SOURCE: "The Conservative Mr. Justice Holmes," in The New England Quarterly, Vol. XXIII, No. 4, December, 1950, pp. 435-52.

A cherished American myth is that Oliver Wendell Holmes, Jr., was a liberal. This notion, as baseless as the tale of Washington and the cherry tree, was born during the great jurist's life and persists in the national folklore since his death. Walton Hamilton wrote in 1941, "It has taken a decade to elevate . . . Holmes from deity to mortality."¹ The time has come to lay the ghost of "Holmes and Brandeis dissenting."

Holmes, in fact, was as profound, as civilized, and as articulate a conservative as the United States has produced. Although he eludes the neatly wrapped and labelled package, his views speak for themselves.

As a young officer during the Civil War, Holmes wrote his sister, "I loathe the thick-fingered clowns we call the people—. . . vulgar, selfish and base. . . . " Age produced no sea-change. When Carl Becker visited Holmes late in life, he was asked,

"Becker, do you love the human race?"

"I've never discovered anything within myself which you, Mr. Justice, would define as a heart overflowing with human kindness, but I wish them well."

"I don't, Becker. God damn them all, I say."²

Holmes, in fact, was a firm believer in capitalism who looked with distrust upon governmental intervention in economic life. Monopolies won his respect, while he regarded unions and strikes suspiciously. The search for security, Holmes felt, was humbug. He was a confirmed nationalist who disparaged international machinery to promote peace. By the same token, he regarded war as the highest expression of man's destiny. "What moved him," H. L. Mencken has observed, "was far less a positive love of liberty than an amiable and half contemptuous feeling that those who longed for it ought to get a horse-doctor's dose of it, and so suffer a really first-rate belly-ache."³

I

Holmes's views were shaped primarily by three forces: his personal history and social status, his experience in the Civil War, and the doctrine of Evolution. For Holmes the accident of birth in 1841 was a stroke of fortune. He entered life with unsurpassed background and endowments, a member of the intellectual aristocracy of New England in the age of her flowering.

Few Americans, excepting perhaps an Adams or a Lee, could claim a more distinguished lineage. His ancestors, arriving in the seventeenth century, embedded themselves like native rock in the New England soil. Holmes wrote in the Harvard Class Album for 1861: "All my three names designate families from which I am descended. A long pedigree of Olivers and Wendells may be found in the book called Memorials of the Dead in Boston. . . . Of my grandfather Abiel Holmes, an account may be found in the biographical dictionaries."⁴ Abiel, who married the daughter of the president of Yale, occupied the pulpit at Christ Church, Cambridge, and wrote The Annals of America. He was a Calvinist and a Federalist. Abiel's son Oliver studied medicine and became Professor of Anatomy in the Harvard Medical School. He was, as well, the genial, albeit acutely class-conscious, Autocrat of the Breakfast Table. He wrote: "You can't keep a dead level long. . . . If all the cities of the world were reduced to ashes, you'd have a new set of millionaires in a couple of years or so, out of the trade in potash."⁵ He was a Republican.

The maternal side of Holmes's ancestry produced fewer books but possessed greater wealth and social standing. Colonel Jacob Wendell lost forty buildings in the great Boston fire of 1760. His son Oliver sat in the Senate and Council of the Commonwealth and was a judge and a passionate Federalist. The Wendells were related to the Jacksons, Cabots, Eliots, Quincys, and Bradstreets, and had their portraits done by Copley and Stuart. Judge Oliver Wendell's daughter Sally married Abiel Holmes. Their son Oliver Wendell took Amelia Jackson as his bride. Her father owned one of the most impressive homes in Boston and was a distinguished judge of the Superior Court of Massachusetts.

Oliver Wendell Holmes, Jr., went to Harvard. Indeed, he could not go elsewhere, for, as he wrote, "We love every limb of Harvard College."⁶ Sally Wendell's father and both her grandfathers had gone there. Dr. Holmes's great-uncle had been treasurer, Judge Wendell a fellow, and Judge Jackson an overseer of Harvard College. Dr. Holmes had attended the institution, becoming a member of Hasty Pudding and Porcellian, and had returned later to take his chair in medicine. Oliver, Jr., made the same clubs, as well as Phi Beta Kappa. When war came he enlisted in the Twentieth Massachusetts Infantry, "the Harvard Regiment." After military service he returned to study law.

Holmes's career advanced in a straight line from one success to the next: law practice in Boston, editor of the American Law Review, author of The Common Law, professor at the Harvard Law School, judge and then Chief Justice of the Supreme Judicial Court of Massachusetts, and Justice of the Supreme Court of the United States. The greater part of his life was spent in the cloistered calm of the bench. Holmes did not know financial insecurity and, in fact, left a substantial fortune when he died. He married Fanny Dixwell, daughter of the principal of his Latin School, who was his constant companion through a long life. Their home, however, was never warmed by the presence of children.

Holmes received all the personal endowments the gods could offer. He possessed a powerful, disciplined intellect, sparkling wit, and a masterful command of language. In him a handsome face and strong body joined with the excellent health that carried him through ninety-three years. He was well over six feet tall, with strong shoulders, a high brow, a distinguished nose, and searching eyes. Holmes's manner was noble, gracious, and often dazzling. Chief Justice Hughes found beneath his "judicial robe the chivalry of a knight."⁷

The process of reaching maturity in New England's golden age brought a quality of wholeness to Holmes's personality and mind. His father, who was in the literary mainstream himself, wrote: "We all carry the Common in our heads as the unit of space, the State House as the standard of architecture, and we measure off men in Edward Everetts."⁸ Celebrated figures were at his house for tea—Emerson, Lowell, and Dr. James Freeman Clarke. Emerson, in fact, read young Holmes's college essay on Plato; he did not care for it. As a boy Holmes witnessed the Flying Cloud glide down the ways in East Boston. His family summered at the "old Wendell farm" near Pittsfield, where Melville and Hawthorne lived nearby. His father took him to meetings of the Saturday Club at the Parker House where he rubbed minds with Emerson, Dana, Agassiz, Longfellow, and Whittier.

The combination of these elements gave Holmes unusual personal security. As Hamilton has remarked, "Holmes never had to be introduced. . . . He was somebody. . . . Status opened doors, set presumptions in his favor, saved embarrassment and bother."⁹ As a consequence, professional and social climbing were absent from his life. His attention was never diverted; security gave him release and freedom from inhibition. He was gifted, in the words of Justice Cardozo, with "serenity . . . , and gentleness, and most of all, benignancy—the benignancy of a soul that has fashioned its own scale of values, and in those deeply graven markings has found the quietude of peace."¹⁰

"What we most love and revere generally," Holmes wrote, "is determined by early associations." His youthful associations gave him a passionate devotion to the past and particularly to the old in New England. "The reverence for venerable traditions remains. I feel it in my fingertips. . . . I love every brick and shingle of the old Massachusetts towns." He preferred books in his library that "were on shelves before America was discovered," prints on his walls "that go back two or three hundred years." Old associations became part of his being and when they were wrenched from him "roots are torn and broken that bleed like veins." He was delighted to have outlasted Taney, to be "the oldest judge who ever . . . remained sitting on our bench."¹¹

Of his great-grandmother Temperance Holmes it was said, "To the affairs of her household she was assiduously and unweariedly attentive, and never ate the bread of idleness." Holmes shared her passion for hard work. John Ropes declared that he never knew anyone to study law so ferociously. "He was as busy as a witch in a gale." On the Supreme Court he alone inflicted "cruel and unusual punishment" upon himself by taking extensive notes on argument and by refusing secretarial help. "The mode in which the inevitable comes to pass is through effort."¹² Expenditure of energy, however, was pointless without the quest for the superlative. Holmes declared,

No man has earned the right to intellectual ambition until he has learned to lay his course by a star which he has never seen. . . . Only when you have worked alone,—when you have felt around you a black gulf of solitude more isolating than that which surrounds the dying man . . . will you have achieved.¹³

Although Holmes titillated his friends with naughty words, his taste, like his moral conduct, was impeccably respectable. He nodded approvingly when Chief Justice Taft forbade a western judge to enter court without a waistcoat. Of Ernest Hemingway he wrote, "I wonder at the illusion that one is more real if one evokes sordid situations and bad smells, than if one invites one's readers to fresh air and agreeable and even noble people. . . . Let him leave his garbage."¹⁴

II

The Civil War was the searing and maturing experience of Holmes's life. "The generation that carried on the war," he declared, "has been set apart. . . . Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing."¹⁵ Half a century after Appomattox he caught himself "deeply and unexpectedly" moved by the Unknown Soldier ceremony.

The Twentieth Massachusetts saw action in many of the major battles of the war, losing five-eighths of its men, killed and wounded. At Ball's Bluff on October 21, 1861, a ball entered Holmes's left breast and came out behind the right, missing the heart and lungs. That night, blood dripping from his mouth; he considered taking poison in anticipation of death. He recovered to fight in the Peninsula Campaign in 1862, where he suffered nothing worse than body lice, scurvy, and diarrhea. In September he was hit in the neck at Antietam. Holmes confided to his diary, "The South have achieved their independence."¹⁶ In the second Battle of Fredericksburg he was wounded a third time, shrapnel splintering the bone and tearing the ligaments of his heel. The following summer he wrote his mother, "I honestly think the duty of fighting has ceased for me—ceased because I have laboriously and with much suffering of mind and body earned the right . . . to decide for myself how I can best do my duty."¹⁷ Holmes was mustered out on July 17, 1864, having risen from lieutenant to lieutenant-colonel.

The war taught Holmes that life is a struggle, that peace is an idle dream. He wrote of the League of Nations,

Man at present is a predatory animal. I think that the sacredness of human life is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as it may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of worlds I see no remedy except force. . . . Every society rests on the death of men.¹⁸

For Holmes, then, danger became an end in itself. Heidelberg students "with their sword-slashed faces inspire me with sincere respect." A broken neck is not a waste, but "a price well paid for the breeding of a race fit for . . . command."¹⁹ Similarly, the will to fight became a vital object.

That . . . faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.²⁰

The war, in addition, made Holmes a confirmed nationalist. During the conflict with Spain, for example, he confessed pleasure in "hearing some rattling jingo talk." War also caused him to take a knightly view of honor—"that for which . . . , if need be, we are willing to die."²¹

The measure of a man can be taken in his heroes, and Holmes's combined the warlike virtues. Nansen captivated him by an ability to be "gay in the face of death, . . . capable, though a complex and civilized man, to lark like a boy and rejoice over a bellyful of blubber."²² Corporate empire builders like Jim Hill won his admiration by their mastery and ruthlessness.

The war, finally, penetrated his idiom. Holmes would break into Civil War slang in conversation, and his speeches and letters are replete with war imagery. He would "fire off an opinion; "when you have taken one trench there is always a new firing line beyond."

III

Darwin retaught Holmes at the level of generalization what he had already learned in experience on the battle-field. The doctrine of Evolution was the central concept of the age in which he came to maturity, the subject of eager debate at Harvard and the Saturday Club. Holmes, like his contemporaries William James, John Fiske, and Henry Adams, devoured The Origin of Species. He later explained to Morris Cohen that the difference between his father's and his own generations lay in "the influence of the scientific way of looking at the world."²³

Darwin, who had himself drawn heavily upon Malthus, foresaw that when scholars in other fields no longer looked at life as a "savage looks at a ship" a grand untrodden field of inquiry would open.²⁴ The historical school of jurisprudence transplanted the evolutionary hypothesis to the study of law. Maitland, Maine, Dicey, Pollock, Vinogradoff, and, not least among them, Holmes, substituted a biological for a mechanical view of society.

For Holmes the study of law became the study of history. He opened his great work The Common Law with this classic statement:

The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellowmen, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.²⁵

If ideas, like the bone structure of the horse, evolve in response to environment, "truth is the majority vote of that nation that could lick all others."²⁶ In this epistemology the law and the Constitution become working instruments rather than God-given commandments. Legislation then reflects that interest in society which has competed successfully against others. The free market place, like the proving ground of Nature, must be preserved in law, in politics, in economics, and in speech. There is no room for sentimentality; the imbecile, the maimed, and the sick should be killed off.

Evolution freed the mind of the post-Civil War generation to move to the Right. The rampant capitalism of the age was justified because it had prevailed. Holmes's admired Jim Hill pointed out that "the fortunes of the railroad companies are determined by the law of the survival of the fittest."²⁷ Holmes, similarly, did not look unfavorably on the rise of great business combinations.

IV

The ideas Holmes evolved in his formative years supply the keys to his economic and legal philosophies. Francis Biddle has observed that his economic education stopped at the age of twenty-five.²⁸ Holmes worshipped at the shrine of orthodoxy; Adam Smith, Ricardo, and Malthus would have been pleased with his views. Malthus, moreover, deeply influenced Holmes as he had Darwin earlier. "This fellow," Holmes declared, "has stuck a sword into the very bowels of the principle of population."²⁹

The heart of his economics was the individual. Holmes would give the entrepreneur virtually unfettered freedom with the assurance that a progressive economic society and a reasonable distribution of wealth would result. Ownership was a gateway, not a terminus, for "large ownership means investment, and investment means the direction of labor towards the production of the greatest returns."³⁰ These returns were consumed by the many rather than by the few. His hobby was to abjure talk of money and to examine the flow of products. The wheat, the cloth, and the railway travel were consumed by the masses rather than by the rich. If great fortunes were redistributed equally the level of national income would rise hardly at all. Needless to say, he opposed "tinkering with the institution of property."³¹

In this light, movements seeking the reform or reconstitution of economic society won his distrust. Holmes regarded the stirrings of the Progressive era as "unrest" and reserved searching skepticism for the domestic policies of the first Roosevelt. Socialism was an unscientific system for transferring burdens from the weak, who deserved them to the strong, who did not. It rested, he felt, on dramatic contrasts: "Look at the big house and the little one." He took a dim view of the notion that selfishness would disappear in any social order. "I cannot but reflect that my neighbor is better nourished by eating his own bread than by my eating it for him."³²

The collectivist tendency, Holmes believed, was not only "an empty humbug" but constituted a danger to the safeguards in bills of rights. The drive for security, whether in the form of preventing cruelty to animals or socialism, left him cold. He had no sympathy for a society in which people "may be comfortable or may shine without much trouble or any danger." A famous phrase summarized his views: "I have no belief in panaceas and almost none in sudden ruin."³³

To labor Holmes held out the iron law and the wage fund. The notion that unions could win a larger share of national income for workers as a whole was "pure phantasy." Organizations might gain more for their own members "at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing."³⁴ Of strikes "I cherish no illusions," while the English General Strike of 1926 "fills me with sadness and apprehension." He worried lest "that noble people is facing ruin." Holmes's advice to labor carries a familiar ring: "Eternal hard work is the price of a living." He distrusted social legislation, refusing to become sentimental about child labor and doubting the value of a statutory minimum wage.³⁵

Holmes was undisturbed about monopoly, nor did he regard bigness as a curse. "Prosecution for being, and not for doing, [is] . . . justified under no proper principle of the law."³⁶ Trustbusting, Holmes felt, undermined natural selection in the market place. The Sherman Act was "a humbug based on economic ignorance," while the Interstate Commerce Commission was unfit to be entrusted with rate-making. The wastes in competition, such as advertising and duplication of establishments, were "the very things the trusts get rid of." When the Dr. Miles Medical Company fixed retail prices by resale price maintenance contracts, Holmes considered the company better able to determine a reasonable price than the courts.³⁷

In summary, Holmes was contented with the status quo. Upon his appointment to the Supreme Court, he wrote, "Some . . . of the money powers think me dangerous, wherein they are wrong."³⁸

V

Holmes's legal philosophy rested upon an analysis of sovereignty, the source of power in government. Diverse groups within a society are in constant conflict and government is the arena for the clash of interest. "Wise or not, the proximate test of a good government is that the dominant power has its way."³⁹ In a democracy power is expressed in majorities. "If the will of the majority is unmistakable, and the majority is strong enough to have a clear power to enforce its will, . . . the courts must yield, as must everybody else."⁴⁰

Legislation, accordingly, is an extension of the will of the dominant interest. It is "a means by which a body, having the power, put burdens which are disagreeable to them on the shoulders of somebody else."⁴¹ A law cannot be condemned for favoring one class as against another since all laws do that. As a consequence, there are few, if any, scientific criteria for measuring legislation. "I am so sceptical," Holmes observed, "as to our knowledge about the goodness or badness of laws that I have no practical criticism except what the crowd wants." He felt certain that the crowd would not want what it does if it knew more, "but that is immaterial."⁴²

In Holmes's legal universe the law was in a constant state of flux. Each generation and community refashioned it in accordance with "the felt necessities of the time." Hence custom and usage were decisive shaping elements. In Hamilton's words, "The genius of the common law broods over Holmes's world."⁴³

With these premises Holmes became the classic exponent of the doctrine of judicial restraint. In his view the common law was the great area of court action, while the people through their legislatures were primarily responsible for constitutional law. The American federal system, however, permitted no such neat division of labor. The solution for judges, therefore, was to refrain from asserting their own views except under compelling circumstances. The Constitution in this light was a broad charter of powers rather than a code prescribing in detail and for all time the answers to social problems. Holmes said,

Long ago I decided that I was not God. When a state came in here and wanted to build a slaughterhouse, I looked at the Constitution and if I couldn't find anything in there that said a state couldn't build a slaughterhouse I said to myself, if they want to build a slaughterhouse, God-dammit, let them build it.⁴⁴

Judicial restraint is a two-edged blade that cuts impartially. It may serve liberals seeking to regulate industry as well as conservatives wishing to restrict labor. In the historical context of Holmes's term on the bench, however, its greatest value was to those who pressed for restrictions on business and assistance to labor. This, at bottom, is the source of the Holmes liberal myth.

Illustrations of his "liberal" opinions abound, usually with reservations on the merits. Oklahoma, for example, enacted a statute guaranteeing bank deposits which was challenged as a violation of the due process clause of the Fourteenth Amendment. The Court sustained the law, Holmes holding, "We fully understand . . . the very powerful argument that can be made against the wisdom of the legislation, but on that point we have nothing to say, as it is not our concern."⁴⁵ Holmes, in his dissent in Truax v. Corrigan, deprecated use of the Fourteenth Amendment beyond "the absolute compulsion of its words" to prohibit social experimentation by the states, "even though the experiments may seem futile or even noxious to me."⁴⁶ In Coppage v. Kansas the Court nullified a state law prohibiting yellow-dog contracts. "Whether in the long run," Holmes's dissent argued, "it is wise for the workingmen to enact legislation of this sort is not my concern, but I am strongly of the opinion that there is nothing in the Constitution of the United States to prevent it."⁴⁷

By the same token, judicial laissez faire sometimes produced "conservative" results. During a labor dispute, Governor Peabody of Colorado had Charles Moyer, president of the Western Federation of Miners, arrested and imprisoned ten weeks with no charge. Since, as events proved, there was no basis for the detention, Moyer sued for deprivation of liberty without due process. Holmes, speaking for the Court, refused to assert judicial authority. "So long as such arrests are made in good faith . . . the Governor is the final judge. . . . The ordinary rights of individuals must yield. . . . Public danger warrants the substitution of executive process for judicial process."⁴⁸ Holmes's dissent in the Dr. Miles Case is another illustration. He held the company's judgment superior to the Court's in pricing its products even at the cost of a resale price maintenance system.

The foundation of Holmes's legal structure was free speech. Some, at least, of his utterances, in Zechariah Chafee's view, are fit to stand beside Milton's Areopagitica and Mill's On Liberty. In Schenck v. U.S. Holmes set forth the fundamental "clear and present danger" doctrine.⁴⁹ In Abrams v. U.S. he lodged his faith in "free trade in ideas—that the best truth is the power of the thought to get itself accepted in the competition of the market."⁵⁰ Free speech for Holmes was a Darwinian arena in which ideas would struggle for survival. It was at the same time a prop of a conservative society. As he wrote the Harvard Liberal Club, "With effervescent opinions the quickest way to let them get flat, as with the not yet forgotten champagnes, is to let them get exposed to the air."⁵¹

Holmes, however, was not an extremist on free speech, "in which," he wrote, "I have no very enthusiastic belief." On the Massachusetts bench, for example, he sustained a conviction for speaking on the Boston Common without a permit. "For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house."⁵² This decision was invoked by Mayor Hague when he banned free speech in Jersey City. Holmes in McAuliffe v. New Bedford upheld the town's right to discharge an officer for political activity. "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."⁵³

Holmes compromised himself on free speech most notably in the Debs Case. The leader of the Socialist Party was convicted and imprisoned under the Espionage Act for an address criticizing the war policy of the Wilson Administration. Holmes for the Court accepted the jury's verdict without looking behind it, failed to examine the constitutionality of the statute, and refrained from applying his own "clear and present danger" test.⁵⁴

Holmes's conservatism on the bench was clearly apparent in cases involving contracts. For a man beset with doubts about the cosmos, contract had the virtue of specificity. His dissent in Bailey v. Alabama illustrates this preoccupation in disregard of the status of the Negro in the South. In 1907, Bailey, a colored farmhand, entered into a contract with an employer to work for a year at twelve dollars per month. He received a fifteen dollar advance and was to get $10.75 each month, the remainder to be charged against the advance. After one month Bailey quit without refunding the money, clearly an illegal act under an Alabama statute. The Supreme Court ruled that the contract constituted peonage and was invalid under the Thirteenth Amendment. Holmes, however, dissented. "If the contract is one that ought not to be made, prohibit it. But if it is a perfectly fair and proper contract, I can see no reason why the State should not throw its weight on the side of performance."⁵⁵

Pennsylvania Coal Co. v. Mahon is in the same vein. The company, by deed executed in 1878, conveyed surface property to a householder but expressly reserved the right to remove underneath coal with the grantee assuming all risks and waiving any claims for losses that might result. A Pennsylvania statute of 1921, however, forbade mining in such a way as to cause subsidence of habitations. It admittedly destroyed the contract rights of the company and the question was whether the police power could be stretched to cover the law's constitutionality. The Court through Holmes held the statute invalid. "What makes the right to mine coal valuable is that it can be exercised with profit. To make it commercially impracticable to mine certain coal has very nearly the same effect for constitutional purposes as appropriating or destroying it." Brandeis dissented.⁵⁶

VI

"In the structure of the beetle . . . ;" Darwin wrote, "in the plumed seed which is wafted by the gentlest breeze; . . . we see beautiful adaptations everywhere and in every part of the organic world."⁵⁷ Holmes was just such an adaptation, perhaps the most complete and certainly one of the most appealing figures to grace American history. He has, in fact, entered the pantheon of our heroes, and the myth-makers show no sign of tiring in their busy labors.

A prime function of the hero is to campaign in the politics of the generations that follow. The struggle for Jefferson's legacy and the long shadow that Franklin Roosevelt casts in death are illustrations. In the contest for protagonists the Democrats have the advantage. They point to Jefferson, Jackson, Woodrow Wilson, and the second Roosevelt. The Republicans claim only Lincoln and Theodore Roosevelt, and in both cases there are reservations. Although conservatives have failed to seize the opportunity, in Holmes they could embrace another champion. Their failure to perceive his political value is typical of the anti-intellectual strain in the American Right.

Holmes's value to conservatism is enhanced precisely because he exposed himself to liberal ideas. The free range of his intellect and his extraordinary tolerance offered him the opportunity to examine all views. In 1893, for example, he paid a call at the "humble shrine" of a Boston labor leader. "Sir," he' said, "I am Judge Holmes of the Supreme Judicial Court. . . . As a good citizen I like to understand all phases of economic opinion. What would you like if you could have it?" They "discoursed several times with some little profit."⁵⁸ Holmes's conservatism, therefore, was of a most impressive and rare variety. His convictions stemmed from knowledge and cerebral mechanics rather than prejudice. He was, in fact, rarely capable of thinking in stereotypes.

There is little likelihood, however, that progressives will give up Holmes without a struggle and they are not without weapons. He was certainly more liberated, if not more liberal, than his reactionary colleagues on the Court. The doctrine of judicial restraint, moreover, led him to affix his signature to many opinions that encouraged social experimentation. Finally, there was in Holmes an elusive, sometimes an impish, quality that confounds any group that seeks to claim him entirely. He was, at bottom, himself.

NOTES

¹ Walton Hamilton, "On Dating Mr. Justice Holmes," University of Chicago Law Review, IX (1941), 1.

² Hamilton, "On Dating Mr. Justice Holmes," 9 n.

³ "The Great Holmes Mystery," American Mercury, XXVI (1932), 124.

⁴ Quoted in Frederick C. Fiechter, Jr., "The Preparation of an American Aristocrat," New England Quarterly, VI (1933), 4.

⁵ Quoted in Silas Bent, Oliver Wendell Holmes (New York, 1932), 29.

⁶ Oliver Wendell Holmes, Speeches (Boston, 1918), 29.

⁷ "Mr. Justice Holmes," Harvard Law Review, XLIV (1931), 679.

⁸ Quoted in Bent, Holmes, 34.

⁹ "On Dating Mr. Justice Holmes," 5.

¹⁰ "Mr. Justice Holmes," Harvard Law Review, XLIV (1931), 691.

¹¹ Boyd H. Bode, "Justice Holmes on Natural Law and the Moral Ideal," International Journal of Ethics, XXIX (1919), 399; Holmes, Speeches, 75, 92; Holmes to Sir Frederick Pollock, November 5, 1923, M. De W. Howe, editor, Holmes-Pollock Letters (Cambridge, 1941), II, 123; Holmes to Doctor Wu, November 2, 1928, Justice Holmes to Doctor Wu, an Intimate Correspondence, 1921-1932 (New York, n.d.), 51.

¹² Francis Biddle, Mr. Justice Holmes (New York, 1942), 49, 75, 80; Holmes to Dr. Wu, November 2, 1928, Holmes-Wu Correspondence, 52.

¹³ Holmes, Speeches, 24.

¹⁴ Richard Waiden Hale, Some Table Talk of Mr. Justice Holmes and "The Mrs. " (Boston, 1935), II; Holmes to Sir Frederick Pollock, August 20, 1928, Holmes-Pollock Letters, II, 227; Holmes to Owen Wister, n.d., quoted in Bent, Holmes, 17.

¹⁵ Holmes, Speeches, 11-12.

¹⁶ M. De W. Howe, editor, Touched With Fire, Civil War Letters and Diary of Oliver Wendell Holmes, Jr. (Cambridge, 1946), 72.

¹⁷Touched With Fire, 143.

¹⁸ Holmes to Sir Frederick Pollock, February 1, 1920, Holmes-Pollock Letters, II, 36.

¹⁹ Holmes, Speeches, 63.

²⁰ Holmes, Speeches, 59.

²¹ Holmes to Lady Pollock, June 9, 1898, Holmes-Pollock Letters, I, 87: Holmes, Speeches, 26.

²² Holmes to Lady Pollock, April 11, 1897, Holmes-Pollock Letters, I, 73.

²³ Holmes to Morris R. Cohen, February 5, 1919, Felix S. Cohen, editor, "The Holmes-Cohen Correspondence," Journal of the History of Ideas, IX (1948), 14.

²⁴The Origin of Species (New York, 1861), 422.

²⁵ Quoted in Max Lerner, editor, The Mind and Faith of Justice Holmes (Boston, 1943), 51-52.

²⁶ Quoted in Felix Frankfurter, editor, Mr. Justice Holmes (New York, 1931), 150-151.

²⁷ Quoted in Richard Hofstadter, Social Darwinism in American Thought, 1860-1915 (Philadelphia, 1945), 31.

²⁸Holmes, 86-87.

²⁹ Quoted in Bent, Holmes, 17.

³⁰ Quoted in Lerner, Mind and Faith, 389.

³¹ Quoted in Lerner, Mind and Faith, 393.

³² Holmes to Sir Frederick Pollock, February 26, 1911, Holmes-Pollock Letters, I, 175-176; H. C. Shriver, editor, Justice Oliver Wendell Holmes, His Book Notices and Uncollected Letters and Papers (New York, 1936), 140.

³³ Quoted in Lerner, Mind and Faith, 390.

³⁴Plant v. Woods, 176 Mass. 492, 504 (1900).

³⁵ Holmes to Dr. Wu, May 5, 1926, Holmes-Wu Correspondence, 36; Holmes to Sir Frederick Pollock, September 19, 1919, Holmes-Pollock Letters, II, 25; Hammer v. Dagenhart, 247 U. S. 251, 277 (1918).

³⁶ Quoted in Dorsey Richardson, Constitutional Doctrines of Justice Oliver Wendell Holmes (Baltimore, 1924), 49.

³⁷ Holmes to Sir Frederick Pollock, May 25, 1906, April 23, 1910, Holmes-Pollock Letters, I, 123-124, 163; Dr. Miles Medical Co. v. Park and Sons Co., 220 U. S. 373, 409 (1911).

³⁸ Holmes to Sir Frederick Pollock, August 13, 1902, Holmes-Pollock Letters, I, 103.

³⁹ Quoted in Lerner, Mind and Faith, 378.

⁴⁰Book Notices and Uncollected Papers, 98.

⁴¹Book Notices and Uncollected Papers, 108.

⁴² Holmes to Sir Frederick Pollock, April 23, 1910, Holmes-Pollock Letters, I, 163.

⁴³ "On Dating Mr. Justice Holmes," 20.

⁴⁴ Quoted in Alpheus Thomas Mason, Brandeis, A Free Man's Life (New York, 1946), 572-573.

⁴⁵Noble State Bank v. Haskell, 219 U. S. 104 and 575 (1911).

⁴⁶ 257 U. S. 312, 343 (1921).

⁴⁷ 236 U. S. 1, 28 (1915).

⁴⁸Mover v. Peabody, 212 U. S. 78 (1909).

⁴⁹ 249 U. S. 47 (1919).

⁵⁰ 250 U. S. 616, 624 (1919).

⁵¹ Quoted in Bent, Holmes, 6.

⁵²Commonwealth v. Davis, 162 Mass. 510 (1895).

⁵³ 155 Mass. 216 (1892).

⁵⁴Debs v. U. S., 249 U. S. 211 (1919). See Max Lerner's comments, Mind and Faith, 297-300.

⁵⁵ 219 U. S. 219, 245 (1911).

⁵⁶ 260 U. S. 393 (1922).

⁵⁷Origin of Species, 60-61.

⁵⁸ Holmes to Sir Frederick Pollock, January 20, 1893, Holmes-Pollock Letters, 1, 44.