Doing Justice to Justice Holmes

Last week, Law School professor Paul Freund had occasion to recall his second meeting with Oliver Wendell Holmes. "We went up to the second floor study, where Holmes was seated, starched and stiffly erect in his ninety-third year, behind his desk. He wore a black cutaway and striped trousers, his skin was parchment, his hair luxuriant and silver, his cavalryman's moustachioes abundantly flowing." Freund remembered.

Freund's companion. Thomas g. Corcoran, told Holmes that he was "the primal flame to which we come to light our torches." The justice replied. "There may once have been a little spark, but now all is ashes." Freund remembered a "deathly silence" falling afterwards."

Freund's remarks came at the inauguration last Thursday of a special exhibition at the Law School marking the 40th anniversary of Holmes's death. A Harvard law professor and a distinguished Justice of the Massachusetts and United States Supreme Courts, Holmes stands as one of the intellectual titans of his age.

A brief ceremony was scheduled for the afternoon in the Law School Library, Shortly beforehand, several distinguished looking men, all well over 60, were leaning on glass cases and conversing in hushed tones. For these men, the articles in the cases evoked memories of the man they had all clerked for at one time or another.

"It seems like both yesterday and a lifetime ago," one of them remarked wistfully.

A small crowd of about 40 eventually gathered in the Treasury Room adjacent to the main library. With its heavy wooden paneling, subdued colors, and muted lighting, the room seemed like a perfect place in which to honor 'Justice Holmes. Dark grays and navy blues, those colors so basic to lawyers' wardrobes, predominated throughout the room. The low murmur lapsed into silence as Freund rose to deliver the main address.

"Within the chambers of the Court, he carried off his labors with a jauntiness of spirit that disguised the meticulous care of his note-taking off the bench and his analysis of the issues." Freund said of Holmes. He summed up his impression of the man by observing that "the joyous freedom of his mind, the greatness of his life, and the high way he took his mortality made him an exemplar for a time of searching."

After the ceremony broke up, the previously unidentified men came out from behind their cloak of gray flannel. Of the ten surviving Holmes clerks, seven had made it to the ceremony: Chauncey Belknap, Thomas G. Corcoran, Lawrence Curtis, H. Chapman Rose, Robert W. Wales, and Alger Hiss and his brother Donald.

"From the way Holmes plowed through Coleridge, you can imagine the type of mind he must have had," recalled "Tommy the Cork" Corcoran whom Holmes once described as "quite satisfactory, quite noisy, quite satisfactory."

Corcoran drafted much New Deal legislation as one of FDR's chief lieutenants, but in the past 20 years he has been criticized for defending the business world that he helped to regulate in the 1930s.

"Holmes gave us no advice," said Alger Hiss, probably the most famous of all the clerks present. "He always said form your battalions and fight."

Hiss attracted national attention in the early 1950s as a result of the "pumpkin Papers Case"--prosecuted by Congressman Richard M. Nixon--which ended in his conviction for perjury before the House Unamerican Activities Committee. Hiss would have been tried for espionage for the Soviet Union had the statute of limitations not run out. A wide body of public opinion still maintains his innocence.

When the group had dwindled to the Hiss brothers and a few lingering guests someone asked Alger Hiss if Holmes's reputation for profanity had any basis in truth.

"I only heard him say the word "shit' twice in the year I was with him," Hiss recalled. "He then turned around to correct himself, and declared 'I'm annoyed."

Erika S. Chadbourn, the curator of the Law School Library, has spent much time compiling the exhibit over the past year, drawing material from the library's collection of Holmes papers and memorabilia. The glass cases interspersed throughout the library each cover a different period in Holmes's life. "I try to tell a story that way," Chadbourn said of the exhibit, which will remain on display until June 15.

A death mask of Holmes, done by Mount Rushmore sculptor Gutzon Borglum, greets visitors as they enter the exhibit. This life-size stone mask has ghostly quality of authenticity, giving the impression of a slumbering Holmes presiding over the show.

A case of memorabilia comes next. Among photos of Holmes lies a printed program from "Harvard College Class Day Exercises 21 June. 1861," for which he wrote the class poem. A Harvard Commencement address he delivered in 1911 and various Civil War mementoes. Including his sword, are also here.

Unlike many other Boston Brahmins of the day. Holmes chose to plunge into the Civil War rather than flee it. He was seriously wounded three times, but kept coming back for more. On a worn piece of paper he scrawled. "I am Capt. O W Holmes 20th Mass son of Oliver Wendell Holmes M.D. Boston," He later explained in his Civil War Diary. "I wrote the above when I was lying in a little house on the held of Antietam which was for a while within the enemy's lines as I thought I might faint and so be unable to tell who I was."

Separate cases contain selected Holmes papers from his terms on the Massachusetts and United States Supreme Courts. "I think in construing the constitution we should remember that it is a frame of government for men of opposite opinions and for the future," men of opposite opinions and for the future," he wrote in 1894, exemplifying the philosophy behind many of his decision.

Holmes had vowed to write a book before he reached 40 and fulfilled the promise with several weeks to spare. The exhibit contains an autographed, first edition copy of The Common Law, the book which earned him a Law School professorship. A collection of lectures originally delivered at Boston's Lowell Institute in 1880. The Common Law is now a classic legal text which contains the famous dictum. "The life of the law has not been logic it has been experience."

Holmes maintained a wide range of correspondents, both American and foreign. He exchanged letters with such luminaries as the British economist Harold J. Laski and the brothers William and Henry James. An excerpt from hi travel diary dated May 26, 1866 reads: "...Then with them [Henry Adams and his family] to Gladstones...had quite a long talk with the Panjandrum G[ladstone] himself--whereat people stared. G in consideration of my wounds made me sit and I was a great gun."

Holmes was often known as "the Great Liberal" and "the Great Dissenter," but, says Chadbourn. "He wasn't that liberal and he didn't dissent all that much." In a series of sedition cases after World War I, Holmes authored the majority opinion which found Americans guilty of collaboration with the enemy. In Abrams et al vs. the United States, however, he relented with a dissenting opinion on the same issue.

Holmes dissents carried as much weight as his concurring opinions and, as a later Supreme Court, Justice, Fells Frankfurter commented they often "shaped history."

Holmes read extensively throughout his life, but bad his clerks read to him after the death of his wife. "Do we have to improve our minds today? Can't we have a little murder" he pleaded with Hiss one day. The exhibit contains Holmes' diary listing every book he ever read: ironically, the last entry in Thornton wilder's Heaven's My Destination.

The learned scholar was not without a wry sense of humor. When Law School professor Austin Scott, then just a student, and a roommate named McNeil visited the Justice at his home, they followed the traditional procedure of sending their calling cards up to him beforehand. Holmes came lumbering down the stairs, flipping the cards and reciting a ditty.

Deal and shuffle,

Shuffle and deal,

Which is Scott,

And which McNeil?

The Law School acquired the Holmes papers in 1968, after the death of Mark DeWolfe Howe, Holmes' official biographer. Howe was also a Holmes clerk and a Law School professor. Chadbourn has been planning the exhibit since 1968 but felt compelled to present shows on Roscoe Pound and learned Hand firs, since their respective centennials have occurred in the past few years. The subject of her next presentation will be Felix Frankfurter.

No exhibit--not even one that is accompanied by the vivid recollections of those who knew the subject best--can bring a man back to life. But the exhibit at the Law School does succeed in giving a clear impression of what Holmes must have been like. Each item has been carefully selected, and the show progresses in a thoroughly logical fashion. This exhibit leaves you with a definite feeling for Holmes' depth of character, his awesome accomplishments, and his profound wisdom.

Perhaps Holmes best summarized his life when he quoted a line from a Latin poet on his 90th birthday:

Death Plucks my ear and says

"Live--I am coming."