March 6, 1935
OBITUARY
Washington Holds Bright Memories of Justice Holmes's Long and Useful Life
By THE NEW YORK TIMES
As Justice Holmes grew old he became a figure for legend. Eager young students of
history and the law, with no possibility of an introduction to him, made pilgrimages to
Washington merely that they might remember at least the sight of him on the bench of the
Supreme Court. Others so fortunate as to be invited to his home were apt to consider
themselves thereafter as men set apart. Their elders, far from discouraging this attitude,
strengthened it.
A group of leading jurists and liberals filled a volume of essays in praise of him, and on
the occasion of its presentation Chief Justice Hughes said:
"The most beautiful and the rarest thing in the world is a complete human life, unmarred,
unified by intelligent purpose and uninterrupted accomplishment, blessed by great talent
employed in the worthiest activities, with a deserving fame never dimmed and always
growing. Such a rarely beautiful life is that of Mr. Justice Holmes."
Born in Boston in 1841
He was born on March 8, 1841, in Boston. The cultural dominance of New England was
at its height. The West was raw, great parts of it wilderness as yet only sketchily
explored. A majority of the nation's citizens still considered the enslavement of Negroes
as the operation of a law of God, and Darwin had not yet published his "Origin of
Species."
The circumstances of his birth were fortunate. His father, Dr. Oliver Wendell Holmes,
was of New England's ruling caste and the atmosphere of his home was at once
brahminical, scientific and literary. They boy was to start each day at that "autocratic"
breakfast table where a bright saying won a child a second helping of marmalade.
The boy was prepared for Harvard by E. S. Dixwell of Cambridge. He was fortunate
again in this. Well-tutored, he made an excellent record in college. His intimacy with
Mr. Dixwell's household was very close. His tutor's daughter, Fanny Dixwell, and he fell
in love with each other and later they were married.
Fort Sumter was fired on and President Lincoln called for 75,000 volunteers. Young
Holmes, 20 years old and shortly to be graduated from Harvard with the class of '61,
walked down Beacon Hill with an open Hobbe's "Leviathan" in his hand and learned that
he was commissioned in the Twentieth Massachusetts Volunteers.
The regiment, largely officered by young Harvard men and later to be known as the
"Harvard Regiment," was ordered South and into action at Ball's Bluff. There were grave
tactical errors and the Union troops were driven down the cliff on the Virginia shore and
into the Potomac. Men trying to swim to safety were killed and wounded men were
drowned.
Lieutenant Holmes, with a bullet through his breast, was placed in a boat with dying men
and ferried through saving darkness to the Maryland shore.
His wound was serious, but the sufferer was young and storng. For convalescence he
was returned to Boston. On his recovery he returned to the front.
At Antietam a bullet pierced his neck and again his condition was critical. Dr. Holmes,
on learning the news, set out to search for his son. The search lasted many worried days
and brought the father close to the lines at several points. He found his son already
convalescent and brought him back to Boston, where he wrote his experiences under the
title, "My Hunt for the Captain," an article that was enthusiastically received as bringing
home to Boston a first-hand picture of the trials of war directly behind the lines.
Wounded a Third Time
Back at the front, the young officer was again wounded. A bullet cut through tendons
and lodged in his heel. This wound was long in healing and Holmes was retired to
Boston with the brevet ranks of Colonel and Major.
The emergency of war over, his life was his own again. There was the question, then, of
what to do with it. Writing appealed to him. He had been class poet and prize essayist in
college. But he finally turned to law, although it was long before he was sure that he had
taken the best course.
"It cost me some years of doubt and unhappiness," he said later, "before I could say to
myself: 'The law is part of the universe--if the universe can be thought about, one part
must reveal it as much as another to one who can see that part. It is only a question if you
have the eyes.'"
Philosophy and William James helped him find his legal eyes while he studied in Harvard
Law School and James, a year younger, was studying medicine. Through long nights
they discussed their "dilapidated old friend the Kosmos." James later was to write in
affectionate reminiscence of "your whitely lit-up room, drinking in your profound
wisdom, your golden jibes, your costly imagery, listening to your shuddering laughter."
But while James went on, continuing in Germany his search for the meanings of the
universe, Holmes decided that "maybe the universe is too great a swell to have a
meaning," that his task was to "make his own universe livable," and he drove deep into
the study of the law.
He took his LL. B. in 1866 and went to Europe to climb some mountains. Early in 1867
he was admitted to the bar and James noted that "Wendell is working too hard." The hard
work brought results. In 1870 he was made editor of the American Law Review.
Two years later, on June 17, 1872, he married Fanny Bowditch Dixwell and in March of
the next year became a member of the law firm of Shattuck, Homes & Munroe, resigning
his editorship but continuing to write articles for The Review. In that same year, 1873,
his important edition of Kent's Commentaries appeared.
His papers, particularly one on English equity, which bristled with citations in Latin and
German, showed that he was a master scholar where mastery meant labor and
penetration. It was into these early papers that he put the fundamentals of an exposition
of the law that he was later to deliver in Lowell Lectures at Harvard and to publish under
the title, "The Common Law." In this book, to quote Benjamin N. Cardozo, he "packed a
whole philosophy of legal method into a fragment of a paragraph."
The part to which Judge Cardozo referred reads:
"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 with the prejudices which judges share with their follow-men, have
had a great deal more to do than the syllogism in determining the rules by which men
should be governed. The law embodies the story of a nation's development through many
centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of
a book of mathematics."
Judge Cardozo, commenting on this, wrote:
"The student of juristic method, bewildered in a maze of precedents, feels the thrill of a
new apocalypse in the flash of this revealing insight. Here is the text to be unfolded. All
that is to come will be development and commentary. Flashes there are like this in his
earlier manner as in his latest, yet the flashes grow more frequent, the thunder peals more
resonant, with the movement of the years."
Makes His Debut as Judge
Holmes was only 39 years old when Harvard called him back to teach in her Law School
and 41 when he became an Associate Justice on the Massachusetts Supreme Court bench.
So in that great period when Joseph H. Choate could call a Federal income tax "sheer
communism," the young Massachusetts justice could, with no bias, write dozens of
dissenting opinions in which he expressed views that since have been molded into law.
He was Chief Justice on the Commonwealth bench when, in 1901, Theodore Roosevelt
noted that Holmes's "labor decisions" were criticized by "some of the big railroad men
and other members of large corporations." Oddly enough the successor of William
McKinley thought that was "a strong point in Judge Holmes's favor."
In reference to this the President wrote to Henry Cabot Lodge:
"The ablest lawyers and greatest judges are men whose past has naturally brought them
into close relationship with the wealthiest and most powerful clients and I am glad when I
can find a judge who has been able to preserve his aloofness of mind so as to keep his
broad humanity of feeling and his sympathy for the class from which he has not drawn
clients."
In further expression of this approval he in 1902 appointed Judge Holmes to the Supreme
Court of the United States, an appointment that was confirmed by the Senate immediately
and unanimously.
In a dissenting opinion written early in his career on the Supreme bench Justice Holmes
bluntly told his associates that the case in hand had been decided by the majority on an
economic theory which a large part of the country did not entertain, that general
principles do not decide concrete cases, that the outcome depends on a judgment or
institution more subtle than any articulate major premise.
A great struggle between the forces of Theodore Roosevelt and the elder J. P. Morgan
began on March 10, 1902, when the government filed suit in the United States Circuit
Court for the district of Minnesota charging that the Great Northern Securities Company
was "a virtual consolidation of two competing transcontinental lines" whereby not only
would "monopoly of the interstate and foreign commerce, formerly carried on by them as
competitors, be created," but, through use of the same machinery, "the entire railway
systems of the country may be absorbed, merged, and consolidated."
In April, 1903, the lower court decided for the government and 8,000 pages of records
and briefs went to the United States Supreme Court for final review. On March 14, 1904,
the high court found for the government, with Justice Holmes writing in dissent.
He held that the Sherman act did not prescribe the rule of "free competition among those
engaged in interstate commerce," as the majority held. It merely forbade "restraint of
trade or commerce." He asserted that the phrases "restraint of competition" and "restraint
of trade" did not have the same meaning; that "restraint of trade," which had "a definite
and well-established significance in the common law, means and had always been
understand to mean, a combination made by men engaged in a certain business for the
purpose of keeping other men out of that business * * *."
The objection to trusts was not the union of former competitors, but the sinister power
exercised, or supposed to be exercised, by the combination in keeping rivals out of the
business, he said. It was the ferocious extreme of competition with others, not the
cessation of competition among the partners, which was the evil feared.
"Much trouble," he continued, "is made by substituting other phrases, assumed to be
equivalent, which are then argued from as if they were in the act. The court below
argued as if maintaining competition were the express purpose of the act. The act says
nothing about competition."
It was at this time that John Morley visited America and returned to England with the
affirmation that in Justice Homes America possessed the greatest judge of the English-
speaking world. Time has reinforced the emphasis. In his years on the Supreme Court
bench he had done more to mold the texture of the Constitution than any man since John
Marshall revealed to the American people what their new Constitution might imply.
Matthew Arnold, in his essay on the study of poetry, says that the best way to separate
the gold from the alloy in the coinage of the poets is by the test of a few lines carried in
the thoughts.
Excerpts From Holmes's Writings
From the opinions and other writings of Justice Holmes the following lines are some that
might be used for this test:
"When men have realized that time has upset many fighting faiths, they may come to
believe even more than they believe the very foundations of their own conduct that the
ultimate good desired is better reached by free trade in ideas--that the best test of truth is
the power of the thought to get itself accepted in the competition of the market, and that
truth is the only ground upon which their wishes can be carried out. That, at any rate, is
the theory of our Constitution. It is an experiment, as all life is an experiment."
"In the organic relations of modern society it may sometimes be hard to draw the line that
is supposed to limit the authority of the Legislature to exercise or delegate the power of
eminent domain. But to gather the streams from waste and to draw from them energy,
labor without brains, and so to save mankind from toil that it can be spared, is to supply
what, next to intellect, is the very foundation of all our achievements and all our welfare.
If that purpose is not public, we should be at a loss to say what is."
"The Fourteenth Amendment does not enact Mr. Herbert Spencer's social statics."
"While the courts must exercise a judgment of their own, it by no means is true that
every law is void which may seem to the judges who pass upon it, excessive, unsuited to
its ostensible end, or based upon conceptions of morality with which they disagree.
Considerable latitude must be allowed for difference of view as well as for possible
peculiar conditions which this court can know but imperfectly, if at all. Otherwise a
Constitution, instead of embodying only relatively fundamental rules of right, as
generally understood by all English-speaking communities, would become the partisan of
a particular set of ethical or economic opinions, which by no means are held semper
ubique et ab omnibus."
His contribution to American life was not limited to the law. He lived as he advised
others to live, in the "grand manner." He sought quality rather than quantity of
experience and knowledge of his success in living helped others to find it, too.
On his ninetieth birthday he delivered a short radio speech in reply to tributes from Chief
Justice Hughes and other leaders of the American bar.
From a Latin poet he quoted the words:
"Death plucks my ears and says, 'Live--I am coming.'"
And in one line he gave the core of a life philosophy:
"To live is to function; that is all there is to living."
Left Bench Jan. 12, 1932
Justice Holmes resigned on Jan. 12, 1932. "The time has now come and I bow to the
inevitable," he wrote to the President. He left, amid national regret, almost thirty years
after he had been appointed to the Supreme Court bench.
Soon after that, in a message to the Federal Bar Association, Justice Holmes wrote:
"I cannot say farewell to life and you in formal words. Life seems to me like a Japanese
picture which our imagination does not allow to end with the margin. We aim at the
infinite, and when our arrow falls to earth it is in flames.
"At times the ambitious ends of life have made it seem to me lonely, but it has not been.
You have given me the companionship of dear friends who have helped to keep alive the
fire in my heart. If I could think that I had sent a spark to those who come after, I should
be ready to say good-bye."
Justice Holmes was an honorary member of the Honourable Society of Lincoln's Inn,
London, to which also belonged such men as Oliver Cromwell, William Pitt, Benjamin
Disraeli and William Ewart Gladstone.
Soon after retiring, his salary was cut in two by reason of the economy law. It was
restored to $20,000 a year a few months later, however, by special action of the Senate.
In the Fall of 1931 appeared the "Representative Opinions of Mr. Justice Holmes."
Mrs. Holmes died on April 30, 1929.
Justice Oliver Wendell Holmes: law and the inner self
由 G. Edward White 著作 - 1995 - Literary Criticism - 648 頁He
wrote one of the classic works of American legal scholarship, The
Common Law, and he served with distinction on the Supreme Court of the
United States.
奥利弗·
温德尔·
霍姆斯:
法律与
本我/
法律家传记系列: 作者：(美)
怀特著
- 编号：40525
- 书名：奥利弗·温德尔·霍姆斯:法律与本我/法律家传记系列
- 作者：(美)怀特著
- 出版社：法律
- 出版时间：2009-5-1
- 定价：49元
作
者爱德华·怀特没有把霍姆斯写成一个不食人间烟火的神人，而是把他的平凡和平凡中的奇特之处一一写下来。爱德华用霍姆斯的著述、他的书信、他的日记和他
同时代的亲人、朋友、同学、同事、秘书、情人和崇拜者对他的评论、记述来展现一个有血有肉、有情有欲、有优点有缺点、有慷慨悲歌有畏首畏尾、有平凡有伟大
的霍姆斯的生平和他的思想。
霍姆斯不是一个完人，他是一个绝对的凡人。他的成就是一个凡人通过克已、努力、专注、坚持，最后达到了光辉的顶点。他对法律科学成就的追求、专注达到了可以牺牲一切个人兴趣的程度。
从马萨诸塞州最高法院到美国联邦最高法院，霍姆斯一口气坐了四十九年，空前绝后。霍姆斯长寿，九十三岁去世时，他同时代的人几乎走光了。政府在著名的爱灵顿公墓给他留了一席。几名当时在任的美国联邦最高法院大法官为他扶柩，风光之极。
图书目录
引言
第一章 身世
第二章 内战
第三章 友谊、伙伴和同行
第四章 走向成熟：早期的法学学术活动
第五章 普通法
第六章 全面认识法律
第七章 旅行与浪漫史
第八章 马萨诸塞州最高法院
第九章 最高法院 1903-1916
第十章 公认
第十一章 最高法院，1917年-1931年：“进步的法官”
第十二章 最高法院，1917年-1931年：言论自
第十三章 老年生活
第十四章 最后评价
附件：霍姆斯的秘书名单
书目提要
索引
