Oliver Wendell Holmes, Jr.

Civil War Soldier, Supreme Court Justice

Susan-Mary Grant

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781135133375
• Edition: 1
• Topic: Storia
• Subtopic: Storia nordamericana

Oliver Wendell Holmes, Jr., was one of the most influential jurists of his time. From the antebellum era and the Civil War through the First World War and into the New Deal years, Holmes' long life and career as a Supreme Court Justice spanned an eventful period of American history, as the country went from an agrarian republic to an industrialized world power.

In this concise, engaging book, Susan-Mary Grant puts Holmes' life in national context, exploring how he both shaped and reflected his changing country. She examines the impact of the Civil War on his life and his thinking, his role in key cases ranging from the issue of free speech in Schenck v. United States to the infamous ruling in favor of eugenics in Buck v. Bell, showing how behind Holmes' reputation as a liberal justice lay a more complex approach to law that did not neatly align with political divisions. Including a selection of key primary documents, Oliver Wendell Holmes, Jr. introduces students of U.S., Civil War, and legal history to a game-changing figure and his times.

Part I
Oliver Wendell Holmes, Jr.

Chapter 1

An Antebellum Adolescence

“But now, look around, my history’s everywhere

And I’m my own environment.”

(Norman MacCaig, “Double Life,” Riding Lights, 1955)

In the final chapter of Patriotic Gore, a study of the literature of the Civil War era, Edmund Wilson opened his discussion of “Justice Oliver Wendell Holmes” by merging father and son into the “Oliver Wendell Holmeses.” This confluence between one generation and the next, and by extrapolation between an antebellum Union and the post-Civil War nation, offers an appropriate starting point for a study of the son whose life extended well into the twentieth century but was, arguably, influenced by “his struggle to distance himself from his famous father” and overshadowed by his nation’s mid-nineteenth-century civil conflict.¹

Oliver Wendell Holmes, Jr. was born into the “highly cultivated, homogeneous world” of antebellum Boston. Arguably he was its “consummate product: idealistic, artistic, and socially committed.” But, at least as historian Louis Menand put it, his was a world that bled “to death at Fredericksburg and Antietam, in a war that learning and brilliance had been powerless to prevent.”² It is important to emphasize, however, that the Boston of Holmes’ youth was no static Christmas card caricature of a pre-war world, shaded in subtle sepia hues and inhabited primarily by the privileged progeny of its Puritan past. Antebellum Boston was neither Europe before the First World War, nor was it Eden before the Fall. It was, however, very much the world of Oliver Wendell Holmes, Sr. And in many respects, to get to the son, we must first go through the father.

Although not quite as long-lived as the son to whom he bequeathed his name, Oliver Wendell Holmes, Sr.’s life (1809–1894) nevertheless spanned the greater part of the nineteenth century. However his life was deemed by one of his earliest biographers to be “so uneventful that the utter absence of anything in it to remark became in itself remarkable.” Certainly, with the exception of two years spent in Europe, largely in Paris studying medicine, and a short return visit there in later life, Dr. Holmes rarely ventured far from Boston whose State House he famously designated the “Hub of the Universe.” His affection for Boston was, as noted author William Dean Howells observed, akin to “the patriotism of men in the times when a man’s city was a man’s country.” There was “something Athenian, something Florentine” about it. This did not mean, however, that Dr. Holmes’ national influence or cultural impact was insignificant; far from it. He was living proof “that identification with a locality is a surer passport to immortality than cosmopolitanism is.” A notable “man of letters,” as contemporary parlance put it, the output from his pen covered many more miles than he could have managed in person had he been an inveterate globetrotter. In part this was down to the inclinations of Holmes as an individual, but in large part, too, it derived from the specific circumstances of his time and place.³

When Dr. Holmes was born in 1809, the same year, indeed, as Abraham Lincoln, Boston was still designated a town, although it was in fact the fourth largest city in the nation at that time. Boston legally became a city only in 1822. In 1809, it was just one part of a post-Revolutionary, post-colonial, if not yet entirely post-Puritan world, but it already possessed a strong sense of its own significance. Much of this was predicated upon the past; not merely the brief past that Boston had in national terms, but the far longer past that had preceded this, all the way back, indeed, to the earliest European migrations into what became Massachusetts. Its origins lay in the Puritan exodus, the “Great Migration” from England that began in 1629. More specifically, it derived from Puritan leader John Winthrop’s now famous sermon, A Model of Christian Charity, preached either on the eve of departure or possibly actually en route to the then New World. For Winthrop, as for his congregation, the venture was a new beginning, albeit driven by a much older religious imperative. In establishing a settlement across the Atlantic, Winthrop reminded the colonists that “we must consider that we shall be as a city upon a hill. The eyes of all people are upon us. So that if we shall deal falsely with our God in this work we have undertaken, and so cause Him to withdraw His present help from us, we shall be made a story and a by-word through the world.”⁴

Over the course of the two centuries between John Winthrop’s arrival and Holmes’ birth, New England was largely understood, at least by its elite residents who were descendants of the first Puritans, to have achieved Winthrop’s initial ambitions as far as matters cultural and clerical, educational and economic were concerned. By the nineteenth century, New Englanders dominated the writing and therefore public dissemination of American history. This did little to contradict what was, in effect, a distinctly sectional slant on the national story that elided most of the brutal and exclusionary realities of the colonial past. As America’s most famous poet, Walt Whitman, noted in 1883, for much of the nineteenth century, Americans had been overly influenced “by New England writers and schoolmaster,” too accepting of “the notion that our United States have been fashion’d from the British Islands only, and essentially from a second England only.” This, Whitman argued, was “a very great mistake.”⁵

New England’s writers were not entirely to blame for this state of affairs. Boston, by Dr. Holmes’ time, already lay at the core of the national narrative as a city whose patriotic credentials had been confirmed by the central role that the city had played in fomenting the American Revolution. To live in Boston, as the Brahmin historian Henry Adams recalled, was to live “in the atmosphere of the Stamp Act, the Tea Tax, and the Boston Massacre.” By the turn of the nineteenth century, therefore, even before New England historians put pen to paper, Boston’s reputation was already secure. Its reality, of course, had altered considerably. Colonial Boston had been a settlement constructed, as the New England colonies as a whole were, around the rule of the elect; not in a political sense, but in a religious one. By 1809 the dominance of those who had experienced public conversion, termed “Visible Saints,” was long over, but in their place a new secular elect had emerged. As Adams later described it, until “1850, and even later, New England society was still directed by the professions. Lawyers, physicians, professors, merchants were classes, and acted not as individuals, but as though they were clergymen and each profession were a church.”⁶

This nineteenth-century social and economic elite “utilized an elaborate web of kinship ties” that provided it with “cohesion, continuity and stability” in a rapidly changing world. And although Boston’s elite perceived its authority as stemming “not from hereditary privilege but from personal achievement,” lineage had a great deal to do both with how it saw itself and how it was seen by outsiders. Writing at the end of the nineteenth century, Dr. Holmes’ first biographer, in noting that his subject was descended from solid “New England stock,” bemoaned the fact that “the name of New England is now a mere geographical title rather than, as it used to be, an implied expression of racial and social characteristics.”⁷

For much of the nineteenth century, however, the ideals of the city on a hill were deemed largely to inhere in that part of its population later labelled by Holmes as the Brahmin class. This “republican aristocracy” perceived itself as the contemporary social and economic exemplar for the nation. It reinforced its position through “a highly articulated social order which not only set standards but encouraged and enforced right conduct,” and thereby reassured its members that stability could be maintained. Boston Brahmins largely profited from many of the strongest forces for change in mid-nineteenth-century America encapsulated in the urbanization, industrialization, and immigration paradigm. But their connection to these changes did not automatically ensure their confidence in the result. Fearful that rapid social change in Boston and elsewhere would produce “a chaotic individualism,” elite families carefully constructed cultural and commercial channels through which both individual and national character could be constrained and controlled.⁸

Their fears, naturally, have to be placed in the context of Boston’s rapid growth. “Possibly no city in the world,” observed an early-twentieth-century study of Boston’s development, “has altered more the physical conformation of its site.”⁹ In 1814, when the senior Holmes was just a child, the Boston and Roxbury Mill Corporation began the gradual land reclamation of the Back Bay. In time this transformed what had been marshland into fashionable residential streets. After the Civil War, both Dr. Holmes and his son would live there, on the newly-created Beacon Street. This was only one of many such projects. Over the course of the nineteenth century Boston’s physical footprint increased some tenfold. This was just as well since its population, too, trebled from around 34,000 in 1810 to around 93,000 by 1840; by the eve of the Civil War it was almost 178,000. It was now the fifth largest city in the nation, and one of America’s major seaports whose population comprised an increasing number of foreign-born or native-born in-migrants. By the middle of the century, indeed, only around 35 percent of the city’s inhabitants had been born and raised there.

If any of those who came to Boston had done so in the hope of making their fortune, however, they would have likely been disappointed. Equally, the fears of any Boston Brahmin for the financial future proved equally unfounded. Fortunes in antebellum Boston “tended not to fall overnight but rather to persist.” To those who had, the likelihood was that more would be given. Doubtless, the fact that the egalitarian ethos of the American republican experiment failed to disturb the economic equilibrium was a comfort to Boston’s elite citizens. At the same time it left them increasingly isolated within a growing city that was hardly as homogeneous as they liked to believe, and in which the social, as well as the physical, distance between the parallel planes of poverty and privilege was growing ever-greater.¹⁰

By the early nineteenth century New England society had “lost something that was central to the cohesiveness of Puritan culture: a meaningful and functioning sense of community.”¹¹ In this context it may be no surprise that such social stability as was to be found in nineteenth-century Boston had almost as much to do with ancestry as with assets. In 1831, Mount Auburn Cemetery in Cambridge became one of the nation’s first Rural or Park cemeteries, but for contemporary Bostonians Mount Auburn was only one of the sites of memory as much as of mourning that fixed their world.¹²

The publication, just after the Civil War, of a history of the city that devoted no fewer than nine chapters to detailed descriptions of individual burial grounds and their many “interesting associations of the past” emphasized this centrality of the cemetery in nineteenth-century New England culture. For some, such as future Unitarian minister, author, and abolitionist Thomas Wentworth Higginson, the city’s cemeteries were sites of curiosity as much as of historical “associations.” He recalled how as a child he had “delighted to pore over the old flat tombstones in the Old Cambridge cemetery, stones … on which even the language was dead” but nevertheless invoked past “virtues,” stones from which the “leaden coats of arms had been pried out to be melted into bullets for the Continental army … and so linked us to the past.” And this was the crucial point. In 1838, as Massachusetts Governor Levi Lincoln observed in his dedicatory address at the Worcester Rural Cemetery, there was a danger of the past being “all but forgotten” by the generations then living. There are few left, he noted, who “can now claim affinity to the tenants of that ancient churchyard.” For those few who could, however, such cemeteries represented public expressions of private success, places quite literally “rich with memories from the past” that validated the values of the present and held out hope that such values had a place in the future.¹³

This, then, was the world in which Oliver Wendell Holmes, Sr. lived. It was one in which “the ethic of individual responsibility married moral duty to the calling of trade,” in which the family represented “the hub of the domestic universe.” And the city of Boston, in its physical constructions as much as in its personal associations, both living and dead, expressed the outward, public ambitions and apprehensions of an inward-looking, essentially private class.¹⁴

Dr. Holmes’ father had been a Calvinist clergyman and he himself studied law and then medicine. In this period, however, there was no expectation that medicine would represent the whole of his public life, and nor did it. Ultimately, he became better known as a ...