon moved to a Philadelphia hospital and then taken by his father home to Boston. He spent the Winter of 1861-1862 in the Charles Street house and was unable to rejoin the reginient until spring.
Lieutenant Holmes joined his regiment at Bolivar Heights and there on March 23, 1862, he received his commission as captain. With his regiment he took part in the engagements of White Oaks and the Seven Days' battles of the Peninsula Campaign. On September 17, 1862, the battle of Antietam was fought. Captain Holmes was struck by two bullets, one broke the buckle of his knapsack, the other pierced his neck. Dr. Holmes has recorded his search for his son in "My Hunt for the Captain." He traced him to Hagerstown, Maryland, and there found him on a train bound for home. Again Captain Holmes returned to Charles Street. Recovery was more rapid than from the previous wound and he rejoined his regiment November 19, 1862.
The regiment took part with distinction in the engagements at Fredericksburg December 11 and 13, and then went into winter quarters. On May 3, 1863, at the approach to Marye's Hill near Fredericksburg in the course of the Battle of Chancelorsville a piece of shrapnel struck Captain Holmes in the heel, splintering the bone and injuring the ligaments and tendons. Again he was taken to Charles Street. At first it was feared that he might lose his leg, but, the danger passed and he made a satisfactory recovery. He did not return to active service with the Twentieth. In September, 1863, he received his commission as lieutenant colonel but was never mustered in as such, for the regiment had become decimated.
In January, 1864, he was appointed aide-de-camp of General H. G. Wright, then Division Commander of the Sixth Corps, and later in command of the Corps. He served with him during General Grant's campaign down to Petersburg, returning to Washington with the Sixth Corps when the Capital was threatened July, 1864. In later years he often revisited the place north of Washington where the Corps was stationed and where it was visited under fire by President Lincoln. On July 17, 1864, he was mustered out at the end of his term of enlistment.
The effect upon him of the War can be expressed only in his own words, and time prevents extended quotation.
The generation that carried on the war has been set after us. But, above all, we have learned that whether a man accepts from Fortune her spade, and will look downward and dig, or from Aspiration her axe and cord, and will scale the ice, the one and only success which it is his to command is to bring to his work a mighty heart.
And again ---
Perhaps it is not vain for us to tell the new generation what we learned in our day, and what we still believe. That the joy of life is living, is to put out all one's powers as far as they will go; that the measure of power is obstacles overcome; to ride boldly at what is in front of you, be it fence or enemy: to pray, not for comfort, but for combat; to keep the soldier's faith against the doubts of civil life, more besetting and harder to overcome than all the misgivings of the battlefield, and to remember that duty is not to be proved in the evil day, but then to be obeyed unquestioning; to love glory more than the temptations of wallowing ease, but to know that one's final judge and only rival is oneself; with all our failures in act and thought, these things we learned from noble enemies in Virginia or Georgia or on the Mississippi, thirty years ago; these things, we believe to be true.
We learned also, and we still believe, that love of country is not yet an idle name.
Holmes entered the Harvard Law School in 1864 and received his LL.B. degree in '66. Whatever his other leanings, philosophic and otherwise, he devoted himself to the law with intensity. At the Law School he began his intimacy with William James and for years spent an evening with him once a week, but his bag filled with law books and papers was his constant companion.
In the summer of 1866 Holmes made his first trip to Europe. On his first morning in London he breakfasted with Leslie Stephen and both lunched with Frederick Pollock, and thus two lifelong friendships were begun. He joined the Alpine Club in London and with Leslie Stephen took a long walking tour in England and then did mountain climbing in Switzerland. He formed a wide acquaintance in London society and with men of letters and legal attainment, which was sustained in later years through occasional trips to Europe and through wide correspondence.
On his return from Europe in the autumn of 1866 Holmes entered the law office of Chandler, Shattuck and Thayer, 4 Court Street. He had previously served in apprenticeship with Robert M. Morse. George 0. Shattuck of Chandler, Shattuck and Thayer became one of his most intimate and revered friends.
On March 4, 1867, Holmes was admitted to the bar of this Commonwealth and for a time practised law with his brother Edward J. Holmes. He found time for teaching and research. In 1870-1871 he taught Constitutional Law at Harvard College and in the following year was University Lecturer on Jurisprudence. From 1870-1873 he had editorial charge of the American Law Review (vols. V, VI and VII) and he wrote no less than eight articles for that Review, besides unsigned notes and reviews. At the same time he was editing, and annotating the twelfth edition of Kent's Commentaries, published in 1873.
During this period Holmes lived with his parents at Charles Street until 1870 and thereafter at 296 Beacon Street on the river side.
In 1873 the firm of Shattuck, Holmes and Munroe was formed with his friend George 0. Shattuck as senior partner. Holmes continued a member of that firm until he withdrew from active practice and his devotion to Shattuck continued until the latter's death.
On June 17, 1873, Holmes married Miss Fanny Dixwell, daughter of Epes S. Dixwell of Cambridge, and the young couple went to live in a small apartment at 10 Beacon Street, where they continued to live for twelve years. For summer vacations and week-ends Holmes soon bought an old double house at Mattapoisett on Buzzard's Bay, where Shattuck also spent his summers. For a time a farmer occupied one half of the house and the Holmes family the other. Later they occupied the whole.
Throughout the seventies Holmes was hard at work in preparation for "The Common Law." In the winter of 1880 much of the substance was delivered in a series of Lowell Institute lectures. The book itself was published in 1881. Holmes received his first copy March 3, 1881, five days before his fortieth birthday.
"The Common Law" requires no comment. Holmes's reputation became international and the book was translated almost at once into German, French and Italian.
In 1882 Holmes was appointed to a professorship at the Harvard Law School and then abandoned the active practice of the law. He accepted his professorship, however, with the express understanding that he should be free to accept appointment to the Massachusetts bench if occasion arose, and on December 15, 1882, he was appointed associate justice of this court by Governor Long in place of Mr. Justice Otis P. Lord, resigned. For nearly twenty years he served as justice of this court, becoming chief justice August 2, 1899, upon the death of Chief Justice Field. His service here ended only with his appointment in 1902 as Justice of the Supreme Court of the United States.
Mr. Justice Holmes brought to his judicial work his philosophy of the law, applied with the exact processes of the accurate thinker. Deeply versed in the origins of the law, back through the Year Books and beyond, he recognized that the result of the blind following of precedents may be failure and confusion, even from the logical point of view, when the reason behind the precedent is dead. His conception of the law was as of a living and growing thing, - living, because therein "as in a magic mirror we see reflected not only our own lives, but the lives of all men that have been"; growing, by minute and interstitial steps, guided by the social forces of the community. One of his favorite sayings was that every distinction is a matter of degree and that controversies are apt to be fiercer in proportion to the nicety of the question.
During these twenty years of service the opinions of Mr. Justice Holmes are his monuments, -- monuments of impressive contributions to the law of this Commonwealth and its development. Their greatness needs no exposition. Today is a day for tribute, not for appraisement or detailed analysis. Conventional Boston and more conservative members of the Bar looked somewhat askance at certain of his views; and certain of his opinions concerning boycotts and strikes led the more conservative to regard him as unsafe. Time has brought generous recognition of the greatness of his judicial work here as well as afterwards.
In the winter of 1883-1884 Mr. Justice and Mrs. Holmes moved from 10 Beacon Street to more commodious quarters, a house at 10 Chestnut Street. In 1884 his brother Edward Jackson Holmes died. His mother died in 1888, and in 1889 the Doctor was joined at the Beacon Street house by Mr. Justice and Mrs. Holmes. The Justice became the owner of the house upon his father's death in 1894 and lived there until he moved to Washington.
Summers at Mattapoisett were brought to an abrupt end in the late eighties when a neighbor's grass fire burned his house to the ground. The justice then transferred his summer abode to Beverly Farms where his father was already established. Here his summers were spent in the midst of friends and the pleasant life of the North Shore. He walked on the beach and took long drives along the shore. He took a romantic delight in the coast, the rocks, the countryside and the landmarks, the lilac and apple blossoms of spring and the foliage of autumn. In 1895 he took his first lesson on a bicycle (this was before the days of motors) and in 1897 he had a bicycle of his own, emulating his friend Sir Frederick Pollock, who was an inveterate bicyclist. At intervals his summers were varied by trips to Europe.
Photo of Chief Justice Holmes' note to Henry Swift, Reporter of Decisions on occasion of Holmes' appointment to the U.S. Supreme Court. Dec. 5, 1902 'I thank you and bid you goodbye. It is very hard to leave.'Mr. Justice Holmes took his seat on the bench of the Supreme Court of the United States December 8, 1902, and his years of service ended with his retirement in his ninety first year, January 12, 1932. His impressive contribution to the law of his country cannot be reviewed within the scope of this Memorial. Much has been written and much remains to be written. The years brought increasing recognition and he became a national figure. The tributes which he received upon his ninetieth birthday were unique in history. He was a little awed by them, but received them with serenity and valued them in proportion to the intelligence of the comment.
His honorary degrees began before he left this Court. He received an LL.D. degree from Yale in 1886, from Harvard in 1895, from the University of Berlin in 1910, and from Williams in 1912. In 1909 he received a D.C.L. degree from Oxford. Upon his ninetieth birthday he was made an Honorary Bencher of Lincoln's Inn.
Mr. Justice Holmes enjoyed to the full his Washington life, not only his life on the court, but the new and varied life of the city. He first hired a house in Lafayette Square. In 1903 he bought the house at 1720 I Street where he lived until his death. His library and his drawing room became centers. For more than ten years he and his wife entertained freely and dined out often during the season. As he grew older his outside activities necessarily diminished, but his house remained a center for the group chosen as his friends. He had the democracy of the true patrician, asking of his friends only their contributions of ideas and personalities, and thinking nothing about their antecedents.
The justice's secretaries were a remarkable group of young men chosen successively and usually annually from the elect of the Harvard Law School. He valued the ideas of young men, talked their language, liked to keep abreast of current thought, and explored new ideas with eagerness whether he agreed or not. Not only in vacation, but also in term time, the Justice was an omniverous reader and his list of books that he had read is almost incredible. In lighter vein Mrs. Holmes would read to him of an evening while he played solitaire, but he could never wholly escape from a sense of duty to improve himself by difficult reading and intellectual exercise.
He also maintained in longhand a wide correspondence until, shortly after his ninetieth birthday, his hand became weary. For many years while court was sitting he got his exercise by walking home from the Capitol. He took regular drives about Washington, delighted in Rock Creek Park and Potomac Park, the cherry blossoms and other flowering trees. With the advent of motors his radius increased.
Summers were always spent in the same house at Beverly Farms, varied by infrequent visits abroad. The increase of motors led him to give up the bicycle, but as in Washington his radius increased. In 1908 he became the owner of the house which he had previously hired.
In 1922, in his eighty-second year, the Justice underwent a major operation and while his recovery was satisfactory he then realized that he was an old man and outside activities were rigorously curtailed.
His wife died on April 30, 1929. The grievousness of the loss, the extraordinary qualities of Mrs. Holmes and the perfection of their relations are matters too intimate to be touched upon in a memorial of the bar.
A sense of failing powers led to his retirement January 12, 1932. He continued to live in Washington and Beverly Farms but with greater latitude as to seasons. He delighted in being able again to see the apple blossoms and lilacs of New England and the brilliant reds of the foliage of the New England autumn. He still read much or was read to, but the number of serious books diminished. He was much weakened by an illness in September, 1933. The devotion of his secretaries and his old friends left him seldom alone and his days were peaceful.
He died March 6, 1935, two days before his ninety-fourth birthday, of a brief illness. He was buried beside his wife among the soldiers' graves at Arlington.
On behalf of the bar of this Commonwealth, I respectfully request that this memorial be embodied in the records of this court.
Herbert Parker, Esquire, addressed the court as follows:
This is no day of mere memorial, nor of commemoration alone. Rather, we meet here, as from time to time we shall, as our descendants shall after us, again and again, to take counsel with him, to rejoice with him, in times of high achievements, and of victories in the cause of liberty under the law; and, if need be, as in the intonation of his own voice, to impress upon Americans, as his own life proclaimed, that obedience to the law is the vital ideal and reality of the liberty of free men, in pledge for which they hold their lives. Here again we are with him, and with his own immortal companions, and hearing always the thrilling undertone of distant, but still awakening martial music, and the roll of embattled drums.
Oliver Wendell Holmes, the junior of that name, of whom we speak today, was born on what is now called Bosworth Street, in Boston, on the eighth day of March, 1841. The place, in some old time aspects of structures and environment, presents many features that may suggest, if they do not fully satisfy, the requirements of a recreative memory, or imagination, of the earliest association of the famous father and son, who, dwelling together, grew all unconsciously toward their equal stature of the later years.
After his never forgotten war time days, he lived always in their memories, as well as a sanctuary of recollections, seemingly quite apart from the intense intellectual activities of his legal studies and research, and from the later incessant demands of his onerous and unrelaxed judicial duties. Yet beneath the manner of the august, yet always attentive and alert expression of the magistrate, there flowed the currents, as of the living waters, that lie always beneath the foundations of even the immoveable mountains. Through his reflections, there ebbed and flowed always the currents of great adventures and memories, the echoes of rapid waters, the sweep of the windswept leaves, as where a storm has passed. The subsiding roar of the crashing surf was in his hearing, as where a mariner comes up from the tumult of the sea, and sees again the landfalls, and the skyline, of his own familiar shores.
When most profoundly moved, by the impulse or the fervor of his thought, in argumentative demonstration or conclusion, or in compelling and momentous judicial decision, an awe-stricken court room, or assembled multitude, saw and heard in his presence, the charge of armies, or heard the rolling thunder of the wheeling guns.
Puritan and Cavalier he was, ever at one and the same moment: grave, austere or implacable; or lighthearted and gay as the sunshine; as circumstances or mood of the moment might dictate, or permit; but brave, and courteous and gallant, and ready, as true soldiers should be, to "toss life and hope, like a flower, before the feet of their country, and their cause."
So, in graver thought, and in later years, and again, as in the flickering light of bivouac fires, before the dawning of a day of battle, and of the passing of many valorous souls, he has said:
I think that as life is action and passion it is required of a man that he should share the passion and the action of his time, at peril of being judged not to have lived.
So, in battle, he had known his brothers of the North and of the South, and so they had known him. So, reverently, he had read, and lived, the gospel of war, and of our nation's purification, and of his faith.
Though three times stricken on bloody fields, even as to his death, yet when restored, each time returning to the still unconquered lines of battle, and, while still the war smoke hung over devastated southern fields, and desolated northern and southern homes, he made avowal of that kinship of valor through which a united people have survived. For thus he spoke of his own fellowship with his former foemen, of embittered days -- then he said:
We believed in the principle that the Union is indissoluble. We, or many of us, at least believed that the conflict was inevitable, that slavery had lasted long enough; and we equally believed that those who stood against us held just as sacred convictions that were the opposite of ours, and we respected them, as every man with a heart must respect those who give all for their belief.
In this faith, the soldiers of the South, and of the North, under his pledge, have come to know their kinship, and a new and unassailable allegiance.
He never feared to review, in any forum of his research, theories of philosophy, or of government, or of economics, seemingly inimical to the established cardinal principles of our nationality. Under his inquest, what little there might be of merit in an inchoate or ill-stated scheme proposed was given its chance to survive, through his own enlightening restatement, and the useless remnant left to perish by the wayside of experience. In a spirit of conscientious inquiry, he responded to the challenge that the years had brought to any avowal of principles, and to the provisions for their enforcement, set forth in the Constitution, or in its Amendments.
Mr. Justice Holmes, without purpose, design, or even afterthought of his own, possessed, though he neither exercised, nor sought to, a control of popular or political sentiment, and of public opinion, that no ambitious political leader would have either dared, or wished, to question.
As the years wore on, and his judicial duties became always more exacting, he did not retire to the cloistered seclusion of his law books, or even to the restrictive society of his judicial colleagues. Day by day, he came to know more fully the real genius of his people; day by day, they came better to know and understand him, and to comprehend the essential and necessary functions of the great court of their own last appeals, of which he was a most enlightening and invigorating part. They followed him to the open doors of the courtroom, and even to the thresholds of consultation chambers, with expectant confidence in the sure justice that was to be declared: for he believed, and had often proclaimed, that, our governmental compact was not an entanglement of obligations to which the people had become subject, but was an agreement of free men, in purpose like that of the Mayflower compact, for their own association, for their own welfare, but to be obeyed in absolute accord with its plain import.
Those years of his earlier intellectual development were of far-visioned horizons, when, with his fellows, of equal attainments, of equal vigilance, of equal energy and courage of inquiry, and of similar social and intellectual heritage, he debated with them problems of metaphysics with the ardor, and responsible deliberation, with which he shared, in later days, in councils of war, on the eve of impending battle. From such initial training, he advanced to the certain places of supreme authority which awaited him.
There is an old adage that brave men will seek to find the truth, even as at the cannon's mouth. And so he did, and so he found it. He knew the tenor of their speech, which is said to be the last argument of kings. And in arms, and in the light of their terrific eloquence, he had seen the truth, even as when a flash of lightning rends the storm clouds, and men have vision of the immovable stars.
His far searching analysis of the perpetual spring sources of the common law made him chief among the leaders of the renowned research lawyers of the world, whether they were bound to the traditions, of English inheritance, or were disciples of Justinian Institutes. He taught us to know that the common law of England was not a mere haphazard compilation of ill sorted decisions on ephemeral controversies, exciting no one's further interest after words of the adjudication had fallen on the ears of its hearers. He was concerned only in tracing and declaring the true principle that, lived in a case, and moved onward through the impulse of the living law.
In him, there has been revealed to us, -- we shall not say, a combination, or association, of amazing qualities or attributes of mind and of heart, for there was in him a unity of ardor, ideals, and of faith, that made his successive achievements constantly attendant upon his inherent leadership, in every sphere of real advancement in our nation's welfare in war, and in honorable and justified peace.
Mr. Justice Holmes has been, and always will be, the exalted inspiration, the delight, and the despair, because of the fascinated, yet eclipsed, imagination of his countless, conscientious, learned, but none the less enraptured, biographers; for so splendid a story as they have to tell is, in its manifest import, far beyond the most eloquent eulogy, or the most exact discernment of analysis, that could be employed in its telling.
He lived, in the ever present illumination of his own thought, whether in the lecture room, in the gaieties of his friendships, or even in the solemnity of the court room, as in the very midstream of the currents of human life. His ear was attuned to the infinity of its voices, as they spoke to him from the tumult of its rushing rapids, from its resistless power, magnificent in its energies, but to him, most impressive in its obedience to the omnipotent laws of the ordered universe.
Conflicts never wearied, but reanimated, a spirit that never knew retreat. He held no cause to have been won that mingled in its surviving content any fibre of time-serving, evasive compromise. Against such compact in the original American Constitution, the world has read and knows of his heroic victories on the fields of battle, and of his later, but no less heroic, defense, unarmed, of a final and honorable peace with his former antagonists, after a common valor had proved their brotherhood in arms.
To the very last utterance of his breathing lips, traces of the lasting influence of the social and intellectual companionships of his academic days are to be found even in the forms of expression which elevated and adorned that perfect eloquence which inflamed his every discourse. His early associations lived on with his fellow scholars, who persevere in enlightening the world by the printed pages of their erudition, their admonitions, their ideals and their prophecies; while the future Justice of the Supreme Court himself took the torch they had together lighted into the very forefront of the battle lines, ever advancing in the cause of human rights, set in the precepts of the law, and articulate in its avowals of plain, intelligible justice, without the obscurities of black lettered mysteries, whose authority could only he deduced by application of the precipitate rules of interpretation coming to us from a venerable past, in the fading words, -- "Omne ignotum pro magnifico."
Returning, in his later years, to fields of his former scholastic environments, and to the literary atmosphere in which he always found intellectual delight and reinvigoration, and where also his heart was stirred to its profoundest depths, by memory of these valiant young philosophers, many of whom, like himself, had become soldiers in arms for their faith, and by his side, had fallen in its defense; there, -- in such company, and in reverent silence, alert, and at attention as a color guard, beneath the folds of his nation's flag, -- of the men who had in battle given their lives to their country, he said:
How fought our brothers, and how died the story
You bid me tell, who shares with them the praise,
Who sought with them the martyr's crown of glory,
The bloody birthright of heroic days.
But, all untuned amid the din of battle,
Not to our lyrics the inspirings strain belongs;
The cannon's roar, the musket's deadly rattle
Have drowned the music and have stilled the song.
Let others celebrate our high endeavour
When peace once more her starry flag shall fling
Wide o'er the land our arms made free forever;
We do in silence what the world shall sing.
From the Bench of the Supreme Judicial Court of this Commonwealth, whence, as is its chief justice, by the lines of his own illuminating judgments, themselves set as the visible and immovable waymarks of the law, he passed to the most exalted and honored station of an Associate Justice of the Supreme Court of the United States. A world court it is, in influence, in the justiciaries, the cabinets, and the highest councils of all the nations of the earth, and of recognized and potent international authority, though without any joint or divided international jurisdiction, to which we have never surrendered or yielded any part of our own.
His public discourses were enlivened by his own inimitable and enchanting wit, and by the vivid illustrations of his theme, traceable only to the limitless sources of his own wide observations, and of his far flying thought, -- in phrase, imaginative, emotional, passionate, profound, exquisite in delicacy of expression, not to be found in any other Golden Treasury of English Verse, or in the traditions or memories of any eloquence of English speech. Yet never did he suffer the flash of the enthusiasm of his imagination, or the fascination of his fancy, to approach the sphere of his inexorable, austere analysis of the final demonstration of a welcome, or unwelcome, truth, expressed in public policies, or governmental administration.
We are told, through the familiar texts, the fictions, the fancies, and the instructive paragraphs of the people who write books, and ofttimes tell of obvious and prevailing truths, that when the shotted guns are speaking, the voice of the law is stilled; yet the vivid and serious lesson that the life of Mr. Justice Holmes has taught us, is that the voice of the patriot soldier is in truth the compelling voice of the law itself. In such sacred association, in thought, of war and of peace, the reflections of his abundant and beneficent life were mingled.
In the guarding, guarded, and most radiant years of his never relaxed study and exposition of the eternal philosophies of the law, and when the allotted years of human life were overpast, but while the skies were glowing with the pure gold and glory of the coming sunset, he was urged to write a book, but with his undimmed eyes always on the morning and the eager labors of new days, with whimsical gravity, he said: "Yes, I might write a book about the law, and already I can think of its first sentence - but after that - I should like to study."
In what prescient fate had decreed to be his last discourse to his countrymen, and to a listening world, after words of splendid and worthy eulogy had been spoken of him, and as the very skies were opened, and every other voice was hushed to hear him, he said, in words of grateful happiness:
My part is only to sit in silence. But I may mention the thought that comes to me as a listener. The riders in a race do not stop short, when they reach the goal. There is a little finishing canter before coming to a standstill. There is time to hear the kind voice of friends, and to say to one's self -- The work is done, but just as one says that, the answer comes, the race is over, but the work is never done, while the power to work remains.
nor, as the still listening world remembers, while our unending memories survive.
To a friend, calling upon him at the time of one of the last of those beloved memories, he gave a copy of that treasured volume, which embodied what he called -- "The Chance Utterances of Faith and Doubt, which are printed for a few friends, who would care to keep them." With happy little gift words, he wrote upon the title page "September 14th, 1929 -- This date should be the 17th, the anniversary of Antietam."
By this calendar of heroic days he lived. In such memories, he held companionship with the friends of his youth, who fell in battle by his side. His last thoughts were of such a glorious, yet tragic day.
So it was with Aeschylus, the Athenian soldier, who had borne arms both at Marathon and at Salamis, yet, unmindful of the golden letters to be set for him, as for the most renowned of the Grecian poets of his time, he asked rather that his tombstone should recite only - "How tried his valor Marathon may tell."
A day may come when, in spirit, we shall see him again, seated in the grave and reverend company of the Lords of the law, of jurisdiction wide as precept of the laws of man may run, absorbed, rapt in contemplation of the formulation of decrees, that shall forecast the destinies of all the nations. Then, as when the sun breaks through the clouds, we may see a new light glowing on his brow, a new strength in his step, and, as he rises, we may hear, as he has heard, coming to him through the distant memories of hallowed years, musical, vibrant, awakening as the very Horn of Roland, and, as from the lips of his old colonel, dim through the crash of guns and the tumult of the battle front, the rallying call of his old regiment, - "Forward the Twentieth!"
Then we shall see the shadowy forms of a multitude of aged men in an instant resuming the figures, the form and vigor of their restored youth, rising to his command. Then thousands of others shall rise too, still in the first vigor of their own magnificent and indomitable youth, who, in the flash of recognition, have caught the spirit of their new commander, and as they form in rank after rank, we shall hear distant, and ever more distant, echoes of their measured footfalls, passing beyond our vision, into the light and the shadows of new days, but following, unfaltering, and with firm and equal step, to such fate as, with him, they shall never fear.
Honorable James M. Morton, Jr., addressed the court as follows:
The exercises this morning carry us back into a past that in the rush of things has been almost forgotten, to a Massachusetts in which Winthrop Murray Crane was Governor and Oliver Wendell Holmes Chief Justice, and into a world the quietness and simplicity of which have been lost. It is fifty-five years since the Judge whom we commemorate became a member of this court, and thirty-five years since he left it to go to Washington. Nobody now on the court sat with Judge Holmes, and only a small portion of the present bar ever appeared before him in this court or have any personal recollection of him as a Massachusetts judge. He has become a sort of legendary figure, a great judge who paused here for a time on his way to wider and more important service on the United States Supreme Court. Nevertheless, Judge Holmes sat here during what would generally be regarded as the best period of a man's life, -- from forty-one to sixty-one. It was a very distinguished service which deserves to be commemorated. It left its mark not only upon the law, but in many other ways. Nothing in Judge Holmes's career is more significant than that, being a distinguished man in 1882, he retained and increased that distinction for over fifty years, in a world in which old beliefs and old ideals were crumbling. It was a strong court when he joined it, and he brought to it the very qualities, as it seemed, which it needed, -- great scholarship, a profound knowledge of the history and principles of the law, a certain academic point of view, not to be overdone but very desirable in small amounts, like salt on food.
It is strange to recall that his going to Washington was accidental. When Judge Gray fell ill and it was evident that the question of his successor must soon be faced McKinley was President of the United States and John D. Long was Secretary of the Navy. President McKinley decided to continue a Massachusetts man on the Supreme Court and asked Mr. Long to make suggestions. Mr. Long suggested Mr. Alfred Hemenway who had been his partner and was a lawyer of great ability. At the instance of President McKinley Mr. Hemenway was asked if he would take the position; and he replied that he should be greatly honored to do so. In that situation the whole matter having been agreed and understood President McKinley left for Buffalo. At Buffalo he was assassinated, and Theodore Roosevelt became President. Mr. Roosevelt had a very high opinion of Judge Holmes's character and ability; he did not feel himself bound by the informal arrangement which his predecessor had made with Mr. Hemenway; he sent in the nomination of Chief Justice Holmes and it was confirmed. It is one of those incidents, -- and history is full of them,-- in which the greatest ability and courage and devotion appear as mere playthings of chance, and which, to one quietly thinking of them, almost bring to his ears the sound of laughter in the stars.
I can add very little to the unusually careful and complete memorial but perhaps a few words about Judge Holmes as I saw him in court would be appropriate. Nobody who sat on this Court in my time had quite such a daunting personality, -- to a young lawyer at least. He was courteous, but his mind was so extraordinarily quick and incisive, he was such an alert and sharply attentive listener, his questions went so to the root of the case, that it was rather an ordeal to appear before him. In arguing a case you felt that when your sentence was half done he had seen the end of it, and before the argument was a third finished that he had seen the whole course of reasoning and was wondering whether it was sound. He had a tremendous knowledge of the history of the common law and the quality of his mind enabled him to apply it swiftly and surely. He was astonishingly accurate. Most legal pundits slip into error every now and then. I do not recall hearing anybody tell a single instance of that sort of thing on Judge Holmes. A story which one of my friends told me indicates his quality as a first-instance judge. A policeman had been dismissed from the Fall River police force for talking politics. He brought a petition for mandamus against the mayor and aldermen of the day to get reinstatement and his counsel argued to Judge Holmes with great earnestness that Murphy had a constitutional right to talk politics. Knowing the man I had no doubt it was a warm and earnest and able argument. When the case was concluded Judge Holmes tied up the papers and gave judgment. "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman. Petition dismissed." That still seems to me a perfect first-instance opinion. On the first occasion when he presided at Taunton after he became chief justice a case was argued involving a "farrer" cow, and the Chief Justice asked from the bench what a "farrer" cow was. Out in the smoking room during the intermission one of the old Plymouth or Bristol County lawyers said, "I don't know about a chief justice of Massachusetts who does not know what a 'farrer' cow is." It was pleasantly and quizzically said, --- he really didn't know.
I do not intend to go into Judge Holmes's opinions but one thing about them ought to be mentioned. He was a great master of English prose. Certain other judges at that time also had the same quality, though probably in a less degree. The result was that a good deal of pains was taken with the language in which the opinions were expressed. In looking back to the cases of that day one often gets a sense of real pleasure at the beautiful, nervous, compact English in which they were written. It is not easy to overstate the influence which he exercised here on the younger members of the bar. He set standards in many ways, which have lasted during my generation. Down in the country where I practised they were standards of learning and ability and manners and hard work.
It seems to me that Judge Holmes was very fortunate in his life. When he was a young man he was a soldier fighting in a great war, -- which is the proper business for young men. A little later he wrote a great book which made his reputation as a scholar. In his maturity and age he was a judge, the best occupation I suppose for that time of life. His basic belief in the permanence and worth of the intellectual life was saved from mere intellectualism by the influence of his service in the war. We who knew him will always remember him not only as a great judge, but also as a soldier and a scholar, who illumined life.
William V. Kellen, Esquire, addressed the court as follows:
My relations with Mr. Justice Holmes, during my service as reporter of decisions of this honorable court, were so cordial and intimate - he was so uniformly kind to me and interested in my work, that I should be lacking in loyalty, if I did not avail myself of this representative gathering of bench and bar to pay, with your Honors' leave, my tribute, brief and inadequate though it be, to the memory of that great lawyer and jurist.
I wish first to emphasize his prominence, too little commented on, as an orator. This posthumous failure to allude more often to his great and unusual oratorical powers is probably due to the comparatively few occasions when he exercised this rare and unusual gift of his. These occasional orations were chiefly Decoration Day addresses to fellow veterans of the Civil War. They were privately printed and had a limited circulation and reading only.
Mr. Justice Holmes possessed what can only be described truthfully as an unique legal mind, a gift of nature refined by ceaseless study for the work of the great courts, upon which he sat successively for so many years and which between them absorbed all his energies during his long and distinguished life as a judge.
As he listened with his associates to the arguments of counsel, the salient points of each case as elaborated, those that seemed decisive to him, seemed to take on his phraseology and legal style and to fall naturally into the shape and form of an opinion of the court upon the responsive pages of his mind, ready when later in his study he sat in the chair and at the desk, inherited from his grandfather Mr. Justice Charles Jackson of this honorable court, to flow, at his bidding from the nib of his faithful quill into logical and well ordered paragraphs upon the sheets of opinion paper before him. Certainly his opinions, for the most part brief, incisive and to the point, never "smelt of the midnight oil", seemed effortless, and when they reached my office needed, the reporter thought, but little revision. Mr. Justice Holmes was, however, with all his debonair and confident bearing, very sensitive to criticism. One day he said to me: "Kellen, they find fault with my opinions as obscure, show me such an one!" I did, and he said he didn't see anything the matter with it. I confined my later suggestions to queries on proof-sheets. Nothing irked Mr. Justice Holmes so much as to be behindhand in his work. My friend, Chief Justice Hughes, told me recently when we were talking of Judge Holmes, I quote the Chief Justice: "Holmes," said he, was much disturbed and chagrined, if cases assigned on Saturday were not finished and opinions written ready for submission to the court for appraisal by the Tuesday following, ready if adopted to be read next day, Wednesday 'Opinion Day' to the bar and public."
Perhaps the most significant testimony to the influence exerted by Mr. Justice Holmes over the English-speaking legal world came from that British attorney general Sir Patrick Hastings, which, you and I, Mr. Chief Justice, were fortunate enough to hear from his lips, as he warmly welcomed to London representatives of the American and Canadian bars in June, 1924. A notable and colorful scene, ancient Westminster Hall presented on that opening day of unprecedented hospitality extended to Americans and Canadians by the British, Irish, and French bars, by Inns of Court, by the city of London, and by individuals successively. Westminster Hall was reopened for the occasion, its noble and elaborate ceiling replaced by another carved from oak felled in the same park in Essex whence came the oak for the original ceiling hundreds of years before. The Lord Chancellor (Lord Haldane) in his robes of state, led the procession of British judges into Westminster Hall. First of these were the Justices of the High Court, led by the Lord Chief Justice (Lord Hewart), each judge in the striking color of his Division and each in full bottomed wig.
In all London that day not a justice of the High Court was on the bench, save a single justice only for emergency matters. After a welcome from the president of the Canadian Bar Association, joint host, the Attorney General of Great Britain, Sir Patrick Hastings, titular leader of the British bar, followed in a like strain of fraternal welcome. As he came to the end of his fervid and friendly address, he said: "The bars of Great Britain and the British Empire are greatly indebted to the legal writings of members of the American bar, past and present, for aid in the daily practice of the law, - to that great jurist, Mr. Justice Story for his exhaustive treatise on Equity Jurisprudence; to that other outstanding American legal scholar, Mr. Chancellor Kent for his lucid and learned Commentaries." Then Sir Patrick paused a moment, then raising his voice proceeded: "and to the greatest of them all, Mr. Justice Oliver Wendell Holmes." To no lawyer, past or present, has come greater or more spontaneous praise, or praise more deservedly bestowed, than this from the leader of the British bar to that audience of representative lawyers from the English-speaking world.
And so, may it please Your Honors, I tender this brief and incomplete but heartfelt tribute to one whom I ventured to call my friend, a distinguished son of Massachusetts, one of her most eminent jurists, a gallant soldier, a very great gentleman, who to the end of his long and most useful life toiled for the honor of the Commonwealth and of the legal profession everywhere, and for the betterment and happiness, under the law, of his fellow citizens.
Arthur D. Hill, Esquire, addressed the court as follows:
In our meeting today we think of Justice Holmes not as the national figure he afterwards became but as the man who sat upon this Bench and went in and out among us in his daily life. This is the more natural because he was thoroughly a New Englander with his affections deeply rooted in his native soil. Again and again in his speeches he voiced his feeling for New England. As he said in 1902 at Ipswich, 1 he loved every brick and shingle of the old Massachusetts towns where his forefathers had worked and prayed. His mind, also, was characteristic of the Puritan stock from which he came. There was nothing vague about his law. It had the hard clear-cut outline of the traditional Puritan doctrine. It was typical of him that his career began in the study of legal history. Characteristic was his answer to a friend, who, on meeting him on his way to the court house, said: "So, you are about to do justice." To meet the reply, " No, I am going to administer the law." He had little faith in the value of immediate and self-conscious legal reform. He believed improvement was more likely to come through the slow subconscious processes of growth and the faithful, careful work of the lawyers, who, on the bench or at the bar, through centuries built up the structure of our jurisprudence. To the law, and to his services as a judge, he gave himself without stint, and from the time of his appointment on the bench, apart from occasional speeches, made no effort at any other work. He once described himself as a "jobbist" whose chief interest lay in his personal task. Elsewhere he said that the end of life is to hammer out as compact and solid a piece of work as one can to try to make it first rate, and to leave it unadvertised. 2
As he spoke, so he lived, giving to his work as judge the utmost effort of which his mind was capable. The concrete result of that effort is the closely reasoned and coherent series of his opinions. He, himself, has best stated the nature of a lawyer's fame.
The glory of lawyers, like that of men of science, is more corporate than individual. Our labor is an endless organic process. The organism whose being is recorded and protected by the law is the undying body of society. When I hear that one of the builders has ceased his toil, I do not ask what statue he has placed upon some conspicuous pedestal, but I think of the mighty whole, and say to myself, He has done his part to help the mysterious growth of the world along its inevitable lines towards its unknown end. 3
He will have, what he once called the thinker's greatest reward, in future generations moving to the music of his thought.
Justice Holmes took little interest in current political questions, and was distrustful of the value of philanthropic effort. He saw the existing economic and social organization, as he did the law, as the result of growth through the long-continued operation of natural causes, and the clash of conflicting interests and ideals. He believed that progress came best through an unhampered continuation of such growth, and had faith in freedom of speech and action as creating the atmosphere favorable to a sound development of ideas. He was slow to accept the belief that there was any great practical use in laws aimed at immediate alteration in the social and economic order, and his deep-seated reverence for those institutions and traditions in which were crystallized the ideals and efforts of the past strengthened his hostility to sudden change. Yet because of his clear sense of the proper limitations in our constitutional system on the review of legislation by the courts he often upheld the constitutionality of laws in the value and efficiency of which he himself had no belief. So it came about that he, a conservative and a skeptic, was often bracketed in the public mind with those who have faith in the power of humanity to mold its future by legislation, a belief which he himself never shared.
His independence of mind, his freedom from close affiliation with any social or economic group gave a high impartiality to his decisions. No unrecognized prejudices or emotions stood in the way of his following his thought to what he believed its legitimate conclusion. Detached, and somewhat aloof, he approached each question before him in the same spirit whether a case were large or small, whether it involved the activities of labor unions, the consolidation of two great corporations, or the rights of an insignificant individual. He used to say that he hated so called great cases, and once in a dissenting opinion pointed out that they 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." 4 His own interest lay in the fundamental development of the law.
He was generous in his understanding of the objects and emotions of those from whom he differed. He once said, "It is a pleasure to see more faith and enthusiasm in the young men; and I thought that one of them made a good answer to some of my skeptical talk when he said, 'You would base legislation upon regrets rather than upon hopes.'" 5 He was able to sympathize with and respect beliefs which he did not share, and he had a rare humility which welcomed contribution to his thought from any source. This was one of the things that bound him to the younger generation to whose ideas he would always give interested attention. Once in a conference in chambers on an important case a lawyer who knew him well allowed the crucial point in the argument to be put forward by a young student thinking that it was most likely to strike the Justice's attention coming from such a source. I can still see the courteous deference with which he turned toward the young man when the suggestion was made. Indeed, his personal charm and simplicity of character are the things which will stand out in the memory of the men who grew up in the shadow of his fame. These, and his constant zest in living. When with him, one felt that any but disinterested motives were impossible, and that life, whether in the field of battle, or in the search for knowledge between the leaves of dusty law books, was a great and romantic adventure.
John G. Palfrey, Esquire, addressed the court as follows:
If I may almost paraphrase his own words of forty years ago 6 I owe Justice Holmes more than I ever have owed anyone else in the world outside my immediate family. I owe him for unnumbered kindnesses. I owe him for influences which cannot be measured. I could not if it were asked give a coldly dispassionate, critical analysis or estimate. Yet his high qualities were so manifest that I am impelled to join in the universal testimony.
I first knew him when I was a student in the Harvard Law School. He was at the height of his vigor as associate Justice of this court. His effect upon me was immediate and overwhelming. His vividness and charm, his intense philosophy of life, his conception of the law as a whole and as a mirror of life captivated the imagination, and his insistence upon exact thinking could not fail to affect his disciples profoundly. Later his clear cut opinions were a vital part of the law with which I dealt in practice.
There are many things of which I should like to speak, the inimitable phrase, the pungency of one sentence which disposed of a contention, his large view of the common law, its history and growth. I should like to speak of his theory of constitutional law and his conception of permissible legislation by Congress or by State legislatures. The same social forces which he recognized as influencing the gradual growth of the common law he recognized in larger measure in testing legislation, and he insisted upon the constitutional power of Congress and of State legislatures with appropriate limitations to indulge in legislative experimentation desired by the predominant forces of the people even though as an economist he would disapprove the legislation. These matters have been touched upon by others here and much has been and doubtless more will be written about them.
There is one attribute of his judicial work and opinions which I should like specifically to recall -- his intellectual integrity and fearlessness. As a part of his soldier's faith, which he applied to the whole of life -- "to ride boldly at what is in front of you, be it fence or enemy" 7 -- to him a legal difficulty or difficult argument was an obstacle to be boldly met and not avoided. His intellectual honesty would not permit him to soften the statement of a case so as to allow the inference that it was no different from earlier decided cases. Where the decision required a step in advance the difficulty of the advance was a challenge. Sometimes the challenge would be met by a single sentence, but it was always met.
His work is done. We recall again his own words -- "This also is part of the soldier's faith: Having known great things, to be content, with silence." 8 It is not for him that we commemorate his life, but for ourselves, to testify that we do not forget.
Chief Justice Rugg responded as follows:
Mr. Attorney General and Brethren of the Bar: The court receive with grateful appreciation the memorial of the bar. It is worthy of the illustrious scholar, the renowned judge, the august personality in whose honor we are assembled. The judicious and discriminating remarks at the bar attest the ardent esteem in which he was held. No tribute could be more highly prized by him than one in his native city from the members of the profession to which he was so devoted. His estimate of the nobility of our vocation was expressed at a festive bar meeting in Boston, in these words: "When I think on this majestic theme, my eyes dazzle. If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and lonely passion -- only to be won by straining all the faculties by which man is likest a god . . . . But when for the first time I was called to speak on such an occasion as this, the only thought that could come into my mind, the only feeling that could fill my heart, the only words that could spring to my lips, were a hymn to her in whose name we are met here tonight -- to our mistress, the Law."
This is a signal occasion. Other judges in our country have been members of a court of last resort for a full fifty years or more. But there is no instance, I believe, save that of Oliver Wendell Holmes, where one has served continuously with splendid capacity on the highest court of a State and of the nation for half a century lacking only eleven months. He then resigned at the age of ninety-one and lived until within a few days of his ninety-fourth birthday. This is an astounding illustration of physical and mental virility. His life was singularly wide in compass. He was born in Boston on March 8, 1841, of distinguished lineage and of Puritan stock. The highest physical, intellectual and moral advantages came to him by virtue of his birthright. His father was one of that small group of poets, essayists, novelists and historians which has crowned our Commonwealth with imperishable literary glory. His mother was the daughter of Charles Jackson, who was a justice of this court from 1813 to 1823. He graduated at Harvard in the class of 1861. Immediately he enlisted as a lieutenant in the Twentieth Regiment of Massachusetts Volunteers and was in service in the war in defence of the Union until 1864, when he was discharged as lieutenant colonel. He was severely wounded in the breast at Ball's Bluff, in the neck at Antietam, and in the foot at Fredericksburg. He graduated at the Harvard Law School in 1866 and was admitted to the bar in 1867. He practised law in Boston. In 1872 he was married to Miss Fanny Dixwell, the daughter of his former teacher. He, became a professor at the Harvard Law School. He established invincible title to legal scholarship of the highest order by writing "The Common Law." It is still the outstanding book on that subject. He edited an edition of Kent's Commentaries. For several years he was an editor of the American Law Review and a constant contributor to its pages.
He was appointed to this court in December, 1882, at the age of forty-one, by Governor Long. At that time, within a period of less than two years, one associate justice was promoted to be chief justice, and all the associate justices were new appointees. It is significant proof of the learning and wisdom of those seven men that the court suffered no diminution in reputation or influence even while they were new to their tasks. To this result the unrivaled erudition and extraordinary aptitude for judicial work of Mr. Justice Holmes contributed in no small degree. He served as an associate justice of this court for seventeen years, until 1899, when he became chief justice through appointment by Governor Wolcott. He held that position for three years. Thus for two decades he gave added strength and power, authority and distinction to the decisions of this court. In 1902 he was made a justice of the Supreme Court of the United States by President Theodore Roosevelt. He continued in service upon the highest judicial tribunal of the nation until January, 1932, when he resigned.
His opinions as a member of this court are to be found in forty-nine volumes of our reports. The first is in Webber v. Couch, 134 Mass. 26, and the last is in Larabee v. New York, New Haven & Hartford Railroad, 182 Mass. 348. As expressive of the judgment of the court, he wrote nine hundred sixty-three opinions while an associate justice and three hundred twenty-seven while chief justice, a total of twelve hundred ninety. He wrote twelve dissenting opinions, concurred in five dissents written by others, and in five more dissented without opinion or with brief statement. While a justice of the Supreme Court of the United States, he wrote four hundred opinions expressive of the judgment of the court, sixty-six dissenting opinions, and concurred in seven dissents written by other justices. They are to be found in ninety-eight volumes of the reports of that court from 187 U. S. to 284 U. S. both inclusive. The entire number of opinions written by him for both courts was sixteen hundred ninety.
There is a certain detachment about the proceedings of this hour. Mr. Justice Holmes left this court thirty-five years ago. The last of those associated with him in that relationship passed from earth seven years ago. No one now living can speak out of personal experience in service with him here. In 1902, at a banquet tendered to him in recognition of his appointinent to the Supreme Court of the nation, one of the speakers was Mr. Justice Knowlton, soon to become our chief justice. His candor, sincerity and utter truthfulness endue his remarks on that occasion with the assurance of accuracy. No one had a more intimate knowledge of the work of Mr. Justice Holmes on this bench. I am glad to be able to quote and adopt what he then said: "You all have general knowledge of what Massachusetts will lose when the Chief Justice departs for Washington. His learning in the law, his philosophical insight which discerns the principles on which jurisprudence is founded, and the picturesque literary style in which his legal opinions are written, are familiar to all lawyers. I will not dwell upon that which is well known both in England and America. But the loss to us, his associates on the bench, is known to ourselves alone. His analytical power, which quickly discovers the vital points of a case, his force of argument in presenting his views, the wealth of judicial decision from the best sources with which he reinforces his positions, his readiness to comprehend the arguments of other judges, and his liberality in receiving and weighing them, have made his efforts in the consultation room invaluable to his associates. Add to these remarkable facility and untiring industry in writing opinions, and you can see how important a factor he has been in producing such results as the Court has reached. During the three years or more that he has been our Chief Justice, it has seemed to be the one great purpose of his life to make the decisions of the Supreme Judicial Court of Massachusetts the best exposition of law that it was possible to produce. That they have failed to reach his ideal is not for lack of anything he could do or furnish. Another phase of his companionship we shall miss more than I can tell. The play of inherited wit and imagination with which from time to time our prosaic work has been enlivened, has given frequent relief to our tired brains. As we have sat down to our task in the consultation room or have separated at the end of it, his sparkling pleasantries and good natured raillery have dispelled clouds and brought an invigorating atmosphere. Original conceptions clothed in brilliant language have flashed out among us like lightning from a summer cloud. But more important and more tenderly cherished in memory have been the uniform kindness and consideration shown to his associates in the complex and intimate relations that are incident to his official position. There is not one of our number that will not keep in mind special acts of favor in connection with a constant endeavor to deal justly and generously by all. While we rejoice in the honor that comes to him from his promotion, we shall feel our loss in his departure more than you can realize." Another of his intimate associates on this bench described him as "a most rare and attractive personality, familiar with all the learning of the law and applying it to conditions new and old with courage and skill and striking felicity and originality of phrase. I have sometimes thought that if the gifts and graces which he possesses, and the genius which is his, and the culture of which he is so brilliant an example had been devoted to literature he would have been one of the Immortals; -- one of those whose shining footsteps those who come after him are fain to follow."
The superiority of his opinions lies in precise adaptation to the end to be accomplished. They decide the rights of the parties according to law in brief space. There is great compactness of form. They bear the impress of a master mind. There is a sure grasp of all that is material. They are eminently practical in substance. They are confined to the issues to be decided. Rarely are there dicta. The supporting citations are adequate but usually small in number. The thought marches in direct line from beginning to end. There are no excursions into bypaths. There is no display of historical knowledge or technical legal lore save in instances where it forwards the discussion or is necessary to support the conclusion. There is clarity of statement. When there was criticism of an occasional cryptic expression he retorted that he wrote for the masters of the profession. These opinions carry the conviction of being based upon underlying soundness and breadth of learning, and of being enlightened by unclouded vision of the ultimate reach of the governing principles. They are clothed in a literary garment of surpassing beauty. All of his writing has equalled the commendation of the writer of Proverbs that "a word fitly spoken is like apples of gold in pictures of silver." He possessed the rare faculty of illuminating an opinion or driving home a principle by the use of a fitting epigram. Among instances in our own reports are these: He said, in dealing with a contention as to the negligence of the driver in failing to go faster, or in not stopping sooner: "A horse car cannot be handled like a rapier." (Hamilton v. West End Street Railway, 163 Mass. 199, 200.) In speaking of the characteristics of a sealed instrument occurs this: "A specialty deriving its validity from an estoppel in pais is perhaps somewhat like Nebuchadnezzar's image with a head of gold supported by feet of clay." (White v. Duggan, 140 Mass. 18, 20.)
There has been much comment on his dissenting opinions. A volume of them was published a few years ago. Doubtless they have contributed somewhat to his popular reputation. It would not be fair to him to rest his title to usefulness as a judge upon the record of his dissents, in view of the great number of sound and luminous judgments in which he expressed the decisions of the court. During the two decades of his service on this court, he several times declared his theory as to dissenting opinions. In declining to join with any of his associates in an answer to questions in an order of the House of Representatives requesting an advisory opinion under chapter 3, article 2 of the Constitution, and in filing a separate answer, he expressed his views in these words: "If the questions proposed to the justices came before us as a court and I found myself unable to agree with my brethren, I should defer to their opinion without any intimation of dissent. But the understanding always has been that questions like the present are addressed to us as individuals and require an individual answer." (Opinion of the Justices, 160 Mass. 586, 593.) In Vegelahn v. Guntner, 167 Mass. 92, 104, he said: "In a case like the present, it seems to me that, whatever the true result may be, it will be of advantage to sound thinking to have the less popular view of the law stated, and therefore, although when I have been unable to bring my brethren to share my convictions my almost invariable practice is to defer to them in silence, I depart from that practice in this case." Again he stated: "When a question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his convictions may be, should thereafter accept the law from the majority...." (Plaid v. Woods, 176 Mass. 492, 504.) His first dissent after becoming a member of the Supreme Court of the nation was in Northern Securities Co. v. United States, 193 U. S. 197, 400, where this occurs: "although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case and to give my reasons for it."
In his service upon this bench, his opinions covered a wide range of subjects and illuminated almost every branch of law within its jurisdiction. At Washington, his judicial experience was enlarged to embrace the fields of jurisprudence peculiar to the nation under our system of government. The popularity of his decisions on that court and their literary charm led to the publication of a separate volume entitled "Representative Opinions of Mr. Justice Holmes." It would not be in keeping with the limitations of this occasion to undertake a discriminating and accurate estimate of his place in judicial annals based upon careful study of the hundreds of his written opinions, which constitute in part his contribution to the growth of the law. Dignity of manner upon the bench was always combined with respectful consideration of the bar. He had the instinctive courtesy which accorded to the young and inexperienced the same attention as was shown to the leaders. The pungency of his kindly wit sometimes enlivened the tedium of prolonged arguments.
His achievements have not been confined to beaten paths. His "Collected Legal Papers," which he termed "little fragments of my fleece that I have left upon the hedges of life," display rare intellectual activity covering an extraordinary variety of subjects. In his thin volume of "Speeches" are flashes of eloquence which put him in the class of genuine orators. Other articles in magazines demonstrate the richness and versatility of his mind in its mere avocations.
There was in his endowment a keen taste for philosophical thought. His insight into the principles of jurisprudence was aided by this quality. Professors as well as others have written generously and fluently about this aspect of his character. In his speech in 1911, at the fiftieth anniversary of his graduation, he gave expression to his philosophy of life in these words: "We all of us have our notions of what is best. I learned in the regiment and in the class the conclusion, at least, of what I think the best service that we can do for our country and for ourselves: To see so far as one may, and to feel, the great forces that are behind every detail -- for that makes all the difference between philosophy and gossip, between great action and small; . . . . When one listens from above to the roar of a great city, there comes to one's ears -- almost undistinguishable, but there -- the sound of church bells, chiming the hours or offering a pause in the rush, a moment for withdrawal and prayer. Commerce has outsoared the steeples that once looked down upon the marts, but still their note makes music of the din. For those of us who are not churchmen the symbol still lives. Life is a roar of bargain and battle, but in the very heart of it there rises a mystic spiritual tone that gives meaning to the whole. It transmutes the dull details into romance, it reminds us that our only but wholly adequate significance is as parts of the unimaginable whole. It suggests that even while we think we are egotists we are living to ends outside ourselves."
It has been said that the "final reputation of a judge owes far less to contemporary estimates than to the inevitable later appraisal when his efforts find their appropriate historical setting." That judgment of the future may be foreshadowed by some of the tributes to his commanding position from those best qualified to express an opinion. The present Chief Justice of the United States has said: "To me, Mr. Justice Holmes is a prophet of the law. With profound knowledge of the past, his face is ever turned toward the future in an unquenchable eagerness to discern 'with a sure aim the main chance of things as yet not come to life which in their seeds and small beginnings lie entreasured.' . . . He comes to one always with the charm of mastery. He started with a comprehensive and intensive investigation of early law, and of rudimentary institutions and concepts, and his studies made him preëminent among legal scholars, but the significant thing is that he mastered learning, and that learning did not master him." The Lord Chancellor of England has said of him: "Everyone concerned with the history of the Common Law knows the supreme importance of his contributions in this field. I value not less the way in which his work has been throughout permeated by a philosophic grasp of first principle, on the one hand, and of changing social conditions on the other. In this sense he has taught us all the manner in which law may be best adapted to new needs and new purposes." A European scholar made a terse and striking estimate, saying of Oliver Wendell Holmes toward the end of his career that his grandeur is based on the fact that, long before he became a justice of the United States Supreme Court, "he was recognized as the greatest legal scholar, not only in America but in all English-speaking countries, in the field of the common law. Further it rests on the fact that he was born a truly great man, to whom Mother Nature gave for his life's career a rare fullness of the highest and most subtile forces of mind, maintained by an astoundingly vigorous body of an uncommonly imposing stature. Tall and almost not visibly bent, Oliver Wendell Holmes stands before us an embodiment of virile beauty: his face is nearly untouched by the imprint of old age, his eyes lighted by an almost juvenile sparkling, his noble head covered bv snow-white hair, his full white mustache and his bushy eyebrows remind one of the finest type of the old warrior, which indeed he is."
The motion that the memorial be extended upon the records of the court is granted.
The court will now adjourn.
1 Speeches, Little, Brown & Co., 1934, page 92.
2 Speeches, Little, Brown & Co., 1934, pages 95,96.
3 Speeches, Little, Brown & Co., 1934, pages 46,46,48.
4 Northern Securities Co. v. United States, 193 U.S. 197, 400.
5 Ideals and Doubts, 10 Ill. Law Review (1915). Reprinted in Collected Legal Papers, 303, 306, 307.
6 Speeches, by Oliver Wendell Holmes, Boston, Little, Brown & Co., 1934 Ed., p. 70.
7 Speeches, p. 64.
8 Speeches, p. 65.
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