Enlisted For Life

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He was born in 1841, in a Boston that took its water from backyard wells and its light from whale-oil lamps. He died ninety-four years later in a nation that the army pilot James Doolittle had just crossed in twelve hours. Between the birth and the death came a career and a renown few achieve, and thirty years of serving as one of the most brilliant, influential, and revered Justices of the Supreme Court. Here, Holmes reached what he himself regarded as the apogee of a lawyer’s power and service: “To set in motion principles and influences which shape the thought and action of generations which know not by whose command they move.”

In a life of ninety-four years, many influences shape a man’s convictions, thought, and outlook. But for Holmes, as all his biographers agree, one experience cut more deeply than any other: the Civil War. This appears plain to even a casual reader of Holmes’s off-bench writings: aside from his only book-length work, The Common Law , he published a collection of law-oriented essays, Collected Legal Papers , and a volume of speeches. Since his death, portions of his voluminous correspondence have also seen print.

Apart from his judicial opinions, his writings are not extensive, particularly the public utterances. Yet one does not exaggerate to say their chief metaphors are war, masculine physical strength, military spirit, wartime violence, and heroic death. Of course, in some settings, this machismo is appropriate, given the occasion and the oratorical style of the day. When Holmes told a veterans’ reunion “what the war did for our souls. It is the romantic spirit. It is the fire of life,” the sentiment is apt, even though one might suggest that the fire of war relates more fitly to death than to life. But what does strike us is Holmes’s constant insertion of the war-and-death themes in nonmartial, almost pastoral, settings. Whatever the vehicle, Holmes uses it to send a violent message: War is not merely tolerable, it is inevitable and good; life is a battle; the only worthwhile man—indeed, the only virile man—is the fighter. Consider some of the words he spoke:

•“At the grave of a hero … we end not with sorrow at the inevitable loss, but with the contagion of his courage; and with a kind of desperate joy we go back to the fight.”

•“Another generation is upon the Bench. Another generation is in the first line at the Bar. We who yesterday were not engaged, and watched, as we held our places in reserve, the dark electric outline of those in front against the white smoke of the firing, have seen their line thin and one by one the leaders drop from their horses. We have had our orders and we have stepped forward to take our turn in the encounter which has but one end. In the short burial truce we carry to the grave our dead with honor and with the contained sorrow of men who know that their own turn is not far off.”

•“But after all the place for a man who is complete in all his powers is in the fight.”

•“Honor is better than a whole skin. It is worse to be a coward than to lose an arm.” “It is better to be killed than to have a flabby soul.”

•“We are here—a few men in a room, unhelped, simply stopping for a moment to look the greatest of all facts in the face, to honor the dead, and then like soldiers to go back to the front and fight until we follow our brothers. Both of those whom we commemorate were fighting men and so helped to teach us how to do our fighting—helped us to remember that when war has begun any cause is good, that life is war, and that the part of man in it is to be strong.”

•“The troops are deployed. They will follow their leader. We will not falter, we will not fail. We will reach the earthworks if we live, and if we fall we will leave our spirit in those who follow, and they will not turn back. All is ready, Bugler, blow the charge.”

This last was Holmes’s peroration to a speech at a farewell banquet given by the Middlesex Bar Association, December 3,1902, five days before Holmes took his seat on the United States Supreme Court. A man who equates joining the Supreme Court with storming an entrenched enemy, or a deceased court clerk with a battle casualty, is—with due allowance for Victorian overexpression—plainly living out some sort of fantasy. When the mind indulging this persistent riot of imagination is one of the clearest and most perceptive intellects ever to grace an American bench, the root cause must lie deep indeed. Although the excerpts date from the 189Os to 1920, Holmes continued to bring the war into his casual literary efforts. On September 15, 1926, well past eighty-five years old, he wrote Harold Laski: “64 years ago on the 17th I was at Antietam and nearly killed.” And on February 24,1931, replying to a request from the President of Washington State College, who had asked for a note from Holmes to students wishing to celebrate his ninetieth birthday, Holmes wrote: “On the eighth of March, 1862, 69 years ago, the Sloop Cumberland was sunk by the Merrimac, off Newport News. The vessel went down with her flag flying—and when a little later my regiment arrived to begin the campaign on the Peninsula I saw the flag still flying above the waters beneath which the Cumberland lay. It was a lifelong text for a young man. Fight to the end and go down with your flag at the peak. I hope that I shall be able to do it—and that your students may live and die by the same text.”

Holmes Goes to War

Holmes’s wartime service began with his enlistment shortly before his Harvard class was scheduled to graduate. Having passed a month as a private, he received a first lieutenant’s commission in the 20th Regiment, Massachusetts Volunteers, on July 23, 1861. Years later, he furnished this summary of his full war record: “Served 3 yrs. with 20th Mass. Volunteers, lieutenant to lieutenant colonel; wounded in breast at Ball’s Bluff, Oct. 21, 1861, in neck at Antietam, Sept. 17, 1862, in foot at Marye’s Hill, Fredericksburg, May 3, 1863; a.-d.-c. [aide de camp] on staff Gen. H. G. Wright, Jan. 19, 1864, until mustered out July 17,1864, with rank of captain.” The “austere completeness” of this statement, to use Justice Felix Frankfurter’s phrase, provides the first clue toward an explanation of Holmes’s literary ferocity. But to appreciate its significance, Holmes’s meager recital must be fleshed out.

Holmes’s actual war largely encompassed much of the history of the 20th Massachusetts, which went South in September 1861 and, on October 21, fought in the bungled reconnaissance now known as the Battle of Ball’s Bluff. Here the regiment took its first casualties, and Holmes his first wound. Shot through the fleshy part of the chest, Holmes went home to Boston and spent the winter there and at the family’s summer home in Pittsfield on recruiting duty while the regiment—with the rest of Gen. George McClellan’s Army of the Potomac—trained for the great push on Richmond.

“When next I looked, he was gone”

A few days after Holmes rejoined his men, the campaign began. The army inched up the Virginia peninsula, pressing on to within sight of the Confederate capital, where it halted and then hastily lost all that its blood had earned. Throughout the last stretch—the collection of battles known as the Seven Days—Holmes used to “wonder if that damned sun ever would go down—a dispirited army fighting by day and marching for the James by night.”

Years later Holmes remembered that, during one of the last fights at Glendale, he “looked down the line” and saw a cousin, James Jackson Lowell, first scholar of Harvard’s Class of 1858. “The officers were at the head of their companies. The advance was beginning. We caught each other’s eye and saluted. When next I looked, he was gone.” But Holmes would remember him many times, and in many places.

For the rest of the summer, while the 20th saw no action, the Army of the Potomac fought and lost the Second Battle of Bull Run. In September, Lee’s Army of Northern Virginia moved into Maryland. The Army of the Potomac followed, and on September 17, 1862, fought the bloodiest battle of the war alongside Antietam Creek, near Sharpsburg, Maryland.

During mid-morning, the 20th, along with most of its brigade and division, fell into a raking cross-fire and was forced from the field. In the melee, Holmes was hit again.

At this point it is worth recalling that Holmes went to war not only in his own person but also as the son of a doctor whose writings were familiar to virtually every literate American. Most people meeting Holmes would instantly connect him with his father, the Autocrat of the Breakfast Table—the persona Holmes Sr. used to express his opinions on the foibles of mankind. This connection would sometimes work to Holmes’s advantage, but it played a contradictory role after Antietam. A quartermaster officer, learning Holmes’s identity, immediately telegraphed Dr. Holmes: “Captain Holmes wounded shot through the neck not thought mortal at Keedysville.” Within hours after receiving this, Holmes senior was heading south. He found his son and promptly converted the whole adventure into one of the Civil War’s most famous literary artifacts, “My Hunt After The Captain,’ ” published in the December 1862 Atlantic Monthly . In today’s terms, this was exposure equivalent to an appearance on three network talk shows and a write-up in People magazine. Henceforth, Holmes was not only the Autocrat’s son, he was The Captain.

Nearly fatal though the shot was, Holmes required a shorter convalescence than he did for either of his other two wounds. Within two months of Antietam he had rejoined the regiment; the second part of his Civil War experience was about to begin.

A Deadly Stroll down Farquhar Street

By now Lincoln had removed McClellan, giving the Army of the Potomac to that genial incompetent. Ambrose Burnside. The new commander proposed to move south on Richmond, after a mass crossing of the Rappahannock River at Fredericksburg, Virginia. Instead of locating a suitable ford below the town, Burnside chose to wait for special pontoons, designed to let his engineers throw a bridge across. Predictably, during the delay, Confederate sharpshooters ensconced themselves in the waterfront buildings, picking off Burnside’s bridge builders and frustrating the Union advance.

Burnside then determined to clear the town by sending a few regiments across the river, using the pontoons as primitive landing craft. The 19th Massachusetts, 7th Michigan, and 89th New York were detailed for this work, with the 20th Massachusetts assigned to lead the army over the bridge as soon as the engineers could complete it. Through misunderstanding, however, the 20th also went over in the pontoons. Once ashore, the regiment formed to clear Farquhar and Caroline streets, where heavy firing had pinned down the 19th Massachusetts. Holmes describes what happened next: “[Acting Col. George N.] Macy says quietly ‘Mr. [Henry L.] Abbott [acting Major] you will take your first platoon forward’ to which Abbott [says] ‘1st Platoon forward—March.’ In less than sixty seconds he would become the focus of a hidden and annihilating fire from a semicircle of houses. His first platoon had vanished under it in an instant, ten men falling dead by his side. He had quietly turned back to where the other half of his company was waiting, had given the order, ‘Second platoon, forward!’ and was again moving on, in obedience to superior command, to certain and useless death, when the order he was obeying was countermanded. The end was distant only a few seconds; but if you had seen him with his indifferent carriage, and sword swinging from his finger like a cane, you never would have suspected that he was doing more than conducting a company drill on the camp parade ground.”

The vivid description of Abbott’s heroics reads like an eyewitness account; the truth, however, is that Holmes—whose seniority entitled him to the place that Abbott occupied—was nowhere near the death-filled street.

All the while that Macy and, particularly, Abbott were leading the regiment to what has been rightly called its most memorable distinction, Holmes was across the river, invalided with dysentery. From a hill he saw the battle, “a terrible sight when your Regiment is in it but you are safe. Oh what self reproaches have I gone through for what I could not help and the doctor, no easy hand, declared necessary.”

The Civil War that Holmes missed had begun; unlike the actual war that he fought, this one would not end until 1935. The “self reproaches” that began on a Virginia hilltop swirled through Holmes’s character for the rest of his life. Objectively, they certainly were unjustified. Dysentery was a common ailment in a military that understood little about sanitation and nothing about germs, and it had been troubling Holmes since the Peninsular Campaign. Still, he never quite accepted the reality. Perhaps he thought that he had not done his duty. Whatever the cause, plainly he wished to believe forever after that he had walked with Abbott in that deadly stroll down Farquhar Street.

 
A man who equates joining the Supreme Court with storming an entrenched enemy is living out some sort of fantasy.

Once the 20th Regiment and its sisters had cleared the bridgehead, construction of the pontoon path followed quickly, and the Army of the Potomac crossed, Burnside foolishly eager to resume the fight. Now, however, instead of a brigade of Mississippi sharpshooters, he faced all of Lee’s infantry and artillery, sighting down their rifles and cannon from prepared positions at the top of a long ridge behind the town.

While Holmes watched from the hill across the river, Burnside sent wave after wave of bluecoated infantry up the slopes of Marye’s Heights. There the Confederate riflemen, safe behind a stone wall, killed them as fast as they came: not a single Union soldier reached the Southern lines. The 20th, sent in with Hall’s brigade to try flanking the wall, “got it with cannister,” and half of Holmes’s company took wounds; Nathan Hayward, the regimental surgeon, “looked like a butcher, red up to chin and elbows.”

Back to Fredericksburg, on to Gettysburg

Next May, under a new commander, the avuncular John Sedgwick, whom Holmes admired (and who apparently liked Holmes), the 20th was back at Fredericksburg.

Sedgwick’s first objective was Marye’s Heights, defended this time by a gray line much shorter and thinner than what Burnside’s doomed brigades faced during December’s agony. From in and behind the Confederate lines, artillery supported the riflemen. As Holmes and the 20th moved to their assault positions, along a road at the foot of the Heights, a Confederate gun crew wheeled its piece into place no farther from the regiment, Holmes later recalled, than Boston’s Beacon Street is from Tremont Street (about three city blocks).

Spherical case—a shell containing musket balls, time-fused to explode in the air—began detonating overhead. The first burst hit Holmes’s knapsack supporter. The second wounded the man lying ahead of him. The next put a slug into Holmes’s heel bone. For the third time, Holmes was out of the war. Oddly, of his three wounds, this was at once the least life-threatening and the most disabling; he would not return to duty for almost nine months, and except for a few days in January 1864, he would never serve with the 20th again.

Once again another man had occupied his place at the forefront of the army. Holmes had lost the glory.
 

Throughout the rest of the year, Holmes remained at home, recovering. While Lee moved into Pennsylvania, followed closely by the Army of the Potomac, Holmes was in Boston, undertaking (but not always completing) some serious reading.

At a crossroads town called Gettysburg, the armies met and decided the war. After two days of bloody, indecisive fighting, Federal troops faced Lee across a little valley. The 20th was posted near a clump of trees, just forward of an artillery line that was firing casually at occasional Confederate attempts to position a battery. 1st Lt. Henry Ropes, brother of Holmes’s friend John C. Ropes, the Boston lawyer, was whiling away the wait by reading Dickens. Suddenly a round from one of the Federal Parrott guns detonated on discharge, sprayed its shrapnel over the nearby troops, and killed Ropes.

Later in the day a more general artillery duel developed, shaking the earth and the armies. It was the prelude to that epic of gallantry and futility we know today as Pickett’s Charge. Of course, Pickett failed. But before his assault receded, taking the Confederacy with it, a few hundred Virginians actually broke part of the Union line. For perhaps fifteen minutes, the area around the cluster of trees where Ropes had died became, as Bruce Catton once wrote, “the bloody cockpit of the whole war, the place where men on foot with guns in their hands would arrive at a verdict.”

At the point of impact Alexander Webb’s diminished Pennsylvania brigade, meeting Pickett’s concentrated thrust, began to fall apart. Colonel Hall’s brigade, including the 20th and the other three regiments that had cleared Fredericksburg, rushed into the gap. Macy, the 20th’s acting colonel, had just lost a hand, so in Holmes’s absence, command devolved upon Abbott, who “gallantly led over his fine regiment.”

The 20th and the 19th Massachusetts plunged straight through Webb’s almost broken ranks. As one eyewitness described the scene: “No threats or expostulation now, only example and encouragement. All depths of passion are stirred, and all combatives fire, down to their deep foundations. Individuality is drowned in a sea of clamor, and timid men, breathing the breath of the multitude, are brave. The frequent dead and wounded lie where they stagger and fall—there is no humanity for them now, and none can be spared to care for them. The men do not cheer or shout; they growl, and over that uneasy sea, heard with the roar of musketry, sweeps the muttered thunder of a storm of growls. Webb, Hall, Devereux [of the 19th Massachusetts], Mallon [of the 42d New York], Abbott among the men where all are heroes, are doing deeds of note. Now the loyal wave rolls up … [then] the wave swings back. Again it surges, and again it sinks. … The line springs … heaves forward its maddened lead, men, arms, smoke, fire, a fighting mass … [a] moment ensues of thrusts, yells, blows, shots, and undistinguishable conflict, followed by a shout universal that makes the welkin ring again, and the last and bloodiest fight of the great battle of Gettysburg is ended and won.”

Holmes, in Boston with his slow-closing wound, missed the triumph. Once again Abbott had occupied Holmes’s place, at the head of the 20th, at the forefront of the army. Holmes had lost the glory; but—perhaps more significant—he had been spared the danger upon which the glory rested. This last thought must have struck him sharply when, shortly after the battle, Henry Ropes’s body came home to Boston. Although John Ropes asked Holmes to serve as a pallbearer, the body was, as Ropes said, “not in condition to be seen,” with “a fearful wound in the region of the heart, a sad and shocking sight.” Holmes’s young cousin, Sumner Paine, fresh out of Harvard, had also died in the climactic melee.

Remembering Skulls

He rejoined the regiment in early January 1864, but before the month was out, Sedgwick ordered him to the staff of Maj. Gen. Horatio G. Wright, commanding general, First Division, VI Corps. From then until he finally left the army six months later, Holmes served as a staff officer, first at the division level and later, when Wright replaced Sedgwick, at VI Corps headquarters. That period of service coincided with Grant’s assumption of command and his grim campaign of attrition. From May on, through a series of death-haunted battles, the new commander stuck to his bloody business: the Wilderness, Spotsylvania, Cold Harbor, and Petersburg.

Holmes was out of the line, and in a sense better off than if he had been with the regiment. “I am so much safer than any infantry officer that I don’t grumble,” he wrote home. Staff officers lived at headquarters—frequently under canvas—and often ate and drank (and even sang) in what Holmes called “a singular contrast to troops marching by, working parties, etc., etc.” This very advantage, however, troubled Holmes, for though safer, he felt he was “earning less honor though learning much more.”

In fact, a staff officer during the kind of campaign that Grant was waging in the Virginia thickets led an existence both dangerous and demanding. Bullets and shells killed generals and staff officers as readily as they did privates. Moreover, the need to cover debated territory sometimes led Holmes to direct contact with the enemy: “About an hour before sunset the General [i.e., Wright] gave me a dispatch to [Maj. Gen. David A.] Russell [commanding First Division, VI Corps] and told me not to spare my horse. When I turned from plantation road into lane [Brig. Gen. Emory] Upton’s boyscout came riding along back full tilt and sung out to me not to go on, he had been fired at by 2 reb cavalry. Dilemma—concluded must go on. Picked up a straggler (infantry), and unarmed man on a mule, a sick officer and the boy and was starting when I saw 3 or 4 cavalry foragers. Got them and sent back rest except Upton’s boy whose head is level. Trot to place where boy was shot at—then gallop to where the road bends to right—bang—whiz—‘Halt’ ‘Surrender’ from about 20 Rebs in line. I thought it was a mistake and they were friends and begun to pull up but saw the gray jackets and clapped the spurs to my horse. Much shooting. Presently a fellow comes down the road: ‘Surrender.’ He hadn’t got his carbine quite unslung and I put my pistol to his breast and pulled trigger. Missed fire. Then he and others on right of road do shooting I lying along the side of horse Comanche fashion. Two of my men got through with me. I soon struck pickets and Duffy [one of Russell’s staff]. Saw Russell and returned on other road with answer.”

The episode merits our attention for two reasons. First, it shows that Holmes, on the staff, was—and knew he was—as much exposed to death in action as any line officer. Second, the memory became a particular piece of Holmes’s war nostalgia. In 1931, just after he left the Supreme Court, he wrote his friend Frederick Pollock: “I sometimes think of the chap I met when I was carrying an Order in 1864. I was face to face with him and meant to kill him, but I don’t believe that I should recognize him if I met him. Even if I were told who he was. However, the chances are that he is only a skull by this time—and one doesn’t remember skulls.”

But, of course, Holmes very much remembered skulls. And he associated death most especially with the campaigns of 1864. It was during that time of excruciating pressure—physical, emotional, and moral—that Holmes suffered his most serious personal loss of the war. On May 6, at the head of the old regiment, Acting Colonel Abbott sustained a mortal wound. Twenty years later Holmes would say of him: “His death seemed to end a portion of our life also.” In a poem published a few months after Abbott’s death, he expressed the thought another way: “Yet, noble heart, full soon we follow thee/Lit by the deed that flamed along thy track.”

Less poignant but still jolting bereavement struck Holmes three days after Abbott died: “Whittier rode up to General Wright with news that Sedgwick was killed. We had been with him a moment before. He was in an exposed angle between Warren’s front and ours and had just been chaffing a man for ducking at the bullets of a sharpshooter; saying ‘Why man they couldn’t hit an elephant here at this distance.’ He was struck on one side of the nose and sunk senseless and soon died.”

“… I mean to leave at the end of the campaign”

Holmes wrote to his parents: “These nearly two weeks have contained all of fatigue and horror that war can furnish.” After the Bloody Angle of Spotsylvania, where Holmes saw “the dead of both sides … piled in the trenches five or six deep—wounded often writhing under superincumbent dead,” he was nearing the end of his endurance. The VI Corps alone lost between nine and ten thousand men from May 4 to May 13.

“I have made up my mind to stay on the staff if possible till the end of the campaign and then if I am alive, I shall resign. I have felt for some time that I didn’t any longer believe in this being a duty and so I mean to leave at the end of the campaign as I said if I’m not killed before.”

He had reached his decision, and he stuck to it, despite parental suggestions that he might be abandoning his duty. “I started in this thing a boy [he responded]. I am now a man and I have been coming to the conclusion for the last six months that my duty has changed. I can do a disagreeable thing or face a great danger coolly enough when I know it is a duty. But a doubt demoralizes me as it does any nervous [i.e., high-strung] man. And now 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 to myself, to the country and, if you choose, to God.”

One more military adventure remained. At the beginning of July, a strong Confederate force under Jubal Early plunged north into Maryland, then east toward Baltimore, intending to strike at Washington from the northwest. While Maj. Gen. Lew Wallace and a ragged, pickup detachment delayed Eariy at Monocacy Creek, Grant hurried the VI Corps (now under Wright) to reinforce the endangered capital’s thin garrison.

Arriving just as Early did, Wright’s veterans manned the ring of protective works, especially Fort Stevens, directly athwart Early’s path. On July 11 and 12 the President himself came to the fort to observe the skirmishing. During one of his visits Lincoln stretched his tall form above the breastworks. Holmes, not recognizing his Commander in Chief, instinctively shouted, “Get down you damn fool, before you get shot!” The President complied.

Faced with fully defended fortifications, Early retreated. Grant then ordered Wright and the VI Corps to report to Sheridan’s Army of the Shenandoah. On July 17, however, the 20th Regiment’s three years of Federal service expired. Although some reenlisted, Holmes, declining further staff or line duty, had ended his active Civil War service.

During those few days just before leaving the army, Holmes ran across his older cousin and boyhood idol, cavalry colonel Charles Lowell, and they speculated about who the country would remember after the war. Lowell mentioned Lincoln, “but,” Holmes later recalled, “I think we both smiled.” We do not know whether the conversation also covered Lowell’s brother James, who had died after saluting Holmes at Glendale, urging his troops, “Don’t mind me, men; go forward.” Nor can we tell whether they talked of Lowell’s brother-in-law, Robert Gould Shaw, cut down at the head of his all-black regiment in 1863.

From Petersburg, where he had received his discharge, Holmes headed north. In Washington he met his old regimental friend, William Francis Bartlett. Now a brigadier general (despite losing his left leg at Williamsburg in May 1862), Bartlett was hurrying south to resume command of his brigade in the Petersburg trenches. Then Holmes went back to Boston, to the Class of 1861’s dinner and, at the vigorous suggestion of the Autocrat, to the Harvard Law School. The war that Holmes had left continued to return to him. At the height of the battle of Cedar Creek, an already wounded “Charley” Lowell, charging a battery with his brigade, took a second shot, which cut his spinal cord and ended his life.

The funeral took place in Harvard’s Appleton Chapel. An eyewitness described the scene. “I remember one rainy fOctober] day when the sudden gusts blew the yellow leaves in showers from the College elms, hearing the beautiful notes of Pleyel’s Hymn, which was the tune to which soldiers were borne to burial, played by the band as the procession came, bearing Charles Lowell’s body from his mother’s house to the College Chapel; and seeing the coffin, wrapped in the flag, carried to the altar by soldiers; and how strangely in contrast with the new blue overcoats and fresh white and red bunting were the campaign-soiled cap and gauntlets, the worn hilt and battered scabbard of the sword that lay on the coffin.”

Given his relationship to Lowell, it is inconceivable that Holmes was not present to hear the Reverend George Putnam say: “So we must not grudge what our dear country has required of us, but must give more, and take back her infinite compensations—give all she asks and needs—give ourselves and our dearest—and give on, and to the uttermost, till she is redeemed, rehabilitated, re-enthroned.”

And the war ground on: Lincoln’s re-election; the march through Georgia; the triumph at Nashville; the siege of Petersburg; the breakthrough at Five Forks; Appomattox.

Peace. By July, Holmes had finished his first year of law school; yet his direct war experience did not end until July 21,1865, Commemoration Day, when the Harvard community joined the sons who had returned to honor those who did not. In the morning, with the 20th’s old colonel Henry Lee as marshal, the alumni veterans marched in uniform through the Yard and heard a “matchless prayer of resignation and of triumph” by Phillips Brooks. After a luncheon spread, the crowd gathered next to Harvard Hall to hear speeches and poems from dignitaries in and out of uniform. Perhaps the most striking utterance came from William Francis Bartlett, maimed by his wounds and gaunt from his captivity in Libby Prison—he had been captured at Petersburg. When, unable to find the right words, the general hesitated, Colonel Lee quickly rose and turned an embarrassment into a poignant triumph: “As the Speaker of the House of Burgesses of Virginia said to Washington,” he intoned, “Sit down, sir, your modesty is equal to your valor, and that surpasses the power oi any language I possess.”

Of everything said or done that proud and tragic day, James Russell Lowell’s “Ode” has remained longest in memory. Its rolling periods capture the Civil War experience in a thunder and a sob that none have ever matched. Beyond that, perhaps, Lowell’s words carried special significance to some of his listeners:

Fitlier may others greet the living, For me the past is unforgiving; I with uncovered head Salute the sacred dead, Who went, and who return not. And to the saner mind We rather seem the dead that stayed behind.” The Ghosts of Memorial Hall

Holmes’s attention to the Harvard-war relationship continued intensely during the immediate postwar years. As soon as the fighting ended, Thomas Wentworth Higginson (Class of 1841), former colonel of a black regiment, undertook to edit a set of brief lives of Harvard men who had died in the war. To the two volumes of Harvard Memorial Biographies , Holmes contributed a piece on his classmate Arthur Dehon, killed at Fredericksburg.

It is almost certain that Holmes read what Francis W. Palfrey wrote in the memoir of Abbott that he contributed to the Memorial Biographies : “No temptation could induce him to leave his regiment to perform the easier and safer and more agreeable duties of the staff.”

Following completion of the law school’s two-year program in 1866, Holmes turned to practice and, increasingly, scholarship—in the form of articles, book reviews, and a revision of Kent’s Commentaries . In 1874 Harvard dedicated the massive Memorial Hall, laid out like a church. Its transepts bore on their walls the names of the Harvard dead, arranged by classes, each listing the date and place of death. Even today, to stand in that dimly lit chamber before those tablets is to feel in an almost physical way the enormity of the loss, not only to Harvard but to the entire nation.

At the commencement dinner in Memorial Hall, the day after its dedication, Bartlett spoke of reconciliation and peace and of the “beloved names on those marble tablets. … Whatever change of fortune may come to us as the years roll on, their fame is secure—immutable—immortal. We shall grow old and wear out, but they will always keep for us their glorious, spotless youth.” Two years later, Bartlett himself was dead, in part from the privations to which the war had subjected him. Palfrey, the 20th’s old lieutenant colonel, wrote a memoir, which Holmes read. “I had admired him as a hero. When I read, I learned to revere him as a saint.”

Holmes’s greatest address is at once a statement of the war experience and a plea for personal absolution.
 

On Memorial Day 1884, at Keene, New Hampshire, Holmes gave an address that has stood for a century as the most expressive summary by a participant of the war’s meaning to those who fought it. We do not know what brought Holmes to Keene, a town with which he seems not to have had any particular ties. The event was sponsored by the John Sedgwick Post No. 4, Grand Army of the Republic; it may be that one of the members had served with Holmes in the VI Corps. At any rate, the speech was a classic of its genre. For our purposes, however, the most notable feature is not its drama or its famous phrases: “I think that, as life is action and passion, it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived” and “Through our great good fortune, in our youth our hearts were touched with fire.”

Rather, the most striking aspect of the speech is its intensely personal nature. In its description of events and its cameo descriptions of his dead comrades, it serves as a précis of Holmes’s own war experience. He describes his desperate encounter with the Confederate horseman; he refers to his Ball’s Bluff wound; he reenacts the farewell to James Lowell at Glendale; and he depicts, as though he were an eyewitness, Abbott’s courage in the bullet-swept streets of Fredericksburg.

Beyond this, he introduces us, anonymously, to his old comrades, those spirits who return on Memorial Day and at the “regimental dinner, where the ghosts sit at table more numerous than the living”: Col. Paul J. Revere; his brother, Dr. Edward H. Revere; Willie Putnam; Charles Cabot; Dr. Nathan Hayward; Abbott; Lowell; and Bartlett. Holmes tells us that “their lives are the type of what every soldier has known and seen in his own company.” Yet one could excise the portraits of the regimental comrades without marring Holmes’s structure, his thought, or his eloquence. Indeed, in the form that Holmes gave it, the vignettes of his dead friends are entirely unnecessary to the nature of the address, which is a formal celebration of Memorial Day before an audience of strangers. None of the men he described had any more connection with the place or the hearers than Holmes did. One is left, then, with the distinct feeling that Holmes was speaking of his fallen fellow-officers not because they typified the Union dead, but because of some need personal to himself.

Holmes seems to have been, for all his gregariousness, a man who guarded his own privacy closely. The Memorial Day address allowed him not only to display his feelings without appearing to, but also to put himself again in the company of those whose standards he felt that he had abandoned. This magnificent piece of prose, which one critic has ranked with the Gettysburg Address, is simultaneously a statement of the war experience and an anguished plea for individual absolution.

Over the years. Holmes gave at least four other Civil War addresses; two in Memorial Hall, two at veterans’ reunions. They are all eloquent; indeed, one, “The Soldier’s Faith,” given at Harvard on Mek morial Day 1895, is the most explicit statement of Holmes’s philosophy of l uncomplaining acceptance of duty and destiny. And it, too, equates war-death with life: “We have shared the incommunicable experience of war; we have felt, we still feel, the passion of life to its top.” Here, again, Holmes recites some of his own history: the shelling during Chancellorsville; the horrors of Spotsylvania; the Wilderness Campaign. Those, he says, who have shared these experiences “know that there is such a thing as the faith I spoke of. You know your own weakness and are modest; but you know that man has in him that unspeakable somewhat which makes him capable of miracle, able to lift himself by the might of his own soul, unaided, able to face annihilation for a blind belief.”

Put into the context of his own personal history, this expression seems an effort by Holmes to persuade himself that because he did face the holocaust, his survival is no evidence that he broke his trust. “The Soldier’s Faith” refers not only to faith in the sense of belief, it means, for Holmes, that he has remained true to the ideals in whose service Abbott, Lowell, Bartlett, and the rest willingly died. Holmes has lived; but he has kept the faith, the soldier’s faith.

“I felt that if I declined the struggle … I should never be so happy again”

Apart from the speeches, we have very little evidence of Holmes’s direct Civil War associations in i later life. His comnlex relation to the struggle may have played a part in his appointment to the Massachusetts Supreme Judicial Court. In 1882, after protracted negotiation, Holmes had accepted a professorship at the Harvard Law School. This was the natural consequence of the scholarship he had demonstrated early on, a display culminating in his Lowell Lectures and the classic of legal thought, The Common Law .

Holmes came to teaching with a clear understanding that, although he was bound not to return to practice for five years, he was free to accept a judgeship if one were offered. One was, late in 1882, when a vacancy occurred in the Supreme Judicial Court.

Holmes had only been teaching for three months when he got the offer. He had been filling a newly endowed chair funded with the understanding, at least in part, that Holmes would be the first occupant. Moreover, going on the bench would probably not comport with the teaching load he was carrying. The Supreme Judicial Court in those days served not only as the appellate court of Massachusetts but also as an active trial court, whose justices sat throughout the commonwealth. It heard every type of case, from divorces to murder, and at that time was the only court possessing equity jurisdiction. On the other hand, the active life of a justice was apparently more attractive to Holmes than the quiet of academia. In later years he described the conflict characteristically: “Academic life is but half life—it is withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister.” This conviction emerged again and again: “But after all the place for a man who is complete in all his powers is in the fight. The professor, the man of letters, gives up one-half of life that his protected talent may grow and flower in peace. But to make up your mind at your peril upon a living question, for purposes of action, calls upon your whole nature.”

A letter written the month he accepted the appointment puts the point even more trenchantly: “I felt that if I declined the struggle offered me, I should never be so happy again—I should feel that I had chosen the less manly course.”

The shift from teaching to the bench offers an interesting contrast to Holmes’s departing the army in 1864, when he was leaving the hardships of active service and accepting comfortable safety.

In 1882 he was again quitting an unfinished assignment. This time, however, he felt his moral direction was correct. He was following the manly course, taking his protected talent away from the cloister, going out to fire and peril, to the struggle, to the fight—where the complete man should be. Small wonder that Holmes never bothered, as one irate Harvard colleague put it, “to sleep over it and to confer with those who had a right to be consulted.” Soldiers leaving for the front need no civilian passports.

What, then, does Holmes’s preoccupation with war mean? What are we to take from his evident immersion in soldiering, killing, and dying? To some extent, perhaps it is only an exceptional case of “survivor’s syndrome,” that combination of joy and guilt that sometimes afflicts those who have escaped a general disaster.

Objectively, of course, Holmes’s selfreproach lacked any rational basis. He had enlisted early, he had remained at his post, and he had returned to the front after three separate wounds, at least one of which might well have justified his leaving the service permanently.

All of us shape our lives and, to some extent, our self-appraisal by reference to the standards of the society in which we live. “The nearest [i.e., deepest] motive for good conduct” Holmes once wrote, “is found in the opinion of neighbors and friends.” It is worth noting here his repeated reference, often at the height of a professional or personal triumph, to his hope that he has not—of all things—failed.

If, as Holmes said, for the most powerful men, battle means either death or a generalship, and if, in fact, Holmes neither died nor became a general, does that mean that Holmes was not one of the most powerful—that is, the most courageous and manly—men? Measured against reality, the question is absurd. Holmes’s battle experiences, even—perhaps especially—his staff service, met every reasonable test of objective bravery. Moreover, as Holmes himself noted in another of his militaristic similes, the reward of a general is not a bigger tent; it is command.

Surely Holmes knew that, if nothing else, his judicial work had placed him among that small group he so admired, those thinkers who set the beat to which the future would march, a power “more real than that which commands an army.” Once again, however, objective reality is not so important as the reality that Holmes perceived, or, to put it more accurately, imagined. He had been to the war, and unlike Abbott, Shaw, and the Lowells, he had not died; nor had he, like Bartlett, come out a general. By his own standards, Holmes was not among the powerful.

If He Had It to Do Over

In one sense, then, it may be that Holmes’s incessant war metaphor represents an effort to convince others—and, of course, himself—that he did indeed perform in the way that his social class and his Harvard class demanded of a gentleman in the 1860s. All his life he worried that he had not met his obligation; if he had it to do again, he told friends, he would have stayed through the war.

It may have been this feeling of having failed his contemporaries that moved Holmes to his strong affinity with young swordsmen of the intellect. Holmes had left the army before the job was done, while Bartlett, “after he had more than paid his debt of suffering to his country with us, pressed again and again into the field, to suffer and shine still more”; Charley Lowell (married and wanting “so much” not to be hit) ignored a broken arm and a collapsed lung to ride to his death in the Valley; and Stephen Perkins, too ill to march, left an ambulance to fight and die at Cedar Mountain. Perhaps Holmes felt his implied debt to them forgiven because, in his old age, “the brilliant young soldiers still (gave) him a place in their councils of war.” Perhaps, through the voices of powerful young thinkers like Harold Laski and John Wigmore, he heard a message from Abbott and the others, praising, respecting and, above all, absolving. And perhaps, when the newly inaugurated Franklin D. Roosevelt asked for advice, and the ninety-two-year-old man replied, “Form your ranks and fight,” Holmes was merely telling the dead, the living, and—above all—himself that, on the brink of death, he was still keeping the soldier’s faith.