The Long Life And Broad Mind Of Mr. Justice Holmes


In light of the above, the way that his own military career ended may seem curious. The 20th Regiment had been enlisted for three years, and Holmes was entitled to be discharged in the summer of 1864. In July of that year, when the war had still eight of its bloodiest months to run, he resigned his commission and returned to Boston to study law. But Holmes never sought excuses, and he insisted in this as in all his other actions, on his individual prerogative. Here is what he wrote his parents: “I started this thing as a boy. 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 man—and 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.”

As an old man Holmes came to question the validity of this decision. But it was certainly consistent with his concept of independence. He never shrank before the enemy, nor did he shrink before the prospect of what his family and friends might think of his packing up and going home before Richmond had been taken. Certainly he never regarded this decision as qualifying his right to extol the military virtues to youth.

After Harvard Law School, Holmes was admitted to the Massachusetts bar in 1867. He practiced for a short time with his brother, Edward Jackson Holmes, and then joined the firm which became known as Shattuck, Holmes & Munroe, the Boston partnership with which his name has been predominantly associated. He had a general practice, with considerable litigation, but his great passion was exploring the origins of law to establish a theoretical basis for fundamental legal doctrine. In the course of the decade and a half before his appointment to the bench, Holmes dedicated most of his nights and weekends to this scholarship. Thus, even as a busy lawyer, he was able to edit the twelfth edition of Kent’s Commentaries on American Law in 1873, and in 1881, just before his fortieth birthday, he brought out his own enduring classic, The Common Law .

These years of law practice and scholarship constitute a rather arid period in the history of Holmes’s personality. The man who in 1897 could write to a friend of the divinity of vitality, the wonderful capability of complex and civilized man to “lark like a boy,” is scarcely perceptible in the midnight toiler. Yet this was also the period of his marriage, at thirty-one, to Fanny Dixwell, a few months older than himself, daughter of the headmaster of the school he had attended in preparation for Harvard. Mrs. Holmes, who lived almost as long as her husband, had a character that is difficult to piece out. Her complete devotion to Holmes has always been recognized. But she was a shy woman of few or no intimates. She was an efficient housekeeper, a serious artist in needlepoint, and a woman of strong will, few words, and sharp wit. Her adoration of her husband was probably intensified by the childlessness of their marriage, and she never interfered either with his work or with his pleasures. For example, she rarely accompanied him on his summer trips to England, giving as her excuse her dislike of the Atlantic voyage. But I suspect that she knew how much he loved the intellectual companionship of his English friends and felt that she was a drag on such expeditions.

Holmes and his wife lived at first with his parents, which could not have been easy for Fanny. That he must have considerably neglected her, working so intently, there can be little doubt. In the opinion of William James, at that time one of his best friends, all of Holmes’s noble qualities were poisoned by “cold blooded, conscious egotism and conceit,” and William’s mother, writing to her novelist son Henry in England, said of him: “His whole life, soul and body, is utterly absorbed in his last work [the Kent Commentaries ].”

Henry James was more perceptive than his brother. He was always one to appreciate the necessary loneliness of hard work, and he recognized in early youth that Holmes was destined to a great success, although “in a speciality.” In later years Holmes visited Henry James on trips to England, and the latter perceived that the former’s personality never essentially changed. Henry speculated that this quality of being inalterable might spring from a failure to live. This may seem a strange comment to be made about a warrior and a busy judge by a fussy old literary bachelor who had avoided military service in the Civil War, but its significance will be appreciated by those critics who have found in Holmes’s Olympian detachment a suggestion of occasional heartlessness, or at least indifference, to his fellow man. Henry put it more agreeably when he described Holmes as moving through life “like a full glass carried without spilling a drop.”