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The Growth and Expression of the Constitutional Philosophy of Mr Justice Holmes

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THE OROOTH AMO EXPRESSfqff Of
m u oaorav
op
SOWMTmTtOMAt
s&Ki.rjij&Tie®
houses
by
Alexander Jonathan walker
A Ataeertation submitted In partial fulfillment of the requlresenta
for the Degree of Dootor of Philoeaphy In the Department of
Political Soienoe in the Graduate college of the
State university of Iowa
auguat, 19*0
ProQuest N um ber: 10984039
All rights reserved
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IKTRODUOfrCW
IteB Kr«
Ro Im
i
died in 193® b* had
won an M d w i a g place in the history of American
Jurisprudence*
Ho la responsible for the expression
of oertain principles ehloh transform logic into life* a
realities Mid make tin law m
i n a w w m t to bo uoed in
the furtberanee of oomfert and in the pursuit of happi*
nooo patbor than a n
deterrent*
Tbo departure of hr * fustics Holmes fro* tbo
oonventional approach to legal problems is thought to
have had a wide spread influonoo for good in tha legal
profession.
Ho lod tbo way for Judges to consider tbo
oases before them, not merely in the light of settled
conclusions of the peat* but also In the light of Ooeial
and ooonooio conditions that enter into the forming of
judicial decisions of the present*
He attempted,
furthermore, to harmonise established codes with current
oonditiona in order to perpetuate the American ideal of
politleal freedom*
*
Unwilling t0Hoonced« tb*t the nerveless hand
of tike past etius shape the present#* he regarded the law
ae "oaj|o to redeweidemtleh upon a alight change in the
habit of the public mlhd*"
1
Since hie death hie views
of social and section to problems In relation to the oon~
atltutlon and law that gave him the title "The orcat
01 seen ter1* are now being expressed by a majority of the
court*
In an attempt to discuss the influences wnioh
moulded the viewpoint of nr* Justice Holies* It will be
necessary to examine the facts of his life sine# the
political philosophy of any person la better understood
when we are equipped with a knowledge of the history of
his background*
In the working of the s*ind it is assumed that
the output resembles the ingredient® that produce the
2
working*
"Every judjgsent has- its generative power#"
and in submitting this study of the life of #r* Justice
ilolmee# particular emphasis is given to hi® inheritance#
his early life# and hie experience in the war.
From a
study of hie writings# speeches# and Judicial decisions#
It is my -purpose to disclose the constitutional phllos*
ophy of Mile nineteenth and Twentieth Century Jurist*
Vi
A man’s entire philosophy* his sense of per­
spective —
personal and social* and his general in­
clinations are shaped by his environment* his exper­
iences* and the decisions he resolves from such exper­
iences*
On the basis of these he takes his stand on
all vital questions and problems*
The Judge* as an
Interpreter for the community* in searching for solu­
tions to explain* define* and apply the law to partic­
ular oases* must draw upon the background of what they
reflect*
In the mental background of each Judge every
decision finds its setting*
It Is not the purpose of this exposition to
defend Mr* Justice Holmes nor to Justify his decisions$
neither is it an attempt to prove that a certain inheri­
tance* or a certain environment* is sure to produce indi­
viduals who will react identically in ©very particular
case*
For in social science* that subject which details
the uncertain elements of human nature* It is impossible
to make definite proofs* since there are so many things
which may interfere to change the picture*
In chemistry
we can repeat an experiment so many times in order to be
certain that particular Ingredients* under certain condi-
tlans* will always produce certain results.
In social
science we-may have only one example from which to study*
and this one may be gravely questioned on the basis of
Insufficient material from which to draw conclusions*
But it is my purpose to show that this example may influ­
ence and aid the formulation of th© principles and opin­
ions of a character#
ft Is in dissents* probably* that a true view
of a judge’s opinion is revealed; for dissents* rather
than official speeches* give to the Jurist the better
opportunity*
When his is the opinion of the court he
Is often forced lifto numerous compromises: he must take
such account of tke views of his colleagues as will hold
the® with him; hej^ust often explain away decisions that
seem to be contradictory! he must so guard his language
that general statements will not later embarrass him*
But when h© dissents* he is free to speak his own mind
as a protest against their views#
He feels at liberty
to speak simply** directly, and emphatically since he is
expressing his true philosophy*
In the words or Mr*. Frankfurter*
"Justice Holmes* Ideas have so thoroughly
©ntordd- ihto the substance of our legal thought
and the papers and addresses In which they were
set forth are so burled In the periodical lit­
erature of the law that the Hpigoni could easily
forget whose armor they were wearing and whose
weapons they were wielding#
The papers and
addresses entitled "Agency* (I89ll» rrivllege,
Malice and Intent" (1894)., "beaming and Selene©
In Law” (1899)» for th© most part are addresses
directly to problems of immediate Importance In
the law of today and might have been written In
the second decade of the twentieth century In­
stead of the last decade of th© nineteenth* He
has shaped the methods and ideas that 'are char­
acteristic of the present a® distinguished fro®
the Immediate past*"
4
0IU9t«R X
for woiftf- yoaro psychologist® have m.phM% z®&
th© Important port played. by nature In mats *0 original
oodowoatt
fn too©towing upon nr# j’uatie© Ho looa var~
lous gifto and t&lonta there la no wondor that hi a rich
MiVktago &nom to eacprews itwolf in tbo rendition of
erudite dleaartatlons, .public utterance** and court
deciolone#
However rich the inheritance structure and
functional ©ApAoitlew of an individual ssay be, no nust
ulao acknowledge that hia present conduct w&© one®
r
>r
different* that what be ban experienced ha« node changes*
The special capacity of an Individual to baoom#
outstanding In oortaln fields may bo definitely explainsd*
h o « t w f by hie native equlpmnt which includes aptitude®
for oar tain kind® ©f work*
One ©hi id ©how© a natural
aptitude for mu&l00 mother for langur g©»®
In dlmuooirig families Dr# Woodworth ©eyes
"Th* special aptitudes also run in families*
Xou find mualoal families where moot of th© children
take readily to s&uele* and another family tier* th©
children roapond ooarooly at all to music* though
im i f .pneril intelligence is good enough.*
Xou find
a certain liking and gift for mathematics cropping
out her® and there In. different generations of the
earn family#
Wo less significant in th# fact tbfct
children of the same family chow ineradicable dif $*
even©#* frost m e Another in such abilities *
In
family where two brothers* the older of whom
showed mush musical ability and came early i© he
an organist sod empower of ehureh' music| while
th#■younger# passes sin© considerable ability in
eehoXereitip and literature* easi never able ,to learn
1 wing or tell one tune, from another*
Being a
elergywieit* he desired very much to be able to
1#in» to sing, but he ©imply could not learn*.
Oueif obstinate differences, persisting In spite of
th# earn© heme environment* must depend on native
constitution.
tJ&tlv# eonetitution determines mental ability
It fiuas certain limits which
the Individual can- ot pas©* no matter how good hie
environment* end no metter how hard he trains him*
self; and* on the positive side, it makes the Indl*
vi&ual responsive to certain stimuli, and so gives
him & start toward the development of Intel11.
gene©
and of special aptitudes #w
7
in' two respects*
Certainly original nature plays a major p&rt
in shaping individual lives*
ft explains why one
person peaseaSjM^the sensitiveness of an artist* and
another the oallowmese of a olo&f why one i» calm and
slow* while another1is variable and teen; why one is
sensu&X and gross* while another Is saintly and rdflned*
"The eoholars of rich heritage#* says Dr*
Betmaa, *ean be picked out w r y easily by their quicknee© of mental qualities*1*
While admitting that
*3 « *'
often a person with no ancestral culture becomes an
outstanding figure, still hei maintains his statement,
saying*
"Ail this doe© not touch the main fact#
Our scholars come chiefly from a privileged
order Just a© our best fruits come chiefly
from well known grafts, though now and then
a seedling apple, like the northern spy, or
a seedling pear* like the seokel, springs
from a nameless ancestry and grows to be the
pride of all the garden® of the land.M 8
& l&terapjr scholar
E>r* Oliver
Helmed# th© father of
Mr# taetie# Holraea* was oft on referred to as a poet#
a tttlf * th© eharm and faeelnatiexs of which bewit©fet­
ed hta a© it ha® so many others#
To him It Implied
genius* ihsptrmtlexi# a ©park of th© divine ftrej it
9
sigulf tod that ho was one of th© email hand#
Ho
cannot bo etaassd mm a groat poet# however his writings
are the embodiment of something more than an original#
sparkling* ktMb©arbed personality*
m
They are also
expression of Pee England* and particularly of Bos­
ton as Boston was in the middle of the nineteenth
pen tory *
Or* Holmes was by heredity and environment
an aristocrat of the Hew England sort and he showed
the oonservativenose of an aristoorat in hia literary
learning as moat others* preferring to model his verse
upon the ©lean cut# intellectual poetry of the eight­
eenth century* on which M s youth had been nourished#
rather than upon the romantio poetry of M ® own
10
century*
XH 1*3®# only a yeer after his return from
M n p i « Or# tteteee jmhl&ehed hie firel volume of
Btetpy*
**01& freneldee** *’The Lest &#*?«* dad- th©'
11Height ef the- fttdtettleu**' gave a taste of M e quality*
ft heeane hmmm that there mmm m young doctor living
i«i Beaten who had a fetitaetle gift of ©xpr#eeion and
who never dared te write &• ftnitqr a® he eeuld*
Benoe-
forth mi every festive oeoeoftea the attempt sac made
to draw him out*
For Ataoet fifty yeara he wee the poet
laureate of Beaten* reedy to produce wer&ee for every
lifepertant eeeaelen#
There is m modest request with
which he eenpSLted after the dinner el rreetdent Ever#
eit#e ineuguretlani there in a rhymed lessen delivered
before the Beaten Mercantile Library A*«eetatloat ted
there la a nedleel poen- tnk-m a# m
eerlptlen by the wed leal eoeiety#
after dinner preThere ©re pee&e
written for fairs# peon a on the dedication-ef e«eterlea# yeeete on the birthday*<ef diattngiilefced ei 11tens*
and on their going to Europe# oeeee of welcome to
Illustrious vialtera end eleeye the poem for the re­
union ef the eleee of 10X9*
M e first el&ea saeem wee
ee well received that fren l€5l until 1609 or* ifeteee
provided a p o m for each reunion*
A 11 ot of the
functions for which he wrote many of hie poem©
suggest& something of his great popularity#
For­
mal banquets at which might be gathered presidents,
foreign ambassadors or princes, visiting Literati or
America1© great were not Infrequently graced by Dr*
Holmes1 presence»
Had this versatile character died before
reaching the age of fifty, he would have been reme®~
bored as a brilliant member of a femarkable group of
literary men.
He had written cleverly In verse,
but as yet had not found the medium for the full ex*
presalon of himself*
It was not until the Saturday Club Mfound
11
Itself In existence*1 and
a Boston publishing house
(Phillips, Sampson, and 0©*} decided to found a new
magazine and Lowell was asked to become Its editor
that Dr* Holmes cam© into his own*
Lowell accepted
the editorship, but, as he explained in a letter
written to Dr* Holmes In 1S84, MWhen I accepted the
editorship of the Atlantic,, I made it a condition
precedent that you were to b© the first contributor to
12
be engaged*1*
Dr* Holmes objected, but when Lowell
*7 13
insisted* he became one of the contributors*
It was Dr* Holmes who christened the new
magazine, and as William Dean Howells afterwards
14
said* he "not only named but made it**
It was
the popularity of the Autocrat papers that kept the
19.
new maga&lm© afloat#
Dr* Holmes’ great success with the Autocrat
encouraged him to write more prose during his last
years#
He still wrote occasional poems and often
used verse In the Breakfast ffi&bl# series* but the
great proportion of his writings was In prose*
Two
more volumes of the Breakfast ftafel© series appeared5
I & nSlSiaSE* *©59, and T*y» goat, 1872.
SB 2M. SBISSSL M,
f&fgfi,8 *£2&
appeared In 1873, Our Hundred
SB3ES la mssss 1&.1M&. an© szt£ J&s. y w e m **> *©9o.
The biographies of Motley and Emerson were published
In I878 and 1884 j the Hovels Elsie Venner* fhe. Guggd|an Agggi,* and Thg ||orr^al ^t^pa^hy. appeared in 1861,
1862, and 1885 respectively*
Dr* Holmes was still
sufficiently active in 1891 to write Introductions to
new editions of his books*
Dr* Holmes was fortunate* not only In crea­
ting a character through which to put forth his prl-
vote oplBloot, but aleo in providing tt»t a t i a m t w
with the proper environment*
He time wee enabled*
not onlp to reveal hiwself, but alee to reveal the
oee&etp of whlah he forated a .part*
Me m m preewinently an essayist, ®r* exa®Id
pie of that rare and >.:>ellghtful literary genius*
One oannot help admiring hie wit, hie knowledge of
the world, hie rloh humanity, and the felicity of hie
earners*
Just ee he abetted ehetwlHgly in his own
person, so ho eeetMinleetad the glorious ohat to ue
through literature*
Ablel Holmes, the grandfather of JuBtlee
ifeln ea was a e le rs y e & r who taught the e ld fa e h ie n C a l-
vinian with all Its horrors*
But Able! »e» a
bob
hinder than his ersedj he, too, was m lover of books,
and his interest in the art of living, In a fashion,
node him a poet*
One everting when the ehll&r«n were
in the parlor, he had stepped to the frost covered
window and aketohed on the ,*oe with hie knife blade
& oluster of branch®* and stars, above he had written,
17
"For aspera ad Aetre#*
He «a» tbs author of so
historical work, Rmtml® p|, Jtmriq*. which has long
sinow t m w
antiquated.
A
Hr*
m t m t i B t
too literary man* ii4 $r# llalm®®,
% M rvstfoooor of toato»jr* war# on# and ton o m i poroen*
toons bba groat figuroo in inodieln* Mlvor-tondoil
.f£olagoa» Sir* towor# high*
19
Mia old© too^lo^go* Ml®
fctoh insight* and his strong nano® of obligation mado
bln a m.m to bo roopootod#
Ml® unflinching honooty
tod his paaaionato quest for to® tool® tpdto in mabtor®
rotating to bio profession mad# M m a nan to bo admired*
M o clarity of oppression and his doop ooatod amsvtct**
ion mad# M ® a man.. of oMal&orablo power*
Sir will-
Ito Color rbforrod to bin an m%ho m&nt aueoeo^ful
otoblnation which th® world 'boo owor soon of physician
to
and tbo man of lot tors#*1"
Had Hr* Holaoa* lifo boon
glvon entirely to aodlaino* ho ton Id probably bo ratod
to<m$ tbo' groat dootora -of toorloa* but oodiola® receiv­
ed only a part of his timo#
ill© lntoroot in modi® In®
wa® too groat to allow, him to b# aid#-tracked into
litorabwro*
Mi's ability to otool. among too members
of h1® profession is an indtaMlon of hia interest. In
ao&l®In®*
Dr*, notooo was net satisfied to bo mediocre|
ho wished to bo- in too front rank*
Ho- wot# from
*1 0 *
Faria in tbl© toepeeh be John
0*
Sargent* November £*
1®34* eaying* ”t am not aahamed of th# ambition of
being distinguished in my ppofe««i®e# but. more than
that I have become attached to th# study of truth by
habits formed In severe#..fand ©onetime© painful* self
21
denial*
.after three year# ef studying tfiedlelne In
France# holme a*C M .returned to Boston mod togam to
practice*
in 1836 to Joined the itoea&ehue*11* Med*
loal Society*
M e praobiee m b .somewhat alow so he
eompebe® for the Beyl©ben Frieee*
These prlmee#
fsado- possible through a feed established by Hr# Boyle**
ten# were given for the two toot essays on subject©
©elected by the committee *
Hr* Holmes eutalited. hie
eeaay w®n the utility and tmporb&ne* of Direct mxplor**
ablets In medical Fractions1* and won a prime*
the
next year he submitted two earny*# one **on the Mature
and Treatment of neuralgia*** and the other "0© the
History of Intermittent Fewer in Mew gngitmd#* and m n
both yrlswe*
A reviewer* writing for the Month ^AKUr
iflNSS Heylew* accepted them mm work© of considerable
22 '
■
'
■
a«S**fc*
Xn X®38 Hr# Hotoe© received to#.
Of frof###or of Anatomy at Hartoeuto aolleg## a pool-*
ticm to told for two year#*
*®» XS43 to published
an ##aay on th# #tot«diou#n#»© of ■puerperal fever*
Hi**
on thla #mtol«lttntty.t 'if- toi-.aloto* rest a hi# claim
to tovlng made m
original ■mmd greatly valuable con-*
2J
bpltoblem to to&loai toienae*w
Xn .IM7' to revolved
th# appointment of Farifttoh Frofeeaer of Anatomy and
Fbyeiolegy at tto Harvard Medloal School* m pooltlan
which to told with groat credit mnd personal devotion
for a period of thft'rty^flv# years#
It is sometime#
difficult for the public to told two thought© of any
man at to# ©an# time#
©0
th# obvious' fact that Dr*
Holm## was a wit has ob»#ur#d t'to other fact that In
hi# own profession .to attained1sued#*# a© a painstaking
end to#o**#y#d man of nolwn©#-*
Thar# is ample test!~
many to tola from those cornpotent to give
opinion#
and even tto general reader who will look 1to# hi© H#d*
Ida! Eeaey** toy to converted*
fto aolentlfi# trend of mind during Dr* Holm##
tins# 1# olaarly set forth in tto oae# of
a social dom#»#nt ’deaiing with studies in tto effect©
of tewMTidiiy*
M
& hoy f>S% Bolai®*
w m
*ltmy«
m%%h tool® and *®»trivi®g w #
oor&ing
d® a mim h©
#a^>€»ri:iBf0nt#d ©ith th© nioro&o&po bofor© It mm- r®i©g«*
&S
nis&®4 a® m usofyl *V*4 frurn®/*i In th© ©tudy of m m t m i y *
H» «** an ©nthwfaatle «®t®ur photographer In th®
day® of th®. eld difficult *m% pro®*©®*
«h© ihvoniod th® ordinary hand v^teoecopm*
hi®
ft w&® ho
f£v®n In
years* h® wae greatly tat#n»®ted In th®
nootMmloaX ingenuity ohoati in m ® h ocmtrlraxio*® &® th®
®af«%y r»Mi* and tin® liltanlfi&tlng dovioo® that aided
hi® ®®ah®n®4 rtaion*
A Reformer
Br* Holmes* search for kuowXeg© led him to
look into conditions of the present from a rational
point of view* to accept the good and to rejec % what
he considered had#
This philosophy naturally led
hiu to attempt to change static conditions In the
light of Immediate, circumstances.
It might be Inter*
eating to accept his statement written to James Rus©~
©11 lowell in 1846I
"The idea of my belonging to th© party
that resists all Chang© is an entire mlseon*ception#
I may be lazy, or Indifferent, hr
timid but f am by no means One of those (such
as a few of my friends) who are wedded for
better or fox*
to th^o sta^tx^© c^uo,
an Iron ring that reason cannot get away
unless it. takes the finger with It*1* 26
The Atlantic
was planned as a medium
of expression for th® literary men of Mew England who
were In sympathy with the new movements of reform and
the new social tendencies*
27
early contributors*
Dr, Holmes was among Its
It is true that Br* Holmes refused to engage
In political reforms of his day, yet he too was ,fa^
soldier in the battle for the liberation of humanity *r
The “Professor at the Breakfast Table” Includes strong
against theological dogmatlM and bigotry#
Dfv. Holme a thought of religion a® eo«i®thing abov®
dogpM aim ©raoda*
Religion. enaoepaaaed the great
problem of all m m In the Paaret* for a good Ilf##
*$he .,great end of being- i-a to h m m m X m mmx with; th®
order of thing** and the ohnxroli has been a good pi tab
$8' *
pipe*-: and may h« bo ©till***
thinking-of religion
In a broad senoa, he insisted that Religion and
government appear to m® th® two subjecta which, of
all other®, should belong to the oemmon talk of people
m
who enjoy the Pleasing© of freedom.***
ftl© w r y attitude toward life made it Im*
possible for him to think that all the great truth©.
of religion were gathered into on© greed*
ttUo Ilf© worth owning aver oame to good
ft alway# nourished on too self same food;
Bo raaaotting nature® find it &&£& to feed «b$A
For their ©ole diet cm m single eres-dU**^
Slnoa Br# Holnaa w&a m
Individualist one 1©
not surprised to hear him ©peak hie-mind{ he thought
It hlo duty to eritlolae v.cm® of the oread© and dogmas
of 0aivlni©»#
For, a© he wrote to the Reverend #ssr*a©
31
Kimball in 105®, ^Somebody must give the bow light***
That is what he atteep&ed to do*
The doctrine of th®
"Fall of Mon* preeofesdl by the Calvinists was especially
repugnant be M o #
Nothing appeared sort aavage to him
than the dread of tbs ^faivlnisb* nothing mere barbarous
than that of tbo old Wow % gland divine fitting comfort­
ably in bin study and chuckling over M e concert of
certain poor women# who hod been burned to death in hia
town going “roaring out of one fire into another!*
had a strong feeling against this#
He
To hr* Holmes it
seemed' impossible that anyone could believe in such a
doctrine.
in a letter to the Reverend James Kimball
he say0# “If you believe that tmn 1© b o m under a curse
derived from, a4mm9 I do not*
If you believe that a
finite being 1® allowed to ruin hieself forever# I do
not# at any rate I hope not**
i>a a result of auola an
attack 0r« Holmes seemed to th# followers of bia father's
faith a blasphemer#
lie was called various names# as hie
biographer says# ranging tram “free thinker#“ to "atheist*
His “sifttearat of the Breakfast Table* was assailed a©
“a work of irreligious tendencies#** and M s Jglgift. I8EME
as an achievement of “the. very antl*ahPl&t»H
These
sharp criticism® are indications of Or* Holmes* belief
in progress which oust be attained through the i*uinu*>
mentality of change*
In the field of medicine he fought medical
dogmatism In order to save mothers from the dndly
puerperal fever.
When he published -In the Hew Eng­
land Journal of Medlolne an artiole 80n the contagion
of Puerperal Fever1* he Invited disaster*
quarters he was savagely attacked*
In some
His conclusion;
namely# “that the disease known as puerperal fever is
so far contagious as to be frequently carried from
patient to patient by physicians and nurses#w was
branded by Dr* Meigs* Professor of obstetrics In the
Jefferson School of Philadelphia as the wj© f m e and
33
fIsenless dreaming of a aophomor© writer*”
Homeopathy was In high favor in Mew England
and America during the middle of the eighteenth century*
It is a theory based upon th© belief that Infinitesimal
doses of medicine are much more effective in curing
illness Ih&m large doses and they do not injure the
patient*
When Dr* Holmes criticized the practice of
Homeopathy and pointed out th© fallacy of Its method
he was running the risk of becoming very unpopular and
of ruining his reputation with his brother physicians.
It was Dr* Holmes who furnished the wit for
a population of 3®G#®Q0 people* it was he who invented
•1,7*
the phrewe* "The uraiwin Oast*#*
Bar* ho
nnhmA
In happiest exprosaloan a locality, a olaes, a type.
Bare he pictured a kina of Amerlaan who worefalpped
Main end otoaraater.-
The thing' that counted more
3d
then money with this olaae »aa mind and brooding.
up
Legal:
v,
within IBP# S m t i m Molme®, hereditary pattern
we al^^ firaEd thffl: legal influence*
Hi® father entered
%tom Menard Law taheoi where he -etudted for a year*
1%
eee w M 1© abu&ylng Xmm that ha became Indignant at the
proposal to destroy the tfnigate ttdonebtiuiien**:mad made
hi® protest in **0i& IwneMea*1 and sent this protest to
3*>
the bally Advertiser of Beaton***
The proteat ©lr®ul&~
ted' w r y rapidly In nmepeper® ibroughodt the country^ end
the extent to which it stirred
oourtyy is* probably*
an indication of the good- legal argument he presented*
Honorable ChmrXmm J&efe&on* the maternal grand*
father of Mr* Ju 'tioe Holme®* we« a auooeesful lawyer*
While ebtll a student at harvard University be displayed
a brilliant mind* graduating at % m head of his olu® in
179?*
Three year® later he opened a law cdTioe in Umm
Burypert* removing in 1803' to Boston*
While on the
judicial Oourt of MMenohueett® he beeeste admired and
respected for hie clarity end literary style in judicial
36
decision®*
As m delegate chosen to revise the
Constitution of uaeeaebueette* *'h® edvooeted for free
speech**
Thie accounts* in part at least* for ejqjpeee*
Iona of
m m » ideal in I®ml decisions oftthe-
mm* Mr* jftiatiM Botmoai*
Bla book, "A treaties On the Fleading mid
Fruotic# 'in BOSi Action” is a toahalosl <ll@eusal.00 wtm&&
AO attempt is mads %o breath® life Into legal rules*
He believed that rules sere valuable in
were eatable of practical Appliestlotw
00
far as they
Hia- book la
bo&ofiolsl to practitioners* &$ wall as to student©* as
a source book of Information for the forma of pleading,
3?
and practical illustrations of the law*
it is 4avoted primarily to practical “forma aod antrlaaw and to
the adjusting of ancient law to practical application
in tearlea*
-*2 0 -
A Puritan
From a long line of Puritan stock which can
be traced to Thomas Holmes, a lawyer of Gray*s Inn In
London In the sixteenth century, Mr# Justice Holmes
claims inheritance#
This extended lineage of dis­
tinguished blood has not failed to produce great sol­
diers#
The Protestant Reformation, by bringing the
middle classes Into contact with the affairs of govern­
ment, Increased the intelligence of the masses#
This
spark which set off the search for knowledge subsequent­
ly burst into flames In many personalities#
The Puri­
tans were, in a large measure, from this great middle
38
class•
The Puritan Fathers were good soldiers, and
a type of people who had no fear of fighting when their
liberties were at stake.
"They loved liberty because
they loved God and His service and they would not con39
sent to be slaves because they dared not to be sinne> o#,,
As they expanded In America their search for
knowlege continued to spread In the stabllahment of
churches, and in the erection of schools#
The rugged
environment of these pioneer fathers forced them to be
512503
*84**
practical
fti# principle# of democracy ©embodied In the
OempMt have a$TOfl as an Ideal standard*
fhese principles w # i wAll men are by nature free and
©$ual| Conscience, enlightened by the Bible, Is our
moral' guide | the vote of the majority rale In ehuroh
and abate$ general education and virtue are Ui« basis
of fro® governments free discussion la essential to
the elucidation of truth, and humanity In legislation
40
la the true Ideal**
Many oftenge* were felt la- the social employ*
menb# and external conditions during the time of Mr*
Justice Holmes and’we find him repeatedly echoing the
principles of the 'Puritan fathers- in the body of hie
Aeelsions*
tn dissuading Furitani« at the twentieth
anniversary of the First Church In Cambridge* isr* Justice
Holmes eulogised the puritan faith in no uncertain terae#
From the following excerpt may be gleaned hie reverence
for and respect of the puritan faith which exercised such
a eonditlonirag Influence upon hi a lifet
w3lx imxN&red year a ago a knight went forth
to fight for. the. cross®. tn-r«l.eatine* .» He fought
Ill* baitlea, returned, died m o n g his flrietad*
and hi* effigy, put in alabaster or east %m
bron&a, was set-upon his iamb In the temple of
the-abbey# .Already he wee greater than &*
had been in lif e #
.While km liv e d hundred*
** good as to foil beneath the walls of Aso**
Ion or sank in bto sands of the desert and
wore forgotten * But in his monument, til*
knight became tto typo of c h iv a lry and the
.ahuroft militant*
What -was particular to hi®,
and individual, had passed from sight, and the
umtvera© alor# remained*
Ho 10 no longer man,
or oven the typo ©f * class of men, however
grout*
lie has become the symbol of the whole
myeterlou* past, of all the dead passion ©f hi*
race*
Hie- monument is the Omblm of tradit loci
the- text of national honor, the torch of all
high aspiration through all ttee*
f w hundred end fifty years ago a few
devoted men founded the First Church of 'Cambridge#
While, they lived, I doubt not,
hundreds as good as they fell under Fairfax aft
harsten moop* or under cromkeli at Kaeebjty or
lived and died Quietly in -England- and were
forgotten*
Xet if the only monument* of
those founder® were Mythic arenas*» such as
stand upon the common and the delta, If they
were only the lichen*** e'latea In yonder church
yard, hoe. much greater are they now than they
were in life* "Time, the Purlfi^*, too burned
away what was particular to them And Individual*,
and has left only a ty.pe of courage, constancy,
devotion, the. auguet figure of the Purtd&n*
Time still bums, perhaps tto type of
Puritan must pas® away, as that of the crusader
has done*
But the founder* ©f this Parish are
commemorated, not in ferow&o or alabaster, but
in living monument, one is Harvard College, the
other le mightier ell 11#
Ttoae am\ and their
fellow© planted a congregational ohuroh, fro®
which grew a democratic atale #.
They planted
something mightier -aeon than tn&titutlome*
itotkei* they know It or not* they planted the
AiteOeMtie ssplrifc In..the heart of man*
ft is
to thorn we owe the deepest cause we have ito
love In over o©unify* that inefclnet* that mpmrk
that makes the American unable to meet ht&
followttan otherwise than simply i« « won* eye
to eye* hand to hand* and foot t© foot* wreath
ling naked on the sard*
Hew Englanderb are ©till leavened with the
Furl tan. ferment'* Our doe trines nay "'have changed,
hut the cold Furl tan Fakelon ie ©till here* 41a
—2 4 —
His Intellectual parentage
Probably there has been no other man on the
supreme court bench In recent years who came from such
a long, continuous, and consistent line of fine breed1*0
ing.
The Holmes family, continuous since the six­
teenth century, had held its name as symbolic of qual­
ity and achievement.
The distinction of the family name has its
beginning in England in Thomas Holmes, a lawyer of Gray's
41b
Inn in London during the sixteenth century.
John
Holmes, who in 1686 settled at Woodstock, marks the
beginning of the Holmes family In America.
His know-
leg% of surveying placed him in demand, and permitted
him to achieve success.
Silas Bent gives the following Information
concerning David Holmes, the son of John Holmes:
"Pavld is noted contemporaneously merely
as Deacon Holmes,
title of dignity and power
when the place of worship was the town hall."
The mark of fine breeding is reproduced In
"Deacon Hglmes*" son, whose name was also David Holmes.
Flying high along the achievement trail, David Jr. was
a captain in the "Old French War and surgeon In the
42
Revolution."
As a product of "Captain Doctor David
Holmes," we have Ablel Holmes, a noted clergyman and
author of % m "Annals of teenies***
Abiei** gift wee
Dr# Oliver Wendell Holmes, "The Autocrat of the
Bneakfaai Table," a distinguished personality in Amer­
ica© history.*
Equally talented was the Honorable Charles
Jack son, Justice Holmes* maternal grandfather, who
was *a associate juatle* of the supreme judicial court
of Massachusetts*
A great deal more might b© mentioned in re­
gard to those progenitors of Mr* Juatle© Holmes, but
enough .too been said to substantiate the fact that he
was the result of some of the beet blood of Americai
that M s parents were people with great talent, and
that in his father he had an example of intellectual
qualities and high purpose*
m m t m tt
Mr*
m % m m m m bnim In ttm fUnmr
h# M m nglraA** ml%ur®X
rad at %hm
dura af tha smrati»tra **p &®%® m family &% m m
ftrtatMftttttM* iiiaiwy# rad raimt&fl*#
nto U f #
ragm at ra» *rai#tra*,*ti** av*Mkfut t & m # tray# »it
and lntaUigM*# ®#r# tra daily &*»•#
Th# boy ran
Mrarar*g»d to rararatat* aiiiy mylng* by rMMrfttag
M m mth m
rarlta*
antra fairing of mrarai«4« for at tty r«*>
Xntottratral mw&lrmmmmk ipraatratad tfe*
ratlra hmira «tth airoti ratt ra saaanwra# oraraira# fhra*dara ?#*&*«*» wttti* Jra«« l&ralt* rad anitil#r .»«&**
Mart# raran tb* raawtw viaItart#
fiawa it i» raay.to
a«|jr0liaiid tiia %n%mtpZ$$ of tooaladga that raolrol##
%ra ymiisg ray* and ahy tt mum peral&la for &im to rrad*
fly Mqatra grrai tttarary
0MIIX
In #»$r^#»i©cu
Mr* Eotaati* raii*$ a saan of brara »ra cmmbMb«4
tra i>rof#Mira of phy*l&tra with that of iitoratur**
aan)A not ra&p rat alwtra tra tetallratrai ravramt# of
hi# its#*
In %%m ppm&mm of M o ran h# rapraaratad
and unfolded tbs ©hanging eeeno off life, for the oimn&»
Jng eostoH and t M ©hanging now world gave Oppertualtlee
for growth and ejqureaaien*
A general »pl**itool ana intelleetual awakening
awoaad in the air*
suddenly swearing
on
the seene
were smote* oeteolara* atetes*tefi* worker®in #el®r>ee, art,
low* eedlelne « a largo n n t m u *
aslnent In *heir
warieue ©ailing© tnejr u m & u o t r gifts for that publle
seed.
am
pari. of the general awakening* revolution
began to appear hero and there In eduoatien* religion*
seeial mod politleal tnetltutlona* for no* questions and
impulses aest to the ©ensslenoe of the wlao* ami also the
unwlao* a»& M a « bad to be oami&ered ®*sd perhaps tried*
X» attempting to oaplaln too ©hanging ooeno we »«e the
Influenza of Hoarsen,
of the groat praga&ltst tilli®*
Jeaeo* of the nee and startling dee trine
of
BareUt andof
too aoelal theories of Herbert Spenoen being expounded
on all oldoa*
It la not etipprlelng that urm Juotloo
itolnes* having boon b o m end ft&vln,.; ©one Into aotlve
thought and deed in those years of strong; and conflicting
tides of .iatelleet waa eoneelouely ss-oved and strengthened
In Ohara©ter*
Wm%. did tra«# tnilurnmm®
ik#.1immi«
<fr*?
i# oilvra rand#11
fray atira^ranod M u wiii %* « w n
%ra rarar trat too in t»to for % m
ait
M a r o h of imralodgoi
tray raougfei out til# i M * t «
m & s o w l omiragoi
tray #ra#fe&& M o tMraing out of
pa&ra «ra oo«&o
M b oritioM of life*
For ouoti a t»an ira praotloo of law ^©uid 'onror
no altraotlon war# it ooooolwoA ao a oortoo of proaoaopt*
form lug a rigid oyotoo*
raortoiMB
tra tira y m m g
M & o m oomirao0 & M o «si#djr of trat prafoooieitf rad ra#a
to# 1argoly trat» rat ra t>ro&# Mil* tn.i« oonooptto&w
II#
put ail ra rad into tra study of thto oytoloot raooi**# ra
ora in it tra p o M M M I i t y of a ootorao# or an art «hlobt
if p r o p o M y porora® o»d y r a o r a t o M * o 0y£& i#a& to tra
44
uMra&yls&g probiora of ram» iifo*
xduoettoisaiiy
Kar* #w*»tiee holmes m m young during a sexy
turbulent time* •llhougti toe emit«»l dominance of Hew
England see at lie height*
the vest we© *tiU a
wilderness and the great migration thereto had not yet
begun*
ft* burning U m w of toe time see U e aboli­
tion of mlavery*
Vito Harriet Bee®bar sstowe rallying her foreee
and the"Puritana* sense of individual liberty repelling
the fcrtffio In sieves* statesmen found in too slave eye*
tee a eenvenleni snoke worsen behind which they played
up other eeonosle problems*
fanned by the
Everywhere dissension was
of saorel Indignation*
living In
toe aidat of tola turmoil, Xotms delates entered S. o*
!»&Kwell4e Private fcattm-sshest In Boat;®* and later
Harvard fra® shiet* he was graduated In 1861t Immediately
thereupon he entered a regiment of the Has»sahu»etts
4®
volunteers*
Is assoalotion with Holmes* sotaoi&Btle train­
ing and a cultivated home was the bentsamery raises
library where he read and studied* «n interacting deesrlptlon of whloh Is given fey 'Silas Sent In the folios lag exaerpt*
wThere was
trace of sanctity, if not its
actual odoii»»
Tne lively countenance of a rev­
olutionary preacher, the Rev* Samuel Cooper, a®
painted by Copley, (born In Boston, this' pre­
revolutionary artist was of Irish, parentage)
smiled from the wall#
on the Hector*a deak
was a hand lens Imported by the Rev* John Prince
of Salem (where twenty *witches* war© hogged)v
The Rev# Hr* Prince was an early student of tb©
sciences*
On a bookcase was Jeremy Belknap1®
History of Hew Hampshire, containing a chapter
contributed by the Rev# -Manasseh Outler#
On a lower shelf of that bookcase was a
volume of Flato bearing the Inscriptions *£zr&
Stiles, 1766.**
In addition to this, young Holmes was given
an opportunity to romp and play In the country where
46
he spent some of his most pleasant days*
When he
was eight years old his father built a summer home on
the henox road near Pittsfield*
MIt was a pleasant
land, with the masses of greylocfe in the distance, with
the waters of the Housatonlc for variety, with a state­
ly maple at the
gat© and a huge old pine near the h©u»e.,,
To a robustboy
with as good health as Oliver Wendell
Holmes»Jr«, it was a healthful life*
Her© was granted
an opportunity for his physical body to keep pace with
his mental growth which was cultivated during the winter
months of study In Montgomery Palace.
While yet a boy young Holmes attended lectures
given by Parker and later by Emerson at the Old Music
31Hall In Boston*
Barker was busy In the Interest of
reform by attacking the old conventional beliefs*
He
oast aside the Oalvlnlstic doctrine of predestination,
total depravity, and a God of vengeance*
Instead, he
attempted to establish a rationalistic society so that
he might effect progress through an evolutionary process#
His field of dlaousslon was quite broad but he would not
accept the belief of democracy aa applied to this country,
Instead he held that "This country had thrown off the­
ocracy, aristocracy, monarchy and had enthroned the Insti­
tution of money, the master of all the rest#*1
Emerson also became a lecturer arid delivered
stirring messages.
Just how much these lectures in­
fluenced young Holmes, who was quite eager to learn, is
difficult to say, but w© may well surmise that he formed
a great deal of respect and admiration for Emerson#
For after a lecture by Emerson young Holmes would often
leave the lecture with the intention of walking home
with him and revealing to him some of his thoughts#
Emerson*s instructions to him In regard to the study of
Plato were r,¥ou should hold Plato at arm1s length!
say to him?
fYou have been pleasing the world
for tttt thomeond y##r#§ *## whether $ m can piw e * « +*n
It mmn # ratioMl ***&#*tl*&# on# 'in #hi#h i^wreoo tia
#*pfti*«&si** % m #••**»&%p of eritiMl © t u %
emsMin-
*%l*o cm the part. #f young U ^ h m n before ooaopting;
?!*%**• *4***#
Wot only did fSoto## rood Plot** bit a year
.later wrote m
ture *
mmm# on hi®, m% rnm&f of a oritiool ma­
After rending it attentively ii&ortfon wldi
wlfma$Sj| «s*n»- when you strike at * king you mu*t kill
hia.,#
X* m further effort to #«ii#fy him %nit*m% for
knowledge* young llote^n 4 m 10*0 to sludg art end for this
p#tppO** bought a **t of #t#hl8& toole*
Early in life Oliver, Jr# *fc*r*6 Msaborahlp
With hie father mi the OnteM-ay tflub#
f*hl#.. literary
itiA *hl#h mmtttoi# m % and dined at th* Pmrfcor Mourn#
**a & ^athorlfj* of th# intollwtual finite of that #i&«*
ft % & m offered m
opihMPitanity for tn* aovoiopMoi' of
frloodohip and good atapl# f*li©##hlp*
a list of the
non who o*w»po#«d the oluh night Indloat* it#
pi*## iti th* lifo of the ooamuittty*
Thor* wmrm four
•0#*%#,. on# ldsl®rli*# an ####jriet, on# totologft*t*6ii&
g*Olegi#t» on# mmth#«mtlolmfi. end **tr#Mn#r* one
#*1 Mbolor* on*
v n m Im
I critic* on# ji*d*p# two lawyer#*
- 33-
and one banker*
49
While young Holmes was making great effort to
satisfy his thirst for knowlege there were developing In
Boston and Hew England educational movements which must
have found response in him.
The year 1840 marked the beginning of a period
of great educational activities*
The key to success
50
by Boston boys and girls was learning.
Current ideas
Invaded the schools where Inquiring minds eagerly grasped
them*
The depths of thought and sentiment were being
explored by the young even though their elders termed
them radical and mystic.
"They had returned, on another
51
level, to the mental habits of their pilgrim forbears#"
The rapid rise of numerous movements such as the abolition
movement, the socialist movement, the temperance and nonresistance societies, and the "no money" movement proved
to be quite a shock to the conservatives*
The continuous
search for new truths not based upon the detested convent­
ional order of thinking created a changing dynamic environ­
ment which mad© the youth of this new generation different
from their New England fathers.
The government was now beginning to give thought
to the creed, "government for the people."
With
tto ootsbllatoosit of
t m
t$mmm
ftotool for toy# at W M t *
borough I* IS4?# and ttt# ##tabll#to#nt of a stellar
laotttuttMi for girl*
%m
1A9%* «r*#t#r interest
*$km in tta# ihraatetiit of toJtoqymt#*
m m
fcptosl# os#
0 bitted froo our# to oraiaratlto'#*. to# public h m m m
mrnm actively Mtooteu# of %fa® w#lf*r# of it# young
#itl*#a##
Xa the tea####* of Walter llpp&aa* the
stuto *## than asouatog "a row teporaliv#* which It
Mi#t aoattoo* to to# oovraotiv# method for it# future
p^orftiloa*
In 18?4 a rafof^iory vac established at
Shorter* for «ra#a* and In 1884
Coatord -for m *
tlv# #t#p#
establish*# at
m m
All the## refora# represented post-
mm tb# part of its# iptwrnwnt to provide for
to# **Institutional ot#«#lflo&itoo of pri^wrt/1% ### quit# In 11a#
mt%h
m
tradition* both
m
to birth and oavttotoofit* for young Botevs to oontiau#
hl« education a% -.toraard sine# hi#
t ®th#r
had graduated
ftoftstiMra la radio i**o# and hi# uaol# In la#*
ably iso
m m ® t
rrob-
.at that tim# carried th# prestige, ##*
peeiit&ly to Bostonian#, a# did Harvard*
to udvllloe
to the Bostonian and to# England ateo-cohere* youss#
toto##' rat ranp te#era#ite$ p#^#nalltl#a,
$m&
also as
undergraduate#*
33
aristocracy*"
excellent examples of that southern
The close personal relationship between
William James and Oliver Wendell Holmes Jr. began
during their years In college*
The near kinship of
these two great minds in the search for knowledge
drew-them together chiefly through their participation
Ih the common problems of youthful emancipation*
Their "wit and wisdom" was th© basis of this durable
54
bond*
Two great minds, each reacting upon the other
pro&uoed mutual benefits which fed their thirsty minds*
The mental respect of names for Holmes is
expressed in a letter written by him from Berlin 5
* "Whet ghosts ©f the past all start from
their unquiet graves and keep dancing a sense­
less whirligig around me so that, after trying
in-vain to read three books, to sleep, or to
think* J clutch the pen and ink and resolve to
work off the fit by a few lines to one of the
most obtrusive ghosts of all, namely,the tall
and lank fora of Oharles street*
Good golly %
How X would prefer to have about twenty-four
hours talk with p m up In that whitely llt-up
room without the sun rising or the firmaments
revolving so-as to put th® gas out, without
sleep, food, clothing or shelter except your
whiskey 'bottle* of which'or th© like cf which,
X have not partaken since X have been In these
longttu&eaV
X should like to have you oppo­
site me in any mood, whether th© facetiously
excursive, the metaphysically discursive, the
- 36~
personally confidential, or th© Jadedly cursive
and argumentative so that the oyster shell which
enclose my being might slowly turn open on their
rigid hinges under the radiation, andth© oritt©r within loll out his dried up gills into the
clroumfused ichor of life, till they grow so fat
as not to know themselves again•
I feel as if
a talk with you of any kind could not fail to set
me on my legs again for three weeks at least*
I
have been chewing on three of these dried up old
cuds of ideas I brought from America with me, till
they have disappeared, and the nudity of th© kosmos
has got beyond anything 1 have as yet experienced.
I have not succeeded in finding any companion yet,
and I feel th© want of some outward stimulus to my
soul.” 55
In 1870 Oliver Holmes Jr., and William James
formed a dinner club which in many respects was similar
to th© famous Saturday Evening Club*
Her© the young
men discussed ohrrent as well as past and future quest­
ions.
It offered an opportunity for Holmes and James
to "wrangle” as they had done during their college days*
In 1861 Holmes graduated from Harvard*
In
his own view it was his advantage to graduate at the age
of twenty in the class of 1861 just at th© outbreak of
th© Civil War*
His classmates represented "names
associated with Hew England*s part in th© social and
intellectual history of this country; Charles Cotes,
John Bigelow, Stephen Goodhue, Emerson, Wendell Phillips
Garrison, Henry Wadsworth Longfellow and others.
Of
this list of great scholars Holmes received the honor
56
of being class poet*
myfm
Scarcely had he left the gates of Harvard when
the brazen clangor of war, which filled th© land with its
alarms, called him to service on a field where one ques­
tion at least was being tested for solution by violence
rather than by reason*
He served throughout this con­
flict with distinction, rising to the permanent rank of
captain, and lieutenant colonel In the 20th Massachusetts
Infantry#
He was wounded three times at Ball*© Buff,
Antletam, and Ifayr©*© Hill#
After three years of stren­
uous battle service he became aide to Brigadier General
H# G# Wright, and served in that capacity until h© was
discharged•
After the war young Holmes came back to Massa­
chusetts, his life again his own, but there was the ques­
tion, what to do with it?
There were no paths to
blaze; there was, however, the vaunted puritan aristocracy
from which he sprang which awaited him with its pleasant
securities#
Mere security, of course, could not satisfy
young Holmes.
The experiences of war had mad© it more
apparent that on© must struggle In order to make achieve­
ments.
Although he possessed qualities of a literary
otyllst which might have developed him into a writer,
he had no desire to follow in the footsteps of ]&nerson,
©Of1 kite# ■Of his father*
He had been class poet, and
prize essayist In college and consequently writing
appealed to him*
But he chose law, although It was a
long time before he was sure he had taken the right
coura© *
At the conclusion of his military career,
Holmes entered the Harvard Law School and graduated in
1866*
The next year he began the practice of law in
Boston with his brother Kdward Jackson Holmes#
From
1870 to 1872 he lectured on constitutional law and
Jurisprudence at the Harvard Law School, and edited the
American Law Eevfesw. writing manyimportant articles
and reviews for that publication#
It was In 1882,
after nihe years of law practice with the law firm
Shattuok, Holmes and Monroe, thathe
became full time
professor at the Harvard Law School.
Within a short time after becoming professor
of law he was appointed associate Justice of the Su­
preme Judicial Court of Massachusetts, in which capacity
he served until he was appointed Chief Justice in
August, 1099*
tn December, 1902, president Theodore
Hoosevelt named him an Associate Justice of th© Supreme
Count #f th# United $tat## to fill
by the roaiipotton of
W m
that M¥«
% m
w m m m j
m u m ®
*
thin fraipentiiry outline it I® apparent
Hein##9 educational career want pmoti *
#al ae wail as theoretical*
ft
be Mid that he
tapought to the b#n©b a otiarao&on, training# and #*p#r~
torn©# tnomughty unique*
To hi» early education
In booka' end arm a ho had odd*# a train tng in aoholan*
ahlp "in Ite kind mf reeeareli and anna true tlon *t*l#ft
distinction to th# great legal writer# of oornaay nel
$tidlan&*
iiteri o###ndif*g. to th# nott#***# high##*
tribunal, h* had written learned *rtl#l«# am &wpmf*
privilege, oalto# and Intent, and aowut©*1**
41 wo,
h# edited th# 12th edition of lent* a Cmg**ntarl#0,
published in 1873, and added stany iraluabl# not##*
During his #**r##f*- on th* feoaoti mr* Ju^tid#.
Botooa fr#qu#fitly wrote anttoi** for i#fpl journal#, th#
•more important of whloti ##r# m n w i dealing «ith torts,
ft# is generally rogordod.,. and particularly so by Prof*
•anon nidnspr# of northiw#ot#m Uttl*oi*«tty, && the origin**
ator of th# ppmwmt trv&b’
m of treating tort a m# a sapor*
at#
of th# la#*
Th# aocMMtloml »p*#*tta#*»
delivered by 'HP#*':Jtt#%l## Holm## o w r m period of thirty*
mkQm
t%*m y#ar®* m m m
togp him tmd $^ty*t#;iy print##
tn orOor
fo r o iro u io tio ii M®&g hi# trlom<to*
ol'ttto %lm g w i u a
thl#
to
11 %m*m*f mm4- a©tut#
Juri®t# it %& 'M&mm&pJtf to r®&& thl« voiu»# or ht# oorte##
&% th# ttim &m h®®m® a aa&Mr of th# sopr#?*#
M u rt of
b# ##•«#& to
•gift# that % m
kmum md &lt
§0«i$ a-cmlci
th#
ffor*
physiwl
a
bo#?* & f M iiy * #tt* #Mp#rl«iM*##
££?*is.0# p
f#**®# tiiitf lit lit#* #■ <#*i#t a#if
*##*# of Mourtly*
Me#h©*
;r
a <s&*#p
&#- h«& *If #*Ajp
oosgpoon#*# aphil0oopN|r of hi a emu out of th# #or&@ of
fia t# #
M
u m
w i i l t * Jam##* an# i&# f&bulou® a io r# of hi a cum
M f w * 'M
o m
to tfe# b#heh*
i
MlltiOttU?
ur*
UoIw ®b * swijr iif# th#
nation «*» in # pro#### of
political i#fom«
At tM' tii®# of hi# hlrth Boaton *o# u oity of 1#m tto-o
100*000
p&p**%*%%&to$ S M ® a p *•* a vlliog# of ion# thm
fit# thou'MiMi* an# Wo# tfort City & raolropolt# of half a
o i l lion- w ith in tfro aroo »#o aoil#& th# #n#&fe#r City#
t®% ftooptte t-ho Otoparity in «*!»#* Wo* ton
culturally
m d ooMwroiolly & smt tonal oopllol* th# M b around
w&ioli th# Wow worW toroed*
?M # growifig* owpftnOftiiK*
«Imaging ismton imst th# m®m woria in which yowttg Woteo#
ployod o# o youth* oqiiipMO Wta with sufftal#nt otowlfio
to owjuot logoi OMoopt* to
tm orOor of a ofeantsinfc *arl&«
Wiirto# th# ontoot o f wi# itro ttw o Mr* ywo&ioo
Woiflioo «itn»ooo4 two rioo of th# uni tod stoto# fro® th#
i« t # i o f o n iro l 'oomttaitgr to 'Soiwklotto boigMo o f on
iMootrial
impmriullm*
ftwr #n#pin$ of tlio rotation
of th« Unit## $tot#$ to othor oownirioo* of «**&#!*
it#
ttawroo Motrin# 'play## a major part* pM#od twrough m r »
Xmtm oto### Of intorpr#tatioiJ* fnoes %mt of a policy of
ia tU U m i to on# o f rcisponaihility fo r th# wi&r&r# of
th# jbooriom rtpMlan*
*X#a po^latiosi duriwg ttm%
%tmm multiplied m w m tftos»
its <niiorit forty f& M *
it» railway miioogw nod th* w l m
of it# ^aowfaot***^
ST
pro&uotw wiaty^fold* Ito notional w#s,lto ft
fit %t*o realts Of W M
from
I tor#
%%m
powiiioo
of
And
f ! w » t itiw Utattod
m
dwbtor notloxi to that of a arwd*
ifcwr# wow a l&r.##
oil wo Uoltort&it#*
m
whiftod
tmmhrn*
of #©«#«**•
it a few avowodly i*» r a w of wlowory,
t&o rodioolo or iiNan#a#*^tttolt at® woro taking part .oftife
ioorooeing
m & %
%m
i&# oauoo for froo&oa*
Oo
3&m*mrp
19* 184.1* & r® prom ntatiw# groyp of too onl5«*«*iowory fcto®
S6
told o oonvoiitlofi at Bootoo*
$®tm
fylor ouoooo&od k&rri m
m
n tniidocit*
!!£« loyally to too fSil| prlnolptoa on® doubtful* a
oontottkowotfta ooro
prowod ofejootlonobl® In
Of too old oo&Mywotowoo*
t m
flf**
too® to# Whig* oato a i ® w n
at took upon fy lor* and th» frion&w of clay rosigood fros
hi* oobinot*
aitbou^it tn# whig* ana Dowoeratft woro
to® two ^ajor political
a orop of mincer parti 00 •
oprasag up* toward wtilob t » rotor# of %tm dwwooratlo
59
powijr turned for toatorohlp#’
f M « split 6uooo«Mto& in
broa&liig up %tm party* and tko ant tool owory do&o®r*to f*«45w«ro4y4©*\«.%Vfg tun rank* rathor than wot* for wowlhom
prinolploo*
fhuo a whang* hod oo«4w over politico and
®. m&toemaX party phi I® edpby was no longer adequate for
reetmoi ling -sootlonal differences*
the main ¥a»eAo*">
democratic leaders tremble, surged from the
storm of feeling over the annexation of Texas and the
war with Mexico*
old parties*
Ih® Intensity of these issues split
Old Whig® and conservative Democrat®
waged a three cornered tight in the presidentsal election
60
of 1648#
It is safe to say that Mr* Justice Holme®
committed himself to no political party or creed*
In
a changing world it might have been his opinion that to
commit oneself to a cult was simply an example of fool**
tsh consistency of little minds, or the expression of
a little statesman*
At any rate, in ■& common Law
statement, one might be led to such a conclusion*
"The truth 1®» that th© law is always
approaching* and never reaching, consistency#
It is ShW®ver adopting new principles from
life at one end, and it always retains old
ones from history at the other end which
have not yet been absolved or sloughed off*
It will become entirely consistent when it
cease® to grow**
61
Mr* Justice Holmes, however, believed in the
efXlttMipr
national central government, the creed
and religion of his father which was typical of Mew
62
England *
«»44**
Boston90 standards were high hut fortunately
the youthful Holmes though not born wealthy was bora
Into a society which even the European capitals might
envy#
There was a saying at that time that, "If one
were born in Boston there were no need to be born again#"
Holmes was of the leisure class*
"Boston is the city
Of Holmes| here was the best of Boston concentrated
63
Into human form#"
The social caste which he reflect64
ed was the best the New World could offer#
A© a matter of entertainment in Holmes9 early
life he frequently could be found at the bar and billiard
table#
65
There were skating and swimming and dancing
schoolsj baseball, football, and hockey were Just becom­
ing significant as sports.
Sleighing, here and there
over the hills around Boston, or into the country side
was another sport of great proportions#
During the
winter months snow ball fights between the upper social
crust and the lower was an Incident muoh cherished by
a boy like Holmes with a strong physical body#
ft was during the plastic years of his life
that the appeal fur woman suffrage was being preached
throughout th© country.
Women of education, women at
the heed of religious e*ei*t and women interested in
public Affaire generally played m gr^at part in the
life of
The lew in relation to worn*
or was undergoing o&an.ge#*
Their supposedly inferior
statue mmm being discarded and women were beginning to
be looked upon
00
the intellectual equal# of men.
The
period, from 1840 to ifipo merited the employment of women
on a large'eeele In the mill#, a step which rendered
then more Independent and
demand# for equality*
m
0 0 0 sequent ly
increased their
The force of such &evee*nt* wee-
intense that they were bound to- find a response la
the active mind of a youth like Oliver Wendell itoleee*
dr*
In later year# we see a positive react tors to the
problem in hie dementing opinion# for legislation to
>e*4*vM~ the welfare of mmmn*
In » pmmgpmph 0imrtmm f r « l § M e m o fc**
the situation that eel ated In Boston prior
td 1840 which no doubt* to. a large extent* owletod
in 1S4& at th# time of ifeim#*** birth*
*
"th the town* a# In the nation* the p r e M N M
of ad&eorpblon #n$
wa# now to he
8#«i# through with*
Th® inrush of foreign
m'tmmm%^ ted h e w too rap id.*
ft tended to
wpoot w e r y b h i t m *
tor did it soon otop*
Up
to thl® time the o^iouliuritft fart? imndE ted
boon r*t*iniy m w % & i m * +
ttm ?ri#h began -to
take th# pk*##' of thee# mem In th# field#*
wilt.I#
m m
w # fww&^iion of jta#i*t«#«i# wither
found- w o l o y w o n b in th# #h#p# #&& ^ # # f W i # # l
pursuit#* or .booon# #h## oofcoro*
Th# ®or#
*a*«htwR’#u* ifid wtorpnifttng wont to th# el tie#
or sought- their fortune# In its# test#
but
lii# result. Of It ail «*# «& couplet# change Ip
tli# oter&eior of th# $&$&•
It woe m oterig#
#!## for the were#"
: fiw o M order of thing#
#n* do-ahti##-# blow,. ^ois#ur##tiv## traditional*
but it woo economical, et^plo* and bueimees
ilk#*
Tli# m m order of thing# warn in mlt
reepeet# th# rovor##*
Th# 3U<adore in it
prided the##oiw*e on their oniorprt##* their
laoM. of rmmmvmmmm for tradition* tnolr oois^
fiOeno# in tm###*!##*! hut they wore noisy*
vmmmbhodlenl* in reality ino»p^t«nt and
wuefc too often Intemperate** 66
This tmw order which ### forcing ii&elf
into th# forefront was oxpnoeeod in ^Mamy inetoiie##
by pool tiro e-efiott on th# part of
%im
state for
th# welfare of th# governed*
g#ee&&huMtti» mmrn
ra# of to# first ebetee to
000 * and under-
#boo0» tm# now m o n o c l e order.
The *#»owtfc end
4+ilPfm
development of iiMlysiry
maiiufa#typing were t M
wehietee. of traneformol ion#
Around JlSS© nmam&tow*
setts w&$ belng
©forced from #n- agrarian .and trading
67
ooesejttniiy id an It^ueirial etftt**
Many otlior faovoaionts developed into real ill#©*
The;.^oeo;of Beeto** «o« the first -.to dleeara- the tradli-*
63
tenal forma- of looel gevenseefit^
fhe grewth of state
hospital®# end stmt© 4©piirt»nts of'-mental dtseaee ea*
eiee^eon^leiieue*
teen.',offleece#
‘There- was little or- no ..eentrei .ever
yaaee'w©.^# placed under th© control of
'.
a oeemttte© composed of the #©l©ot men*
63.
At the teen
meetisige where test proposal© eere voted ell -had an
opportunity ■tO:.\^o^e#! hut as a rule the- member© of the
70
oeffihlttee constituted t m majority of those present#
Beaten wa© the first teen to establish a board of health#
Br#:.rreetk- Wlnlbrop Draper was appointed the first me&leai
examinor for ^ffolk County*
his term of office was
very motives he ioweetig&ted' ever 8000 deaths end ;
pi*%
-formed -sooovauteneiee in
■&-*■
‘“In 4B4& Aaiatia
Chelhre Invaded heeeaehueeite and ever ©even hundred
71
^
.persehO':hied in Boston alone#
immediately, undertaken*
'A sanitary survey was
Something had to be done}
the .©-tat© being the only agency -targe enough to. ooohet
the-evli m % ‘up na-gen#rmi board of -health* in lSdiu
the- movement-of economic reform In so sto-n
and lpkeeachusetto m s carried on with steady and un«*
remitting amg&eala#
n IS53 there cam# a board of
Agriculture; In 1855 sn iiwufarset ooan! akion $ In
.1865 a tax owami salon* and In 1866 a oommla©©ion of
ft ah and game#
In 1863 a railroad cowl eel on and.
bureau of labor statistics war® created} in 1870 a
corporation oonmiA©lont and 1867 wlinaseed the first
of those regiatratlon boarda# dentistry* pharmacy#
optometry* nuraing* embalming* eta* that have per«*
formed such important functions in professional
72
service#
With m t&imy new state fundtions in the
lima light it la not our prising that, tm
laboring
el&saee began to »*<• the light and to inoroasas their
agitation for bettor wage© and working con ittoe#
Frier 'to this time saga a had bean regulate d on the
basis of the maximum* instead of the minimum
Budb ia %tm background and th© economic
atrue turn which nourished this beloved Mew rrender*
Mr* Justice Oliver Wendell Holmea# Jr*
$ w m m in
fot of Influence*
The extent of mature** role in developing the
faculties of Justice Heine* may form & -premise for argunent by eugenlat* and behavior!ais* but th® point under
dleouesion in this trestle* is that these influences
ere thought to be responsible for the fashioning of this
interest ins P*reonalitjr*
A history- of his hereditary
and environmental pattern' will at le^st acquaint us
th
many factors which# no & ^ufei* influenced ni® trend of
mind ae reflected In the tenor of his constitutional
philosophy#
It is said that mental lability Is an- Inherited
factor# that It is carried In the germ pl&m*
Psychol­
ogist* in general further- seem to agree that heredity and
environment are ‘
primary constituents in the making of
individual*#
11What an individual hmoQi-ms is the result
of what structures existed at first# plus what saodiflca~
tlone have been brought about through continuous and oorn73
pie* level#”
Dr# Woodworth# In hi* book on Psychology,
has this to ©ay about native traits 4f individualss
<50
wIt la on the basis of such native
aptitude© that each Individual proceed©
through the process of learning* to build
up hie various acquired'abilities* such
as th® ability to sing* to speak a certain
language* to add* to work with tools* to
perform athletic feats* and to take part
In social activities of various sorts*” Th
In support of the theory that hereditary
traits do reflect themselves In manifested abilities*
we quote the followings
"Mental efficiency runs in families*
but usually some members of such families
have normal mentality#
Oenius is almost
certainly a native trait but it Is the re­
verse of universal*
The fact Is that*
along with cartain traits that appear in
all, the native constitution of a stock
provides also for traits that appear only
sporadleally•"
Another note of music is sounded by Hinkle:
wFor we are finally face to face with the
recognition that the determinants of our des­
tiny lie within us* and that we actually
possess not only the possibilities but the
-creative, capacity for the achievement of a
«e
higher consciousness and a more abundant life*”
Hinkle also sound# a plea for heredity:
^When on© looks back over human existence*
however* It Is very evident that all culture
has developed through an Initial resistance
against adaptation to the reality in which man
finds himself#
This resistance acts as a
stimulus to his inner impulse to action and to
creation thus causing him to shape and remake
his environment to suit better his need© and
desires**
76
in writing-Mu &ut,obi
list M ^ s a
Ohllo
la
o
for
military
tm
$s#rv&rfl
nmhmm
temp*
-I
w&te'\ofepr0OftO& fo.lto in tbo §m ®r of U m horodltory
otrdlr* to t o a n M i t it# qualltl##*
* 1 # Olliror ^ t o & o l l
tetoo®
y r * # ***
teorn
Mmrmh ® t !®4i# |iv.j$o#to$«
My fa m a r woa born
at »n r # r d # <*tudld&
in OomteftdffOf
m
M
oV h *
In tort# -'4Mt totamod to ik»»to» and
proo&lood #®
®l#tog. t o i w
& ptegwtm&m
up*
tewovor*
ttero a M b t r of y#sM«
m im&
I
»l
tmm
nupportod
hteoolf by noting *** ^ profowoor of tho modleol
OO t sooi
of. iHtervard O o l t o f # *
by
iooburtog*
a « 4 ib y
wtbtos a
of- bo&kw*
f« 1640 no ajorriod
tooilo L## «f00 k won# dough tor of Judg# tl&okaon
of Boston i m w no to# M.*Kto rooidod*
&%X say
Itor** m * o o doai$p*oto tomtit#® fr®& ofeiot* t mm
tow®oiiMto$to a long
of Olivor® and
Wand# lla mmg hm $&*m& im %Um book e&ito® %#*&<*«rl»ii of tb* Paad in. tofttM*9 I tog® $tiftpol
M p y i n g fltouisd* pp* 144 and sjto&si*
on my
ipNinOtoiter Abtoi
an noooumi may bo
found
itr * & • M S S 3 1 M S S 1
($®
**«■
tto Author or'lfco f t i f f ir^a M f e "#to» ? a®
atoo of my ottior cr&ndf &tBSrtt borl® « took turn
(»®«. tor inatane*. A$p3,«t ■«*» iaeftia
dyolotedto)*
f mink It b#tt#r ® a
to gito
a o&ttofootory rofortwod thoti to writ# an ooooumt
imtott I# teif #0 *
a®»® of my are#©tor# tev®
tmmh% to %k® ftetotobio&i mooae- to® gyoot grand-*
mottor# of th® family won# boro thy 4u|at*y and
ton# o*tetotr®®t$ and «■ o»| but tte®o thing®
oan bo- plokod up frogj otter woura## s tev# ln«*
41 onto® « My gpattdtotter* A* telmo®* o®» gradno tod fro© tmlm In l?#.3f -art In tT&% mm® f'grand
hoaoraftria
at !3arf#rd«
vart ou# ##n«
•OOiio- and dll##**® #111 W- found in %u% trlonniolt
mm m i m #
a
r
i
$ ir.oluding ay ^r^tsafotror*
Our foawiiy lma:boots to t m imhi t mi roooivl#^
aoitogo- oduoatlott and y a m m mi w u r m
in my turn*
00 my grandfathers* fathor* ««ad utiolwa ted teon
boforO' ^o*
I1?# otoaya llvod in Boston and wont
firat to a w « o n ## oohool ttero* than to H#v*
1?*,.A* Sullivan*® thoh to E* K* Dtxweli’s (Private
Latl|ra School)/ and thence to college*
I never
h©d.:1aby' bueihea® but that of a student before
coming to college;
1 did with the majority
of our class in July, entering without conditionb
X .was* while In college,---a member and editor of
the Institute (had somewhat to do with-ou& two
private clubs) of the Hasty Pudding, th® Fore ell**
13&*; the fBK and the 'Christian Uni n,f not that
X considered my life Justified belonging to the
latter, but because X wish to bear testimony in
favor'•of a'religious- sociifty founded on liberal
principle® in distinction to th© more *orthodox*
and sectarian plot of the fXtlan Brethren#1
1
was editor in the senior year of the Harvard.
Magazine, the chief piece f wrote in it being on
*Albert purer#9
I was author of ah article on
Plato which took the prise aa the best article
by an undergraduate (for the first year of its
existence) in the ^University Quarterly.?
Th©
only college pri^e 1 have tried for was the Greek
divided between one of th© Juniors and
me*
-When--the war broke out I Joined the 14th
Ha^tdlion of Infantry1 and went down to Fort
Independence -expecting when drilled to go South
(as a pp- vat©) * While at the fort, and. after
we were ordered up I had to patch up a class
poem as quickly and as well as X could under the
clrcumstances, since X had been elected to that
office before going (2nd term senior)#
We stay*
©d about a month at the fort and then X came to
Boston and on class day (a week and a half ago)
X delivered my poem side by side with my friend
Hallowell who was orator and who had also been
at the fort#
The tendencies of the family and
of myself have a natural bent to literature, etc.
at present I am trying for a commission in on©
of the Massachusetts. Regiments, however, and hop©
to go South before very long*
If X survive the
war X expect to «*udy law as my profession or
at least for a starting point.
77
In casting about for a successor to Justice
President Theodor© Roosevelt expressed the deair#
to know something, not only of the past activities of
the appointee* but also of hi© hereditary pattern*
In
order to establish thoroughly* and then to perpetuate
his “Mew Freedom9n the President wanted a Justice who
could grasp the changing economic and social scene*
It was his opinion that an Intimate knowledge of the
lineage and past activities of the newly appointed
Jurist would enable him* President Roosevelt, to infer
the nature of the justice1© future decisions*
In a
letter to Senator Lodge he unfolded his sentiments as
follows:
“First of all I wish to go over the reason©
why I am in his favor*
The labor decision
which has been criticised by some of the big
railroad men and other members of large corpor­
ations constitute* to my mind, a strong point
In Judge Holmes1 favor.
The ablest laagers and
the greatest judges are men whoa© past has
naturally brought them into close relationship
with the wealthiest and most powerful clients,
and I am glad when X can find a judge who has
been able to preserve hie al&ofnes© of mind so
as to keep his broad humanity of feeling and
his sympathy for th© class from which he has
not drawn clients.
X think It eminently desir­
able that our Supreme Court should show in
unmistakable fashion their entire sympathy with
all proper effort to secure th© most favorable
possible consideration for the men who most
need that consideration#
How “How X should like to know that Judge
Holmes was in entire sympathy with our views,
that la with your view and mine* before I would
feel justified In appointing him*
Judge Gray
has been one of the most valuable members of
the Court*
I should hold myself as guilty of
?*n irreparable wrong to the nation if I should
put in hie place any (Ban who was not absolutely
sane and sound on the great natio al policies
for which we stand In public life** 78
Justic e Holm© s1subs©quent activities as a
character of exceptional abl ilty vindicated th© confi­
dence reposed In him by President Roosevelt*
In discussing the elements which are respon­
sible for a judge’s decision on certain questions,
Justice Cardoza set forth th© followings
“The great tide and currents which engulf
the rest of men do not turn aside In their
course and pass th® judge by*
Some influences
however, unavowed, in articulate and subconscious,
regulate the decision of judges* ’All their life
forces which they do not recognize and cannot
name, have been tugging at them, inherent instincts,
traditional beliefs, acquired convictions; and
tne resultant is an outlook on life, a conception
of social needs, which, when reasons are nicely 78b
balanced, mupt determine where choice shall fall*“
Th© above observations are submitted as
sufficient testimony to th© efficient judicial career
of Mr* Justice Holmes being based upon his rich inheri­
tance and hia wide experience#
however, w© may consider the
As a further example,
as© of the farmer who
plants an outstanding variety of corn in the hop© of
* 55*
hatnrceiiiig
ii
prod©termfned .yield*
After committing
hi© seed to ft correctly prepared amid' properly fertile
li«4 .soil.* there are ©till the fan tor© of cultivation*
r&infall, end sunshine with which ho has to contend.*
If theoc oil prove favorable, ho is then able to pro*
diet, with oot-onlfthlng accuracy, the expected jri.dC; of
his growing crop*
But whether or not the harvest
hears a proper relationship to the seed planted is a
matter to be determined by the county demonstration
agent#
fo what extent the aristocratic, literary,
legal, and scientific qualities Inherent in Justice
Holmes* hereditary -pattern found, expresalon in hie
activities, and to what degree his practical experience,
the democratic forces, the inter-play of conflicting
social end economic doctrines, a changing world and his
military career were potent in shaping hie career, it
may be profitable to consult hi® wrltlnr:*, speeches,
and court decisions, together with a consideration of
the opinions and statements of rany prominent personal­
ities#
A# a painter, composer, or an architect leaves
the nasfe of his personality upon his .product, so does a
judge impress his craft with the effect and influence
Of
previous training and early experience#*
And
the composite of his philosophy, a bit acquired here,
* bit there, play# an important part In the matting of
a deeielon In any particular ease*
Th® connoisseur
of furniture looks at a fine piece and names its maker;
the musical critic listen© to a phonograph record and
call© off the- conductor and orchestra; the student of
eonktittttlonal law listens to frepast*ie of an opinion
and telle the author#
By a careful study of the In­
fluences and ©hanging aoefiee that played upon the life
of a particular Judge, one may with certainty predict
his rigid, eonadervailve, or liberal attitude, or him
stereotyped or ^hamgeahle v i m in regard to an Inter­
pretation of the constitution#
By birth and heredity Mr# Justice Holmes was
a Boston "BraJheen,* a member of that holy little circle
typified by the Saturday evening Club#
For in his
79
veins ran the *Tuf»i tan eternity#
Three years ©f ser­
vice in the Civil war (shot through chest and neck),
mm& years of practicing law und of teaching It at Earward* then twenty years In the Supreme Court of -.,&&&&*
ehueette and thirty years in the Supreme court of the
United States explains the life of this
helped shape the destiny of America#
Judge who
- 57*
Early In life Justls# Eetae# loomed th#
l^portatto# of faith in mm* a self, in order to Moompush anything worthy* to exert
of hi# several afetiftlo**
Oita on Flat#
#00
to th# extent
TO# Jtelioola$ passage by
quoted fey tfes flaw faagland Quarterly
its .1000 from to# University quarterly a
“-in quitting this nufejoot* on unieh fr#o
orltlolM a# ##11 a# prats# feu# feson used* I
should mtoll my loot word© to fe# them# of ta#
vwvoronoo and lov# with afttoh tfel# groat
and hi# nastor atony ■» fill mo; it
to- a#
that on this subject that i# th# higfeaat# and
aloo tfea smmt difficult, fa# final result#
ar# yot to tm &%%&.* m®&$ f €# not foot sur#
that oasis mmm* a o#«i sxporionoo i# not olwaya
to fe# tnat vfetoh s*i«t ultimataiy sottlo hi#
feoliaf, but to «a# a really great and feuoano
spirit ftgfetlot too son# fight olth our soIw a,
aisd always pwsarvin# an Ideal faith and a
easily and *v#roie oov»duotf doubly waoaom&od,
noroovoip, to our heart# fey t&* foot of bio
having only hlnoolf to- roly upon, fills ©y
heart with l o w and rowranoo at m m of in#
grandest islets th# world can boast** SO
HI® Military Career
The degree of loyalty and courage maintained
fey Mr* Justice Holme© after hi a mlraaulou© ©acmpes from
death add immensely to mn already dramatic career#
The
bullet which inflicted the moond woudd at Ball*a Bluff
missed hie feeart fey a scant half inch*
The attending
surgeon announced it would fee fatal, hut young Holme a
recovered and wa-a soon feaok ©n the firing line*
Tfel®
time at Antletem he was ©hot through th© neck and left
on the field of battle for dead*
along and picked him up*
a farmer boy chanced
Thu® he was nursed back to
health only to return again to his company*
Once &©re
he we© wounded, this tie© at Chancel lorevil ;.e fey a shrap­
nel which shattered his foot*
Ominous rumors of ampu­
tation died away a© hi a foot -healed, and still again
h# returned to the front*
Thus he always returned for
more struggle and combat with the d*termInotton to re­
main In the thick of the fiaht until the disputed Issue
was settled.
Likewise in his Judicial career, Mr*
Justice Holmes was an uneosipromising warrior who never
©aerlfletd hie view© for the legal ooueeptlor<© of other©
and the courage which knew no fear in the heat of con­
flict how ousa© to fruition to his efforts to establish
m better order in an imperfectly revealed world*
The- horror© of war fortified Mr* Justice
lloim.ee with an eeeuranee Which he never could have
attained wlinln the fold© of the genteel •’Bratei©**
tradition*
Actual conflict solidified realltie® which
literature nor training: could have effected*
He
hieself, probably, has cald it beet*
“In Our youth our hearts were touched
with fire*
It was ftp to urn to learn at
the outset that life ie a profound pensionat® thing***
81
Holmeav liberalism was forged from the
aeettmilatloh of his own experience*
m
S a n W y . b* "iw*er
0(2'
dler in action***
22
Ac expressed by
to b®
a ad-
The experience of war left its Indelible
impreee upon him In that he firmly belteked that the
supreme law of life was that of atrug^le*\
In the
following he look® upon war as a jgpeai teacher*
“Wan when you are at it, la horrible and
dull*
It la only when time haa paam-ed that
you see that lie meaaaga was divine*
I hop©
it may be long before we are called again to
sit at the Master*a feet*
But some teacher©
of th# kind‘we- all need*
In this smug* overcafe corner of the v#orld we need ?t, that we
may realice that our comfartabI® routin# la
not eternal necessity of thing© but sorely a
little ©pace of calm In the midst >f th©
tempestuous untamed airemlng of th® world*#. and
In order that we nay be ready for danger.
B©
..
mGO***
toto 1% in tto tlm# of individual me gation©,
with lie lltoratur© of FrtMftfey and lw*©rl©te
htoor, revo-ltl-iift -at 41wiplir©# loving flesh
jei» ted denying ttot anything l© wifey of
revorottoe to ©rtor ttot »# $m& r#cantor all
%im% •tofftoft© ferret#
to need It ©very#.; :-r©
ted at all' tin###' For high and iitecerM*
action tote to© im W^tollav© a® rI.ifhi beyond
depute thing • for white our doubting e»lvi£*
are slow to find word# of torolan*
Therefor#, I rwjatoo at. ©very a&uvjcroti© ®port
which I so©' pursued*
If onoo In a while In
our rough- riding m tote I© broken, f regard
it not a® ft
but *© a prtoo well paid
for th® brooding of a race fit for headship
ted ©mated**
S3
Any ooftaooo or wontImont&lIty that 3*1got
have tainted Mr# Juotto© Holme© was* thoroughly
purfed fey fir#*
ktey year® »ftor to# last shot
hod tote fired to teotoai&od tte volt*© of “high and
dtegorou© ootiofi* a# a valued and &©st ind* ©pons&fel©
toeteor*
file term “dangerous sport** a#- a quality of
hi# life mid jtettoootey «&*? fee deduced fr©« hi si ©low
and a^ilouioy® advonoo In %$m M©roh for truth &o
©owp&rod with th© polfi&tteing imd mrwfulijr planned
ftUftdl in th©. faoo of t&© tetejr* © fir©*
Hi a tost®-
ion® ©tow ito ©te© oourhg# that m uraatoritod feta whon
with \b*'- UtilOh
of ti»* Twentieth .ao^tohuwett©
to$ia©»% to ted ttoy * * 1 M 4 quietly ©round, a e o m t r
to Feeder 1otofettr©:* knowing that at any m m w % ttolr
lives might he destroyed*
This courage is exemplified
In several of his dissents: Lochner v. Hew york, 198,
U*S* 451 Adair v. United States, 208 U* S* 161; Coppag©
v • Kansas f
236
U .3.1; Hammer v . Dagenthart, 247 U.S.
251 where h© he la to the view that th© government could
take positive steps to protect its citizens*
There was no doubt In the mind of Mr* Justice
Holmes as to th© value of his war experience.
It alter­
ed his phlloso hy concerning pleasure and happiness,
and gave him new light upon the role played by thought
in a changing and a complex world.
Such perishables
as buildings, customs, rituals, etc. were now looked upon
as transitory and of secondary import, while things of
the spirit and of the mind came to be regarded as real­
ities and matters of prime importance.
In later life
we find him urging his associates to “think things”
through*
His skepticism of verfeatlsm on on© occasion
led him to exclaims WA word is not a cryst&l,transparent
84
and unchanged, it is the skin of human thought.”
During the post-war period of his life, Mr*
Justice Holmes cam© to look upon duty as a pleasures
"The stem experience of our youth (the
Civil War) helped to accomplish th© destiny
of fate.
It left us feeling through life
that pleasures do not make happiness and that
the root of joy
iii duty to pump Out
« U on#1'o powers toward eomm gr»ai end#** 8fWhatever else th# experience --f war rai^hl
have don# to him# this foot ST-andf* out in hold re­
lief « he wa® convinced of th# right#wot#®# of mar­
tial corsfilot* especially whenever th# predominant
power demanded this Immt measure for #elf*pre0ervtt«»
tlon*
Of heroic proportions physioally* intellect­
ually* and spiritually* h# expressed deepest iov#
for hi© country and it# people saying* *’
?Th© deepest
cause w© have to love our country 1$ tn^t instinct,
that ©park that make© an America** unable to e?##t his
fellowmon othemis# than al^ply a@ a man eye to eye*
hand to hand* and foot to foot# wre©tllrm naked on
St
th# sand*14
in an address at Keene* &ew Hampshire- aay >0,
1084* before the yofta Sedgwick rost dumber 4, Grand
army of the republic he expressed & lack of &nis-oeity
and ill-will of th# soldier® of th® dpponin;
wTh« soldier® who war# doing their best, to
kill one another felt less of personal hostility#
1 am certain# than the©# who war# not Imperiled
by 'their mutual endeavor®#
T have heard gaore
than one of those who had been ;-alLent and dis­
tinguished officer# on the confederate ©Hie say
that they had no ouch, feeling*
I know that I
and those whom f knew best *ud not#
V»e belie ve­
in the principle that th* Union ia indissoluble;
we* that 1# many of ug** also believed that the
eo?-.filet waa Inevitable and that slavery .*#0.
lasted Ion# enough*
But we equally believed
S3
*
- thkt thus# ubo ©toad against us held Just
sound
©obviation# that "m'hro th# opposite of ours arid w#
jp##p##t#d them a# every man with m heart mum% re**
speet %::.omm #fco giv# all for their beliefs*
Th#
fluid of battl# soon taught its lesson even to thos#
#ho tstti lot# th© field bitterly dlapoaed*
low
aanno't' stand up day after day In those indecisive
aehtset# *hor# over# helm lag viotory *ao impossible
bMause- neither Mid# would run as they ought ©hen
beaten without getting: at least something of th#
©am# brotherhood for th# ® m m y that the north pal#
of a magnet has for th# south, eeeb working in an
apposite sens# to th# other but each -unable to get
along without the other*1* 80
A# it was thett* so it was in later life*
Firmly convinced of hia stand, and yet respecful of th#
eonvletlons of his felloe
Judges# h# expressed hi# dissent
as follow® regarding the right of the $©w York s-iwt-dfeto
regulate hours of work in a bakery:
**X regret sineerely that X to unable to
agree with th# judgment in this ease and that
I think it is ay duty to «xpreee my dissent.
^Xhls oae© 1@ decided upon an eoonomi#
theory whloh a barge part of the country
not entertain*
if it ©ere a question whether
I agree with thafc theory, X should desire to
study It further and longer before making up
my mind*
But t do not conceive that tv be m$
duty, beoauee X strongly believe that my agree-*
ment or diesgreement !
-as noth1ng tc do m ith the
right of a majority to embody their opinion®
in law*"
89
Hef©Fences to ..war in Writing
In figurative language Hr* Justice Holmes
often reverted to hi® military career In explaining
and discussing topics of the day*
As Holmes St?*
drew on the field of medicine and made us® of his
technical medical knowledge as content In his litefaty
work, both prose and poetry, so Oliver Wendell Holmes
Jr. drew on his military career and made use of this
training as content in hi© speeches, writings and
decisions*
Th® fact that Justice Holmes so often ex­
pressed himself in military language is important in
considering the potency of his war experience in
shaping his thinking and actions.
His speeches,
letters and decisions are full of war metaphors and
allusions to th® war which he says he 11cannot bear
90
to read about.**
The excerpts which follow are
characteristic of this trend of mind.
Jn a farewell address to members of the
Boston bar, after mentioning the difficulties of the
task that lay before hli* he expressed his faith
figuratively as follows?
"But,gentlemen, it Is a great adventure,
and that thought brings with It a mighty jay#
To have cm# aban## to do one1''a ahare in shaping
th# i&wb of the whole country, spreada aver -xm
th# hush that om- used to feel ohon awaiting
th® beginning of a bxttie,
w.W® will not falter*
w© will not fail.*
.if® will reach-th# .earth work If m® live, and
If w.e fall »• will leave our spirit In those
oho follow# m & they will net turn bhok* All
la ready Bugler# blow the o h u r g e 91
How nobly he has fulfilled that high resolve
only those who under© and the nature of the Judicial
process can appreciate*
In a Memorial Doy mddrmmm
before the graduating olaei* of Harvard university &ay
30* 1895* he rebuked war as a great evil, but eul&gi&dd
the soldier*® faithi
"But In the sftldat- of doubt* in the csollepee
■of creed# there is sosi®thing X do not doubt*
that no. man who live# In the esnsc world with so si
of uft can doubt* ano that la that th# faith lo
true and adorable which lead# a soldier to. dhro*
away his life In obedience .to a blindly accepted
duty# In a cause which he doe® not understand# in
a plan, of ■carpalgn of what h® has no notion,
under tactics of which he no®& not &e© the use*1* 92
Xn answer to the resolutions of the far, &ay
29# 1097# Mr# Justice Holmes in reviewing the practical
lesson and experience received under th© leadership of
Oeneral Otis Shattuck paid him high tributes
*®fce final test, of energy la battle In some
forts*
Actual war# the" crush of Artie ice* the
fight for imatery In the market or the court*
Many of those who ar*> remembered nave spared, themaelvea this supreme trial# and nave fa.-.tered a
faculty at th# expense of their total 11f© * It
•la one thing to utter a baopy prheae frow
-r«-
> 66~
tee tot eidMfewvH wvotorr to totot under fir# mad
to totnk for watton ti$oti wot we gpwot
&#*►
pood*
flio
powerful
m m $spt to $o Into
too m I w o mid foil or cow# out
the
®w*o% pp&btmmm or® querttom of’*^ro'
riot*
Questions >f h*y# and new -oooupf ftiqotjaMMbMi
thou sand toe of tbw ability of to* world § fetid wtoe
too now ten
and tow #ivw» ptoew to orotowr
now# the aeads ami #sidw toot bui It to# or$&*iie
otruoturo &mm :forgot ton rrou to# <*###«& of tool*
foil own and’ ilw oti*y In >
<0 # tissue# of their
woHu*
93
Fooling to# wwigiii of duty about to full upoo
btm fts ti# wntorod a world wfer# tower1 # * oust to #p$lfr&
mr* Just low hoi*##* on rwwwlwfng tow eogr## of Dow tor
r*
of law «otoo*i*<%«e*
*T aee#.pt It proudlir #?* at* ooeoli&d#* ii&w
to# litt.lw blow upon tto ahouiewr froa too a^ore
of « oafttot* of war wotoh- In Mwlwnt days adjudged
to&i a soldiwp imO won spurs m £ pledged hie Ilf#
to dwell no 00 eootot in th# future*** 94
Se an oMpos# to tot* $ol& tribute to the use
of tew 3#aooi#» bp*&Mii& before to# harvard L m satool
Awooeiettow at c«#feris.f« # ftovowwr 5# 1©86# if'r# Jusifts#
Holm## gave tola 4##®rI ptiotj of to# Imre# rnaotor of
lawyerwi
**In ’to# a w y of whleit I
# the lawyer#
erw not tow least important eorp®** 05
a dinner of toe Suffolk v&r Msoolsil 00
February 5# ISS5 Is# 01 m o w sow the unity of th# court
and tor in oboplog to# 1 m *
o etruaifi**
Tn ini® unity I# implied
*Every calling Is great when- greatly pursued*
©ut what other gives such scope to realise th©
spontaneous energy of one's soul?
In what other
doe© one plunge so cieep in the stream of life, to
share its passtone, Its battles, its despair, It©
triumph, both as witness and actor$" 96
In a lecture on Privilege, iialio© and Intent t
"Views of Policy are taught by experience of
the interest of life*
These interests &r© fields
of -tattle.'* 97
In explaining the doctrine of Privilege as
distinguished from notice of danger on one hand and
actual malic© on th© other, he declared;
"To begin at a little distance, one of th©
difficulties which must occur to every one in
thinking of the external Estahdards of liability
1st if notice so determined Is the general ground,
why is not a man who sells fire arm© answerable
for assaults committed with pietols bought of hl^,
since he must be taken to know th© probability,
tho sooner or Later, some one will buy a pi ato!
of him for some unlawful end. 96
Speaking before the Hew York State Bar
Association on January 17* 1899 on the subject "Law In
Science and Science In Law," he refers to military
procedure to explain why some questions are decided
by th© Judge and others by a jury;
"if a man fires a gun over a prairie that
looks empty to th© horiaon, or crosses a rail­
road which he can see In the clear for a thou­
sand yards each way, he Is not negligent.
If
h© fires a gun Into a crowded street, or tries
to m i l
a trank %®m f##i In front of mn. #xpr#*s
train In full olgfetf runttlng olaty mil®® an hour*
h* I® u*M.#«*
99
*
At h dinner $glrtn in hi# honor by th© bar
ftMootfttlon of i£a#ton on isw e n 7*
t0&O*
"Th# day be for® yootonday
f
»## at the
Xmm
eobool| fnoto from th© army# arguing eaa*# in a
little club with Moulding mmi £*•#*&*» and £#tor
QXnoy# and lay th# dual of pleading by certain
#pnln.&llngi* toi to Hun$tlrt£t#n Jack ion f *nnth#r
idler and f alnoy# ^aiuigcd to oonirlv#
to&#th#r»* 100
In an ad&r##® on Law and th# Oourt delivered
at
a dinner f the harvard L$* nohool «**oal«&dn of
lev ‘
Tork on Fotouary IS* 1913# h# again m i s
ujmn hi»
#£p#rt#n### in iifi
"Then* too* at leant until on# draw# near
to tt&wmty, on# is X#o# XS&oly to hear the
trus»s>#t$# than to# n-Xltng fir# of th# front*
t
hav# .pnoood that age* but 7 am gtil on to#
firing lino* and It 1® only In rare sawuti
Ilk# thi® that toon#
m pmumm ®n& for half
m% hour an© f##l# m trebling hop#*
They w #
th# reward® of a Ilf#11no*# work#" 101
too but a aoXdior at heart #0111# &*##
Witt e n in mioh a w i n m% to# m m of eighty **& &« u#*&
in the preface to hi# #*ll#ot#6 l#$al papers publi#is#d
in 19&Os
"it I# a nlitaeur# to an old warrior who
eonnot #Kp#ot to hoar i-fw
Xo»$#r that
_to# brilliant young #oXd;t#n# still glv# him
a pXmmm in to# in ©ounol to of »#r*'“
■f:S
In a Memorial -Day addr### before to# John
?o »t Mo« A, X&3 4 , Ik rtf«*H»g to & «9 iAI«r*a
Ant#* in *«tuPMl '%m doort faHltt* on tft* lie# of Art,
108
no ft®*®*a in a otvug^lo for life.
Physical
Feature#
7im mental m m g||faleal roritage of Jiietlee
Jtoteii ehleti resulted from a mill tony
fceoaae
mere otoviou# during tit# last day© of nl& Judioi&l
earner#
The Me# yet* Time* mia thi# of ttla»
"ft watt never hard to ©ee in the aged,
$udge the lineament® of the dsehl&g young
soldier.
The <gulet reeelutl •■=« ehleh had
carried Him t&rrnmm In tit© fan# of m . m t m m
rifle fire© remained to %h<*- end evident in
the firm lino
hi# jam, in the aerem# and
©©mottoes «ugl# like ?.aae of an eye e&ioft
apparently never feared a«iytidng#" 103
A© a young
of ©ewe oho had come to knoo
©f the remit tie# of life, Mr* Justice s&l«e» himself
apoke e» follow#s "I have loomed the great Ieason not
of low but of life*"
in
f©musing hie attention on th# £m»ld of
thought Justice Eelma* ediMrolafte&t
"Whatever glory yet remain® for us to win
mtii be eon in the ©©tmell or the ©losiet*
t d© not repine*
never again in the field*
be ehared th# Inoenmunioabl# experience of ear;
we haw# felt, we still feel, th# peaaion of
life to it# top*" lot
*
71*
Lagal Thinking
W %
‘JTwetloa Holataa amargaA fro® the war with
hi* Bind foaunad cm smal&l and aaonooslo prot,•!«»»# and
h» plunged lotto th* battle of reeonstruotlon with the
p#attsati#«* -that Ilf# wan & changing* moving substance*
thus fcm
that th#
um%ml
and economie structure
ehould b« adapted to th# constantly changing o©nditione*
By entering la# he discovered a field whereby he might
make the shift from war t o m conditions to reorganise*’
tion
tm<i
reoorsstruetlon without having to resort to a
revolution.
the need to *'adjust lav to life,1* to fashion
©■©mething great and. enduring out of such barren and un~
yielding material might have caused, hie deliberately to
choose law a» a &edlu& of ewpreesion*
Flinging himself
Into the study of law with the attitude that wEvery
calling la great when greatly pursued*** he grappled
tenaciously with the eadle^e perplexities of law*
Indications of the strength of his legal train­
ing and apprentieeeh.ip in shaping his views may be
detected in an address in 189? in memory of sh&iiuclu
**Wr+ :?h&ttuefe-» while he waa in the habit of
try ing eases* rarely made a m vmtake *
lie saw
the bearing on every answer on every part of the
evidence*
if by any :©hence he got an unexpected
reply* he adjusted hte^eir to It in a flash and uet
it by a new approach from acme remote side * He
could brio#-out the prejudice that unfitted a
•■ *7 2 *
w M n # # & for Just this
and yet le&.vo hie gen­
eral1value end hie personal feeling unteuohed* with
a' delicacy* elearnee® and force that left mm ©Imply
m
t^nmded **
105
Again*
nt owe nr# Shattuek nore than f ever owed any
oai else In the world* outeia# my immediate family*
He taught me unrepeatable lea® on a*
He did me
unnumbered fetnditeceee*
To live while at 111 young
la dally contact with hi a sweeping and compelling
force* hi® might of temperament* and hi® eelfineaa
(rarely found with such night}* his ineight* tact
and eubMeiy* wa® to receive an i?aprlnt never to be
effaced*
My education would have been a thin and
■poor thing had x mi coed that great experience** 106
The
of mi*#
Molwe#1 opinion®
la otorMtor&ood by an unusual vigor » d originality
of diction*
tn hlo style too infiueneoo are plainly
visible * on# th© spirit of th# poet* th# other th#
eeeery of a soldier*
There wore ee««tont eliueierttk to 1$ tore lure*
tietlve end foreign* and ever recurring references to
ojrutootteu and it® toport to eeiu
flu oolnliftft or m&'U
pfcreoes as ttto# palpi toting menifoto*te©s of atfcruly
elvlii&ed life***to* toapootoouo untested stMaerlng- of
the world**1
owl ft ©onolenou© Iton&ii on of death**
mod too oottottptioo of IIto mm a "gallop #oro«s the
world** all show that hi* f&tiaerf» poetic ability found
root 1n a fertile so!if toot it was not for naught
toot to# youth gr#*& up In a po#tf« %nd an essayist!
h*me# and nod for hi# early omooo%*%oo men and boofce
of culture*
The## Influences* ore soon in his address©*#
writing** and opinion#*
MHow pal# * phmnton oven- th# Giro# o f
roe try ir&nefeming mankind with intosle*#
ting dree*®* of fiery ether# and too to m of
o u m o r «a« i and flowing groonoword* and
too whit* mm® o f momom** 10?
■Hmln on toe subject of the law I
mWo -mm has earned toe right to intellectual
asbitten Until he
fo+m
ieeraed to lay feta course
by a star
be he® never seen# to dig by
the divlnto| red far springs eftieti he may never
tn hie words there is eeaettoee a touch of
Bee togland austerity s
'^Bepoee ie net th® destiny of saaa***
*Ewery achievement 1© a bird on toe eing**
**4
m o
of high ttwfe&itene ^uet le&ve M e
felloe adventurere and face toe loneliness ef
original womu"
*Every ©ailing is great when p*wbly pur sue****
wi university is a p X m & from enieh aten start
for toe eternal city**
*The Joy of life in living th® measure of
power is ehataele* to overcomes eo«f'» ftoi Judge
i« eeev» self*'**
$u®% as ur# Holmes expressed M e ttettghts
and feelings in eholee prose# 00 Sr* yusilee noleee
expressed himself in t-he
m m m
style*
Tn
m\
eddreea to
veteran® of the Civil «■«** Justice Holmes ealdt
*#&oaidento iay nail upon events of the war#
you eee a tottery of gun* @0 by at a. trot# and
for a moment you kp* tools at White O&fc $m»p#
or Antftetoe# on «» toe derttealeei Road*
feu
hear a fee toot# fired in the at&ton©# ana tor
m moment your heart stops as you say to yourself»
■75-
#the skirmishers ar© at it* and listen for the
long r^ll of fire from the main line.
Ion
meat ah old' comrade after many years absence;
he recalls the moment when you were nearly
surrounded with the enemy and again there come©
before you that swift and cuttning thinking on
which once hung freedom of life*
Stoll I
stand the best Chance if t try the pistol or
the saber on that man who means to stop me?” 109
in eulogizing a distinguished member of
the bar whose long career as an advocate was partially
to be found preserved in
the long list of cases in
thecourt's judicial decrees,
the court report being
conceived of by him as a record of human lives, he
said:
HX have seen upon thssaector of an ancient
tree the annual ring marks'which grew while the
Black Prince was fighting the French, while
Shakespeare wrote his plays, while England was
a commonwealth, while a later republic rose
over western waters and grew so great as to
shake the world*
And so I often think, may
all our histories be marked off upon the backs
of th© unbroken series of our report*
As we
go down the l o w line at every step, as on the
Appian Way, In a tomb we can see the little
space within which Mason roee, grew mighty, and
was no more, or Dexter, or Choate, or Bartlett,
or Lord, or Sweetser*tt 110
In describing the change in point cf view
*
and emphasis of argument In law from Flowder pttlme
to that of Lord Ellenborough, and from that to our
own day, he expressed the change in a figure taken
from martial life; it has a touch of hie constant
contemplation of the mystery of life and death*
"And so th* eternal procession moves cm#
«• in th# front for th* r^ment, and stretching
away against th# Insatiable sky* th# black
ape&rheads of. th# at%*yv that ha# been passing
In unbroken IIn* already for nearly a- thousand
y#ai»a»*
ill
Si# philosophy of 13Lft la baaed upon m
belief in courage, a courage which 1# expressed in
##11 written English pros*, with the familiar reference
to a battlefield«
•
•That th# Joy at Ilf*, is living# Is to
put all oft#*# power# aa<far as they will go;
that th# measure of #u####e i# obstacle©
overcome; to rid# boldly at what is in font
of you, be it fence or enemy; to pray not
for. comfort, But for oombaij to keep the
soldier*# faith against, the doubts of civil
life, more besetting and harder to overcome
than all the misgivings of th* battlefield,
and to remember that duty %m not to be
proven In the evil day, but then to he
obeyed •u»*u##tt#nintfly; to- love glory more
than the temptation# of wallowing ease but
to know that one's final Judge and on y rival
Is one*# self*”
112
In introducing him *Ooilec%#d Legal Papers*
to the public, Mr* duntica Holme# referred to them
a® ttfra§&enta of my fleece that t have left upon
th© hedge of life**
That phrase tovhl have temm
written by his father.
This study 1# concerned principally with
technical legal subjects, but scattered throughout,
even in this dry ©attar, 1# often found humor and wit;
there are sentences and thoughts which are strongly
reminiscent of th® genial "Autocrat of th® Breakfast
Table*1 and Quit® worthy of hi© happiest mood*
Mr# Justice Holmes- Is often considered the
logical jurist*
He starts from sound premises, and
moves toward great arguments in order to reach a com**
fortable conclusion, all with a minimum of effort and
a great economy of words*
■
l>
i
'
His unique
lies In the
.
distinctive way In which it la
one*
a careful
choice of words gets his argument away to a good start
shrewd verbal strokes set aside decisions that seem to
stand in the way*
His arguments are marked by an in­
ventive quality rare even among Jurists? bis opinions
reveal a superb gift of phrasing, rare even among men
of letters#
In answer to the query as to whether Mr. Jus­
tice Holmes possessed legal and literary ability it may
be wise to look to the writings of various scholars*
Extracts
jTrosi Scholars
WT© me# Mr* Justice Holmes is a prophet of
the law*
With profoun knowledge of the past,
his* face is eves® turned toward the future in an
unquenchable eagerness to discern.wlthvAth r
pure aim the main Chang® of things as yet not
come to life which In their seeds and small
beginning® lies entreasured*
His vision Is
so keen that he has but to s@© things In large
relation #**
CShXef Justice Hughes# Harvard Law Re*i©w.
VOX# 44# p. 677# March 1931.
rv"
WI deeply regret that urgent political
preoccupations prevent m© from setting out in
detail the high consideration In which Mr*
Justice Holmes is held by the English Judiciary*
Wo American judge of modern times 1© more widely
known or more deeply venerated*
His profound
analytic power* his consummate scholarship, his
deep sense of the social welfare, have combined
to' make him a jurist whose name is eni titled to
rank with those of Masefield and Bowen*"
Sanley, G*f Hary.arA Law Review. Vol.44,
r# 680# March#
wMr* Justice Holm©© was led by the
dlvi&ition of the Philosopher and the imagination
of the poet*11
Felix Frankfurter# The Atlantic Monthly*
Vol. 162# p* 466# October# 19'jSB#
Mln his later years Justice Holmes impressed
a growing number of people as a thinker who was
giving immortal expression to basic ideas on
human life and estiny*
He certainly was a
philosopher in the literary sense of the word#
he as a d®voted lover of wisdom# of seeing things
in their widest vistas under the aspect of eternity*
But h© did not car® for philosophic technique and
his expressions were oracular, like those of seers
such as Emerson, rather than organsled of ever
conerent doctrinea#w
Cohen# Morris R *#
Item Republic * Vol* 82
p.# 208# April 3# 1935
"Mr# Justice Holmes la more than a distlngufehed
lawyer and Judge, he is a wise and charming philos­
opher*
H® is a flaming champion of th© common man*
He is the delight and joy of the law profession*
He is a hero and the exemplar of youthful lawyers
and law students."
Clark, Charles £*# The Saturday Review of
Vol. 6, p. 5827 December 2i, i.92§7
Your Judicial service of over forty-nine
years* twenty years in the Supreme Court of
Massachusetts and twenty-nine years upon this
bench has a unique distinction in uninterrupted
effectiveness and exceptional quality*
Your
profound learning and philosophical outlook
have found expression in opinions which hake
become olassie* enriching the literature of the
law as well a© its substance* th© most precious
memories of your unfailing kindliness and gen­
erous nature abide with us* and these memories
will ever be one of the choicest traditions of
the court*11
Letter by Eight Other Supreme Court
Judges, The Outlook, Vol* 160, p* 102. January
27, 1932"
These scholars gave particular emphasis to
his literary and legal talent*
Thus the famous
and household name of the father* Br* Holmes* in lit©rStur© was supplemented and enlarged upon by the
famous and familiar name ©f the son# Justice Holmes,im
jurisprudence*
The mental .and moral inheritance of
this favored son dates Its begin ing from a remote
ancestral strain mid refers to the puritan founders of
Hew England in the following words;
"These men and their fellows planted a
Congregational Church from which grew a democrats
state*
They planted something mightier even
than Institutions*
Whether they knew it or not,
they planted the democratic spirit in the heart
of man**1 113
- 80-
Fivmneaa of Ofeamuttmr
The mustere attitude of Hew England*■& puritan
faith which characterised Ablel. Botees as a gttaunoh
unyielding Calvinist* and which fastened or. Bel»«* to
th# idea to ■perfect th# old ftalvtmlem wftth its boo trine
of original sin.* hold Mr* Jusii©# Hoto©a to th# faith
that law needed to h# adjusted to life*
T© the certainty of ©©aviation** and th#
freedom of thought in religious matters tran*& itted fcy
hie forehe#r## Mr* Justice Holme* added a keen interest
tn social and polltt©el affairs without actually *n£«&»g
in politics.
11s judicial life consisted of a lastl ng
revolt against the law
m
a stereotyped dead matter*
against precedents as too inflexible$ hia was an appeal
to present condition# and circumstance# in interpreting
the constitution and the law#
word m v k
"Tho plaoo
im*
m
mmn
Hi# powor# it in thm figttt*"
who in oohploto in ait
t m % oonviotion «*•
owopilfioA in hit Ufo* ftrot in % m Civil war, ana
oonond during hi# long p«t»® on both atat# cad fodorai
honoho#*
Mr* Justin# Mota*## wa® not only th# rootpioat
of ^ro&i legal and literary %®X&n%$ but aloo of the­
ft*olro tod ability to ooHk*
His Ilf# m m m fou®j one,
and #o filled with hard work that in hi a work ho fomi d
pl^&tiiro#
*fl»i th# Joy of lift Im
Is it
pal m%% ono*# power# a# ,far a# they will $0*
that in# etoaouno of Joy 1# oh#toolew ovoreoob ;
lo rid# Mldi| ol wnal io in front of you* ho
it fonoo or onomy.f to pray not for ooa&forl hut
for oookati to koop th# #614tor* # faith *o*lc»#%
th# doubt of olvii itf#**
tit
Botooan tfco oiody of law in early Ilf# and
h i t poadorln^ over l# r$ # idea#* jo o tto o KOlsm ^worked
diligently and long*
Job*## *3tpr#s-#& t^# opinion*
**I thould think that rondo 11 worked too femrd#**
There
m o o
# to bo
bo
115
doubt that oarly In hit ooroor
ho odoptod the AssorlftttOi nobit of hard work* and sontirs*
teed it throughout ni# lift?*
keen 1*1 the *«rly day# of hi® Judgeship in
the Bupneoo Court of ^aooaohuaotto*
m
*?aa a ‘
totrenuou#
«»S2*
worker*
Indicative of his philosophy of life is the
following comment on his long stewardship as a Jurist:
MI look into my book in which I keep a
docket of decisions of th© full court which
fall to me to write and find about a thousand
oases*
A thousand cases many of them upon
trifling or transitory matters, to represent
nearly a lifetime*
A thousand oases when
one likes to say his say on ©very question th©
law ever has presented, and then go on and in­
vent new problems which would be th© test of
the doctrine, and then to generalise it all
and write it in continuous logical, philosophi­
cal exposition, setting forth the whole corpus
with its roots in history and its Justification
of experience real or supposed*11 116
This philosophy was reflected in his twenty
years service In the Supreme* Court of Massachusetts and
the thirty years he «af»©nt in the Federal Supreme Court*
For twenty years he did not miss a session in the latter
117
court*
He was willing to take all cases assigned
to him and to give his best efforts to each case*
It
was said that his capacity for work and fondness for It
surprised his younger associates*
Whenever’the court
conferred he was present and ever eager and ready to get
started, which allowed him to dispose of more cases than
most of his associates*
In one-third of the oases Mr*
Justice Holmes wrote the opinion; when In the dissenting
118
minority he wrote two-thirds of them*
At seventy Mr* Justice Holmes was eligible
to retire but refused, because of his joy In doing the
work*
fn replying to thiu effect., he often said,
nt will, not re sign until work ceases to b® fun*1*
when
he did resign there was a foaling of regret ®k pressed in
hie poetic ways
*1?4ie time toss com® and X bow to th®
inevitable***
Like father, like son; a® Dr* Holme© gave
four lectures weekly beside® other addresses and
writing® while pursuing hie career as a professor* so
hi® son, Mr* Juablae Holme® pursued hi®, career even
longer* extending it to a period of fifty year®*
Or*
Holmes was past thirty when he published the wAutoorft
M. JBtt Bfefetefaat g&fel*. the »ork whloh gave hie
something more than a local reputation* and established
him as a poet and a witj Mr* Justloe Holmes was sixty*
one when he was appointed to the Supreme Court of the
United State®* at an age when the mental facuities are
generally considered to be waning*
Dr# Holme© was
an active member of the Saturday Evening Club where, the
great mind® M
topic©*
Hew England met end discussed current
Mr# Justice holme® continued this In the
nature of tea parties which he enjoyed and ccrttlnued
for a long time*
Dr* Holme® presented a collection
of 1,000 volume® of his private medical library to the
—0^iS*
Medlonl Library.
119
Kr. JTuatloe Hol»«
b»qu«atl»d #250,000, half of his private fartune* to
the United State® doverament*
These almilarltle©
may be purely accidental but they are worthy of
recognition aa a virile strain running through the
family* plus a modified, changing, shifting environ­
ment playing upon an open and alert mind*
Bora
into Hew England** intellectual rtBrahmin caste** he
©soaped it© caste prejudice© by sheer force
of hi©
intellectual ability and sound reasoning*
In recent year© there ha© been ate jurist of
the court with a greater sense of the continuity of
history and of the Amerie&n tradition, and probably
none who In appearance, ma-.'.ner and culture came nearer
to the Ideal of the aristocrat*
yet It wolld be
unfair to call Mr* Justice Boimea m
aristocrat without
at the ©am© time saying that he mmm a true and' Ipy&l
adherent to the ideal© of 4«*BO©rayy*
Thi© was UTm Justice Eotees, at one and the
©am© time* an autocrat, and a chroma**©} a conservative
and a liberal.
Hi© was Indeed a ©any-sided natural
a poet, a warrior, a scientist, a reformer, ©philosopher,
each expression finding laudable utterances In him*
m-kprm
xv
own, h t m m t m
t*Mi fight for poUtidal freedom !« t b rtoordi
of on o W
H 017 which moved b| alow degrees fro© tlo
l|r««iqr of ftbttolttti no&erehy to the liberty of universal
suffrage*
History recounts the ©ueeese of to# barons
l*i wringing from King John the famous &e*$»a charta*' then
of the increased demands by the populace upon the baron©
for « voice in the affaire of government! and finally It
telle ue of the eetabli simmt of reo**seen t&tiwe govern*
sa^nt*
Thus throughout the pages of history we are able
to note those contests which secured our libertine# the
freedom of speech and of the press* the freedom of relig­
ion* the breaking of the bonds of slavery* and of pre^
vidlng education for the ©asses*
Seeh had it© day and
its chan plan*
with the scene of changing concepts gradually
shifting eld standards to more liberal views, it became
increasingly evident that at no time during the process
of this deveiopnent was there anything like absolute
liberty* for in this process liberty always h&d ft rela­
tive meaning*
thlm
fact yr* Justice Holme© understood
and as a result of th 1b knowing® h© had t m foresight
under
to see that/such a living constitution the old doctrine
of individualism and government was undergoing; drastic
interpretation®*
The antiquated oone opt®
c
bootee maintained that the extent of the power of the
.American Government was to preserve order, to conduct
international affaire, to regulate international and
interstate sommerae* to provide a money syat®m» and to
effect a judiciary* were now being esupplanted by th®
newer concept that the government should regulate every*
thing* that It should prescribe theoretical rulea of
conduct In order to penetrate more deeply into the
affaire of the populace, and that it should provide work,
shelter, food, and even luxuries for all woo needed or
deaired them*
Th® old concept w-a that the government
should give freedom and protection to everyone with a
legitimate plan and ambition to work out hia destiny#
The new conception favored the growth of a spirit of do*
foatiae in the Individual.
k'r* Justice Holsa*® ©aw this
fundamental change taking place*
court to block the change?
Was It the duty of the
$0 , it was the duty of the
court to re*interpet word® in the light of the process
m
timt the ©hong# would fo® orderly#
Me saw that t'm
problems of liberty had to to# recast In new ttfis, in
#eeie*p#yeh©logical toms*
With th# increase in r#pr#s#ntativ# govern*
ment through means of statutes* fy## speech and fro#
pres# became more M l a t l v e *
mr# Justice no to#®* con*
caption of liberty is built upon practical H
ums
in
certain situations under certain condition© It 1# nceeeaary to suspend free speech in order to o&v# free speech,
to deny democracy In order to saw it#
Such restrict*
ion# were supported by him, not with a view toward des­
troying American principle# and American Ideals, but
with a view toward preserving the&i not with a view toward adopting system# which have destroyed families,
uprooted religion, and murdered liberty, but with a view
toward making these things eternally secure*
Ho part of $r# Justice noises* work upon the
bench 1# likely to prov© ^ore enduring than the attitude
he revealed In regard to the Individual1# rights which
the constitution has sought to safeguard •
Some of
hi# decisions* it 1# cafe to ©ay, wi 11 rank In this
realm with the ©toseie case# In which hursan freedom ha#
been protected fro® Invasion#
Th# extent
of
in d iv id u a l
freedom Is conditioned by the immediate relationship of
the Individual to society#
nan may be an end tn him-
self , or .in society, but he I.e likely enough to toe used
as a means toward .^certain purposes which be tcay pass*
lon&tely deny#
Codes os behavior, for film, mean
simply i* body of Imperfect social general!
tion® ex*
aao
pressed In terms of emotion *19'
ftulea and laws concern*
Ing Individuals* rights muet serve as tools for security
of society#
These rules cannot grant the exercim
of
rights that will destroy the society for which the tools
are used for support*
rr# Justice Holmes believed
strongly in security5 individual rights are
1
portent
but are secondary in every ease to that major end#
rights may be born #f lav but their birth
not ^liberty
beyond control measures*
As early as 1892 .Mr# Justice ■Holmes sew toe
necessity to place limits on Individual rights in speefcl
circumstances#
ft fell to hi- to opeak for the court
In support of municipal regulations which denied police
officials the right to solicit money or aid in political
efforts*
when a person acceptu a position of this na­
ture hie superior status increases his possibilities of
Injury to the community* and therefore he ?ust cor. -err
*89*
sate with a degree of loss of liberty#
A person who
accepts a position as policeman waives certain rlght^5keA
as political canvassing, soliciting votes, and taking
actual part In promoting political parties and candi­
dates for political offices#
No political rights are
denied because of such restrictions, however#
"The
petitioner may have a constitutional right to talk
politics, but he has no constitutional right to be a
policeman•*
One may engage In few employments In
which the employee does not agree to suspend his con­
stitutional right of free speech, as well as of idleness
12a
by the implied terms of the contract.
Sensing the danger of a policeman's position
exerting bribery and corruption which would interfere
with the rights of Individuals to cast votes free from
coercion in the choice of city officials, the court was
forced to restrain liberty In the interest of equality
and security#
A city is an agent of the state and is
supposed tooperate In the Interest of the public;
therefore, any reasonable restrictions upon the govern­
ing of officials within its control might be imposed#
When a government agency acts In its proper sphere, for
the general welfare, well and good.
But when It acts
In a way which open© th® road to tyranny, i/r# Justice
holmes deemed it time to cell a halt,
Just mm it i m the duty of the government to
protect individuals from acts of officials, so offic­
ials should be protected from 1nflueneee «* left tend to
interfere with th# rendering of justice#
Neither
officials nor citizens are placed, beyond th© luw, for
the law operate® on all alike#
Jud&ea in their attempt
to tsete out juetice should not be disturbed by "prema­
ture statements or Intimidation*"
Freedom of speech
and freedom of the press* do not entitle one to u m
such
freedom toward, the influencing of a deeielon that al^ht
122
bear unjustly on innocent parties#
The rlriil of an
uninfluenced mind to mete out justice in a particular
oasc i<* superior to the freedom of speech and freedom of
prase us guaranteed, in the First and Fourteenth &i»end*
raante*
In trying to preserve the Republican fore of
government which Americana cherish, It becomes necessary
to draw limits upon other cherished ideals, (Freedom uf
Speech and Freedom of Free#) otherwise it can be carried
to such an extent &a to Imped®, e®barraas, or unjustly
123
influence the due and orderly .otelnl strati on of justice*
When the declaration of Independence sea written It was
determined toy our ferefstftere toot tne surest way to
a free govommont *»ee to a m
mvo
the eideet latitude In the
f u m t M of spe^-eh* though mot wide enough to destroy the
inctteuKient that provided aueh freodw*
Am representative of the public, % m
»tote &ey
go beyond reetrietioa* of ite official* and piece neetriettone on the use of It® property enich 7urtoile the free*
de& of ouwereUl^. A eity or town aey
on agent of the
etete provide ttoei no person, except toy permit of proper
offlouy,
"make any .public *&&re*e# upon eny of
the public *srouwd« of the eity#
*ror the legleletyre absolutely or ©onditioo*
oily to forbid public opeete.inf? tin a highway or pub*
ilo peril is no pore mm Infringement of %im rl =:&!•
of e sswotoer of the public then for th© e w e r F-f &
private heu&s* to forbid it in his house** 124
Individual rights aey be expre^red In regard
to the eegee of the individual or the ?group*
■eve
0
e ^rfcer*
right to deeire larger we&ee, end ore free to eae
bine their offerto if toy ?*e dolots they «y»y exert press­
ure upon on employer In order to eeouro t^eir otoe#
Tn the flout vs.* Wood oeee &r* Justice Ho toes granted
the right of on individual or .group of individual® to
re sort to the weapon of boycott eg&in&t mn employer or
oorperetloh tn order to c^eure their *toe«
Tn this
eeee rival eriser.iaettona w*re .In * w M e a t far eupre??aoy*
One of them threatened an employer with boycott unless
he discharged men of the other groups.
The majority
of the court granted an injunction forbidding this, and
forbidding threats against the employer1& business,
holding that this was no dispute between capital and
labor, and that the right to contract freely for one’s
labor was entitled to legal protection *
Mr# Justice
Holmes disagreed, viewing this opposition as a lawful
weapon to secure desired results#
**Alt hough this is not the place for economic
discussion, and although the law may not alw&ys
reach ultimate economic conceptions, I think it
well to add that I cherish no illusion as to the
meaning and effect of the strike?
While I think
the strike a lawful instrument in the universal
struggle of life, I think It pure' phantasy to
suppose that there is a body of capital of which
labor as a whole secures a larger share by that
means.
The annual product subject to an Infini­
tesimal deduction for the luxuries of the few is
directed to consumption by the multitude always*
Organizations and strikes may bet a larger share
for the members of an organization and less power­
ful portion of the laboring class#
They do not
create something out of nothing*
It is only by
divestin^ our mi da of questions of ownership and
other macM&ery of distribution, and by looking
solely at the question of consumption, asking our­
selves what Is the natural product, who consumes
It and what changes would or could we make that we
keep in the world of realities.
But subject to
the qualifio&tlons wnlch I have expressed, I think
it lawful for a body of workmen to try by combina­
tion to get more than they are now getting, al­
though they do It at the expense of their fellows
and to that end strengthen their union by the
boycott and the state*4* 125
-95*
Mr.
Holmes aarly aaw that the pereon
eho s?pot)|e and erote wae not the only one to be consider­
ed*
his liberty ends at the point where th© exercIs©
of H
feegina to endanger the liberty of others, and at
thatpolnt It becomes an abuse of liberty, an abuse which
notonlyi© not protected by constitutlonal guarantee
but* on the other hand, is properly restrained by statute*
Thequestlon Involved in all esses of this kind is one
of fact# and under our legal system facts are determined
by Juries through a well recognised procedure*
Every
act of personal liberty rests on a corresponding act of
social control*
If all of um were allowed to do as we
pleased It is obvious that no one could to ««iything he
pleased#
whether in an orderly manner or by means of
the strong against the weak* or against themselves, our
actions are restrained.
The problem in our present
democratic civilisation is how to square a large degree
of liberty with security, efficiency, and Justice in
government*
Whether or not an expression of opinion
falls within the prohibition of the law to secure these
r©aults,dependsentlrely upon its object and probably
effect, not upon the fora in which it is presented*
The
Wilful printing and circulating of material tor-|peourag<*
lug disrespect for law is outride the protectlc*n of the
126
freed©© of speech and of the.
A statute of ti'O: 3tat© of fta&hln$t©r declared
that any person willfully printing, circulating, etc#
any written matter advocating or trotting the ©ommta&lcn
of any crime or breach of p«aoe or act of violence, or
eueh which would tend to •«©aura^e or advocate dl*:respobt
for law or for any court of justice should he guilty of
a grave jMtoe&eanor*
Four nudist# had been convicted
of violating the law against indecent exposure.
The
defendant, Pex, published an article coseending the
persons responsible for the proaeoutIon and den uneing
the conviction*
He openly advocated r® si star:.©- to the
statute and recommended the t ..at!tut ion of a t-oyeott
against the prosecuting witness- a*
The opinion of &r *
Justice Holmes was that the art!el© *by indirection but
unm1t*takably" encouraged a breach of the atate law a
against Indecent exposure and, tne ;ury having m
found,
the statute would be austained, ©specially as the at&te
court had, by implication, confined It© operation to
the one our agment or an actual breach of the law#
The
opinion seemed bv suggest that th»? statute ^isbl have
been construed more broadly to apply to publication®
<*95**
tending to produce unfavorable opinion of a particular
statute or law In generaX^g^nd the Implication is that
in such it would b© void.
Mr* Justice Holmes* living philosophy allowed
him tfejM##pfetthe f*emergency concept,** which la, prob­
ably , a product of the world war?
That In time of War
emergencies arise which give reason for action even at
the expense of curtailing certain fundamental beliefs*
Freedom of speech and press which is cherished in time
of peace to a large extent Is not permissible in time of
war.
The Homan proHerb* **In the clash of
the law
1# silent1* helps to t-brov; light on some of Mr. Justice
Holmes* war time decisions.
Freedom of speech has
been to him a phrase having a. practical meaning.
He
has maintained the attitude that the question involved.
In considering alleged restrictions upon that freedom is
one of degree* and not to be decided upon by ^fictitious
jbr scholastic hypo the si s.*'
He has neither embraced
|ha school of interpretation which would, have the First
|taendjwfrnt place arbitrary restraints upon speech, al­
though it might appear that he permitted this in time
of war; not has he held the equally untenable position
that the Ft ret end Fourteenth feaMmenli# give Ahmlutm
freeze#* free U r eonhequeneee of word*# no wetter* m'rjkt
tnelr
01wstneeter*
Bit* peeitlan h*e be*** on
0
middle
BFosittA* hi» diet! notion between valid &*>$. Invalid rewtrletioti* upon epeeeh one of degree# beloe beeed upcm
the
conception of the looa.tt.on of the itne
where luilvltwil liberty 0*td public pot ley oleeisu
in
drawl nig ilia Lin# the individual and the atat* are bath
eeti»i0er#&*
ft Is tree that Kits deal slants aav® ahem
a high regard for too feeedow of the itwllvidual#
But
with oil this It will not ho ow.r looked that no nos
hold to the view that the etate Is abeolute aeverelgh*
$he MOurltF ond *ell«heltm of the elate is alto Impor­
tant*
*t follow®# then# that there are no absolute
problfcitiene tn the till of Wlghtw*
&• foi^e the in*
dividual Is concerned It ewiy look lltee o sold blooded
proposition.# hut as fv*r as toe elate la concoreed there
&ejr be no other oauree#
Thir* view le dearly illus*
%-rmted In hie opinion tn i?oy*r va# Peabody*
ease# ee a reeult of
00
fn that
outbf*eafc of »lrtere in Colorado#
the aoeereor of the etete ardered the arrest af the
rreei&ent or weetere reparation of hivtere on the ground
timt the proper reetoratioc* of order &-ade euoh arrest
-
neo©aaary*
97-
Th© court was open, but access to it was
re fu &©& by the governor.
Tt up pea r b by such act!on
that the governor of a state, without sufficient treason
but in good faith, may call out th© militia, declare
martial law, and Jail anyone h© happens to suspect or
dislike without laying himself open to action.
Object­
ion to this arbitrary policy was mad© by the miner wh.o
brought a civil action against the chief executive in
order to collect damages.
The supreme court ruled
that the governor was acting within
there was no cause for action*
-.is rights, and that
Mr. Justice holmes in
delivering th© opinion said in part:
"When It comes to a decision by the head of
th' state upon matters involving its life, th©
ordinary rights of the individual must yield to
what he deem© the necessity of the moment.
Pub­
lic danger warrants the substitution of the ex­
ecutive process for the Judicial process*" ^28
There may be virtue in allowing a person to
say and write what he pleases In time of war but there
is danger also in such a course.*
Frobably no other
danger ©o threatens the structure of any society of
freemen as the abuse of such freedom within a society*
Through, such .abuse freedom speedily becomes degraded
Into anarchy and the way is open to dictatorship, whether
- 98-
of a man, a gang, a party, or a -class#
This destruct­
ion is mad© possible by th© devotion of th© devotees of
of freedom who do not understand that absolute freedom
of speech, unchecked and unlimited by other considerations
destroys Itself, or at least opens th® door to the peril
of its destruction and the overthrow of a society which
permits such anarcfcy to develop*
country la faoed with nuch evils.
In time of war th©
In Lincoln1a First
Message to Congress light is shed on liberty against se­
curity*
“Must a government of necessity be too strosg
for the liberties of it^^vn people or too weak to main­
tain Its own existence?Ji
In three cases arising under the
splonage Act
of 1912 decided in 1919* Mr. Justice Holmes, who delivered
the court*s opinion, was cautious in his language and
careful to assert'* that a state of war permitted far mone
extensive restrictions upon th© freedom of speech than
could be proparly imposed in time of peace.
Apparently
the limit to such invasion of personal rights depend
directly upon the Intensity of th© e^-lals.
The court
in the final analysis is to decide whether the emergency
Is severe enough to justify particular restrictions*
In Sohenck vs. United States
so henek. was
charged with circulating matter through the mails for the
* 99-
purpose of obstructing th© recruiting of soldiers and
in violation of th© Espionage Act of June 15, 1917*
Th© court admitted that the documents In peac© time or
in ordinary times and in other places might have been
proper, but held that the 'constitutional prohibition
did not protect a man against the uhe of stirring words
that might have all the effect of force because, con­
gress having th© power to make war and to raise armies
for that purpose could punish any act that would inter­
fere with carrying out that purpose, and cosId also
punish words used to bring about that result.
The
words were not to be punished merely for their tendency
to discourage war, for everyone has a right to hate war,
but because of their relation to the raiding of armed
forces*
The court speaking through Mr* Justice Holmes
said:
"The question in ©V‘ry ca e la whether the
words used are used in such circumstances and are
of such nature as to create a clear and present
danger that they will bring about the e&bstantlv©
evils that Congress has a right to prevent.
It
Is a question of proximity and degree*
When a
nation is at war many things that might be said
In time of peace are such a hindrance to its
effort that their utterance will not be endured
so long as men fight, and that no court could re­
gard them as protected by any constitutional
right*
It seems to be. admitted that if an actual
obstruction of the recruiting service were proven,
liability for words that produced that effect
might be enforced." 130
-100fid# Aoolrln# of "blear and pr< ment danger"
has been criticised by tttteeroua -udge* as an attempt to
destroy civil liberties guaranteed by the Constitution#
Frobwerlt was accused of disloyalty# mutiny,
and refusal to offer his service in the military and,
naval foro^a of th© United states on account of th©
publicsat loti of various article® In the kloaouri
Zeltung#
«taat
The charge was conspiracy to violate th#
Espionage Act*
Th# theme of %* » various article#w&e
that the United State© vaa in th# wrong by declaring war
and- in order to Justify her position ah# was giving false
and hypocritical rcaeene for her course.
How often
daily do we Ilaten to auoh critic!®® concerning the act­
ion of the United Bate®$ that % m government its m vaeaal
In the hand of Englandf that the rich, are determined to
exploit the poor# that a» a nation with our foreign pol­
icy with Copland vc have all to lose and nothing to gain
by going to war?
court*
All this without betrn? brought to the
It waeAexactly what Frohwwic aald# but the cir-
eu® atone** in which
131
a eri&e*
thorns
$?r* Juotiee
-Me
wholly toA
*
otateaentui were made made them*
*ow
ni* phileeeplsy
Th© excitement of the war prob-
101ably caused him to cast reflections on the Civil War
where he was in the thick of the fight.
At this ex­
cited tnoment ©very thing was submerged In order to save
the Union*
What counted was the final results; means
that seemed adequate to accomplish this must now be
deemed logical*
The danger h© felt- was so great,
"that to obstruct -recruiting in -such circumstances would
be criminal even if no means were agreed upon by which
152
to accomplish the results*1'
The expression of one's
honest opinion without direct intention to influence
others might be wrought with consequences that will pro­
duce evil effects.
Even Implications might be drawn
from a speech that^spell
disaster.
True liberty of
human ©ociety does not consist in every man doing what
he pleases, for this would simply end in turmoil and con­
fusion and bring on the overthrow of the state.
this changing conception of freedom th
In
Hew Republic
gives good information that helps toward the understand­
ing of Mr* Justice Holmes1 view:
"The new democracy,that which we shall reach
by way of socialism, will bring a perfect balance
between security and freedom*
For it insecurity
will no longer exist when the social conditions
producing It have ceased to exist*
And freedom
will then b© understood as a superior coordination
of collective forces which guarantee security." 133
-
102-
The opinion Vn th© Dobs case reviews several
speeches made by him*
The main subject of these speeches
was socialism, but In some passages he defended the acts
of persons who had been convicted of obstructing recruit­
ing and encouraged persona present at the meeting to
assist such obstruction.
The court in reaching a de­
cision placed emphasis on statements made by Debs in his
argument to the Jury, ©uch as "X have been accused, of
obstructing th® war.
X admit it.11
And also upon the
fact that Deba In his addre-s referred to an anti-war
proclamation that there should be "continuous active and
public opposition to th® war," which statement he
approved and which he was willing "should be considered
13^
as evidence."
Mr. Justice Holmes viewed this as
sufficient evidence of Dtobs*intention to defy the author­
ity of the government*
In this opinion sanction was
given to the view that "aare are no longer won by armies
in the field, but by th© morals of th© whole people."
The word liberty in the Fourteenth Amendment
is perverted when It is held to prevent the natural out­
come of th
dominant opinion, unless it can be said that
a fair man necessarily would admit that the statute
proposed would infringe fundamental principles as they
- 103-
have bean understood by the tradition f our people and
135
our law.
That is the conception of liberty which is
136
dominant today*
In these cases he advocates giving the legis­
lature full swing*
If what he says in the above opin­
ions were accepted literally there would be scarcely any
breaks at all upon law making, and the bill of Rights
would have no more significance than any common code.
In granting freedom of speech and press in the First
Amendment, Mr# Justice Holmes felt that such grant was
made in view of society and the existence of a republican
form of government-
The First Amendment while prohib­
iting legislation against free speech as such cannot
have been, and obviously was not, intended to give Imniun137
ity for every possible abuse of the language*
In a war crisis Mr# Justice Holmes was thorough­
ly convinced that In order to secure freedom In the United
States meant the sacrifice of certain liberties*
The
rights belonging to the Individual depend upon the securi­
ty of the American concept of a republican form of govern­
ment*
His memory could recall th© emotional sentiment
that stirred the country over the question of slavery,
inflamed by the exercise of free speech and press*
He
- 104-
saw the existence of the Union threatened by Inside
forces, which produced a Glvtl War in order to save
the Union.
In this war he witnessed th© extreme
horrors of war when he was seriously injured three
In order
times. \ fo take precautionary stipa which might
avoid any such martial strife within the United States
he would gladly allow individual liberties to be
suppressed to that end*
By careful intellectual
decisions similar forces might be curbed by exercise
of th® power of the government to deny such freedom
to the Individual if there wore danger of challenge
to th© maintenance of the Republican form of govern­
ment.
The right of free speech and press does not
deprive a state of those primary and essential rights
of self-preservation.
His Individual, was always a
member of society, not a Crusoe on his Island*
Accord­
ing to his thinking there comes a time when freedom
of speech and press is curbed by the same reasoning
which permits a state to protect itself from the multi­
plication of imbeciles by requiring sterilization*
Th© safety of the state Is paramount, but
once that safety is assured, then human rights Should
105ever be given protection*
In Abram
vb
.United
States
Mr* Justice Holmes seems In opposition to the prevailing
decision In Boh&eck, Frobwerk, and Debs, but he turns
as vehemently radical as in opposition to legislative
restriction toward which he had already shown himself
conservative*
Tfc some It may seem like quibbling over
words and their meaning, but Mr. Justice Holmes found a
distinction based
practical results*
n the possibility of immediate and
There were fouv' charges against
Abram; first, that the defendant had written scurrilous
and disloyal language about the form of government of
the United States; second, that he Intended to bring the
form of government of the United States Into contnpt,
scorn, and disrepute; third, that by his language he
intended to prowdke and encourage resistance to the
United States in the war; and fourth, that he had con-*
aplred, while the United Spates was at war with Germany,
by printing, etc*, to advocate the curtailment of pro­
duction of ammunition; that, pursuant to these various
purposes he and other defendants distributed certain
leaflets or circulars which they had printed.
The circulars were distributed by throwing them
out of the window of an office building.
In addition
to the circulars a sheet was entitled “Revolutionists —
unit# for notion** which AhNsi admitted towing wrt
was found on the person of one of the defendants*
The
leaflets apparently Intended to den evince the action of
th# United states in bonding an -.warloon expedition into
ftoesla#
There was nothing In them which specif! :&lly
urged worker® in th# ammunition factories to desist
from their work in order to m v m the barman govemssers%*
Hr* Justice Clark speaking for the majority of
the court re&eened in this manner*
WI t will not do to Bay that the only intent
of these defendant® was to praiNint imjjury to the
ftussl&n oauss*
They intended'a general strike
of munition worker#* & curtailment of production*
Thl© plan neees eerily- involved, before- it could
be realised the paralysis and defeat of th® war
program of the United Statea*
Therefore th#
defendants intended such an Interference of th#
war sine® men must be held, to have intended* and
to be accountable, for the effect® which their
ante were likely to produce ♦** I39
Mr* Justice 0lark men unwilling to make a
distinction between abusing our fora of .•*overm.erii and
the President and Gongre*-;>«
Mr* Justice Holme® In a dissent did not think
the oirculatlns of a few leaflets which protested against
our Ifiterw■•••«$ion in **ussia sufficiently dangercub to the
well being of the state to warrant eh* conviction of th®
accused.
he pointed out that they did not urge curtail­
ment of th® thing® neeeee&ry to th# prosecution of th®
war within the meaning of the statute*
Ho such Intent
could be inforrod from th# leaflets themselves and ther#
was no other evidence*
siwot w# had not declared war upon- Bustle* protent# against our motion there could not b# criminal un­
its t they were also in opposition to- th# war with Ger­
many*
tn this oaa© of 1920 we at# on# of Mr# Justice
HOlaite* great dieaewta#
The war 1 # over now; the Ques­
tion reverts to the inherent right of congress to abridge
the freedom of speech*
Abram and other Bus®law revolu­
tionists in Hew York had been convicted of sedition
under the Replcmage Act for distributing pamphlets de­
signed to -prevtnt the United ■’■tate® from interfering with
th# Russian Revolution*
And not only convicted but
sentenced to prison fortwenty
years#
The trial had not
shown that the- Issuing of these inf lamatory pronoun# amntoe had caused any actual m r a , or had interfered In
any way with the government*a carrying on the war*
In
pointing out that there was no need to- get so thoroughly
hysterical as to nullify the fundamental right of free
speech when the exercise of that right involved no pressent danger to the nation, ir# Justice Holme® said:-
^We. etouM' be eternally vigilant, against
attempt© to check- the expression of opinions
ttot'-we.loath: and believe, :W , tye 1'fraught.-with.
ae:
e^^-^,upioee "they m e -imratreni1^- threaten
loikaiate'interfdrone# with
in@ purposes of the law that an Immediate ehdfcfc
ie:^recttlrea to', save the eouiiirr** 141
'■£.'
During the World: War Victor Berger*® Mil­
waukee header was barred.- from the second;elsss' mail.
byBoatmasterBurleaon under the Espionage -Act-*
Distorting tith ir*...
tie#••Brandele.vfrae tto'-ddkie-
ion. Of the majority, Mr* .Justice Holm©® wrote-that Hr*
Burleson could not Issue a general order that a certain newspaper should not be carried because he thought
It likely or certain that it would contain ^treasonable
or obacene talk.n
.. ^The United States 'may- give up- the;-post
office w;heh it sees fit,11 he wrote, "but while
it :'barrlee^lt' on, the use of the mails 'ie.almost
a part of'free speech as the 'right to usb:our
tongues, and ;It Would take very strong language
to give such a practically despotic power to any
one
142
■The importance- of the post office as a- means
of commimlcatlon la vital to the exercise of freedom of
apeech said press*
The poet office does not- exist, to
infllot^prlvato-' wrong©*
nt m of the opinio#;^
that ;th®1?y#fnto& to.-allow- the--realtor- the- rate to .which
it. was entitled wh|hever its isivwephper was-,carried ©3
groumd-^hat/P
to be.,carried at all, was
unjust
«... and was a serious attack upon liberties1 4that
3
not even the war irdueea Congress to infringe*”
The possibility' of aims® cannot fo® tolerated,
mall being means of communication) free ue® of those
means Is a constitutional right of free speech.
In 1925 a'Hew Xork law made criminal any advo*
eating Of the upheaval of organised government no matter
how gradual the process*
Under this lav: Benjamin Oil-
low was tried and convicted of criminal anarchy for hav­
ing published a manifesto which urged, in general terms,
the substitution of communism for the ©xistingecgpItalia*
tl® form of government.
Mr# Justice Holme® declared the
statute an Invalid interference with the liberty of
speech, and asserted th© right of the people to work out
their own future*
He could not Join th© outlawing of
opinions merely because it was despised*
Judge Holmes
was as quick to find deprivation of a fundamental right
In a Judicial proceeding as in a legislative enactment*
Mr. Justice Holmes saw th® difficulty in making such fine
lines of distinction in attempting to decide what consti­
tutes a wclear and present danger*"
MXf X am right, then X think that the criterion
sanctioned by the full court In Sehenok,vs-« United
States, 249 0*5* 47, 52 applies*
The question in
©very case is whether the words used are used In
such circumstances and are of such a nature as to
create a clear and present danger that they will
bring about th© substantive evils that {th© state)
has a right to prevent#
Xt is true that in m.y
opinion this criterion was departed from in Abram
vs. United States, 250 , u*S*, 616, but the convict-
lea 1 expressed in that case Is to© deep for it to
to© peesibl© for mm mm yet to toollove that it and
Schaefer vs* u n ited state© *' 251 u* S« 466, have
tottied tto© la©*
If ©hat X think is th# correct
t©'«% la applied# it Is manifesto that there ©as no
pro®©fit davtflpr of an attempt to overthrow tokm govern*
sent toy for©# on th# part of th# admittedly small
minority ©ho shared th# defendants* views.
144
w A government of la© and not of m#nwmiMi on# of
th# sacred beliefs of Mr* Justice Helm©#-*
Individuals
and corporations are protested from illegal search of
premia© and the sei&ur© of the incriminating#
Fr©d©r«*
lofe W* Silverthan© ©as imprisoned for refusal to obey an
order of the court
to produo© books and documents ©f the
ooopany before the grand Jury to be used in regard to
alleged violation of the ?*tstout© ©f the united state®*
0 ® the information thus gained ©toargos ©ere brought against
th# ©ompany, which was supeenaed for the originals*
The
fourth and Fifth Amendments ©er© thus invoked, both the
search and eel sure* and the use in a original prosecution
©f evidence a© obtained*
In his majority opinion Mr*
Justice Holmes had this to
myt
"The preposition could not to© presented more
nakedly*
It is that though of course its soisur©
©a® an outrage which th# government not regrets# it
may atudjr the papers toefor® It return© them, ©opy
them# and then may use the knowledge that it has
gained to ©all upon the owner in m more -regular form
to produce; ih&to the protection of the constitution
©overs the physical po©s#«©i©n#-tout not any advent©
ages 4ha% the government can gain over the object
©f ■its pursuit'toy doing the .forbidden act#
It re«*
due©-® the Fourth Amendment to a form of words*
The
essence of a
provision forbidding th© acquisition of evldenes
In a certain way i© that not merely evidence so
acquired shall not be used before the court, but
that It ©hall not b© used at all*
The knowledge
gained by the government's own wrong cannot be
used by It In the way propose*”
145
This decision places definite procedural
restrictions upon government official© in carrying out
their duties*
The law was not made by governmental
officials and thus they cannot take it in their own hand,
Xf there is any body or group that should support, obey
and promote the law© it is the officials whose duty It
is to see that the laws are faithfully executed*
Mw© have to choose, and for my part I think it
a less evil that some criminal should escape
than that the government should play an ignoble
part*” 146
Here the majority of the court held that wire
tapping did not amount to search and selaur© within the
meaning of the Fourteenth ilmendment*
Against this
decision Mr* Justice Holmes took a firm stand that crim­
inals should not be prosecuted by unlawful means.
The
constitution provides rights, and protection for crimin­
als as well a© for good law abiding citizens*
”lt is desirable that criminals should be
protected and all available evidence should bd
used*
It also is desirable that the govern­
ment should not Itself foster and pay for other
crimes wh©n they are means by which evidence is
to be secured*”
147
The wi&dipaof uvm Justice Holmes’ dissent in
the wire tapping case was repeated eleven y< are later by
Mr* Justice Frankfurter apeaking for the majority of
tm
courtt
w^ene us in the 01Ivorthorns case the facts
improperly obtained do. not become sacred and inaccessible,
ff knowledge of them %® gained fro©
an independent eouree they may be proof like any
other®, but' the knowledge gained by th® government*a
own wrong eiuenot be used by it, ©Imply because It
i0 u sed derl va *.iveiy,
*«,,Sue h ■a oy ©tom m& oure
within the Unite here indicated* rely on the
learning* good sense*. JTalmeea and courage of fed®**al trial
The eonatitiutlcmal guarantees and protection
a r e a p p l i c a b l e to a l l person© -of th e u n it e d sta te ® *
R&plal characteristics'are not sufficient basis of jus­
tification for official© to ignore the provisions of
the ecuat1tutIon*
In case of mote domlnation of court
In Arkansas* which resulted In the conviction and sen­
tence of five Hegroee to death In an Arkansas court led
Mr* Justice Holmes to observes
**Xf the case Is that th# whole proceeding©
is a m aet that counsel* jury* and judges ware
©wept to th# fatal end by ap irreelstlblevneee
of public passion -aid. that ths* state court failed
to correct the wrong neither perfeation In th#
machinery for correction nor the possibility that
the trial court and counsel mmm no other way of
avoiding an iiMdlate outbreak of the isob can
prevent' this court from securing to the re titIonera their -.eonsi&tutlonal rlght«“ 149"
■vfiiiHiOp® the climax of hi# fight for civil
liberties Is hi a.dissent In Posika Schwlnlmer where
hm
expanded %hm great phra m of toleration*
**3ome of hmr anatari! might ©xeite popular
pweju&lee, but If there l$ »»y principle of tho
constitution that more Imperatively calls for
attaw lament than any other it la th© principle
of fro# thought*
Hot fro© thought for those
who agree with ub, but frejoin for th© thought
that w© nato* ■
L^°
Th# majority of th© court hold that
Kostka S©hatamer, a Hungarian by birth, and. a wall
known pool flat had boon barred frora American oltl&ettshl
by the Federal district .court In Illinois* because of
her unwillingness to Mb#ar arms In defen®© of her
country *M a dedal cm which the Supreme Court upheld
by a #ot© of fiiix to three*'
Again using the poasl*
blllty of practical result# a® a busies for drawing a
declaion,
tfSo far us adequaay of her oath la aaeeraed
1 hardly can ©a© how that i« affected by
the statement, in as much as. she Is a
woman over fifty years of agr and would
not toe allowed to bear arms If sue wanted
to*'*
In a letter written to ftoatka Seftwiwmer on
January }Of 1930, Mr*. Justice Holmes mad© these states
mentes
"A ease la simply a problem to be solved,
although th© consideration m are were complex
than those of mathematics*
B:ve» when as in
your oaae# It we a only to interpret a statute,
Madam, you appreciate that the opinion of the
majority simply meant that they die the @ p
differently, that duty and reason seemed to
them to require a different result from that
which the minority reached.#** *51
■*114—
After the World War, laws were passed in Iowa
prohibiting the teaching of German below th© eighth
grade,
Many teachers protested on the ground that
their liberty guaranteed under the Fourteenth Amendment
had been denied*
Th© state replied that certainly it
had a right to enact lawa to promote a patriotic spirit
among Its cltl® ns and to safe guard its general welfare*
The case was carried to th© Supreme Court where the
action of the state was upheld*
Mr* Justice Holmes
again basing his decision on the end to be obtained, de­
clared:
wHo on© could doubt that a teacher might to©
■forbidden to teach many things, and th© only cri­
terion of his liberty under th© constitution that
X can think of la whether, considering the end in
view, th© statute passed the bounds of reason and
assumes the character of merely arbitrary fact*
X think I appreciate th© objection #&■ the law tout
It appears to m© to press a quest Ion upon which
men reasonably might differ, therefor© X am unable
to say that th© constitution of the United States
prevents the experiment being triad*** 152
It Is not surprising to see a man who believed
InMfrea trade of Ideas1* turn the table In favor of un­
restricted training in a question of a controversial
nature*
The end of law is supposed to be justice.
This
end Is often defeated by numerous technicalities used toy
lawyers to win their cases and secure large sums of money*
A# a result of such tactics .'the legal profession has
exposed itself to a great deal of criticism*
The
court room has been described as an warena, where two
gladiators battle for victory in th® court,1* the Judge
as an umpire to invoke the rule of the gam® and many
other desoriptiv® phrases that lead one to question
th® end of law*
Many writers have explained the
growth of Board and Committaloners as th© logical outr
growth of inefficient law procedures.
With the judicial organisation effected and
provisions made for its manning with a proper personnel,
there is then presented the problem jf deifer&ining th©
rules that shall govern the manner in which the organi­
sation shall actually function.
Though its problems
are essentially the same as those confronting- both th©
legislative and administrative branches, it is one of
peculiar Importance in the case of the judicial branches
since the character of these rules affect not merely the
efficiency and economy with Which the machinery Is opera
ted, but also th© extent to which, Justice Is done to
th© individual parties litigant*
in few respects has the system of judicial
administration In th© United Spates been more severely
orltIWia©d, than as regards the character of the rules
*1X6*
governing the pr&otlce and procedure of th# courts and
tk#/ ;ma*th#p‘
vof their application *
They ■are •generally
mmplXdated ■and technical' in the extreme.
Though
condition# In the federal court# are admittedly superior
to thoed 1m meet of th© state court® the,:senate committee
inv:
|Nip0rtl*ig- m-tolll' pi^rridlng-'fO^e reform'^ in the
ffderal.'-system.' charaoterlzed the existing system in th©
relieving terms*
“Theaystam of procedure which now prevail#
In the federal court# l# complicated, unscientific,
>
, and result# in great and unnecessary delay In the
administration of Justice *
It la almost ae im­
portant that litigation In the court# t^il; toe
disposed of ,'justly,:
'That case# should toe- delayed
monthafter^-men^
-year after year*
shou Id be reversed -and tried and-retried upon more
natter# iCf ■•pr^jtiee ;that in no way1teuton the-"
eeeentiai .'merit#, is one of the reproaches in th©
administration of -the is^;'ehioh;he# 'had;'a -greater
tendency to bring the practice of the courts Into
disrepute than any other thing**1 153' "
■ :*rr Justice- Holmes Relieved in substance
rather than f o m f to meet the- practical needs in a Just
and equitable way even--at tfae--expense of brushing away
some of procedural law*
The constitutional protection
of individual liberties was not a shield for criminals*
Individuals should be punished under the law, and toy
the same reasonlng should be punished by the law*
a particular instance a certain legal
In
procedure would allow a guilty parson to -escape, when
there wan no doubt of bio guilt, than the esfVef law
must prevail.
In ihe matter of Morgan the failure to name
county or oourt house (there being no county or court
house at time of trial) is not sufficient evidence to
deny jurisdiction, even though by act of Congress the
Supreme Court is required to define the Judicial distrleteand to fix the time# and places at each county
seat where the district court shall be held.
Morgan
was tried in the district court of Comanche County In
the ^writory of Oklahoma on conviction of murder*
ameans of defense he held that the court that tried
him was not duly organited under the act of Congress.
In carrying out the act the dUpreme Court specified
Lawton for';the county of -Comanoh® as-place- of trial*
At the time ©f the trial there was no county or court
building in the County*
Mr* Justice Holmes- brushed
this aside refusing to accept this as violation of
individual rights.
In practical language he spoke
thus:
:
**fhe- 'order of the- Supreme -Court was as
precise as thecircumstances permitted it to
be, •and the failure to specify a' bullding dld
not go to the jurisdiction of the trial court*
the petitioner lost
any opportunities by reason of no building being
named ♦* 1§*
as
11®-*
fhe defense that the laws of the territory were
net followed in the ** leeblotn of the grand jury, a® the
persona selected were m % eieefiora of the Mrrltmrjr, end
M m * were n^n*restder*t& wue swept amide by the etatea*at*
*The Fifth Amendment requhr tr*^ the presenti­
ment or lyaxietmetit of a $rai*<et Jury dec* rot take
up unto itself the looei lew
te how the frnm&
Jury shell be mud* up9 »d, r&lw* the letter to
a eonetlbutton* 1 re*ui^!Si,'nt*w 1 5 5
fmdlvlduel* eaipmoi eooape treir Just punietaeent
hee&ue* of a gen****! law that a? ght not eorlr to the end
of justice in a pertleuler eiremwta^ee*
a ai«®e« to eee&e* punieiimento*
This la wot
Indictment by g r a M
Jury shell not be invalid*eed feeeattee of defect in form
156
only,, *b*r* it does not result in prejudice to defendant*
The* design* tiwti of « parti outer place, or
trial in different district* from where th# crime 1*
committed is of -mall olgnlficanoe»
Hughe*
indict­
ed for violation of the Aitti-tru&t Act, July $, 1590, in
the :
'aet##rn Division of the northern district of OhI ou
He was culled before the eon*! aeloper of fHtussea, Xe*a,
where he was ordered to be held for removal.
He at
one* appealed to the judge of the district court for 0
writ of habeas Cerpue, claiming that certain evidwnoe
-
119-
|:H hiS.;favor was excluded, and therefore h& vms deprived
of his right** to be tried in the district wherein the
crime wee committed-*
The natloneileiie spirit for which
he fought in the Civil war to
reserve is expressed
clearly in this case*
*wiih immaterial exepetlon® anyone In
the United State* Is sdfejjsect to the Juris­
diction of the United States end m«y foe
required to stand trial wherever h* is
alleged to have comoitted tlie crime*1* ^57.
The machinery In, the United States all exist
to mete out Justice regardless of where crime Is 00©ml tied •
That an administrative body should hold a persona- without
preliminary hearing to be tried in proper jurisdiction
does not deny him of right to foe tried in a court having
Jurisdiction*
"The constitution doe* not require any prelim­
inary hearing before a person changed with a crime
against the united States to brought into the Court
havinr Jurlsalelien of th* charge*41 158
The right of the accused to present evidence
in hie favor do®a not scan that the courts are -toound to
listen to all the evidence he wished to present*
Tinsley ve* Treat,. 2Q5 U« a# 33}*
(Citing
Tn th&t c u m tim
oonclusiofi ls not that "the appellant by being denied
* 120*
the right to present any evidence was deprived of his
right® under the oonstitutlo , but that h© was denied
a right secured by the statute under the constitution *w
A clear outline of procedure Is outlined as to Juris­
diction :
"Where any offender is committed in any
district other than that where the offense Is
to foe tried, It shall foe the duty of the judge
of the district where such offender Is impris­
oned, seasonably to Issue, and of the marshal
to execute, a warrant for his removal*
But
the committment, supposed toy these words already
to have taken place, is entrusted not only to
judges and commissioners of the United States,
and Judges of state courts, but to any mayor
of a city, justice of the peace, or other magis­
trate, of any state where he may be found#
Obviously In order to make it the duty of the
Judge to Issue the warrant, a mayor or a magis­
trate not a lawyer cannot toe expected to do
more than to decide in a summary way that ttee
indictment is Intended to charge an offense
against the laws of the United States, that
the person before him Is the person charged
and that there is probable cause to believe him
guilty, without the magistrate1© being held to
more than avoiding palpable injustice*
He
is not Intended to hold a preliminary trial,
and if probable cause Is shown on the govern­
ment1a side, he is not to set it aside because
on the evidence he believes the defendant
innocent#
The rule that would apply to a
mayor appller to a commissioner of the United
States*" 159
Legal property cannot be used in illegal way®
nor illegal property to evade certain regulations#
Sullivan received sufficient gross income to pay income
tax; because of his gain being received toy Illicit
—IS1—
traffic in liquor he refused to pay income tax*
Mr.
Justice Holmes reasoned that the statute providing for
taxation on gross income, Includes11gains, profits
derived from any source whatever.”
Thus*any source
whatever1 included gains from illegal sources as well
as legal.
The Fifth Amendment is not an instrument
to encourage
and protect criminal acts.
HW© »©« no need to doubt the Interpretation
of the act, or any reason why the fact that a
business is unlawful should exempt it from pay­
ing thetaxes that If lawful it would have to
p&y-* 166
The defendant enjoys the privilege to raise
objections, of questioning the taxation as to amounl’f **
but he cannot refuse^ to pay tax#
There can be no encouragement to deny the
government of the money that is necessary for Its exist­
ence from various serces,, nor must th© government stand
idly by and let certain Interests Indulge in undue graft.
Horning^doing business as a pawn brokerj was
charging more than six per cent Interest without a li­
cense which is forbidden by an act of Congress.
In
an attempt to evade the law In Washington, Horning moved
his headquarters across the river in Virginia, while at
the same time using his Washington office as a collecting
center*
There was no doubt as to his guilt but as a
defense measure he claimed the Judge expressed to the
jury that the facts were mot in dispute and laid down
the law applicable to the case#
The duty of the jury
as Mr* Justice Holmes understood it was to weigh the
evidence and decide as to whether party accused was
guilty or not.
This being established it is not
practical that such remarks from a Judge could prejudice
a Jury to an extent as to deny the accused a fair and
Impartial trial*
The only harm Horning could have
suffered on the strength of such statements was formal
which he could not hide behind as evading his right of
fair and Impartial trial by Jury*
Evidence is what cen ~
viets a person, the Jury is only an Instrument to deter­
mine evidence*
If the evidence Is not sufficient no
on© will probably raise a stronger objection*
Evidence
to this statement is supported In Hyde vs* United States,
225 U . 3* 3^7*
Here is one of his strong dissenting
opinions In defense of Individual liberty.
When the
majority of the court speaks of "constructive presence"
he accuses them of dealing with fiction*
In using such
a term a man is treated as though he was present, which
according to Mr* Justice Holmes, was a violation of the
Sixth Amendment of the Constitution of the United States
which require© all criminal prosecution to be in the dia trlot wherein the crime shall have been committed.
Hyde was tried and convicted In the District
of Columbia for conspiracy to defraud the United States.
At the time of the conspiracy for which tie was convicted
he was in California but the overt act was alleged to
have been done there to effect the oBject In view.
Mr*
Justice Holmes could not subscribe to the view that if
defraud Is planned in California, the persons making
the plan were acting within the District of Colum; la as
much as if they had come and done the thing themselves*
Judges In their decisions m^at be logical and not forget
facts*
Hyde was not present in fact, and In ttoa&ory
of law he was present only so far as to be charged with
the act|#
Using the theory that If conspiracy is present
wherever any overt act is don©* It Is possible for the
government to prosecute a person in any state, none of
which the person had been resident*
"If a conspiracy exists wherever an overt
Act Is done In aid of it, the act ought to give
Jurisdiction over conspirators in a foreign
state, If later they should be caught in the
place where the act was done *” 165
The right of individuals is too sacred to be
subjected to fiction, "The Constitution Is not to be
satisfied with fiction.1'
It Is Important ^qr judges
to make distinctions* there is distinction between "acts
done In aid of conspiracy and acta that constitute and
call it Into toeing*
Courts too often take the line of
least resistance In making decisions*
"It is one of
the misfortunes of the law that ideas become encysted In
phrases and thereafter for a long time cease to provoke
flirther analysis*1*
165
In deciding cases the content of the case must
be given first consideration and not inadequate form#
Storis and others were indicted for conspiracy to use
the mails for the purpose of executing a scheme of fraud#
In their defense, they argued that a plea to abate an
indictment because of the present© of a court stenographer
at the grand Jury investigation and of improper partici­
pation in the proceedings by the district attorney was
a plea in abatement and also a plea In bar within the
meaning of the criminal appeal act*
They further con­
tended that the statute of limitation had intervened
to prevent further prosecution*
The United States brought a writ of error on
the ground that In these circumstance® the plea was In
substance "a special plea in bar” within the meaning of
-Aofk--i»jCyWiMPOAk" ftj»- 1907; 0*8564; 34
»ta1^i#''lB4d:*
,»**#■ Jtyeiieei'fto&ae# resorted to tola
ability--Of-dtNMlh®'flhe^llties of distinction In order
to defeat-certain form#;
:'i-0.i^ue-lkat there -Is loos-' strictness
noi: -tn::dealing with -a pleatnabatement than
there was a' ■hundred' years, -ago'*' Tbs- question
‘t»-:;ioss;what*i t Is-, ealted thin, what It to*
But
-while the^ •quality'if ■■&& set ^s>oiiiw\‘'
.
iu|>0W''-l-tii'''>
rsubstanoo* the--quailiy of the plea depends upon
Its. -oohtonts «•• ffie statute uses -toohnto&l words,
i|;a,-s3pftoial plea -in b«r* ’and- wo.-see oq reason for
'not:'taking the® in their technical sens©*
-This
plea la not a. plea In bar and the statute doos
not cover -the case. "
166.
-Who individual1,a-guarantee® against undue
invasion ■ekinttev be carried ■■•■to' the sxtenV necessary; to
wpke,<4 ^'%epeialble'’t.O:-eonvi«t eriwlnale*1
al theOT^ee-. o
^Oohsiituilom*
carried only to- the point where they
wake 'It^lmposelbie: to -seenre- tangible, results-#
-If the
Mnetliuitonallty-'of the Fifth Amendment- which- provides
fieB ■eoBptlllni '«■ man to give -evidence
■against laim-Mlf b&® -carried to the extreme it would be
impo-selbl-e'for a jury to carry- out 'examination and, thus
-secure evidence*'
The-forcing: of a prisoner to--try on
a coat to -see if it fits him-and thus provide evidence
-for-the'^.aeee-’
ie- not compelling1a prisoner to- testify
a^inefijbimaelf*
ation!
Mr# Justice Holmes made this explan­
"But the prohibition of compelling a man
In a criminal court to be & witness against
Mmself Is a prohibition of the use of physi­
cal or moral -compulsion to extort communica­
tions from him, not an exclusion of hi© body
as evidence when It may be material.”
An Interesting statement on this question
Is found in Johnson vs* United States, "A party is
privileged from producing the evidence but not from
168
Its production#"
It Is the duty of the court to view statutes
In the light of their intention especially In clear
oases.
The Immunity Act of February 2 5 , 1903*for
the enforcement of the Interstate Commerce and Anti­
trust Acts did not intend to offer "gratuity to crime*"
The distinction must be observed between "an amnesty
for crime committed and the constitution's protection
dmder the Fifth Amendment fro*^ comcelling on® to be
;169
a witness against oneself.”
The fact that He Ike
produced documentary evidence; Identified his signature
to four checks under legal guarantee that he would not
be prosecuted aa a result of such evidence does not
privilege him against prosecution as an officer of a
corporation for other evidence concerning which he had
170
given no testimony*
The surrender of books of
*###nsit# to * n###iv#r £n to#nfcni*pt#y M ntaiftin# #yid#nft#
%t*fct nt«**% Im trteiim t# ntm t# not «*#s®p#lling- M m to*#k«»
m p %
to
hlv»«+lr
bm m
#
i<
*#&#»
**ftnt r t g k t tmt %m to# ##&$#! 1#& to \m & wilts#!*©
#f5i#IMftif t# tlftt # »|||t tO ftfcrp#!*©pf*S4ftt# ,$#•#p#f*ly ttoal **?
t o i l .#ts#* * « t w y *
n o t in g on th # b w i i o f In fo r m a tio n
and n o t toy w o r r i t toy to#ir#*si*## o f floor© its rtB&twMMw*
afeiuft at&atcay in ft fet»#k#ft Jog and #tr*r vaftMis if tf##*
passing
amfe
*$##to#rf# land ft«*w
pm
nftlftttM*
**Ttm
n o t ttMPm
©p#oi&l ^rotoTOtion
an
m
%t l m m l
oord## toy
%tm
ftttflh M*n6«#tt% %o to# ##©pl# %n tuiotr *#©**####*
p o o o r o t and;
l a n o t #*!##&#& t©op#t* ti# t a s *
yrioonort# or# in a h#t|plev,s
%
r#f«o#i#fc
tit oonoiotood of amri'tf in Mftikft and oontoncwwi to to#
Jmrigod S#pt##to#** IS* 1905#
#a#
ff&mt tin# to tin© raa&it#
and on Jvm® 5# 1909#
tmf% e*##iifc#&
a domraon t toy
#a# #o®?mt#d to la^piMisnmt
f o r 11 f# i » : tts#
to to# &##l$***tt#d toy t t e
*tt#ra*y ®#«#ral of its# tfeilt#& st&t#a*
?#r##iok #i#.l##d
H ast ftlft t a if t f f t l f w i j a i l to th « p # « lt o o t lo r y #a& torn
©t*d#y o f tls# r r # # id # n t wo# a$#ln#% t*i# o«m&#nt and i#@ al
taatoorliy*
To % M m r.r# £tt«tt«# HgiUmm &»ni#& it*#
n # © # $ a ity o f ©onasoni toy its#
a s th #
©i*ii$tn©i punloto#f»t oould to top©#**! mi%tmn% ftssard to
too i^riaooor*# « ©muoni a n d %m & »
tooth of n %$ m i l l #
«h# thoi* ho JLlle#d It or not# ina put*llo M l f a r ® f, d#t#r**
173
» I M * ©hat M m 11 to# t o ^ » w
H#
on Urn to#i$
% m % ^rootofc autuMfttkdorod hi# right* In o a M i t l t o ^
m ptm m *
tm
II* ploood hi vnoif in th# hand# of to# ©ffioi«§©
of 3««tio* to tot e h ti# had ?io ragout*©a*
"lleppoft* that, f*«ro*iok did not aoo#pt to#
t n a r p b# oould n -t ti&v# got h? aoif ft&ngod
against
th* *jt*autiv* ©rdar#
Supposing th&t
to did aooapi* tm oouid not u f f m t tto judg&aat
t© to# ©**rrt#& oat#
Tilt# ©onoteor&iion# that lad
to h i # -aortlfloation toto do with hi#
#1 1 1 *** 3.74
&lf% d u e t t o *
inf luanea
on the affoot of oivl l litorti##*
duhoia &am®%u%im
do mm & m
iMO«Hlf«i
toon
m b
this 11 tarty aid not
tout **• r# tot too#
Hot liberty to-
plo****, on to# ©ontosjry# it m to t©*ar& *
p#a©tleai apptt motion to tto
tm soma ln*tano**# ©oairatoi* t&i«&* mu&t to
and # 0 0 ! # % #
a.wm up In
order that ©th*i*a isow daair&feto aay to **©ur#d «c!
frtadoc? of *v*t»jr s w i par top# don lad to w r ® &##»* &*1 ordor
that m graaias* ntftsdtor &©/ onjoy It wor* fully#
iitorty © a n pomiist only u n d o r discipline#
ih© *toi©
m&f
and ©irtmn» ^
m
Mono#
how for
in e©*trl©tln& itbarty dapon©# upon tin#
0 #a«
fottoriy to tsr# ytt&tto* Boiaes 1#
» grown* fw X #r ottlob non liv.3J.v!'3uali (Ana, in molmty
•my mvm&*>p m»«t% fully tfeelr own 0 «paoitl*»a It is
#
wnioh ®*1 la out Bfifl air««t« our oiwrgioa for
Ww
of eorfcoti* rooulta*
im e
no nr&**ing# nor liberty without r^atwlnt#
any merits*
only m® tb© pawar i#itor#ni I«i it la applied
to ©©finite problem© m 4 field# of ho©©© Interest ©an
it ©e©k© the loyalties
&f m m
and ©lay a part In history*
-1300HAFTI8H V
mOMSRTt
To Mr# Justice Holmes property w&a essential
in our economic system and thus the right of property
should be considered as well as the rights of individu­
als*
The protection of both is fundamental in a demo­
cratic society and the power or right of %lther is ab­
solute#
Liberty for legislative restriction of prop­
erty was necessary# as in time of war the legislature
enjoyb what appears to be arbitrary restriction of prop­
erty*
Such restrictions of property are much more
numerous than circumstances that require restrictions on
civil liberties*
welfare
The basis for restriction (public
or social good) is the same but the occasion
is more constant in relation to property*
The great majority of Mr* Justice Holmes1 de­
cisions have shown pronounced leaning toward th© right
of th© state to control and curb the activities of capi­
tal*
This does not mean necessarily that he approved
socialism for he referred to it rather scornfully in his
address on ML*aw and the Court” sayings
are apt to think of ownership as a
terminns» not a gateway, and &ot to realize
that except the tax levied for personal con­
sumption large ownership means investment#
-131and investment means the direction of labor
towards th© production of the greatest returns
that so far as they are great show by that
very fact that they are consumed by the many,
not alone by th© few*0 %¥%
Me can see no special advantage In socialism
for he observes:
"That the great body of property Is socially
administered now, and that the function of private
ownership is to divine In advance the equilibrium
of social series wh'eh socialism equally would have
to divine, but which, under the illusion of self
seeking is more poignantly and shrewdly foreseen."
Again he expressed his scepticism for th©
panaceas praised by social reformers•
He expressed
the belief:
"That the wholesale social regeneration
which so many now seem to expect, if It can
b© h@i>e& by conscious# coordinated human
effort# cannot be effected appreciably by
tinkering with the institution of property,
but only by taking It In hand and trying to
build a race*
T ;© notion that with social­
ised property we should have a piano for every
body seems to me an empty humbug." 176
He hinted also that the present economic system
meets our needs fairly well and that before giving it up
for something new we ought to make sure that tbsinterstl-
ITT
tial detriments do not outweigh th© benefits.
Objections to private ownership Hr* Justice
Holmes intimated wane sentimental and not economic for
the most part#
But this faith in capitalism does not
mean that h® believea the state should show special
favor© to property Interests*
Special privileges
sought by large capital arc contrary to th© Interest of
the whole*
A© th© size of a private fortune Increases,
the interest In the public In th© administration of it
Increases*
Her© is the same criterion for a basis of
decision as private fortune Increases so does the possi­
bility of its influence# its desire to control govern­
ment, and If possible to shape government for it© own
interest*
Tim® It becomes necessary for government
to Increase regulation to meet this danger*
"If a man
owns one-half of the wheat in the country and announced
his Intention to b u m It# such abuse of ownership would
not be permitted*
stand it*
The crowd would sooner kill him than
If fortunes are to be permitted they must
be subject to some state control.
m
The ownership
of wealth is a small Issue compared with the desirabil­
ity for equitable distribution*
“3t conceive that economically it does not
matter whether you call Rockefeller of the United
States# if that wheat la annually consumed by the
body of the people; except that Rockefeller# under
the illusion of self-seeking or* in the conscious
pursuit of power will be likely to bring a more
poignant scrutiny of th© future In order to get a
greater return for the next year*
Why should any
man be free from the restraints to hog up the wealth
Of the world?
All that any man contributes to
the world Is the intelligence which directs a chance
In the place of matter*
A man does not create the
thing he handles or the forces h© exerts*” ITS'
*13311 Is th© duty oi government to see tta t th©
wealth of th© country Is used In beneficial ways#
Social Interest In certain Instances may demand detail**
ed regulation as to spending*
"I have already Intimated my opinion that
the, ostler of a great fortune has public functions,
an#^'therefore., subject to legal questions vUieh
j Si not considering, should be subject to eome
negative restraint#
Among others X should like
to see him prohibited from giving great sums to
Charities which could not be clearly justified
as long-sighted public Investment.” iSo
In using property for the ordinary small
competitive business man a great deal of liberty is
pertnltted#i; in different cases, uthe worth 01 the
results, or th© gains from allowing the act to be done
has to be compared with the loss which it inflicts«"
Hegulatlon is not a means of destroying competition, nor
denying the use of one1 a property*
therefore the
conclusion will vary and will depend on different reasons
4f
according to the nature of the -affair*
For instance, m man has a -right to set up a
shop in a small village ^hiah can support but one of the
kind, although he expects and Intends to ruin a deseriring
widow who is established there already*
He has a right
to build a house upon his land In such a position as to
spoil the view from a far more valuable house near by*
-154Mr* Justice Holmes sometimes allows liberty In the us©
of property to th© extent of being harmful to an ad­
joining neighbor*
He hesitates to disturb a rule of
182
property which has long been established*
He pro­
tected a fanner who owned a slope running down to a tail1
pond and who fertilized and cultivated the slope in the
usual ways although considerable quantities of solid
matter was carried by surface drainage into the mill
pond*
The owner of th© pond sought to restrain such
fertilizing and cultivation but Mr* Justice Holmes
viewed th© element of freedom of us© of property as too
vital to be interfered with*
wThe respective rights and liabilities of
adjoining landowners cannot be determined in ad­
vance by a mathematical line or a given formula,
certainly not by a simple test of whether the
obvious and necessary consequences of a given act
by one is damaging to the other*
The fact that
the drainage is foreseen, or even intended, is
not decisive apart from the statute*
Some drain­
age a man must put up with, however plainly his
neighbor foresees'it before bringing it to pass*
Liability depends upon the nature of the act, and
the" Mlfld* afod degree of th© harm done, considered
In the light of expediency and usage.
For
certain kinds there is no liability, no matter
what the extent of the harm*
A man may lose
half the value of his house by obstruction of his
view, and yet be without a remedy.
In other
cases his rights depend upon the degree of th©
damage, or rather of its cause.
He must endure
a certain amount of noise, staella, shaking perco­
lation, surface drainage and so forth*
,#fhe present case presents, one of those
questions of degree*
We are of the opinion
that a man has a right to cultivate hi© land
in the usual and reasonable way, as well upon
a hill as in the plain, and that drainage to
the lower proprietor of the kind complained of
is something that he must protect himself
against as best- he may.
The plaintiff says
that a wall would stop the trouble#
Xf so
he can build one upon his own land/ 1 183 '
The construction of a metropolitan sewer is so
vital to health that such can b© carried on at the ex­
pense of temporary destruction of the only water source
of a laundry company.
A pond that furnished water for
Chelsea jpye and Laundry Company wasjtemporurily dried up
as th© result of sewage construction*
The company
during this time was put to large expense to provide
other means of water supply#
Mr# Justice Holmes would
ndt:-agree that the damages Inflicted amounted to the
^
taking of th® right of any kind from the company*s land,
jfhis was a temporary consequence of maintaining a sewage
which la for the public health*
Th® question of harm to personal property with­
out compensation is one of degree#
*We as sum* that
ient phrase, ^police
small diminutions of
within th© letter of
necessarily incident
of government*" “ 5-
one of the uses of tdfee conven­
pov*'t, *is to Justify those
property rights, which although
constitutional protection are
to th© free play of the machine
-136Th® legal line and extent of the private us©
of property mmst be drawn.
This is sometime© decided
"more or less arbitrary as to th® precis® place of their
Incidence, although th© distinctions of which they are
is6
the inevitable outcome are plain and undeniable*M
in
another similar case Mr# Justice Holmes invoked malicious
Intent as reason to restrict free use of property*
Th©
loss of value from obstructing part of the view from a
house was claimed by the plaintiff*
mad© of a "spit© fence#1*
Th® complaint was
The litigation was taken to
the supreme judicial court under the-"due process clause."
"It Is plain," said Mr* justice Holmes, "that
th© right to use one* s property for the sole pur­
pose of injuring other© Is not one of the immediate
rights which are established for very different ends*
It has been thought by respectable authorities that
even at common law the extent of a man’s right in
cases like th© present might depend Upon th© motive
with which he acted*"
necessity for action Is Important in justifying
the action, thus h® continued!
"A man cannot be punished for malevolently
maintaining a fenc® for th© purpose of annoying
his neighbors merely because he feels pleasure
at the thought he Is giving annoyance, if that
pleasure alone would not Induce him to maintain
it, or If h© would maintain it for other reasons
even if that pleasure should be denied him.
If
the height above six feet is really necessary
for any reason, there la no liability, whatever
the motive of the owner in directing it.
If he
thinks It necessary, and acts upon his opinion,
he Is not liable because h© acts malevolently *
MW© a**© of the opinion that the statute
thus ©onatrued'is within limits of the police
power, and la constitutional, so far as It
regulates theisubsequent erection of the fence.
To that extent it is simply a noxious us© of
the owner*@ premises and although the use la
not directly injurious to the public at large,
there ia a public interest to restrain this
kind of aggressive annoyance of one neighbor by
another, and to mark a definite limit beyond
which it is not lawful to go.*11 I8 ?
In making adjustments between property and
society, Mr* Justice Holmes was always conscious of
th© superior position of the legislature to know the
facts upon which adjustment must be made*
In the
Tru&x ease, in 1921 , the majority of the court held
that an Arizona statute forbidding the use of injunction
in labor disputes violated the property right of the
owner*
Mr* justice Holmee contended that It was not
the duty of th© Supreme Oourt to step into the shoes
of the Arizona legislature and substitute their Judgment
for that of the local situation
Mr* Justice Holmes
saw the legislature as the spokesman of the dominant
public will and thus strove to uphold its action in be­
half of an oppressed hod carrier*
V A state may place limits upon th® number of
companies to make or enter into any combination or agree
ment relating to the rate© to be charged for insurance,
189
and impos© Tinea for the violation of this order*
Mr.* #ustlo© Holmes in speaking for the1court
a© ©erly as 1697 saw tin© danger of combinations between
possiblerivals in trade#
He could see how this
©igbt lead to monopolistic control of price rates, ©to*,
and completely d©stray free competition in practical
duplication*
Courts had guarded against this tendency
In a number of other decisions, northern Securities Co*
vs# United States, 193 U#5, 197, Swift and Company vs.
United states 196 U#3* $75*
The right to combine is a fundamental peraondL
right of liberty or property*
It is possible for the
exercise of this right to be used to such an extent as
to destroy the fundamental constitutional right in p.raetl~
cal application*
It can be carried to such an extent
as to endanger the existence of the state*
When the
legislature sees such danger and Hdeems it desirable
artificially to prevent, so far as it can, the substitu­
tion of combination for competition, this court cannot
say that fire Insurance may not prevent so conspicuous
an example of what that legislature thinks an ©vll as to
190
justify special treatment#**
This does not mean
the state Is free from judicial review#
In th© case
of Maxwell vs# Bugbee, Mr* Rustic© Holme© disagreed with
*439*
the majority of the court on th® right of th® state to
tea the property of reetdenVand 'hon^resi&ent decedents
191
% devise, bequest, etc*
Mr* Jus tic® Holmes saw
nor® a etveWMiig of w i » out of their nooning*
**Mew jersey cannot tag th® property of Mill
or McDonald outside th® state and. cannot use her
fWir over property within it to aedompUefe by
io&treeiloo what oh® cannot do directly** %9M
This la an attempt by th® legislature to r#a®u
beyond It® constitutional power*
Feeling that the
legislature was acting from emotionall y, h® threw out
a word of w&mlng» *s3$any. tiling® a legislature may dof if
it does them with no ulterior motive# it eao*-et do as
193
a means to reaefc what is beyond its constitutional power***
Afraid that the Judge® might think they are legislator®#
Mr* Justice holme® cautiously admonished the© against
decisions of domestic nature which are quite debatable*^^
True* the court In certain oases* when- action of the
legislature was purely arbitrary* had a role to play*
Just what this part was* he hesitated to may*
ft was
not the duty of Judges* nor were they in position to
initiate policies*
Their action and decisions depend
upon Invitation from other parties*
Ur* Justice
Holmes* view of the play ©f
foreee 1» 'society is similar to the ee expressed fey nedi*
eon in the Federalisti
who hold and those who urm without
property have ever.formed distinct Interests In
society*
Those who are ©redltora, and those
mho are debtors, fall under a like discrimination*
A landed Interest, a manufacturing interest, a
mercantile interest, a mottled inter®at, with many
leaser interests, .grow up of necessity In civil**
lead nations, and divide them into different
Classes actuated.by different sentiments and views.
The regulation of these various and interfering
interest®'form % m principal task of modern leg*
ieiatlon, and involves the spirit ef party and "
faction In the neeeeeary and ordinary operatlana
of the government**4 "195
In 1873 Mr* Just lee Holmes expressed his
opinion regarding the various forces in societyt
*This tacit assumption of th# solidarity of
the Interests of society 1® very
but
seems to. u« to be -false *** In the last resort
a man rightly prefers his own Interest to that
of hla neighbors*
AmA this is ae true In leg-**
1 elation as in any other form of corporate action*
All that can be expected from modern Improvements
is that legislation should, easily and quickly, yet
not too quickly, modify itself in accordance with
the will of the defaoto supreme power In the ooMttggft*
lty» and that the spread of an educated sympathy
should reduce the sacrifice of minorities to a
minimum*
The objection to ©Is**® legislation Is
not that it favors. a oiaae,- but that either it falls
to feneflt the legislators* or that it is dangerous
to them because a competing alasa has gained in
power* or that It tran*»es»nds the limits of self
preference which -are imposed fey sympathy*
But it
Is no sufficient condemnation of legislation that
It favors one class at the expense of anotherf for
much of -all legislation does that; and none the less
-when the bona fide object 1 c the greatest good of
the greatest number #**. if the welfare of all
future ages Is to be considered* legislation say
The f^ct
as well be abandoned for the prosent*
Is that leg!station In this country., a© well a©
elsewhere, is empirical*.
It ISneceasari ly made
a M a n s by which, a body, having the power, puts
burdens which are disagreeable to'*^
on the
shoulders of .bombody else***
196
'***3LA3L**
Mr* Justice Holme® realised th© Importance of
peaceful adjustments of elaahes of interest In society.
The Influence of Judiciary and its life depend upon the
ability to grasp and reconcile the Interest.
The
court la not an institution to attempt to hold back these
social and economic forces but a mould by which th©
constitution must be shaped to allow such forces*
The
constitution should be tr ated as a broad charter of
powers for the Internal clashes of society, and must not
fee construed as a detailed code.
-142Property &n& tub%ie Interest
The taking of property by right of 'Eminent
domain for publics purposes furnished a striking illustratlon of the element of relativity in conBtitutional
law#
It Is settled that a state can take private
property for public purposes.
11It is impossible to hold that we property
owners in a state have a vested right that no
general proposition of law shall be reversed,
changed* or modified by the courts If the conse­
quence of them will be more or less pecuniary
loss#*1 3^
As a general rule property may not be taken
without compensation*
This compensation is to be
Just compensation as decided by the court© In case ot
controversy*
With the aid of th© *police powerM in
hertain cases for the general welfare some property may
be taken or destroyed for public us© without paying for
1‘
hS"
it* If too much lattfcittaken*
Hwhat is a public purpose?**
The Supreme
Court has refused to allow the states to be fettered by
formulae on this subject*
Time and place and local
needs as determined by local legislation must govern#
Mr* Justice Brandeis in a dissent In Hew state Ice Co*
vs* Liebmann has this to ©ay*
w0n the other hand, the public1a concern
about a particular bus!nee© may be eo pervasive
and. Varied as. to require con at ant detailed superViaion and a very high dogre& of regulation*
Where this is true, it is common to apeak of the
business as being a Mpubllc '* one, although! it
is privately owned*
It la to such businesses
that the designation fpublic utility* is Commonly
applied; or they are spoken of as affected with
a public Interest.M
199
Hhis sweeping generalization, although not
the decision of the court, has caused a great deal of
comment*
It Indicate® that more and more businesses
are likely to become affected with the public Interest
as society becomes more complex#
Emphasis Is placed
upon matters of Judgment depending on social and economic
conditions and popular views on conditions which vary
from time to time and from country to country.
The
social, economic, and personal views of legislators and
Judges will also vary#
Xet it Is upon these finally
that the determination of what is or Is not affected with
a public Interest depends#
With a. change in personell
of the court It is a good guess to say that the present
court would entertain views on the right of the state to
determine what callings are affected with a public Inter­
est*
It
be assumed that the courts will permit
more* rathter than less, regulation in the future*
Mr*
Justice Holme® early recognised this demand of regulation
for public Interest#
He realized that changing time
*
brought changing ou&tom#
His opinion on this subjoet
may chart the future course and the business which at
One time is not held to be vested with a public inter© t$&.
may at a later period be ao held*
In Mr. Vernon
Cotton Co* vs* Alabama power Company, Mr* Justice Holmes
registered approval of the expanding control by state
over water power!
HXU th© organic relation of modern society
it. may sobi© times 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 mast© and to draw
from them energy# labor without brains# and so to
save mankind from toll that it can be spared, Is
to supply what, next to Intellect# is the very
foundation of all achievement and all our welfare*
If that- purpose Is not public we should be at a loss
to say what is*
The inadequacy of use by the g$Q
general public as a universal test is established*''
The diverse interests -of the state demand that
In case of conflict property interest must, give away*
The demand of the public for certain interest la predomln^
and over that of the private right of property.
MTh© public Interest Is omnipresent wherever
there is a state and grows more pressing as popu«*
latlon grows*
It Is fundamental, and we &re of
the opinion that the private property of riparian
proprietors cannot be supposed to have deeper roots*
Whether it bo said that such an Interest justified
the outting- down by' statute without oompeneatlon.
In the exercise of police power of what otherwise
would be private rights of property, or whet the
defendant seek© to do, the result Is the sasi®*
But we agree with th© Hew Jersey court, and think
-145it quite beyond any rational view of riparian
rights that an
of no matter what
private owners, could sanction the diversion
of an Important stream outside th© boundaries
of the state in which it flows*
The private
right to appropriate la subject not only to
rights of lower owners but to the initial I1&1-*
tailbn that It may not substantially diminish
one of the great foundations of public welfare
and health* SOI
A mining company of Utah claimed the right
under a statute of Utah which provided, (the right of
©sinent Domain may be exercised In beha Id of the follow*
ing public uses, "roads, railroads, tramways, tunnels,
ditches, flumes, pipes, and dumping place® to facilitate
the milling, a smelting, or other reduction of ores or
the working of mimek) to Include the condemning of a
right Sway across private property In order to connect the
mine to a railroad*
The right of way for an aerial
bucket line across a placer mining claim of strlokley
was secured*
strlokly knowing of the building of a
right of away across his property kept silent while the
company was putting up th© structure, but later set up
m claim against such condemnation as th© taking of prl
vate property against the Fourteenth Amendment.
Mr*
Justice Holm©a# faith In the legislature’© decision as
to the need of the bucket llfte ,accepted the view of
the state court*
His practical philosophy led him
%©■ aeoept others* view® ae 'to- the practical solution
of On Immediate problem*
In Clark vs# Hash, 19S* D*$*
$•61 ©ondeiati&tlon of load for irrigation purpose® was
permitted*
To Hr# Justice holmes thib vrns a, el®liar
questions
Hat■whether th# state has the power* but
la the purpose sufficient to warrant the taking#
*$ M 1# ecaphaalMng the great caution
necessary t© to# shown, It proved that there 'might
be exceptional times and plaee# in which the very
foundations of public welfare could not be laid
without requiring eoneeealooa from Individuals to
each other' upon hu© eonpensation which under other
oiroumataneea would be left wholly to voluntary
consent.
In such unusual ©sees there Iu nothing
in the Fourteenth Amendment which .revent & a state
from requiring sueh conceaslan*
if the -state
constitution restrict® the legislator© within
narrow hound* that I© a local affair, end munt be
left where the state court leave a- it in at case
like the one i bar#
"In the ©pinion of the legislature and the
supreme court of Utah the public welfare of that
state demands that aerial lines between the mine*
upon its mountainside* and th* railways In the
valley below should not toe- mad* impossible by the
refusal of a private owner to sell the right to
arose M e land*
£h# Constitution of the United
States dors
require us to- say that they are
wonts#" 'ZQSt
In the improvement of means of transportation
of railroad* privet* property .nay be Injured without com
pensatIon#
The improvement of the land tas for the
purpose of better transport*.!!on and thus mean© I'^proprl
ate to that end are permitted Although private property
203*"
is ruined#
While Feepeoilfig the opinion# of the legisla­
tu r e w ith o u t lo o k in g back at the- free!elo? , t h e r e a r e
t i e * * end o e a e e to n e when the-, c o u r t must "1 oak b eh in d
eere ferns' end- interfere whenever ndoeesary for the pro­
test! an of privet# rights against an illegal, arbitrary
204
exercise of governmental power«
Theright of
Salfient Domain does not ©over fraudulent taetlee in the
piking of land for public use*
The owner has a right
In such a case to revoke the ©ontract#
The city of
Clinton took land for .public use belonging to Michael
OfDonn©l who eouidr/ i read*.
The city offered him two
hundred dollar® for damage a# and enooui»t|£ged him to sign
a receipt acknowledging full payment of all claims, but
which he under stood, at the time and. declared' to be for
the -and alone#
The road ©ommieeicm accepted without
objection realising that o*Donnell memnt one thing but
signed far something else#
The right of property ie
too sacred to be »utoJetted to a fraud#
aasent in % m
aene# of the law# is & matter of overt acts, not of in­
ward unanimity in motive* designed* or Interpretation of
words*
Inadequate oompeneatton a® the result of a
mistake where no fraud la practiced is sustained*
the ease of valuation of property the statute In the
Important* thing for th® court*
In
-148'property I# -taken by Eminent Domain
i
t
.
t
h
a
t
there, must be
something more -'t'hah- &n ordinary honest m* stake
of* law lh the proceedings for compensation be’*
fore a party ban mark out that the state has
£05
deprived him of hi a property uneoThfetitutloinaUy *H
ft ie m difficult problem for'the court to
dree a line and declare that on this aide la adequate
eemoeneatiefi while on the other adequacy of eompeneation
dee* not exist#
The drawing of a line does not lend
Itself to mathematical formula#
At what point the
majority of the Court will place the mark depends upon
the economic philosophy in ^hloh the particular judge*
belief**
Xf the Idea of public purpose la the pre­
dominant element lB*h**1yid* of five Judge*» then It
1* possible that the trburt' ‘'Wilt permit a statute which
favor* apparent lack of proper coapeneatlon#
the Court Is quick at time* to read Intent
into various action*#
Xf* after going back of the
statute, the Court aaa see no valid b a d e for malicious
fraudulent intent, the act will be sustained*
The
ability of the state to pay that amount and If necessary
five a# mim time* that: amount has nothing to do with
:> .]•
1
■
t,he validity of the aot.
the paying for proper!,
W d t w for pttbilo purposo boar* no rolation to %ho
financial security of the state*
subject t o h o n e a t mistakes
fhe"state•d # ;«fr•■much
lawS'-aa- are- other m m #
c l e e e r p e r a e n s , a n d i s not expected to pay ** all ether
things remaining the same#
It 1® quite conceivable
that><** the public need® expand and grow the questions
of fraud and unoon stitut1on&I taking of property loses
aignifloanee in direct proport Ion*
Emergencies might
he treated in which for the4 present the question© of fraud
andunconetitutlonnlity might In practical application®
disappear*
mmvr®
vi
social uror button
$?&pid economic expansion followed the Civil
iop and with thin mxp&naion oanno a oon©er>tp&tI on of
wealth in terras of large corporative enterprisep
The
old individualism »as swiftly ohanging and losing Its
place In society*
the foaling of security was becom­
ing bound up with theas largo corporations*
At the ©lose of th© war the ©eon o&;1© ©trueture
wan organised upon a new basis*
buslnep
Before tne’divSl ftaF-
had been conducted largely by Individuals or
by partner©hi pa •
The unit was malij the amount of
capital needed was limited*
But now the unit was ex­
panding so rapidly#>,the need for capital was so lavish.,
the empire of trade bo extetielve, that the new corpor­
ate mmonanism was necessary*
Frebably no other ©vent
has hud so practical a bearing on our politics* and
upon
our
economic and social life us the advent of the
corporate device for owning and directing private bucines
For it linbf^the omnipotence of the state to the limi­
tations of private ownerships it placed the interest
Of private business Into every legislature that grants
charters or passes regulatory acta.
On th© other hand,
It diminishes that stimulus to honesty and correct deal­
ing which an Individual discern® to be his greatest as net
In trade, for It replaces Individual responsibility with
group responsibility and scatters ownership among so large
a number of persons that unscrupulous disaster la possible*
This development placed the theory of indivi­
dualism on a new basis and gave it a new purpose*
The
transformation of the United States from a rural, agri­
cultural nation Into an ufeban Industrial nation raised
new problems of the function of the state*
The growth
of large scale business organizations raised the ques­
tion of the degree to which the state should regulate
or control these associations#
The conditions under
which the laboring classes worked and lived led to the
discussion of th© desirability of legislation for social
and economic betterment*
Questions of taxation, sub­
sidies, tariffs and governmental ownership all raised
the issues of the relation of the state to the new
economic forces, and th© degree to which its control over
them should be extended*
Mr* Woodrow Wilson described the position of
the individual in th© following striking languagei
wWe have witnessed In modern bueineee th#
fatawrgwhee of th® individual within the organ­
isation, and' yet th© Increase to an exiradrdintry degree of th© power of ire individual wro
happen© to control the organization*
.f'ost men
are individual© no longer so fmr a© their tusio©so, It© aetivltlea# or it® morals ilea, is con­
cerned*
They are not units, but faction»|
with the Individuality and independence -of choice
in matter© of huetreea they have loot also their
Individual choice within the' field of morale*
They mu&% do what they arc told to do, or lose
their connection with modern affairs*
They are
not at liberty to aok whether what trey are told
to do la right or wrong*
They cannot get at
the T*em who ordered it, haw© no acceee to th®:,*
They have no voice of cottaeel or of protest*
They are mere co s® in a mac hino which hae men
for it® parte*
And yet there are men her® and
there with whom th® whole choice Ilea*
There
are men who control the machine a© a whole and
the men who eoapoee It*
There are men who use
it with an imperial freedom of design# whose
power and whose Individuality overtop whole eo»munitiea*
There, ia more individual power than
ever# but those who .ewere lee it &r@ few ano for­
midable, and the mmm® of mom mere ■pawn© in th®
$&f®e*i! ,206
The earlier regulation® which were lll*a-:ilted
to the need® of rural agricultural condition© led many
to argue for the abolition of all regulation®#
ft was
asserted by many that American prosperity was the result
of the initiative enterprlae, and ©elf reliance of
individual»| that, these quailtiea were typically Aaeri*
esst# and that.. ttgyv.wc^JA: &** destroyed by a policy, of
paternalism on the part of government*
In particular
these qualities were Imputed to the "Captains of Indus­
tryw whose genius had mad© possible remarkable achieve­
ments of the period.
Corporations desiring to avoid
taxation or regulation, and employers desiring to avoid
legislation in th® interest of laborers9 argued for a
minimum of governmental control.
This changing scene immediately focused attent­
ion on the Judiciary.
Confronting th© court were such
questions ass
1* Ha© the state ever a clear duty to lend
a hand to aid those who are obviously at a dis­
advantage In struggling with the forces of modern
Industry!
2* Under our fundamental law and th© prin­
ciples declared in our constitution, can ur leg­
islature© and courts recognize, not only the facts
of existing industrialism In equality between men,
but, also a duty to protect by law from fraud In
order to meet new conditions of the weak against
the strong!
>* When Individual action alon© cannot secure
equllisatlon of the conditions of competition, and
where that failure Is resulting In misery and dis­
tress, may the law Intervene to protec% the weak
from the tyranny of the strong!
4* Are the handicaps of life to be questions
solely for the individual# or are they at times
under special circumstances to be questions for th©
state itself to grapple with?
And if not to solve,
at least to create, conditions under which th© indi­
vidual may solve them for himself!
These questions challenged the court a© to
th© proper answer.
Mr. Justice Holmes early saw the
replacing of Individual freedom by social freedom, and
the Importance of the government In this transformation.
To meet the coming problems and the practical situation,
It was necessary to limit the freedom of a few In the
Interest of the many.
These limits could best be
placed by the government.
Hot only should the govern-
ment serve as a regulatory agency, but also as an agent
for positive action.
Mr. Justice Holmes saw the Immediate danger
fading the American government*
It was not a lack of
stability, but lack of mobilityj failure to make prompt
adjustments to the new era In Industry and science.
Oovernment ia at many points a generation behind th© de­
velopment of social and economic life and th© urgent
problem Is that of bridging the gap.
Mr. Justice
Holmes believed In adaptation and adjustment, rather than
Immobility and equilibrium.
He emphasized social and
political vision with a broad view of the trend of the
time.
He recognized that his was a period when social
change was rapid and thus at times adjustment and adapta­
tion also must be rapid*
Each generation makes a new
spirit, a ltd* constitution, a new way of doing things
of
politically, a new set of under atandingsAwhat should be
done for th# common good by th# p©vcrni»enl and how*
Jefforeon*a saying that the government of the United
states should- always wbelong to the living generation **
furnishes guidance for .Mr* Justice Holmes* social
philosophy*'
Payne gave considerable food for thought
in the following excerpt from his "Rights of Men,*
f an certainly not an advocate for frequent
end untried changes in law and- constitutions# t
think moderate leperFactions, had better be born©
with} because, when once known, we accomodate
ourselves to thee*’ and find pm©ileal means of
correcting their ill effects*
But I know also
that laws and institutions must go hand In hand
with the progress of the human mind*
as that
becomes more developed, more enlightened, as new
discoveries are made, new truths disclosed, and
manners and opinions' change with the change of
circumstances, institutions must advance also and
keep pace with the times*
As might as well
require a man to wear still th# coat which fitted
hie as a boy,, as civilised society to remain ever
under the regimen of their barbarous ancestors*
It ia this preposterous Idea which ha® lately
deluged Warope In blood*
'Their monarch*# in­
stead of wisely yielding to the progressive lsr»-c
provements# have■clung to old abuses, entrenched
themselves behind steady habits, and obliged their
subject# to seek through blood and violence rash
and urinous innovations, whleh, had they been
referred to the'peaceful-deliberation and collected
wisdom of tlie nation would have been put into
acceptable and aaluary form*” 207
Since each generation la as independent of
the one preceding''.as that one was of all which had gone
before# like them- it had a right to adjust its institu­
tions to the changing social and economic ends*
In
6#*#riblti.& th# <$tt#tifl#oiloo of * ototut# tir* Juotloo
ItolMo a a g g i i M that “to # » # hoi* whloh tn#
iao
toward roaohln^ m eoaiai mnd th# govewl*^ powwr
208
oonttonlty bo# «#4# up It# rntm wtoot it wont#*"
brings#
th#
n©
h&& % profound ##ti## both of th# varioty of hun#» wont#,
and th#
whlah ohorootorl### our p®w#r to satis­
fy thoai fvm \ thin I# horn hto aonotont loo|.#t#### upon
poof H o t #® th® root of ©oolol oh&ng#*
A«sd h# toforrod
fro# %tm% aonfildt tr># tmmd of la# to y*#^i#t# th# ##pr###*
loo of #111 In torn# of prlnol-pi##* uo w#Xi &® throwing
out burning orttiol## 0 0 th# Inability of
poo# with th#
to t##p
*ftthif*tt that th# Ju&g## th#o##Xv*#
how# foilwd #d#qu*t#ly to rwoognto© th**** #**#*• of w#l&t«»
tfi^-#o«i«ld#r#tta'?#- of #o#i*l «dw*f»tttis#»
209
On th# important lam*## of hi# time* on #ool#l
lo£l#X#tlon roauXottoi; hour® and «#$##, child labor, th#
l#oulfi& of Injunction®, o»ptoy#r#f liability, th# op#«
& m p mud th# llli# i?i% ytt«tio# Bo to## e>xpr####d hie vl*w#
in a ain&ont#
in r«X*tiv*ly f#w e*®## of aootol to*
partor*®# did h# owppo®# th# vi#w of a ilbor&X &;
,®Jority
of th# oourt*
To. #jepr##®log ®uot» a xibora! wl#w th#
pitillon naturally >ri###* So# qou1& ft# oaoop# th# olao#
prwjw&to# of hi# fotfeor?
Ills it?t#lX#etu#X pow#' and.
*15?**
th# tru« liberal attitude enabled him to risa above hie
hereditary, class prejudice*
Hewing devoted ttm early
years of manhood to the study of the history of the law*
he came to admit freely that the future belongs to the
man of "statistics and economise**
210
When Mr* Justice Holm.ee first ©at upon the
supreme oourt benoh of Massachusetts, it was believed fcy
many that the duty of the court was to eerve m® a watch
dog over uninformed legislators*
Opposed to thl
view
he believed th© legislature had a right to experiment
an
with national destiny*
"ft is dangerous to tie-down
212
legislatures arising from the word© or the ooristltutloh•M
Believing as h«a did, that all life iss an
experiment, and taking the essentia Ily>~selent Ifia view
that much of the accepted truth of today will be antiqua*
ted tomorrow and discarded for a new and different truth,
one ha© only to glance hastily at the scientific '-arid
today to discover this, Mr* Justice Holmes realized that
hi© own view of desirable social and economic organisa­
tion ®lgnt well be mistaken *
Accordingly, he reeefpglaed
the desirability Of allowing a free hand for social exper­
imentation if the community desired It*.
Be realised
that after ail, the orthodox vie^s of too ay v?©re once
upon a time new and untried and that the only wayto le&m
*
whothor a
mmm.
oooial
198*.
deotrtn# «oul# *©ra
m*
to giv# it a trial*
m m
TUltt point of vl#o %#4 &tonight
to Utii lotg, iifl## -of doololon# i6d opinions* iok of
tho© H0 a 4 t« M n ttn ^ jaoobor o f ib# o o u rl* upteaMine a®
oo&otituttofiol all kindo of laaa ahtoh proviso for ooalal
ana aaononia #jtp#rlmoniation •
Th# ooolai end #otmo$te
atoould |>® baood on otatoo
x* th# poopl# 1«* ona iit&i# ohould. try to#
•oporto#**! of gotiinj* along mi to-'lit injunction in labor
Maputo uf tf amothor alai** #houl<& aaalra to traat
ttm
aaynifaaturing of too a#a pub H o utility s*wfcj#et to rogo~
lotion by the &tat#f If it* still another at0 to the f&ajor*
tty ispoakttifl through th# loglolaturo abould aotiuO# to
•try th# ox *ori»#nt of Halting trio hfisu.ro of th# work of
hakoroj or If Congr### houtd ol oh to oxportoont by flat*
lug filnlaua oagoo for wamoi* to th# M&triot of Columbia*
and 00 on for a Oo&on
%tmr 000tal ami ooonoale ® m m r :«*
mmnt®# hi# nonotttuttonal philosophy (all Ilf# 1 & an
o&porteontj lad him to uphold the f/aportcumt# m
tutl^nal*
oonoti*
This he aid* trr#o.^--cttv« of th# quoatioci
wfcothor ho thought th# 1#violation in «*u«»#iiOR at ii^o#
214
•to# ©r footlon*
a p#®##,^# from wiill^© y&m## csay
hold uo to ua&or#t#ft& why ^r# #u©tl## Holloa --hght b#v#
M.ppdt*%«di laglftlatlon -ohiah mppmrmn%'.ly ©©toad contrary
to th# lot tor of tha- ton ©tlbutt on |- furthers ora* wa ray
ooitNi to fttpaii
him
for atoh ©otton*
"Ono.noll might .add ttot moat human in*
Atltutlona* by th# paw® ly toohnieol
pw*
groooftonol mmmmr In obid-h they oosso to bo
-Molfiiatotod# and by too®©log obotoolo# to
tho vory arooooo ontoh thoir foundoro had in
*!•»." S15
toolal aonaldoratlooo movod or* Just too
ho too»
In upholding &anjr oxtonoitoo of th# polio# po##s% but
tray or# toot o^p-hoiiiood by an ©stagy*nation of th# toy In
•blob ho oorttod than out and applied than in tho ato .on
i«ii and In tho logiolotlon of footing labor*
Hi© dlo*
gig
oocit in Vogolatm vn* auntnar* In 1696 #a# an early
ototonont of tto oaoo a^atnot tho uao of Injunction in
labor dioputoo*
Whilo to would grant a temporary injunct*
ion fforbidding aortal«i aoto f# ttoo&t© of violonoo during
a »trite*# ha would not pomit an injunction alapiy booaucm
harm tod toon ton# *
tto
*Tho only debatable ground to th# Mtar© of
mmrntm by
ohioh ouoti damago may to i n f l i c t e d *
Wo all $01*00 that It cannot to t o m by fore# or
throat of for##*
to sll a^raa# i ppaauaaf
t at It may to dona by parauaalon to loava a
rival* a ahop and
m m ®
Tha aourt oiftat to
to tha. dafOBtort*ruf’
in E&atei*H- doolaiona*
Ttora 1# © dlf foronaa- totooon pcaooful picketing* ©fid
ijjsha throat of vlolanao during a atnlfeo*
tootslorn oust
be baaed on the social problem which the law inlands to
fit.
MI cannot but believe that if in© training
of lawyers led them habitually to consider more
definitely and explicitly the social advantage
on which the rule they lay down must be Justified,
they some times would hesitate where now they are
confident, and s©e that really they were taking
si @ 0 upon debatable and often burning sides*” 3218
The majority of the court in the case above
enjoined such picketing, holding it to be one of the
means of Intimidation employed by the strikers and
-
ifA
therefore illegal*
Mr* Justice Holmes can see no
more harm in a peaceful combination of laborers to
Support their interests by argument and persuasion than
th© combining of capital to secure the greatest possible
219
returns.
On either kid© combination is lawful*
”Combination on th© on© side is
powerful*
Combination on the other
necessary and desirable counterpart,
battle is to be carried on in a fair
way*”
patent and
is the
If the
and equal
There ©r©ocertain grounds upon which the in*
fllction of temporal damages is permitted b
law*
If
the damage inflicted is the result of free competition
in the ”battie of trade” there la no law by which the
victorious party may be punished#
In our society It
Is a well established precedence that free competition
is worth more than it costa and any damage© inflicted
161are privileged#
“But there Is a notion which latterly has
been insisted on a good deal, that a combination
of persona to do what anyone of them lawfully
might do by himself will make the otherwise law­
ful conduct unlawful*
It would be rash to say
that some as yet unformulated truth may not be
hidden under this proposition*
But in the
general form in which it has been presented and
accepted by many courts, 1 think it plainly un­
true, both on authority and on principle *•#
It is plain from the slightest consideration of
practical affairs, or the most superficial read­
ing of Industrial history, that free competition
means combination, and that the organization of
the world, now going on so fast, means an ever
increasing might and scope of combination*
It
seems to me futile to set our faces against this
tendency*
Whether beneficial on the whole, as
I think it, or detrimental, it 1b inevitable,
unless the fundamental axioms of society, and
even the fundamental conditions of life, are to
be changed*” 220
In the case of the Continental Wall Paper Co*
221
against Louis Voight and Sons Co*,
the facts were that
the plaintiff was a combination of 9B% of th© manufact­
urers of wall paper who organized a company to control
the complete manufacture and output of wall paper, etc*
and to fix prices, and had the Jobbers dealing with them
agree not to deal with any others or to go out of business;
the defendants contended that by buying from the plain­
tiff they had to pay twice as much, and that th© plain­
tiff was an illegal combination under th© Sherman
Act, whose operation restrained and monopolized
ownero© and trad# *aton$ the etetee*
br* £uatio* »er*
Inn rendering the opt it1an for th# e<*urf tmid tret the
.tttobtnakioii «$» ille-gel* in that th# eouri o&rir.-oi lend
It# old in any way to a partyf seeking to
rm&tlm
fruit®
of an Illegal contract and while tht# may at time# peeuli
In tNtttevlng a pumtoaer fro& paying for *-,at ft© ha® rat *
public policy demand© that th# court deny it# old to
carry, out U U ^ i i eontnaeta without regard to Individual
intWNinto or know lodge of tn© parti as.*
ur» Jus tie#
Holmi* dleaentln#*. hold to the right of oo&’fcl at Ion on
the pant of eapltat a© well a# labor,#
“SIN# tot l o w a that there w o no durea® on
port of the plaintiff® agat ©t the deferdort®*
and if they Old wet hit they'would to driven
out of buolneeo#
A lawful gainetmfte to not
made unlawful merely by feeing in* fulfillment
of an unlawful ©entrant *“ .ig^"
A engine tton ©one!©ting >f seller® .-©ly to
not Illegal if the smoeie&g© a©qi*lr©d ia .publio end
there la no eonpwXeta© on the p»rt&** to th© ooabinatlcn *
*thia ©oebtoetian to. an attempt to corf^ie th® normal
market ©ondltiona &n$ the *;h©«X©djse enquired ty tie®®#
eeller© ia- ai## to to hod by tto buyer© end that th©
partiea ore free to do a® they
In this eea©
the feet that ell traneaetione ere open for in®, cotton,
the combination
to get end din tribute oil knowledge*
give© auoh torblnetiofi legal pwtool to.ru
The conceptIon developed In his early Ilf©,
"that life Is a struggle” permitted him to sanction
such combination as a struggle for self Interests,
“Man la born a predestined idealist, for h©
is bo^n to act*
To act Is to affirm th© worth
of an end, and to persist In affirming the worth
of an end la to make an idea.” g&V'
“Because I h tve com© to the conclusion that
both the common law of a state and a statute of
the United States declare the right of Industrial
combatants to push their struggle to the limits
of the Justification of self Interest, I do not
wish to be understood as attaching a constitution­
al or moral sanction to that ight*
All rights
are derived from th® purposes of the society in
which they exist, above all rights rises duty to
the community*
The conditions developed in
industry may be such that those engaged in it can­
not continue their struggle without danger to the
community*
But it is not for judges to deter®
mine whether such conditions exist,, nor Is it
their function $o set the limit© of permissible
contest and to declare the duties Which the new
situation demands*
This is the function of
the legislature which, while limiting individual
and group rights of aggression and defense, may
substitute processes of justice for the more prim­
itive method of trial by combat."
225
Boycotts and strikes Intended to raise wages
directly are lawful, If free from threat or Infraction
226
of admitted rights*
In Plant ys* Wood
boycott asoa
weapon of organized labor to strengthen their union and
get more than they were getting was Considered valid
action*
While he accepted the action as valid he was
not to become excited over th© wisdom of such action by
*164
workers.
Strikes and boycotts are not of the nature
238%
that "they create something out of nothing/1 if one gropp
of laborers by organisation gets more than Its share- it
does so at the expense of some other group not so well
©quipped.
This case involved a competition between labor
groups.
aoy.
Hival organizations were in contest for suprem ~
One of them threatened an employer with boycott
unless he discharged men of the other.
Th© majority
of th© court granted an injunction against this boycott
and against threats to the employer’s business* holding
that there was here no dispute between labor and capital
concerning wages, and that the right to contractfreely
for one’s labor is entitled to legal protection.
Mr.
Justice Hammond said in the majority decision:
”It was not the intention of the defendant
to give fairly to the employer the option to
employ them or the plaintiffs, but to compel the
latter against their will to Join the association,
and to that end to molest and interfere with t.em
in their efforts to procure work by acts and
threats well calculated ty their coercive and
intimidating nature to overcome th© ■will.” 228
In dissenting Mr* Justice Holmes asserted the
legal1ty of the boyco 11 s
’'That purpose (of the present boycott) was
not directly concerned with wages.
It was on©
degree more remote.
The immediate object and
motive was to strengthen the oefendantfif society
aa a preliminary and means to enable It to make
n a 'batter fight on questions of -wage© or other
matter© of clashing interests*
1 differ' from
my brethren in thinking; that th© threats were
&e lawful for this preliminary purpose as for
the final on© to which strengthen!ng th© union
was a means*
t think that unity of organisa­
tion Is necessary to make the contest of labor
effectual* and that societies of laborers law.fully may employ in their preparations the- mean©
which they might use in the final con test** *58®
By such reasoning Mr* Justice Holmes did not
open the door to illegal acts* but only to Conduct
undertaken for justifiable yottirce*
when no Justifi­
cation existed he spoiled th© law a© sternly to labor
230
unions a-, to individuals*
In the case of May va.*
damages- wore sought on the ground that the defendant
had conspired to Induce a wosaan to b
ak a labor eontree t*
Her© the harm inflicted was simply for malevolence and
without some justifiable cause# such as competition in
231
trade*
232
Similarly In reran vs* Bunphy
n® held an
Inducement to violate a labor contract unlawful because
it did not rev©: 1 th© justification on which he Mid
Insisted in earlier instances#
Mr# Justice Ho.lmea* first ease of any import-anew- after bel-tv? appointed to th© Supreme Court w«: his
233
dissent in the northern Security ttasa*
President
Theodor© pQOseyelt* at the height of hiv sealouc trust
busting# wanted th® Hill«4SOrgoii railway combination
dissolved by -Outrem m Court decree* and he expected hie
new appointeei Mr# JustIce Heims**,. to support him*
The
court did dissolve the combine In the famous Northern
eounlty case In 1903* but Mr# Justice Holies showed his
Independence by dissenting from the majority opinion*
Hie dissent was due to his keen insight into economic
conditions#
With vision
ho
saw the universal advant­
ages -to be derived fr^m eombi'nationsof "*#i*ate capital#
23h
As expressed in Vegelahn vs* Gunther*
capital
iQ
Of labor*
the right of
combine for its Interest 1«; tie sains as t at
This is a right wh eh 1® inherent in our
Q&pltailatle society*
Mlt Is plain from the slightest oonelderat ion
or practical affairs* or the do si superficial read­
ing of industrial history, that free competition
ttsa&s an ever increasing aright -and scope of com­
bination*
ft seems to to futile %<, set our faces
against this tendency#* 235
By upholding the -bn&ted states Steel combine
in 1920 the majority of the court recognised the import­
ance of aofpoptbi merger*
There seem
to be two point© of view that the
court can take In support of nooial legislations
1# The court can support capital and thus
resist all legislation controlling wealth or
aiding labor#'
2* The court may hold as Mr* justice Holmes
did it his dlafgfttlag opinion in the teehner vs*
Hew fork -.case «3T
:at it was not their function
to prevent a majority from enacting its ©pinion
Into law and ttet In refusing' to Interfere with
legislation they war# not thereby re$istaring
the if* own approval or disapproval of the opinion
Involved,
It cam hardly ha denied that the first attl?
iude would place the court in a very trying situation*
It la also true that if the courts placed no restrict**
Ion® upon majority action the underdog would b® hound
to suffer#
The position of Mr# Justice hol^ea as
indicated In the Collected legal Papers is not that of
either (1) or (@) in Its extreme*
In certain paaeagee
It se®&® to go farther toward the first attitude than
did hie dissenting opinion in the Lochner case.#
there
the position was that .the majority has a right to embody
its opinion in law* HUnleas It can be said that a ration ~
al and fair s&an necessarily would admit that the statute
proposed would raffing# fundamental principle® a® they
have been understood by the tradition of our people and
our law.
238
pu the other hand In the address:''
"Fath of the !*&«,"
00
the
Mr* Justice Holmes seems to hold it
the duty of courts to be thoroughly informed as to cools I
advantage consciously taken into account when perfuming
their judicial duty#
wtfe:
ljaiiilE; that the judge® them selves have
failed"adequately to■reeegnise their duty of
weighing consideration» of social advantage#,
the duty is Inevitable,, and the result of the
often'proclaimed Judicial aversion to deal
with flush'consideration's Is el ply to leave
th© very ground and foundation of Judgment
inarticulate and often unconscious as I have
said*1* 239
Mr# Justice Holmes showed In the Loohner case
that Justice and humanity could be reconciled with
constitutional law#
The question before the court was
whether th© Mew York law limiting th© hours of labor
for bakers should be thrown out a© interfering with
the "liberty” of contract thought to b© guaranteed by
the Fourteenth Amendment of the Constitution#
By a
decision of five to four the dourt decided that the law
was such an Interference, and that the legislation could
not deprive employer and employe© of their freedom to
bargain for services#
This result permitted th©
bakery overlords to continue to swell their profits at
the risk of th© ill health to the bakers*
Against
all this Mr* Justice Holmes ©ought Valiantly, seeing
th© need of equality of position before there can be
any real freedom of contract; and he sought time and
time again to uphold state legislatures in their attempt
to bring this about*
He <*aid "legislation may begin
240
where an evil b e g i n s T h e state has the Inherent
power to meet Its problems, and to this extent its
sovereignty is supreme unless th© fundamental rights
Of the individual have been grossly Invaded; the; social
interest must prevail*
On the other hand, he has
expressed his disbelief in all panaceas and is "not much
interested one wqy or the other In the nostrums now so
241
strenuously urged *a
Xn 1936 the court expressed a Judicial veto
Lgainst legislation attempting to establish minimum wage
kates for women workers incapable of economic self-pro*
•ection
242
243
-
In Holden vs* Hardy
the majority of the
iourt sustained a statute limiting the work hours in
tines to eight hours a day*
In distinguishing this
sase from the Loohner vs* Mew lork case the court estab.ished Its decision on the basis that it was a common
understanding that more than eight h urs of work In mine©
day was harmful to the health of workers while such
was not the case In relation to hours of work in bakeries
In the reasoning of the court there was no relation
between the hours of work in a bakery and the health of
its citizens*
In attempting to justify this legisla­
tion, Mr* Justice Holmes ©ought the end of law; to him
the granting to legislatures of the power to regulate
the hours of labor for men and women, and the regulation
of minimum wages for women both seek to remove ©mndi tiers
that lead to the ill health and deterioration of the race
He cited' example-© of Interferenceby law with liberty
of contract, notably the Sunday laws* usury laws and
lottery laws as proof that state constitutions and state
laws mayregulat© life*
Ten years later he was instn*
mental In the courtta upholding of an Oregon law regula*
2M
ting the hours of labor In factories*
Mr# Justice Holmes doubted the wisdom of much
legislation but steadfastly refused to let his private
objections stand In the way of its validity when.reason­
able men approved it#
There is no absolute truth#
We perceive something as true today because it Seems to
work well, and above all because it is able to command
the assent of a majority of our people*
ion he said, **truth is the
In tfcfe connect­
^o~ity vote of that nation
that can lick all others.
In the Adair case* in 1923 Mr* Justice Holmes
had occasion to voice again his protect over the unjust
application of th© word — liberty.”
When the majority
of the court threw out the minimum wag© apt for women
V
in th© District of Columbia he satis
”1 confess that I do not understand th©
principle on which th© power to fix a minimum
for the wages of women can be denied by tines©
who admit the power to fix a indximum for their
hours of work*
Th© bargain is equally affected
whichever half you regulate*
It will need more
than the nineteenth Amendment to convince me
that there
no differences between men and
women*” ^46
•171In- industrial and social legislation tfc© fight*
ing has been around th© concept of liberty#
Mr* Jus­
tice Holmes has been uncompromising in re©1 stance to any
doctrinaire interpretation*
A study of the forces of
modern society enabled him to translate words In terms
of realities of existsre©:
*If Montana deems it advisable to put a
lighter burden upon women than upon men with
regard to an employment that our people com­
monly regard as more appropriate for the- for­
mer, the Fourteenth Amendment does not inter­
fere by a fictitious equality where there Is a
real difference*
‘The particular points at
which that difference shall be emphasised by
legislation are- largely In the power of the
state**1 247
In passing legislation for workers limiting
hours of work in various vocations, distinction may be
mad© on the basis of a practical situation*
A statute
of Arlaona limiting hours of work for women in hotels to
eight hours to b© performed within a period of twelve
hours, not to be applicable to railroad restaurants or
eating houses located upon a railroad right-of-way and
operated under contract with any railroad company, Is not
arbitrary olasslficdtlon#
another example of practi­
cal legislation, where It would be impossible for *'gen­
eral legislation"* to equitably cover a particular case
In an attempt to stamp out e x i s t i n g T h © Dominion
Hotel argued that the classification bears no relation
■tc 4he purpose of the law and thus wan purely arbitrary
legislation*
in answer to th a Mr* Justice Holmes
asMrted, "the Fourteenth Amendment is not a pedagogic *4
24-9
requirement of the impr&otlcable*"
in making this
distinction &r* Justice Holme based hi a argument upon
'jublio eormlderations, allowing long and unregulated
hours to exist on railroad property because of practical
demand#
Although the evil still exist® for the few.
In allowing' it to exist, it la believed "the harm to
more
the few e-cnoerned is thoughtlesaly/lmportavit than the
harm to the public that would ensue if the rule laid
down were mad* mathematically exact*"
The view of gr* Justice Bolm®s that laborers
should be protected in attempting to form unions for
250
their Interest was reiterated in the Adair on ■%*''
in
this case a locomotive fireman on a western railroad
had been discharged because of his .affiliation with a
labor union*
&® an .act of Congress had mdde It a
criminal offense for an employer to discharge & man for
that reason, the employer was indicted undertthe statute*
lie called upon the Fifth Amendment to protect him, claim**
ing that he had been deprived of his freedom to contract..
The majority of the court tore up the law ae in conflict
*173*
with what they considered the paramount right o^fehe em­
ployer under the Fifth Amendment.
Holmes*
But not Mr* justice
He voted to uphold the act of congress which
had been passed to protect the workmen, not on the basis
of the wisdom of the statute, but because he felt that
states had a right to experiment with social legislation.
*fIt cannot be doubted that to prevent strikes
and so far as possible to foster Its schemeof
arbitrallor, might be deemed by congress an import­
ant point of policy and I think It impossible to ©ay
that congress mlght not reasonably think that the
provision In question would help a good deal to
carry Its policy along.
But suppose th© only
effect really were to tend to bring about the com­
plete unionising of such railroad laborers as con­
gress can deal with, t think that object alone
would justify the act*
1 quite qgree that the
question what and how much good labor unions do,
la one on which intelligent people may differ, I
think that laboring men sometimes attribute to them
advan ages as many attribute to combinations of
capital advantages, that really are due to economic
conditions of far wider and deeper kind but I
could not pronounoe it unwarranted if eo gress
should decide that t foster a strong union was for
the best interest, not only of the men, but of
the railroads and th© country at large.'* 251
Here again his insight Into economic t cts is
noticeable.
Strikes grow out of unsatisfactory in­
dustrial standards and these might be lifted through
social legislation as well as by the power of eoElectlv©
bargaining#
Th© thirty years that have passed since
these words were uttered have seen Instances of the abuse
of power on both sides, Just as they have seen industrial
progress develop from strong combinations of both labor
and capital*
What would have been the gain to social
peace and eoonomlo security if the reasoning of Mr* Jus­
tice Holmes had been that of the court one can only
gue as *
"In th© present conditions a workman not
unnaturally mi^y bell, v© that only by belonging
to a union can h© secure a contract that shall
be fair to him.
If that belief, whether right
or wrong, may b@ held by a reasonable man, it
seems to m© that it may be enforced by law in
order to establish the ©quality of position
between the, parties in which liberty of contract
begins*
Whether in th© long run it is wise
for th© workingmen to enact legislation of this
sort is not my concern, but I am strongly of
th© opinion that there Is nothing in the consti­
tutor of the United States to prevent it."
The majority of the court In this case (Coppag©
vs* Kansas) based the decision on the importance of the
freedom of contract*
They failed In Mr* Justice Holmes*
opinion to understand the economic force which would
destroy any kind of equality of position an which a true
contract can be based*
The legislature has a definite
and important place in the community.
It Is f®r all
practical purpose© th© interpreter of th© condition of the
community and necessary legislation for the vaious
interests*
In passing such legislation there may be
discrimination but It Is assumed the state has ai adequ^t. e
basis for discrimination#
"When a state legislature has declared that
in its opinion policy requiring a certain msa&sur©
Its act Ion .should not b© disturbed by tb© courts
a*»der the Fourteenth Amendment» unless they cun
©e© clearly that there la no fair reason for the
law that would not require with equal force lie
extension to ©there whom it leaves untouched" ggj
Bippey wee convicted of selling intoxicating
liquors 'contrary to a vote of hie preolndt prohibiting
m o h »ai«*
the ooneti tut Ion of Texas rqqutrfng'the
legl&X^iur© to enact law© by which the majority of
qualified voters of any county, Just,-toe* © precinct,
town or city, from time to time wight determine whether
male of intodicatlng liquor® should be perm tied;*
tHppey argued that the statute diaeri-. .-mated in favor
of those® who voted for' prohibition, and th# majority
rule meant the legislature had jpaa^ed a prohibitory law
which It had no power to do.
Mr* Justice ^oIsh-ss
brushed this argument aside by respecting the Judgwent
of other officials*.
*We follow the state c ;urt, of
course, and the state ■©oust Station, and assume ttet the
law i® not invalid under H,*,;
On the question &a
to whether the authority of -the state to authorise such
a taw (by vote of various eubdlvisions selling liquor)
was contrary to the constitution of th© United State©,
Mr# Justice Holmes reaarke&ft
"ft is m question of the power of the state
as m whole*
But the state has power to prohibit
the sale of Intoxicating liquors altogether,. If
It® eee* fit, and that being so It rm^ power to
prohibit It -conditionally1* It does not Inrrlng©
th© constitution by giving those In favor dt th©
sal© a chans* which it-might have denied*
it is
true that th© greater does not exclude the less*
A man may give his property away, yet he may not
contract with a carrier to take the risk of the
latter'© negligently injuring it, or part with It
on the valuable considerations of a -wage-'*
But
generally the rule hold© true.
it does here*
Th© state has absolute power over Its subject©*1'255
A state may use It© police power to cover milk
standards and fee the Judge as to whether the standard
set 1© met*
®hat is adequate protection forth© public
Is for the legislature to decide*
Th© fact that the
label tells the truth a© to the contents of the can Is
not sufficient protection of th© pur:lie from adulterated
food*
"It Is true that so far aa the question of fraud
is concerned the label on the plaintiff's cam tells the
256
truth but the consumer in ©any cases never see© it*1'
It seem© that Mr* Justice Holmes i© willing to accept the
legislature*a view
face
f a different interpretation
by the court*
"We are satisfied that the statute a©
construed by us la not invalid by the Fourteenth
Amendment*
The purpose to secure a certain
silmImum of nutritive elements and to prevent
fraud may be carrledout in this way ven though
dondensed skimmed milk and Hebe both should be
admi tted to be wholesome*
The power of the
legislature Is not to b© denied simply because
some innocent articles or transactions may be
found within the prescribed class.
The Inquiry
must b© whether,considering the end In view, th©
statute passes th© bounds of reason and a©um©B
the character of a merely arbitrary flat* " 23 ?
Mr* Justice Holmes* faith in the in tel IIgene©
of legislatures In deciding th
social needs of the
community did not take on the nature of absolutism*
He
found It necessary to declare Invalid some congressional
legislation, but he has considered the responsibility a
258
very weighty on©*
In Blodgett vs. Hold© 'U■, ai? admit­
ted that It was not usurpation of the legislative powers
for the Supreme Court to declare acts of congress un­
constitutional, but at the same time stated It w m a
very delicate duty to perform.
He suggested that:
"Although research h&s shown and practice
has established the futility of th© charge that
It was a usurpation when this court undertook
to declare acts of oohgreea unconstitutional*
I suppose that we ail agree that to do so is the
gravest and most dpi Icat#' duty that this court
Is called on to perform." 259
Thus he has shown a high regard for one of
the basic principles in the constitution, that of the
separation of federal powers#
He draws a fairly
definite line between legislative and judicial functions.
The activity of the judiciary has been limited to the
checking of obvious violation of th© fundamental law *
Beyond this It cannot go without violating one of the
fundamental principles of democracy*
•178**
Mr# Justice Holme® was early in recognizing
tli# problem of workmen*a compen-;*&'!ion, not && u quo®*
lion of individual fault, but rather mm on# concerning
the total social cost of w^mt an Industry produce®
including the cost of IniuriRei,
Traditional think­
ing could not prevent him from ©ecSng that the intoroots
of workers and their employers were' not altogether iden­
tical but involved genuine conflict a& that between
competitors in touaio*'«s» and entitled to as much reo;
Ogr.it l o n by th e law#
260
Concurring in th e A rizo n a Em ployeeif
Liability case, he cayas
"There le- come argument made for th e general
proposition that immunity for liability when r o t
in fault le a right inherent in' free g •vernment •*•
But If it is thought to be .lub.llc p o lic y to put
certain voium tary conduct a t the peril of those
pursuing It whether In the interest of safety or
upon economic-or other grounds, f know of nothing
to hinder*
A mrnm e m p lo y e- a servant at tbs
peril o f what that servant may do In the course
o f his em ployment and there Is nothing in the
constitution to limit th e principle to that Instance#"
fra this mechanical world there are numerous
hazards wr-teh place- the 'life, of workers in -gr*£*t don gen
It is folly to ftamume that worker® will voluntarily
injure thomiselw® or place them solvea in such a position
Inherent In such labor ie risk, and profit? If th# employ­
er is willing to accept all profits then he mu at bo
willing to *»*«*»# inherent daggers*,
-179IB an address to the Bar Association of BoBtcn
In 1900, Mr# Justice Holmes expressed a thought which
la characteristic of his social philosophy*
"One begins with a search for a general
point ofview*
After a time he finds It,
and then for a while he Is absorbed In testh;:
It, In trying to satisfy himself whether it
Is true*
But after many experiments hia
theory is confirmed andsettled in his mind* '261
Hi® was a search for utility of the low, Just
how legislation could best serve the social ends of th©
community*
HealI zing that the functions of government
were being steadily widened In all countries, th©
changing status of the Individual was a serious problem*
In the United States the problem was how to save the
constitutionality of th© law.
In order to accomplish
this he took th® attitude that th© constitution was not
an Idol but a spirit; not a form of words, b u t s e t of
political attitudes and Aablts of behavior*
The
spirit of America 1® th© spirit of change and adjustment.
For the court to continue Ito Important role it must
rely on broadening or narrowing of wordy by Interpretatio jbj
placed on them as practical situation demanded*
The
police power of the state Is continuous, the courts
must adjust themselves to this continuous movement*.
The great legislative movement of
nterest to
political and social philosophy during Mr* Jualloe Holmes*
legal career were:
1* The efforts to reslat the menace of big
business through such legislation as the Sherman
Act or the. Granger legislation;
2• Legislation designed to help the underdog;
3. Legislation to protect# industrial peace*
In relation to such legislation Mr* Justice
rather selected an advanced position and main**
tained it firmly* sometimes finding support in ttee
majority of the court; often, perhaps, when dealing
with newer issues of a changing social order, finding
himself in the minority group*
CHAFPBH Vlf
“W Z fftOCmBS OF LAW*
The |tim&m* "due pro©#®® of la#," too been
traced by many writer© to the thirty•ninth Chapter ©f
the M&gna otortat
"Ho freeman ©toll be taken or Imprisoned or seized
or set upon, export by the lawful Judgment of hi©
peer# or by the law of the lend*" 262
The struggle between King John end hi# baron© caused John
to prope** arbitration and to concede to the baron# themsolvea the right of trial by their peer© according to
the law# of the kingdom*
This represented the reculta-
of a struggle for consil4utional government*
In it#
origin ®n<i development the concept is considered as- a
'normal accompaniment of constitutional government*
The
term "law of the land" expressed for the nobles the same
idea that "due process"‘tonv^yed In the fourteenth cent­
ury when It was first used*
coke's identification of
the phrase "due process" with the phrase "law of the land**
mm found in the Magna Chart a toe been generally followed
063 '
by the court#*
And this meaning, was subsequently
accepted ftm the united states#
The phrase was first
an attempt toward the protection of human rights against
-XlKlarbitrary action of sovereign power*
The birthright
which the concept received at the beginning hum never
been lostt there is no sovereign unless he submits to
the principle® of legality, the supremacy of the low*
Since it arose oil of such struggle, due process of law
has always been primarily a social guarantee*
tt has
stood for the proposition tuat freedom of action a© well
as that of private property has a social as well as an
individual value#
"Due Process” (meaning the law of th©. land) has
not lent Itself easily to formal definition#
For this
reason the courts have hesitated to undertake a compre­
hensive definition of the phrase#
the argument of
264
Daniel debater in the Dartmouth College vs* woodward
has often been cited*
By the law of the land la moot clearly intend­
ed the general law which hears before It condemns,
which proceeds upon inquiry, and renders Judgment
only after trial*
The meaning la that every eitisen &hall old his life, liberty, property, and
immunities under the protection of the general rule
which governs society*
SSvery thing which may
pass under the form of an enactment io not there­
fore to be considered the law of the land*
265
In Bank of Columbia vs# Okley,
the court ©aids
"As to the words from Magna Charts incorporated
into the constitution of Maryland, after volumes
spoken and written with a view to their exposition,
the good sense of mankind hum at length settled down
to thist that they were Intended to secure the indi*
vi&ual from the arbitrary exercise of the powers of
government, unrestrained by the established
principles of private righto and distributive Juetio®#”
•IS 3*
The nature of such definitions was ouch as to
make "due process" especially applicable to varying
conditions*
The fact that it has always evaded defin­
ition is perhaps the strongest evidence that th© protect­
ion secured is general rather than specific*
with the
growth and expansion of the United States from a rural
sea ooast community to a great Industrial country, the
concept has naturally broadened in scope*
fn the Fifth
Amendment it places limits upon national government and
in the Fourteenth Amendment th© state® are re atrioted*.
When the Fourteenth Amendment first oasse before
266
the court in the Slaughter house cases,
the four
dissenting Justices, under the lead of Mr* Justice Fields,
©ought to pour into the general words of the "due prooe® s"
clause the old philosophy "law of nature*"
This' attempt
gradually prevailed and Mr* Justice Field*® dissent in
effect established the prevailing opinion of the Supreme
@67
Court*
in Allgeger vs* Louisiana, we reach the o^eet
of the wave*
Mr* Justice Holmes has given us the ex­
planation for this attempt to make a permanent prohibi­
tion of a temporary theory*
"It is a misfortune if h Judge reads hlo con­
scious or unconscious sympathy with one side or
the other permanently Into the law, and forget ih*l
which seems to. him to be first principles are be­
lieved by half hi© fellow men to be wrong*
X
think that we have suffered from this misfortune,
in state courts at. least, and that this Is another
and very Important truth to b exacted from the
popular dlooonUnt*
When twenty years ago a
vague tarn wont over the earth and th# word
socialism began to fee heard# I thought and still
think that fear was translated Into doctrines
that had n> proper plane In th# constitution of1
th# eomt&om law*
Judge# are apt to fee# nay*
simple minded men* and they need something of
bephlstophelea*
we too need education in the
obvious to team to transcend our own convict­
ions and to leave room for much that we held dear
to be done away with short revolution by the
orderly change of law*”
268
Against the danger of Judges
using
the Mdue
prose ss"oX&uae to inject ©ersonal views with Consti­
tutional sanction Mr* Justice Holmes battled
Inc errantly.
"The fourteenth Amendment doe® not enact Mr*
Herbert Spencer*® social Status* some of these (%h-4tcs)
laws embody conviction® or prejudice® which Judges
are likely to share*
Seme may not*
But a
constitution la not intended to embody a partic­
ular economic theory* whether paternalism and the
organic relation of the cltlaen to the state or of
l&lsse® fairs*
It Is made for people of funda­
mentally different views# and the accident of our
finding certain ©pinions natural and familiar or
novel and ever shocking ought not to conclude our
Judgment upon the questions whether statute® em­
bodying them conflict with the constitution of the
United states*"
269
Hi® general attitude toward the Fourteenth
Amendment at once reflect® hi® whole point of view toward
Constitutional Interpretation and is a clue to the
many opinion® in which it 1® applied*
In all the
variety ©f oases the opinion® of Mr* Justice Holmes
show the same realism# th© same refusal to defeat life
fey formal logic# the same deference to local knowledge*
-185*
Be recognised that government necessarily mean® ©xperlmentation# end new Id
ot permit "due process” to be ue«d
to cheek tfeie privilege*
Trial and error form a part
of eon at1tutional law which in it® living nature* Is
ehanoe-taking*
a?®
The ascertainment of th© limitation©
must fee# a© put fey Mr* Justice McKenna# through "a
Judgment from experience a© against a Judgment from spec­
ulation*"
That means that opportunity must be allowed
for vindicating reasonable belief fey experience*
Mr#
Justice Holme© permitted the exercise of local discretion
rather than general concept to fee applied, in particular
cases to solve local problems*
Since the problems raised
are practical ones they should fee solved on practical
consideration© •
It was hi© belief that certain Independ­
ence of action Is valuable for social and political
progress and this should only toe sacrificed wfeOn social
Consideration© make it Imperative to do so#
Mr* Justice
Holme© had a conviction that due process should be used
a© a ©octal guarantee rather than to tie legislative
action*
Primarily It does not furnish "a straight
jacket" In which experiment© might be carried on but limit©
fey social consideration*
-Ml!Tilts M o m u s e through hie thinking in writing judicial
opinions*
"In cnewerifug that question we must be cautious
about pressing the bread word® ef the Fourteenth
JUHmteent to a drily logical ex-tecne*
3®m& t m m
which it would fee vein m eek the court to everthree
could fee shewn eceiXjr enough to tswmwgrese e cobbleastie interpretation of one or another of the great
gusronteee In the hill of Mights#
They mm>® or
leer limit the liberty of the indlwiduel or they ^
diminish property to a certain extent*
to bewfe
fee eeientlflesliy certain eriterle of legislation*
end as it often is- difficult to *ci% the line where
shot Is called Felice fewer of the state la limited
fey the eonstitutiot* of the united states# Judges
should fee &low to read into the tatter m notumws
mu tore so s.g*tiist the las neklng power*" »?l
"Again we cannot wholly neglect the long
settled law end oomoxi tflSideretan^lng of a parHauler
state In considering the Plaintiff rights*
to ere
fecund to fee very esutlews In eonlfeE. to
eenslusien
that the Fourteenth amendment has upset whet thum ha®
feeen established and accepted for a long lke«
Been
U s InoMent of ownership
fee out down fey the
peculiar laws and usages of a stele** &7B
"Obviously the quest!on
stated Im are of
local experience of which this court aught to fee
very slow to dee-Mrs that %hm state legislature wee
wrong in its facts* Adam© vs* Milwaukee# BBB II* s*
883 *' ft we eight trust Popular speech In seme
states It warn right * feut It Is enough %hm% this
court fees no such knowledge of local conditions as
to be Sfeie to sep that it wee manifestly wrong*
"If the Fourteenth ecendnent is not to fee a
greater beeper upon the cstsfellsfeed practises cf
the ctstc in oommom with other governs#hi & then 1
think esc intended * they e»»t fee allowed e cert sin
istSltu&C 1m the minor adjustments of life# even
though fey their action the burdens ot a part of the
ceecwsitty ere sexwwh&i inorcssed*" 874
-187*
"It la urged that there was no formal decree
of separation 4>i property end that until such an
order had been made the court had no right to enter
a Judgment*
It ie also argued that there was no
such Inventory aa was required by law*
But the
testimony and other atated unwillingness to inter­
fere with matter® of local administration unless
clear and Important error ie shown, there is noth­
ing in the statute to control the opinion of the
supreme court of the island*”
275
These statements are m few of the many which
indicate the breath of legislative freedom*
The
comparatively few occasions upon which &r* Justice Holmes
declared state legislation unconstitutional as violation
of due process are often overlooked because of the
plentlfude of occasions upon which he granted freedom
to legislative experiment*
The legislature should be
allowed ample opportunity for the recognition of modern
economic and social forces without restriction by narrow
interpretation of "due procea *"
In the adjustment
of such forces Judicial function m’ght be delegated to
a?«
administrative bodies*
The important thing to ir#
Justice Holmes was that the defendant has had his "day
In court" fend has been given an opportunity to present
his evidence before a 'Competent body
or decision*
The
court m$$t respect officers entrusted with carrying
out of functions# and permit this body to exercise
complete power in absence of obvious constitutional denial*
If the state should deny a certain element of the pop­
ulation fros services of which it appears they are more
competent than thorn .granted th# privilege In interest
of th# weifar® of that atate* th# oourt# hav© no right
to interfere*'
ft la not th# duty of th# courts to
preeerife© local rules or onforoo them*
the only
point of Interest I© to “see that the laws as construct­
ed by th# state court arc consistent with the Fourteenth
277
Amendment*M
Here we see an expression that the court
Is not a watch dog over legislation*
"At the argument before us the not uncommon
misconception ceems to prevail that the reqjLrements of due process of law took up the opeel&l
revision of the state Constitution and law Into
he Fourteenth' Amendment for th# purposes of the.
case so that this court would revise the decision
of the state court that the local provisions? had
been compiled with*
This is a mistake*" 278
f
This freedom of legislative action does not
mean a refusal to review the facts merely because the
legislative branch has stated they should be interpreted
279
In a given manner*
In. Chin 3fo» vs* United States
we see this principle set forth*
The court questioned
a fair hearing procedure of the Commission of Immigra­
tion denying Chin Ttow entrance into th© united states*
By the commission refusing to accept the evidence
presentedf Mr* Justice Holm©a claimed Chin Tow was denied
a fair hearing and thus denied due process of law*
"Vm**
rrwaonted,
Juette»-Wotweau-elaine--he m e denie&-a—
denied - d m -twwwH^w-ef lew*
the
eolt&lty of legislature de-iervtlMiion way be dealreb 1#
but iNduot be serried to
point of refusing be eon-
elder other evidence*
"The decision of the gtegwrtoent la final* bub
that t© <tm the prosupposition %m% the deetsion
w e after a fair hearing in good faith however
euM&erjr 1u fere*
a# between th# eufeetentiftl
right ef ottiaeae be enter end of persens alleging
theMeelvee be be eltieevi* be have a oh&noe to prove
their allegation on the other side and the owneluelweiiees ef the eeejsslaalotser*# flat on the other#
when one or the other meat give way, the latter
©met yield*
t n m u m h a ease eemethieg »»et be done*
and it itftbar&lly fall© to be dene by the courts#** 200
The prosecution of an individual au^t be done
according to the law of the land# the principle of the
mmm&mm lee#
This lapltea in aeraal eireuaotaaeae m
net lee and hearing# not merely of a formal nature* but ore
which tunier ordinary ©end it lone ©111 provlda an opportunity
for justice*
t&r* Justice heSaee wrote a forceful deolo*281
loo in International Harvester 0 0 * vi»* Kentucky In order
to dispell uncertainty In the ie«*
"If buttineee le to go on* men eu^t unite.to do
it and must sell their ware© *
To compel bhes& te
gueee 00. peril of indictment ©hot the ecwasssunlty would
have given for them if the eentiouelly eimnglrig eons*
dltlooe were other teen they *are# to an uncertain e»*
bent* to divine
prophebioaily whet the reeetien of
only partially deterelnete feote would be upon the
imagination** and deelree of puM0**ero# ie to m m®%
gift# thet isianklnd ooee net pee m m # * 282
In ©pite of the #*#•»%!## of apparent unlimited
power to th# l«§l©lebur© in many respect#* $*y* Ju&tl©#
IftelM# felt it th# duty of Judg#a to pier## beneath th#
eurfeoe and alio# due pro###* to place 11&tie on leg!©*
laitve action*
In all eeee# ©her* due process was u#ed
a# # negative for## on legislative action grim eeoeaslty
eervod mm th© b a d e of it© uee*
In. th# application of
"due proa## as #f law" Hr* Ju»t$## Holm## *#© guided by
certain prtnoipies#
I*
The -n$en% imporlamb *>r1no 1pie
which he# directed Hr* Justice Heteee through the »&.»#
of due pro##*# emcee eerier# In th# concept ©r put lie
parpen#*
8*
lefsteimv an*
Th# eeaend.* th# problem of e&ergenejr
3*.
fh»ebebly the leet .greet guiding
principle involved .the queetlcm of oleedf tcmtloh*
Hr* Juettoe tie]#*#© would to a large extent
leave a "public purposeH te I M decide#* ®f the legis­
lature*
a©' a guiding principle the legislature eheuld
felloe the die turn laid A own by M r Mai thee iiale ever
8 3 0 yearn a#©* ie the ihlng^te be regulated affected
with a "public letereett*
ftkle pedeeeeea probably
the came decree ef uteoriaittby*
tn
M u m
vs* tilled®
ee find the first criterion for deciding whether or net
a hueinee® te affected with a public interest*
"property dee© toeeee clothed with m public
tntereet when need in m neoner to'eefee It Of public
oen*#ipienee* and affect the oommmliy at large*
d e i # itetefere* one denote** hie property te a use
in ehtsh the public ha© an Interest, he* In effect*
© n e t ® to the public an interest In that u«e» and
ettttt submit te be controlled by the public for the
m m m m m ifoed* te the extent ef the interest he has
time created*
He m y ettlidme hie grant by die—
continuing the ueef but «e long an he m l n taint* the
use* te «u»c% admit to centrei**
&©4
tn ettenpting to fomuiate a sore concrete
teal© for the legislature to sate a decision chief Justice
feft divided bucineee Into three dee#*©*
1*
**te«e whteli ere eerrled or* under the
authority cf t public grant ef prlvlle^ee tiilefc
either expreeeljr or impliedly imped#© tte affirm­
ative duty ef rendering e public eervtee ©emended
te any mentor of the public*
;1ueb ere rail­
road#*. otter common •carrier© and public utilitiee*
Um
"Certain oeeiipetioce* .regarded e» except*
ten®!* the public intereet attaching to which#
reeegnieed t m m ear lice tine® teve survived the
ri#&
C
of
orMirary
l*«#
fey
Pmwllmmml
or
rntmtml
^ to to iu r# f o r r o i p l o i l f i f mil Im a # # ami mmk ling#
8u#h or# % f a ® m of K*#fi#r* of ! m » f dofeo* #a& ar&ot
3#
*itu«i&#«* whtoh* i.tegii 001 public at tfaoir
in6O0fciox>» mmp bo f a i r l y oold to bov# ft# # ® to ©#■
ouoh oiiO h#v® feootm# oubjoot In
to 0000
aooonmMt rogulotlovi*
fboy h#V# eo^o to hold
#u#fe * pooulftor'rolotlon to- too publl# that tbi© la
®up#ri»$Wi«;
#a upon th*o*
In tfe# i*A|m*g# of tfe#
ooooo* tbo # # m * # by aottotin# bis buoinooo to too
publl# u«so# in offoot gr»i# tfe# p»* lie m ftntoroot
% n that ua#» oml oubjoot# htsaiioXf to publ&o r#§ul#**
tlo«i to tbo oaetoot of ituti iotoroot# oltfeough ih#
pr®p#r*.y oont10000 to boloo^ to it# prlvoto o * M r t
00O to bo onttii*# t® proto*!to# oooortin$ly•* ^©5
sir* yuotto* ytotooo wouio pormtt in#
ter# to 000 t&o## pripolpi## with th# groat##© ©*$ro» or
flOKtblllty I® tfel#
worl# whlati of too ro^alro© &
ObOfigO Of OOplft##!#*
'fh® botilo of otot# MgU'lotloo lo
Fooor#
% m
Folio#
Hoi® #or«?##riMmfti*#. ttom Folio# p#wor may bo I#
brought out 1® # ouiaMN## Oourt toolol^n its th# following
d#fIn&tioof
pooor I# ooaflftoO# M wo b&v# &&M* to
lb# oupppoooioo of whMt to 0ff®ns>l##* dt 0*1*60*1?»
or unM®it#ry«
ft «-*i#nd# to ouoh donilng# oiife
tb# oondititm# ohfoh oxlot 1® %km atat# to bring'
out of tfe#& tfe# gr#*©*#© ooifor# of lb# pooplo* ©86
TO# pubXI# purpo&m !»■ th# roa*o» far loglolo*
ttv# oattcm* tfe# folio# row * I# to# #***& by oitloh
rooult# or# #tt#iti#4 »
Tfe# *6u# prooooo1
*'
1$ to#
itiotiwiofit of o&urt to held tfe# log! ol# tut*# wltnt®
poo#®®*
Furttior* 1%
proto#t tbo inOiviOuoul
right* from arbitrary invasion fey tfe# legislature*
It' ia mot surprising that to# personal opinio®
Of Judge a ha* a gr«?at deal to do with the extant to which
the legislature might go*
a large extent,*.
It la a question of degree to
T M © naturally place* the Folio*- fewer
in iaailn-g conflict with the right a of individuals*
The
pretoiw® then for the Judge* 1# dreeing the line feetneon
the,ten; force#*
In drawing a line Mr* ^uotlo# Holmes
felt that the court la o®nfrouted with various interest®
which magnify the difficulty In making a decision*
"Perh&pa one of the re**#®* why Judges do not
lUte to dleouae question3 of policy, or to put a
decision in ter® a upon their view© as law maker*#
la that the moment you leave the path of merely
logical deduction you lose the Illusion of certain*
ty whldh make* legal reasoning eeem like m&them&tiee*
Vtewe of policy are taught- toy experience of the inter©at of life*
Thee# interest® are field* of
battle«
What ever decisions* are made muet fee
egalstwt the wish®® and opinion* of one party* and
the distinction* •on which they go will toe distinct­
ion* of .degree*
&ven the economic postulates of
the benefit of free eesp*title* which f have ment­
ioned atoove* are defined-'toy an Important, school•”207
By dispelling.efeeeXiitiam and leaving a flex­
ible line It was peeeifele.-for.n.r* Justice Holme* to draw
the line:* in particular oaaea
©0
m practical basis ***
This basis may not in hi* opinion have reflected wisdom
hut he we* willing to trust the: leg:' cloture on the basic
of Immediate need*
Often the court doeea’t have the
alSMb*’
feet# of the ease and cannot decide as to the wisdom of
the statute*
tto absence of eueh facts then courts should
aeeept the wisdom of the legislature unless “facts offered
in evidence? shoe unreasonable exception.
In the ease.
266
of "Interstate Heileey Coepany vs* aaseaehusett*
this
principle is set out*
The Interstate railroad com-
pan? refused to sell tickets for the transportation of
pupils to and fro® public ashoeIs at one half the reg­
ular fare as required by a statute of ^aesaahusetts*
the doepan? declared such a statute deprived It of its
property without due process of law*
Mr* Justice
Holmes sees tee aspects of the statute* business vs*
209
Police Fewer*
The business aspect de^ande profit
from all business nativities* the police power has the
welfare of state to protoot and thus demands
"That ©onetltuiideal right® like others are
matters of degree and that the great constitutional
previeiena for.the protection of property are not
to- be pus-Hed to a leg!eel extreme# but must be
taken to permit the inflation >f some fraotlonal
and relatively small losses without ootspensatlon*
for mom® at least of the purpose© of whole® a is
legislation#*
290
when there la such a conflict of fundamental
rights the leaser must give way to the greater# Judged
by the particular ease and the •pariieular oireuastances*
In the Interstate Hallway vs# hasaaebusetts It appears
that the e&ue&tlostal life of the state was at stake and
thus an imposition
on business could be Justified.
"If the Fourteenth Amendment is not to be a
greater hamper upon the established practice of
the states In common with other governments than
I think was Intended, they must be allowed a cer­
tain lattltude in $h© minor .adjustments of life,
even though by their action the burdens of a part
of the community are some what increased.
The
tradition of habits of the century were not Intedd­
ed to be overthrown when the Amendment was passed#
Education la one of the purposes tor Which
what is called the Police Power may be exercised*
Barller Vs* Connolly# 111 U# S# 27# 31*
Massa­
chusetts alway# has recognised it as on© of the
first object© of Public care*
It does not follow
that it would fee ©quilly in accord with the
conceptions at the base of our. constitutional law
to confer equal favors upon doctors# or working
men# or people who could afford tp buy 100 mi-led
tickets*
structural habits count for a® much
as logic in drawing the line*
And to return to
the taking of property, the aspect In which X am
considering the case# general taxation to maintain
public schools Is an appropriation of property to
a use In which the taxpayer may have no private
Interest* and It may be against his will*
It has
been condemned by some theories on that ground*
Yet no one denies its constitutonality*
Feople
are accustomed to it and accept It Ffethout doubt*
The present requirement is not different in funda­
mental principles* although the tax Is paid In and
falls only on the class capable of paying that
kind of tax# a class of quasl^publlc corporations
specially subject to legislative control*
Thus the question narrows itself to the
magnitude of the burden Imposed towhethorthe
tax is so great as to exceed the limits of the
police power*
Looking at the law without regard
to Its special operation# I should hesitate to
assume that its total effect* direct and indirect
upon the rpads outside of Boston amounted to a
more serious burden than a change In the law of
nuisance^ for example might be* **»
Turning to
ffet# specific effect, ,t*»* offer of proof m m omtlou©*
II via simply that a'"considerable percentage’4 of
the. passengers carried by %tm company consisted of
pupil® of the public, »© tools#
This m ight be true
without the burden becoming serious*
! m, not
prepared to over'rule the decision of the legislature
end of the highest court of Massachusetts that the
requirement Is reasonable under the condition® exlet*
In® there* -upon evidence that goes no higher thmn this*
It is .not enough that a statute goes to the verge of
const!tutional power.
We must fee able to see clearly
that- it goes beyond that power# in o&ee of real doubt
m 'law must be sustained#" 291
an
On suet* legislation there le^attempt to carry
out one of our basic principle®! the accompli steer*t of
equality even If liberty must be :curtailed*
The strength
and protootion of %be government le needed to a larger
extent by the poor and should be used to extend that
which would be unwise for rich people to wee*
The financial interest of the eltl&ens la
closely associated with the welfare of the state*
The
passage ©f an m % by Oklahoma* creating a board and direct­
ing it to‘levy upon-every bank existing under the law a of
the state an aseea©ment of one perebnt of the tank*a
average daily- deposit§ with certain deductions for the
purpose of creating a Depositor1$ guaranty Fund* i© a
proper exercise of the :-,>©w#r of th® state*
Technical
consideration of a statute may require the statute to be
overthrow®#
On the other hand com- on sense- or public
interest ©i$ht demand the same etatwte be; enfeteed*
Seeing the danger of a to© literal Interpretation of word®
Mr* Justice holme* threw out word* of warninga
Ww* must l»o eawtiou* about pressing the broad
word* of the Fourteenth Amendment to e drily logical
extreme*
Many low® which It would be vain for the
court to everthfpoe would be ehewn# eaeiiy enough* to
trenegrea^ a woholaetle interpretation of one ©r
another of the .great guarantee® In the bill of Might**
They sore or lea® limit the liberty of the individual
or they diminish property to a certain extent*
to
have few scientific certain criteria of legislation
and ii it often Isa difficult to mark the line where
what i® called police power of the state la limited
toy the constitution of the United Slate®, Judge®
should be alow to read Into the latter m nolumas
mutare a® a*rai*iet the law making power** 292
Mr* Justice Holme a would, go m
the end Justify the mean®*
far as to let
wff the legislature of the
state think® that' the public welfare require® the rceaaures
under consideration# analogy and principle are in favor
293
of the power to enact it***
The legislature bus found
it necessary at time® to place other restriction® in inter*
eat of public need®*
"The power to restrict liberty by fixing a
minimum of capital required of' those who engaged in
banking le not denied*
The power t& restrict In*
veetmente to securities regarded as relatively safe
Memo equally plain*
It ha® been held* we do not
doubt rightly* that Inspection may be required and
the cost thrown on the bank*"" 294
With eueh knowledge before the court it seem® quite con*
detent that the "power to compel! before hand cooperation#
and thus, it le believed# to mi$t® a failure unlikely and
a general panto almost impossible, must be rwoogniaea,
if government %m to do its proper work, unless we can say
that the neem* have no reasonable relation to the ends *w
*■19$**
who would draw futile implications Mr* juctleo
ie
Holmes reso rts to hie b e lie f in special log! slot Ion*
”11' I® naked whether tm state could require
nil corporations or ell greoers to help to guarantoo each other* o solvency# ana whoro we &re going
to draw the lino*
But the last la a little futile
question* and we will ana war the other e when they
dome#**
295
The foot that the contribution to the Guaranty
run£ was ■voluntary while at the- eame ti e certain con­
dition® upon sharing the benefits and burden® of them
296
were1imps sod did net snake the Act veld*
The si&e
of the banking business make® no difference* the legist
iature should he at liberty fee decide the wludom ®t the
hetm
Be stated In another case that state legists*
lure may think that an evil can be remedied only by
prohibiting it# and In such a ease the courts will not
Interfere unless ‘there is a clear and u m istakeable in«*
297
fringMSnt of right© secured by the fundamental law*
In that ease Hr* Justice Holme® upheld a California
statute which forbade the buying and selling of stock
on margin*
Speaking for the court wr# Justice uolmee
saidt
**^bile the court mu^t exercise a judgment
of their own it by' no means la true that every
law is void which t^ay seem to the judges who
pass upon it excessive* tansuited to lie oaten*
eifel# end# or baaed upon conception of morality
with which they disagree*
Qlbipvlft a oonatlttir
most- instead of embodying on If relative fundamental
yitteis of right* m generally understood by all Engllah speaking com ...unities# who become tne partican
of a particular ©at of ethical or economical op&ir*
lona'n eh&ehby no means are bold semper ufelque et
al omnibus *w $9©
In attempting to establish confidence in the
banking system*, the national banka within a state are
subject to the sane regulation* concerning establishing
m&
a guarantee fund as are state- banka*
Against the
oontentlon set out by Rational hanks that the statute
will make state banks so attractive to the public that
the national banks will suffer* Mr* Ju®tlQ€r Holm os calls
this "prophecy without experience** but suggests "there Is
nothing to hinder the state from permitting a competing
business and iolng what Kansas has done with intent to
make it popular and safe*1*
the life of trade Is com*
petitions this Is the very basis of our capitalist ®ys«*
tern*
In not defying competition by the United states
there le given an approval to competitors who might
300
fully succeed at expense and harm to ©there*
law-
The same tests of common senae* reality* and
practical application mu t be applied to property*
Mr* Justice Holies h~- ^ permitted an application of due
proceed which granted- the state .aimoot arbitrary free«*
&op in dealing with property*
Tm some inat&noea It
<*200*
seems that the protective clause ©I*far© no protection
to property righto*
ter* Justice Holme© often admitted
the necessity of taking property without compensation
under the taxing and the relic© rower©*
dorrying on
the governmental fujiotion© of transportation* building
of road©* building©* and numerous improvement© have re­
sulted in the deprivation of property to ©any owners*
Uniform taxes for street improvement are often levied
where some of the property, i© of such a nature that the
improvements are of no benefit, and actually cause a
money loss to the owner*
In the case of -artin ve*
301
Pi strict of Columbia*
and Louisville and. te&shvllle
Hallway Co* vs* Barber asphalt Company Mr* Justice Holies
supported such taxation*
In Instances where property has been taken for
public purpose it is subject to a later judgment as t©
302
damage© over ruling an earlier judgment*
This 1@
Justified on the basis that no vested right is Interfered
with*
Just as due process la m living term* so is the
Court a living institution*
Because the court ha©
decided one way In previous oases hr* Juctie©- dime© will
not employ "due process"-to prevent change of mind on
303
the part of the court*
-201A statute of limitation allowing little mere
than a year for %he institution of & suit to recover
personal property fey a party who toft® not been heard from
for fourteen y*?are and for who we property a receiver
hoe been appointed is not unconstitutional as depriving
304
one of property without due proeee* of law*,
inter­
esting in mr*. Justice Holm#'©* thinking is the frank
assertion that judges often guess as to solution In
particular cas«s*
"Row and then an extraordinary case
may turn up* but constitutional law like other mortal
contrivances has to take some chance©* and In the great
305
majority of oases Justice will fee don©*"
By describing interpretation as a rink*
property has little chance of protection fey resort to
306
due process*
This risk 1©
not without limits* the
limits although vague does not grant to "court or eemfcls**
ion to do what is forbidden fey the constitution of the
307
United States***
r
m
attempt fey the Railroad
cornelsalon to force the Brooks Scanlon company to oper­
ate a short railroad line according to schedule
was
approved fey the Court#
such
-decree clou -ML force the
company to operate d V a
loss*
the ,-imprest© court of
Minnesota argued that the two corporation© were one under
different name©*
Although the railroad ©hewed a loss
mUm**
it was part of a larger enterprise that was making profit#
Ml?1* Justice Holes© viewed this as arbitrary action and not
in aooond with the ©lassie opinion, teunn v»* Illinois*
94 b# ft* 113*
In a similar case Hr. Justtee Hollas sound©
the ©set© note*
£©KH»lsslon© m&y set forth condition©
that must be ©©ttplled with If the railroad oontlnuea
to uv© the «*©il of the state* but the railroud cannot
308
be found to serve at a lose*
angulation of rates by states of put 110 ©ervlgs
corporation ha.# given rise to moon litigation under the
Fourteenth anendnent*
The power of state® to prescribe
and enforce r&tee# ebargee* ©luss'lfloatSon of traffics,
and rule©; and
for transportation and tree®*
elsslon ©©^panted doing business* within t/e state la
309
reeogniaed by ir* JustI©e Holme®*
The limit le
placed by the proeedural requirement of fair bearing*
to fixing rates* enjoining 'Of rate® and hearing .may fe**
placed in on# body eithotit denial of due pro##®®*
"If a state oonetitutlon should provide for
a -hearing, before any la# ■should be passed* and
should dealer© it should h m a judicial proceeding
In 'row sand the decision binding upon all the
world* it hardly I® to fee eupp©f»©d that the
simple denial could, mmkrn tbe constitutionality
of thb la# r^e Judicata* if it subsequently should
be d r a m in gee©tier before in© court of the
united state***' 310
-203a*Th© Company Is given relief when confiscating
bates can be provon w
This leaves open a great deal of
iinoertalnty in rate fixing.
In uncertainty Is the
element of "Arbitrary Postulates" which Mr* Justice
Holmes attempts to avoid by relying on the established
precedent of Wilcox vs* Consolidated Gas Company 212 u*8*
19 *
"where the state court has found the rate fixed
by a state commission on a single commodity not to
be confiscatory and has refused an injunction the
decree will be affirmed without prejudice to the
right of the carrier to reopen the case of, after
adequate trial of the rate, It can be proven that
it la actually confiscatory and amounts to a depri­
vation of property without Justice*" 311
The court will not accept technical evidence
as conclusive when It Is deciding reasonableness or un­
reasonableness of rates.
The tendency of many public
service corporations to cosiplaln whenever a new rate is
Instituted does not excite Mr* Justice Holmes as to vali­
dity Of the rate.
Be leaves the burden of proof on
the company to prove the rates are confiscatory,and
not give a fair return*
d©
This d e s not mean the rates
are Irrevocably fixed by the statute, but instead this
is not the case until it has been passed upon by the
312
court*
In passing on rat® legislation, it is the
duty of the court to determine, not whether the motive
of the legislature was proper, but whether there could
be any rea sonabbe
-203basis for th® di scrim In&bloifW
If facts show the lack
of reasonable basis, the court la compelled to accept
the Judgment of the law making body♦
The reason and
tendency to accept the decision of law making fe®&||i| la
©*t forth In Western Union Telegraph Company vs* El ohmend.
"If the committee and officers do their duty
there Is no room in the question left to themffor
arbitrary whim.
They are to exercise. their
judgment on the suitablnes , safety, and of the
places, poled, and wires by the criteria that would
fee applied by all persons skilled in such affairs
who should seek to reconcile the welfare of the
public and the installment of the plant.
Emergency
In case of Emergency th® clams® "due process?
a check on legislative action Is almost without teeth*
It Is easier for the legislature to clothe arbitrary
legislation with Emergency appeal.
so change in time or
bo
"Circumstances may
differed In space as to clethe
with such an Intent what at other times or In other
314
places would b® a matter of purely private concern #
There is no doubt that property can be Interfered with*
The question of degree In time ef emergency la none shoft
of arbitrary action#
Emergency gives a temporary
status to legislation which can be extended to limits
313
that would not be tolerated as permanent legislation.
If the emergency Is to be met then Mr. Justice Holmes
would grant Congress the means necessary to accomplish
the end without much worry as to constitutionality*
"Assuming that the end in them other wise
Justified the means adopted by Congress, we have
no concern of course with the question whether
they may not cost more than they come to or ^111
effect th© result desired*
It is enough that we
are not warranted In saying that legislation that
has been resorted to for the same purpose all
over the world 1© futile or nas r re?oor?hle
relation to the relief sought." £16
Her® is a plea for wis© legislation, legisla-
-205tlon based upon experiment, Its need,' not upon It©
fitting a rigid constitutional test.
The agency
closest to the problem should know the problem and the
means of Its solution*
This doesn’t mean their action
is conclusive regardless of its arbitrary feature but
is an Indication that it should receive a great deal
of respect*
doubt it is-true that a legislative decla­
ration on facta that are material only as the
ground for'enacting a iHile of law for Instance,
that a certain case is a public one may not be
held conclusive by the courts*
But a declaration
by a legislature co cernlng public conditions that
by necessity and duty it must know, is entitled,
at least,to great respect*
In this Instance
congress stated a publicly notorious and almost
world wide fact*
That the emergency declared by
the statute did exist must be assumed, and the
question Is whether congress was lmpotefct tomeet
It In the way in which it lias been met by most of
the civilized countries of th© world."
317
318
In Marcus Brown Co* vs* Feldman
th© right
of tenant to hold Over under an expired lease In dis­
regard of their covenant to surrender Is established*
The fact that the leas© was executed be ore and expired
soon after the date of the legislation makes no diff­
erence.
Th© retroactive effect of th© legislation
CL
denies^landlord the right to enter into a new leas© with a.
third party which he enjoys under normal circumstances*
Th© making of a new leas© which amount®to a contract
—206**
between th® parties concerned is alw|tya subject to exarc!a® of power of the state.
"Neither the contract
clause nor the db© process clause of the constitution
abridges the power or duty of the legislature to enact,
appropriate and necessary’ laws in order to protect the
health safety, order morals, or general welfare of the
public."
This principle has been set forth by the
court many time©, notably In the Hadas&eck
v s m /{#»
i|4'
Angeles, 239 U. 8* 394, 409, 410; Nechamus vs* Warden,
144 N • M.
529,
153$! Louisville and Nashville R,
va. iiotfcley, WX9*V*'
467*
P, *
Co,
In every fair and reason­
able situation the landlord may have his property| but
where he desires to evict without reason, Mr, Justice
Holmes 'prohibits his doing S®, during the shortage and
crisis#
Tt is hi a belief that one of the inherent and
fundamental purposes of all civilized governments Is to
prevent extortion and oppression and to safe guard the
publicj and In the light of that principle all constitu­
tions must be read.
it I© not Jib© duty of the court
to circumscribe the police power by impracticable points
Of view or by unreasonable pressing the alleged "absolute"
rights of property,
The police power exists to meet
the practical problems which aria® from
ay to day and
the science of government consists in adjusting relative
rights rr'.d duties In order "to promote th© general wel149
fare •11
Th© fact that emergency legislation placed
great restrictions on rights of contract, and property
rights mafte It necessary to establish the dictum that
'"Steergeney legislation that restricts
Individual
rights lasts onty so long as the emergency exists*
To continue an ac| teyond this-©teg© is a denial of due
process of la®,
Thus we have established the automa-
11o IImit to legislatIon•
The court whi1© gran ting
the legislature almost full sway as to what corjotltutes
an emergency, "is not at liberty to shut Its eyes to
an obvious mistake when the validity of the law depends
321
upon the truth of what is declared*"
An attempt to extend the prftgtoal emergency
act of 1919 beyond May 1922 was denied.
Mr. Justice
Holmes argued that the emergency had passed, as proof
of his contention lie Indicated that th© government had
considerably diminished its demand for employees and as
a result people would find housing problems*
These
were obvious facta which the court must consider.
He
accused the legislature of "attempting arbitrary fiat
for which the court had to Interfere *
—200—
Clad©1ficatlan
The majority of litigation concerning equal
protection of the law ia cantered In classification*
Equal- protection of the lew mean© th© protection of the
equal law®, but this equality of protection le not
violated by classification, provided equal protection
le afforded .the members* of each class*
^r* Justice
Holmes grants to the state very broad power In classi­
fying- objects for legislation.
He leaves it largely
to legislative-dfe/sore-tlon-* and such classification will
be upheld If it boars a reasonable relation to a proper
object sought to he -aoeompi islued* even- If it may appear
unwia® and unJt* t.
He will not Interfere with such
-classification urnless the distinctions made are clearly
arbltrary*
What Justifiable besi« there 1& for ©1ass—
ifieatton is determined by local conditions.
To base
classification upon general rule might appear arbitrary*
whi^^detail facts In specific eaee might snow the necess­
ity*
Olassifle&tlen produces more sharply the conflict
of degree a® to what' side the weight of evidence#should
fall*
In thIn conflict logic may not be a time Indica­
tion, thus the decision of the legislature should be
highly respected*
*Wi th regard to the manner in which such a
question should be approached, It is dbvious that
the legislature Is the only Judge of the policy
Of & proposed discrimination*
This principle
is similar to that which Is established with re
gard to a decision of Congress that certain mean*
are nedeasary and proper to carry out one of its
express powers ... When a state legislature
declared that in its opinion poliety requ#*;** a
certain measure, its action© should not be dis­
turbed by the courts mdSt the Fourteenth Amend­
ment, unless they can see clearly that there is no
fair reason for the law that would not require with
equal force its extension to others whom it leaves
untouched*^ 3^3
In Standard Oil Go* vs* Tennessee
a statute
of Tennessee which subjects a Kentucky corporation to
ouster her violation of a statute while individuals
were punishable by fine, imprisonment or both 1*.proper
classification and not denial of equal protection of the
law*
Th© corporation argued that a statute Is direct­
ed generally to th© protection of a certain kind of etfime
whether one part of a corporation or unlnoOrporated tain*
l»lth© trial^of Individuals they receive protection of
*a preliminary investigation by a grand Jury, a right to
an acqultal unless their guilt is established beyond a
doubt and the benefit of statute of limitation*
On
the other hand corporations are proceeded against Hfcy
bill in equity on relation ofAAttorney-general without
any of these protections.
&;r. du tic© Holmes called
such reasoning an attempt to construe th© Fourteenth
*810»
Aa*n<ta»nt *» introauolivr &
uo equality without
regard to- prao 1Ioal pi*■,-felee& and &1tu#tion to*"&
®sr«
Ju^tloo Holmes would foil*® logic but not to th® txtttti
wh«f« it would not•harmont^o With- practical fact®-#
The
law w&e an Ibtr rumWot by which th® nttds of enviratttttent
an® to be mot#
Tti th! # case th® l-®glal<*tur® h£© decided
that ouj^ster is a moan a of getting desired results and it
la not th® duty of th® oourt to met otherwise*
To prevent It th® threat of .fin® and iepnieon*"
n«nt ia likely to he efficient for men, wbi 1® th®
latter la impossible and th® .former less serious to
corporation©• On the other hand, the’threat of
extension or ouster ta not monstrous, and yet 1©
likely to achieve the result® with corporator®f
while it would be extravagant as applied te.®en* jgg
Hence the differ#no® 4© admitted to be Justifiable*■
The- power of stmt# is determined In dealing
with the©# practical problems, by w-degrees of evil and
©top short of those e*f»«o where•detrtaiewt le ©specially
3fe?
experienced*
when the court exercise# Its duty
inadjusting aoeial and
econo®!® pr® blest# as a scan© at
encouragement he asserts:
**Upheld log the a&i Is embodying a princl ,1®
generally fair'and daln$ a# nearly equal justice
a# car* be expected seems to import thut if a par­
ticular case of h#aAsftl.p ar&ee© under it In its
natural end ordinary application, that rmrsblp
must be bom® a© on® of the imperfections of Imesan
natureJggl
*2U*
CHAPTTO VIII.
COKMERGE CLAUSE
For many years after the adoption of the Consti­
tution the oommeroe claua® was u->ed chiefly for the pur­
pose of protecting- Interstate and foreign commerce fro®
burdens imposed by the otate.
The legislation of Con-
«re as UJSbtolf1th® commero© clause dealt chiefly with ■sub­
jects a© the slave trade^ Importation navigation and
Immigration*
With the adoption of the Interstate Com***
mere# dot of 18?8 Congress entered upon a aeries of actIons which not only placed burden© on -.commerce,- restrained
the states but acted directly upon individuals and cor***
poratlons engaged in such eommere© and. imposed restrict­
ions or created affirmative duties.
Among the most
Important Acts which tendpd to 11mit Interstate oommeroe
are th© followings
s
1* The Interstate Commerce Act enact­
ed In 1887 and many times amended.
Th© Predominant
purpose of Its enactment way to prtvont unr asonall® and
discrlffiinaling rates#
2»
The Shipping Act of 1916,
much amended and extended by the Merchant Marin© Act of
1920, created the United States Shipping Board.
3* The
OXaytor Anti-Trust Act of 1914 undertakes to prevent all
p rsons engaged in Interstate commerce drom di r’crimina***
ting in prices between different purchasers of oommoditie# or to accord preference to on® person -r another#
4#
The Federal Trad# Commission Act of 1914 creates
th® Federal Trade Commission*
5*
The Employer# Lia­
bility Act of 1906 considerably modified the felloe
■servant rule of the common law as applied to the employ­
ees of carrier#*
6*
The Federal safety Appliance
ACts, enacted In 1093 and the year following, requiring
interstate train© to be equipped with certain safety
devices*
7.
The Hour of service Act of 1907 restrict­
ing the hour® of labour of railway employee# op-.rating
train® moving In Inter©tat® comparee*
8*
Th® $h!t*
Slave Act of 1910# which prohibits under several penal­
ties the transportation of women or girls In Interstate
commerce for Immoral purpose®*
9*
The rood and Drug
Act of 1906 la designed to protect the public againat
food or drug® which are injuria.-a to health and also
against those which are mis-branded*
As Society has
become more complex, population increased, commerce
has become more important and ©u.Jest to imposition of
greater burdens*
While authority over interstate and
foreign commerce has been entirely withdrawn from the
States, in th© exercise of their Police power and of their
right to tax they may adapt measures which have important
effect® upon cnidferecmeroe •
If ©uoh effects m m only
Incidental ©rad If in the Judgment of the country they do
not oonetltute a burden upon inborn to to coameroo they are
likly to too sustained
ft is impossible to formula to a
ruin by which to determine whetlv-r ouch legislation doos
in foot constitute a burdon upon commerce*
In
thin relation Mr* Justice ^olmee mid each onoo mould bo
judged wit
reference to It a practical eltuatiori’
*
k
phrase used by Mr* Ohio#.-^hetle©1White 1887^ In Fenceed®
telegraph Co* v®» wo®tom union Tel©graph,
neipfone to
understand Mr* Justice Holmes fleftlbl© wlew-o on commerce-*
*fhe powera thus granted ar© not confined to the- 1astro*
nonto of eom&erae or the postal ayatm known or in
use when th# constitution was adopted* but they kept
pace with the progress of the country, and adopted
themselves to the hew Hewdlopoents of'time &«d
eireu®stance **
Just as the need® of Oemmero© among; th© several
state® furnished the great centripetal force in the e®v
tabllahment of the nation* «o the commerce clause has n w
become one of the ©oat important natlonaiiftlng agenda©
of the Federal Ooveraeent*
&r* Justice Holm#® has at
once applied thin power with unto paired depth and breath
and affirmed the true basic of it© need today no leas
than in 1789*
**! d not think the United state© would come
to an en^ If we lost our power to declare an act
of Congress void*
t do not think the uni•m would
j
fee imperiled if we could not make that declaration
as to the laws of th© several atat.es*
For one
in my place sees how often a local poling prevails
with those who are ot trained to national views,
and how often action is taken that embodies what
the commerce clause was meant to end.*1 yjjfy
He sought to enforce th© power of commerce
among the states with depth and breath because to him,
such ^Commerce is not a technical 1 gal conception but
a practical one from the course of business*
#tw t
That
interstate commerce is a practical conception he recog*©d in its most practical implication©
Thus commerce
means, not only transportMfton, but the human rel&ti ns
involved in commerce.
Therefore insisting in hi self
as he did in others on the need of things Instead of
words|
in one of his memorable opinions, against the
majority of the court* he asserted the power at Congress
t© legislate in regard to the industrial relatione .of
interstate railroads as a means of securing industrial
peace*
t#ft can ot be doubted that to prevent strikes,
and, so far as possible to foster its scheme of
arbitration, It might be deemed fey Congress an
important point of policy, and I think it possible
to say that Congres might not reasonably t&nk
that the provisions in question would help a good
deal to carry Its policjsyalong*
But suppose the
only effect really was to tend to bring about the
complete unionising of ©tich railroad laborers as
Congress can deal with, I think that object alone
would justify the act*3JKb
-*215'
Mr* Justice Holmes, instead of having Judges
refrain from meddling in the affairs of legislatures,
was amply revealed in other labor cases dealing with
333
unions and Injunctions, notably th© Coppage
Cases and
334
the Traux Case*
These cases stand out in support of
efficiency in commerce*
To secure this efficiency it
becomes necessary to control indirect Influences, then
control must be as a national necessity*
However man may differ as to the advisability
of Congress extending its power under th© commerce clause
to regulate conduct commonly looked upon as within the
peculiar province of the states, there are some instances
where Judge Holmes is convinced that the end Justifies
the means*
He made this clear by his dissent in the
335
Child Labor case
in 1913*
Congress had enacted a
statute prohibiting the shipment In Interstate commerce
of any product of a cotton mill in which children between
the ages of fourteen and sixteen had been employed more
than eight hours a day or six days a week*
Here an
attempt was made to extend the control wf Congress into
activities* in which precedents show that states have ex­
clusive control.
The power of Congress was entering
a new field, that of prohibition of goods not harmful*
©&M m »
Tim
tty of opinions ©oiiwrod to irr*. ju«*
336
337
ito© Bay &iffov"*«iti*tott ih# h&t&tofft $ur© Fooo.
00 a
338
*hl%« ©3UsU© O4ti»0
from the pin*©Of*& ©a©#, holding tto
a at id .tufeor %mm wiKMrootttut'‘m ml feooouao *$i
ot on iy
t W O MO o do %tm iiutm rity ©*p»ipkt«0 to Oon^oO© mfo&
o©n^#r©ot hut u l m ^*#rto a pomr m
10
*' a purely looai
339
totior to rchloh %tm rodoral authority too# m t ©jctona*
Tim ©ourt &M#$>t*d to# pnlooipl© tout 1« ou«# of tow*
f u i r o o u it o I n t o r o t o t # tw h ^ ^ rt^ tl-s s e s m4 # h t fe@ u’m & to
ooao^pii&h d©&ir©d purpo«t«t hut in. ©uo© of «*sl -0 t&feor
o©## &uoh ftfll did not a&l&i*
ft oh* furl&or onplsaoi w d
ttot ih# ©hi & tofeor to© ® m h w®b&i&iion of ftftmifootutfo
mti& ^ioduoiioi), and not of ®mm-mr®m9 though t&© ©totuto
©oil It*#If © f"©jS*ll«fcil*>il Of f«lt©F#i«fci# ©«fp<s#t
to th© dtooont fey Mr* tfuotio© $?©!»* © !**■
*
dimmoUcm
h*i©©©n
long
ii :;wr«* **&d
for© of rnmmn and ©hi lawn*
oooitl*
on©
tho
*©1*
Ho I » w 4 hi# &r&u*«©»t
upon th© prmlfl# that e o g r w # 1 p©©©** to r@su.lat0
hofo© ©a© $i©©n In unqu#i.lfl©d torn©*
ft* hio
00 m*
wtho
statist© li oithin to© powor ©3spn©©s*ty $lv©n to simgr©©©
If 'ooiioi4«i*#0 only
00
to it© £©*>©01*1© ©ffoot* and that
if invalid It 1© »© only upon mis© milat©*©! ip*ouf*d*rA
ft*© p&©or to r©©wt#i© to© lone toon *©tot>:it.*h©d a© th©
pooor
to fMNttilUts
"JtadMlMtovft mmmmm th# pwhiMton
of «©»©tfotn®t and m m m inter©tat# ©o^mro© I® tfe# mat tor
%0 b©:ftiilQiiA 1 iinnoi doubt that the population ©ogr
pmhibit any part of ©uoh ooi«©r©@ itoi congr©©© ®mmm
fit to forbid*0
rn© oooo© ©lto& fey th© ©outtt m w m
that aortoio thing© elpht to© pn>Aiblte*L tr*«aoport&11on out
and out*
Tbl© bo log th© ©aoo inon wh$ not ©on© pi tlx©
Tiooa of leglolotiiro &o to the m o d of population of
hour© of ©ork for m m
and ctaiitooa©
The industrial
©omlltlomi .had ©Poaiod © ©cm©! 11an that ploood ib© health
or ooaxot) and ahlidron «t littit ©htoh
to to a&lt with*
If tho national Eovornmont ©a© to© ©ponojr a© larg© o©
th© probfce* thon to (notional ©ov*rr«a©nt) should sole©
the problem*
II*© pi ip© tin© a©©© I#
kr#
- J u a t l o o II© t e e ©
i©gft«l«tio»*
thought
th©
mmotmp
evil
mwmpV-
off ©at
©tore
dom&hdod
Th© monopoly of tv**«po«*t*tlOB of oil
result©© in dureo© to independent nofinet*©*
Its© quo©*
©Ion ©a© mm to p r o te s t ©mall indopondofit ©wore frsw
exploitation*
To i:r*
Motors the evil oxlotod*
Til© ia*a©n« eeployed by th*;
: at©tut© ©00 substantially
related to ©he ©bjeet ©mgbt*
ftoy ©or© we*3*s*bl©
end not arbitrary or beyond tto mieeeeity of l ^ a » *
rrot«otlofk o f
indoinxnAofit p o l l
©©item
and Independent
f r o m d u r a #n tsp p i p # 1 In# «tti#r# h o »
hm n mmp*
ototril
authority of o*m0ro*# and fepporiod fe tb# aeuri*
UlttiiaiiHl
011 00# #»#
tftilt#* 3%a<-o»*
m i 0# &• l | Tatars
Ft#**®# 0 1 1 Oo* 0 0 * Toitoo H i t 0« $* 8 6 1 C o n t i n e n t a l r # p © r
Cmpmnf 00* V oight* t i t o*
it? #
8 #oftrooe
oojr pro*
h l M t 0 kina of oora^r## harmful bo pwtolt® wo* %mm
ton* obto&iioiaoO in ih # %urmm 00## a ©5.ta d obov#*
TM #
b® #x«rt#6 far purely #0000010 purpoeoo *&•»*
p#«#r
00#r th# atrati^ publto opinion ball#### th*ro i# a great
540
.pubil® ~o«a*
i « ntt&eroaa in a ta n a # # r#? 5ulifetl 60 1*00
taken iho fo ra o f p ro h ib itio n m m m p % upon
541
a# »oul6 protoot biw public
donta
00
#00 &
#®n 111 cm#
^110 trnot* pr#®#***
support hi# bollof that *h#o an ^vll #&i*t#
009101*00# ahould urn tof&itimoio »#or# to oooomfAioh tuo
'd o airo d and* ha argued*
*Byt o® ra th # # # a lre a d y in tim a te d * thoo#
lin o# th at *• are aon#&0 orln£ or# e-cw-oft 00mor#
li## i n e v e r y th in # hut fora*
Tb#f oarry ev ery *
body*» oil to a oork*t> although they oo&poi
•miaidor# to ##41 It before taking It into'ifco
pipoo*
Th# onaeor to- thia ofejooilon l« not that,
thoy i m % gi#0 up' raquirttto a ^#1# t# tb»*»olv#<i
before oorry iiig th# o i l that biri#y 000 raoolv#*
0 #
# ^ 0 1 # © a © # la t h a t the a p p a l l # # # if they © arry
sauat do i t In 0 ooy th a t they
not life#* ' Thor#
i s no taking and i t 000# not booooo noooMory to
oontt&oav* hoi far dongroa# oould aubjeot tboo to
poounlorjr to#© oitbout- ooiKfrntaotion In crdor to
aoompllaii th# ond in vtn#**' 342
Tt*# tw m a p o rto ti on of o i l let oosy^roo and
#i*bj«ot to raou lotloft by- co n g r a # ^ *
fn tt&i ® 0 0 a# a#
■219established the dictum that 11be ginning lir purpose and
ending in sai©n rpakes the pif© line transaction within
the Act of Congress.
The extension of Interstate commerce was an
obvious fact*
Logically, there is no limit to the
interrelation of national commerce and the act!vies of
men in the separate states.
But the main end© of our
dual system of state and nation here too, call for
adjustment, and Logie ©annot prevent such movement*
”Tn modern socletie® ©very part is related
organically to ©very other, that what affects any
portion must be felt more or less by all the rest*
Therefore, unless everything is to be forbidden
and legislation is to com© to a stop, it is not
enough to show that In the working of a statute,
there is some tendency, logically discernible, to
interfere with commerce of existing contracts.'343
Therefore distinction© have to be
mad©
14even nice distinctions are to b© expected,”
and
H© is
not willing to force upon Congress the duty of a mechan­
ical uniformity in Its legislation#
Mf cannot doubt11
he has written, wthat in matters with which Congress ia
empowered to deal it may make different arrangements
for widely different localities with perhaps different
needs."
^5
The granting to Congress and the states the
power to regulate commerce, Congress interstate commerce
and the states interstate commerce has produced a problem
©f "degree of burden” to which the court is often called
Upon to settle*
The fact that there is no mathematical
formula, to divide where the line in to he drawn has
Often planed the court In uncertain, and embarrassing
situations,
Tn trying to draw a line between the
regulatory powers Mr* Justice Holmes believed that Com*
men Sense and Practical -situation must be the basis Of'
the deetalon*
He sayst
"The prohibition in this case la not tb solute
but le only conditional on the failure to deposit
a copy of the plaintiffs charter to pay a email
fee*
it is merely incident to regulation which,
but for the contract unquestionably would be proper
and which is familiar in the law© of the state,” 346
Mr* Justice Holmes was consistent in hie desire
to maintain paramount the authority of the Federal Govern­
ment to regulate commerce among the states*
The Fed­
eral power must be dominantly left unimpaired and a state
cannot defeat the withdrawal of national commerce fro®
state tempering "by making the convenient apology of
34?
the police power*”
in spite of his strong feeling against the
attempts on the part of the state to encroach upon the
domain of the Federal Government, ur* Justice Holme®
~221*
doe® not see state impairment of Federal supremacy In all
state regulation of interstate eemeeree*
Speaking for
the majority, wf see nothing in the comm-re© clause to
pe©vent a state from giving prefer©bo © to it© Inhabitant©
348
In the enjoyment of it® natural anttrstagv-M*
The
turning point is baaed upon the degree of burden placed
upon Interstate ooncrem*
The feast© of imposition on
dotigreae* power over interstate conferee by the state© 1©
the polio© power, to the extent of whether auoh refla­
tion place© a direct burden upon what la for Congress to
349
Control.51
Between hi© deelre to ensure full power
to Congress and hi© regard for the full polio© powers of
the State he has drawn hi© line which appear© to favor
the state© more than the rest of the court*
Against the view© of the majority of the Court
that a foreign corporation
n seeking permission to do
bueinee© in © ©tat© doe© not subject itself to provision©
In the ntate statute which- eonfllot© with the Federal
constitution he wrote a
"In order to enter into most of the relation®
of life people have given up somm of their ocrnatitutler.al right©..
If a man makes u contract he
give® up the- constitutional right that previously
he had to be free from the hamper that he put upon
himself,*
Seen* rights, no doubt, ©©person 1© not
allowed to rre-nounee, but very many he may*
So
wc »tt&t g© farther than merely to point to the
Fourteenth Amendment*
1 see nothing in it to
prevent a fo-relgxt corporation agreeing with the
state that It will b mfejecfe to the general law
of torts and will submit to^a transitory action
whenever it may he used.” ?**■
Excluding the question of contract Mr. Jus­
tice Holmes maintains that the state, having the power
to exclude foreign corporations
rom doing local bus-
inesi, has the right to tax such business at will.
The fact of t t© interstate business does not prevent
to him a reason for restraining this undoubted right of
the state*
in the Western Union Telegraph
0o# vs* Kansas,
ne as ©rted, "Even In the law the
whole generally Includes Its parts*
If the State may
prohibit, it may prohibit with the privilege of avoid­
ing that prohibition in a certain way."
The majority of the court viewed the statute
as a burden upon interstate commerce and therefor©
unconstitutional*
The"tax by its necessary operation"
would accomplish the same result as if a condition of
doing local business were made,"that the telegraph co«
should submit to taxation upon both Its Interstate and
Intrastate business and upon its Interest and property
elsewhere as represented by capital stock."
Mr* Justice Holmes denied the allegation
that ttongMaa attempted to tax the Western
nion «
0h©
had almply announced th: t before it could do a paylog
hualn&oft it should pay a certain eutn of money*
In a
3Z9
rata o&«;©, northern Pacific ftallMy vs# north Dakota,, it
was decided that the carriage of article£5 within the
state by interstate transportation system will not d©~
prlv© the state of th© right to fix rales for those ar­
ticle a*
This might be a burden on interstate comer©©,
in fact all inhibition© are ‘burdens, but la the burden of
sufficient degree to. deny atete regulations?
If the
transportation ayatens profits on Itss entire uusines-:; with­
in th© state It cannot' oX&isa confiscatory rate© in order
to evade (tmgreealcmaX control*
Between hia desire to
ensure full power to dongree.", and his regard for the
full, police power© of the State, he drew & line which
appeared to favor th© state© more than the root of th©
court*
In a conflict of interest between ints-rotate
railroads and the whole public the welfare of the pub­
lic must be 'preserved even at th© expense of railroad
interest*
It was inherent in th© grantlag of railroad
interoat -that there should never be &*7 danger of public
357
a&fdty regardless of the cost#
Er* Justice Holme©
removed any opposition to the public welfare In war-like
language1
#
~224~
" f t It reasonably can b© aald that safety
requires fh©- ©barge it la for them to say ©hother
they will Insist upon it, and neither prospective
bankruptcy nor engagement In Interstate commerce
can take away this fundamental right of the sovthe soli. ** 5 5 S
fhervarious services are very nee©ssary In
this present Industrial ag© but is better to cut off
services than allow such service to invade the police
power of states to a gangerous degree*
fh© State and not the railroad is the Judge
as to what 1 a th© best method •
‘•■of diminishing accidents*
An Qpdiiiande requiring © railway company on every street
crossed by its tracts to keep7--a flagman on duty to
give warning of approaching trains by waving a red flag
in the daytime and a red lamp at night cannot be held
an unreasonalb© burden on Interstate commerce, as applied
to interstate trains, since automatic device® of an
approved modern type are cheaper and better devices* %Jf
'there bre reasonable grounds for believing that compliance
with the ordinance at the crossing in question would
>56
diminish the danger of accident*
the Judgment of
the legislature as to the beat kind of safety measure to
be used is supported on the thesis that a man In the
middle of th© street or near to it, and intent on stop­
ping traffic might stop some travellers who might not
notice electric signs.
"There is a marginal chan©©
*@23*
&
lit® may h®
duty of th* Oiiniri to r##ogr; 1m
.**
It lattli*
th# sine orIty of l#g*
toUotur# In oit«optin$ to rotiuo# do* in by ^oeidonta*ond in yrMtlnoiiy oil
lotyr# t i n b# uphold#
-tho dooioton of
It 1» .not th# tfuty of iogioio
%ur# nor court# to oonoidor * motmf
puhlla oofoiy or
t» rt atrt#/
^torin
chafvm
m
LAW
Ever present in our modern world w© find such
queries as{What is Lawf
limits?
being?
What are its capacities and
What are Its aims or ©n&s, th© purpose of Its
Mr* Justice Holmes has said a great deal abtitit
law in language which reveals his literary talent*
He
accepts the view-Jth&toth© term is hard to define*
wTh© confusion with which X am dealing besets
confessedly legal conceptions*
Xak© the fundament­
al questions Wh^t constitutes the law?
You will
find some text writers telling you that it 1® some­
times different from what is 4©«rid©& by the courts
of Massachusetts or England,- that It Is a system
of reason, that It is a deduction from principles
of ethics or admitted axiom© or what not, which may
or may not coincide- with the decisions*
But if
we take the view of our friend the bad man we shall
find that h© does not car© two straw© for the
axioms or deductions, but that he does want to know
Whot the Massachusetts or England courts are likely
to do, In fact, t am much of his Bsind*
Xh© proph­
ecies of what th© courts will do In fact, and 358
nothinsT more pretentious ar© wh. t T mean by the la.-*
tn Sash vs. United States,
35^
he speaks of law
thus, MTh© law Is full of instances where a man' s fate
depend® on his estimating rig tly, that Is, as the jury
subsequently estimate® It, some matter of degree,” that
an act might be murder, manslaughter, or misadventure
according to the degree of danger attending it and
according to the aomaon experience in clfteum stances known
do th© actor*
In a later oaaeg where a statute was held
bad, on the question what Is an undue restraint of trade,
the conditions are as permanent as anything human, and a
great body of precedents on th© civil side coupled with
familiar practice make it comparatively easy for common
360
sense to keep to what la stfe.
In American Banana
361
Co# vs* United States Fruit Co.
he apc-aks of law as,
statement of the ciroumstances in Which the public
force will be brought to bear upon men thro gh the courts*
In language of which any literary student would be proud
he speaks of law as seen from various interests and
angles s
MBut v#e who are her© Know th© Maw eV©n bettor
in another aspect*
We see her dally, not as
anthropologists, not as students and philosophers,
but as actors In a drama of which she is the proud
and over ruling power.
When I think of the law
as we know her in the court hours® and the market
she aeema to me a woman sitting by the wayside,
beneath whose overshadowing hood every man shall
see the countenance of his deserts or needs.
The
timid and overborn© gain heart from her protecting
smile.
Fair combatants, manfully standing to
their rights, see her keeping the lists with the
atern and discriminating eye of even justice. The
wretch who haa defied her most sacred commands,
and haa thought to creep through ways where she
was not, finds that his path ends with her, and
beholds beneath her ho d th® inexorable fae© of
death." 3®t
Th© difficulty in trying to explain or define
law fits in with his belief that law is a rmxu&n insti­
tution, changeable to meet th® changing conditions*
lie did- not consider the law a perfectly articulated eyatern of principles* precepts* and preMfeill me fitting
into each other with- the procl &ioc of the cog of a vast
machine*
Mr# Justice Holmes wa conscious of the varia­
bility of the human stuff upon which low had to operate*
the chan®" «■; local conditions and difference In sninde
of men both tend to make for flexible ia»,
ft %m cafe
to ascume that he would support the thefcls "the art of
government is the art of doing the beet you can under
the given oIroumatanees and with the material at hand**
Sir* Justice Holmes* legal philosophy !« derived from
-a philosophy of life and of thought as a part of life#,
and can be under stood only in larger connect Iona*
A®
life la undergoing constant changea fey the ever-pressing
■economic and social' forces* m
in la^**The U f a of the
law*** Mf# Justice Holmes explain** "has not been logic*
the prevalent moral and pol'V-oal theorie s* institutions »;
of public policy* avowed or uncanecioua* even th® preju*
dice® which :u gee* chare with their fellomen tv-ve had a
good deal more to do than syllogisms in determining the
363
rule fey which men -should fee governed*
Tf come kind of
a scheme must, fee erected Out of thee® fragments of exper­
ience and action* then let science preside.
An ideal
ycAeavrof law* he adds.*., *should draw its postulates and its
legislative Justification from science.H
•889*
In law he pushed forward the lines of advance
with a swiftness and certainty that made him one of the
great legal thinkers of hie
ay#
He applied to the
law a wealth of classical knowledge and ©l&esleal spirit#
hut he aaw it also as a growing organism#
He strove
forward# in all hie decisions whether with the majority
or with the minority# In what he took to be the logical
path of the development of law by the .toerie&n people
and under American tradition®#
Inevitably 5,1a legal
philosophy involved a forward move#.
Again and again
he insisted that the law must be adapted to th© situation
of the living people who® it touch-..d» and that the living
must not be made to surfer for the ehort-oomlnga or
lack of- foresight shown by their ancestors*
The business
of th© law is to keep pace with the ©hanging; environment*
To accomplish this it becomes necessary to assert old
principles' in n«iw fortes*.
In a statement made by f<ie
in a speech at Boston University law deim&l In 109?
warning Is given about placing too ^uoh cm basis on the
past s
$W© must beware of the pitfalls of antiquarian#*
ism* and- must remember that for ©ur purposes our
©rr.y interest in the past is for the light It throws
Kl&flVC the present*.
I look forward to the time
when-the part played by history In the explanation
Of dogw* 'shall fee very small* and instead of ingen­
ious research we shall spend our energy on a study
of the ends sought to be attained and the reason
for desiring them.
as a step toward that Ideal
It seems to mm that ©very lawyer ought to seek under-
—2 3 0 —
standieg- of economics.
the present divorce be­
tween' the school© of political economy mnd Imw
seem© to ®& an evidence of now much progress in
philosophical study still remains to fee made#4
554
speaking on learning end science at a dinner
of the Howard Law Seh
Fro feasor
0
*
0#
1 Association ir, honor of
Lang&ell in 1 85 Mr* Justice Holmes
again severely criticise
on the past*
Judges for relying too much
Such looking backward might be described
as supporting the phonographic system of justice*
wLearning# my learned •rethrew# is a very good
thing*
I Bhouid be the last to un&ervaLu© it
having done my share of quotation from the year
books*
But t Is liable to lead us astray*
The
law so far as It depends on learning:# is indeed*
as it has been called# the government of the Hiving
by the dead*
To a very o^iisiderebie extent no
doubt It Is iit-Cvitable that the living should be so
governed*
T: at past gives us our vocabulary and
fixes the limits of our imagination| we can ot get
away from it*
Ther^ is* too* a peculiar logical
pleasure In gaging manifest the eot-tlnuity between
what we are doing and what has been done before*
But the present has a ripht to govern itself as far
a® it can} and It ought always to fee remembered
that historic continuity with the past is not a di&y#
it 1 © only- a Decrees! ty*
X hope that tne ti^e is coming when this thought
will bear fruit*
hn ideal ayetern of law should
draw Its postulates and ita legislative Juetlf 5.ca­
tion from science*
As it is new we rely upon
tradition* or vague,wentlwent, or the fact that we
never thought of any 'then way of do’-ng things# am
our only warrant for rdlles which we enforce with
as mush confidence as if they embodied revealed
wisdosu* 3MSg''.
Comparing twentieth century science of Haw in
America with the legal science of the nineteenth century*
-231—
the most significant changes are, the definite *reak
with the historical method; the study of methods of
judicial thinking and understanding of the scop© and
nature of legal logic, recognition of the relation be­
tween th© law finding element In Judicial decisions
and the policies that must govern law making; constant
facing of the problem of harmonizing or compromising
conflicting or over lapping Interest®; and a function­
al point of view in contrast with the purely anatj^loal*
In Mr* Justice Holmes1 paper on Agency
one
sees that he has parted ways with the then dominant
historical school and has done bo after developing th©
best possibilities of-Its. method*
He has seen through
the fiction of representation by which men are seeking
to reconcile ©mploy©r©,or^hOipal®%liability with the
rising Juristic principle of ho liability without fault
and has pointed out the policy behind tfte.jjT^tion and
the historical process of Its development.
Also
In his a&drosn, ”The Path of the Law,M as a master of
historical method, the functional us® of legal history
is Illustrated} w© are shown what Is behind particular
legal traditions^ what their course of development haa
been and how on® may use them Intelligently for the
ends of today instead of remaining aloves- to them.
-238-*
In parting with th© old historical school
Mr# Justice Holmes did not attempt to make a new system
of law over night# or to reform it regardless of -prece­
dent and long established rules of practice *
All this
is set forth in his address before the New York State
Bar Association in 1899* On Law In Science and Science'
In Lae*
nl do not expect or think it desirablet.tkat
the judges should undertake to renovate th© law*
That is not their province#
Indeed precisely
because I believe that the world would b® just as
well off If it lived under laws that differed
from ours In many ways, and because I believe
that the claim of our especial code to reppect Is
Simply that it exists, that It Is the one to which
we have become accustomed, and not that It repre­
sents an eternal principle, I am ©low to consent
to overruling a precedent, and think that our
important duty Is to see that the Judicial duel
shall be fought out in th© accustomed way*
But
I think It most Important to remember whenever a
doubtful cas© arises, with certain analogies on
our side and other analogies on the other, that
what really is before us is a conflict between two
social desires, each of which cannot both have
their way*
The social question is which deslr©
is stronger at the point of conflict.
Th©
Judicial One may be narrower, becau © one may be
narrower, because one or the other desire may have
been expressed in ■previous decisions to such an
extent .that logic requires us to assume it to pre­
ponderate In th© one before us*
Where there is
doubt the simple tool of logic does not suffice,
and even if it is disguised and unconscious, the
judge© are called on to exercise the sovereign
prerogative of choice•” 369
In conclusions
" Gentlemen, I have tried to show by example
something of th® Interests of scion© as applied to
the k»* and to point out so&ie possible i®proves*©nla
In our way of approach!ng practical Questions in th©
sphere*
To th# latter no doubt# many 111
hardly bo ready to yield mm their ae*«??!•
but Id
the field# a® in other a# l hake had to &i»d cm ulti mate dependence upon aoienoe because it la finally
for science to determine so far a® it ©an, the r©Ja­
ilv tlv© worth 4t our met ml end©*11 370
Mr* Justice Holmes haw &lway# looked upon th#
awt
jLew a® a subject for oaieatlfie study and development*.
tr
Me has strongly supported both the study and practice of
th© law# tecs*pieg In mind ihe ultimate principle® of Jurisprudence*
in an address delivered at th© dedication
of- the new hail of the Boston University iichccl of Law in
1B97
he spoke of theory}
*Theory 4a th® mo#t laporta&fc part of the tow#
as the architect, is the moat important mart wr,o takes
part in th® butId lag of a 'house*
The mo&t Import­
ant improvements of .the last twenty-five yr arc are
Improvements in theory# It la not to be l?;ared as im­
practical* for to the competent# it ©Imply ^eanegoing to the bottom of th® subject*
To the ..neosupatent# It is com®thing true* an has b©en ©aid that
an InV'-reet in general idea© means an absence of
partioular knowied^e **# 372
At the dinner of t m Suffolk Bar Association
in 1885 Mr# Justice Holttsa® proclaimed his high ideal of
the law and th# work of Lawyers*
*Every calling. 1 # great when greatly pursued*
But what others $!#*? such scop© to realize the
spontaneous energy of one* a avuit
In what other
doe# one plunge eo deep in th# stream of life# m
share it# passions* its battles* its deensir* its
triumphs* both a© witness and actor#” 373
Td^answer^the call of a lawyer it is neeesaary
-2 3t o
to fee^a thinkerr
course* th© law Is not the place for th©
artist or the poetfthe law is the calling of
thinkers#
But to those who believe with me that
not the least god-like of manb attributes is the
large survey of causes, to know is not less than
to feel, X say, and X say no longer with any & ubt,
that a man may live greatly In th© law as well as
elsewhere, that there as well as elsekher© h© may
wreak himself upon life, may drink the bitter cup
Of heroism, may wear his heart out after the unat­
tainable*
All that Ilf© offers any man from
which to
b\s thinking or his striving Is a
fact*” 374
Mr* Justice Holmes vigorously protested against
the confusion of law and morality, and thus urged that
th© law be washed in **eynlcL acid to separate It from Its
375"
moralistic veneer*”
This confusion "son,©times rises
to th© height of conscious theory* and more often and
Indeed constantly is making trouble In detail without
376
reaching the point of consciousness*'
Kthical rules
may fee violated while the punishment that psiKKil the
law inflicts for violation of ita principles demands
respect for the law.
The public fore© which supports
th© law causes the bad man to avoid encounter with th©
law#
This Individual knows th© law on the basis of
tii© material consequences.
This conception of law
divorces It (law) from morals.
wTh© law is full of phraseology drawn from
morale# and by the mere force of language continually u
nltee us to pass from one domain to the other without
*235-"
perceiving It* &e we are sure to do unleon w© have th©
boundary constantly before
ur minds.
The law talks
about rights* duties, and malloe and intent# and neg­
ligence and so forth# and nothing is easier, or more
legal reasoning, than to take these word a in
their moral sense at jfeom© stage of the argument, and
I
S?7
so to drop Into fallafy.
This does not mean that at certain times the
distlnoltions between law and morality tend to shade
into each othpr**in the presence of the Infinite.”
Often
Judges when confronted with new problems whore prece­
dent and legal rules seem not to be the controlling
factors toward solution in th© case must call upon their
high senBe of morality to draw the dividing line.
”While th© courts must exercise a judgment
of their own, It Is by no means true that every
law is void which may seem to the Judges who ass
upon it, excessive, unsuited to Its ostensible
end# or based upon conceptions of Eiorality with
which they disagree.
Considerable lattitude
must be allowed for difference of view as well
as for possible peculiar conditions which the
court can know but imperfectly, 3f at all.
Other­
wise a constitution, instead of embodying only
relatively fundamental rules of right, as gener­
ally understood by all English speaking communi­
ties, would become the partisan o# a particular
set of ethical or economic opinions which by no
means are held semper ublque ®t al omnibus,11 378
Such is the exception which ahould be resorted
to as final answer to particular problems.
Tn general
there is danger "both to speculation and to practice” In
mixing morality with law*
Hr* Justice Holmes* practical applications led
879
him to also reject natural law* '
Ignoring natural law
and right® and with it the contrast theory of the state#
ho discover® th© origin of state Ufa# legal duties-; and
rights In their practical value to society.
Consequent-
ly experiment is necessary to determine taose policies
of government which will have most utilitarian value*
The belief in natural law is a craving for the "super**
natural# and at bottom#it mean® no more than th© system
which has become so fully a part of our Intellectual cli­
mate that we cannot work our institutions successfully
except upon Its assumption&•”
r1th th© idea of Watura-l
law there goes also %im Idem of right© which# a little
scornfully perhaps# he has defined as the hypoth®cl© of
prophecy.
Bights to him must be more than theory#
have for their basis the capacity of realization.
Be*
hind them Is left what he calls Ht h © fighting will of
380
the subject to maintain the®;.”
Bight* are the prod­
uct of law# maintained a® the pone®salon of citizens by
that part ©f the community which Is prepare^ to fight
for them#
Bights therefore become the expression of
the will of the stronger part of society*
Law la thus
viewed as the sovereign*® fiat# valid In essence
because of th© power of th© state
behind it*
John 0* dray expressed the Idea this way*
wLaw la simply the body of rules of behavior which a
particular society is at that particular time prepared
381
to enforce**
Despite his own historical researches he looked
forward **to the time when the part played by history in
the explanation of dogma shall be very small, and instead
of ingenious research we shall spend our energy on a
study of the ends sought to be obtained and the reason
382
for desiring them*1*
The law is not a set of sacred and
eternal principles magically drawn by th© Judges from
a mass of dead precedents*
The law is a body of rules
based on experience living and growing to serve man’s
changing destiny*
He would not accept the view that
many judges seem to express that wa given system can
be worked out like mathematics from some general maxim
383
of conduct**
The facts count$and th© facts are
aggregate experience and th© relative power behind its
different elements alone can determine which group of
them will prevail*
He did not postulate ideal rights,
ideals will not solve special problems; he inferred
actual rights from the empirical behavior of men*
is not an end but a means to an end*
Law
wEveryone instinct­
ively recognises that in these days the justification of
a law for us cannot be found in the fact that our fathers
always tewe followed- it*”
In order to have m
understanding of new eireuwetancee judges must under*
•tend hie tortool growth end Ideas-*
*•239**
CHAPTER X
THE CONSTITUTION
Mr* Justice Holmes thinks of the Constitution
In terms similar to Chief justice Marshallt "it la a
constitution we are expounding” and not a **detached
document Inviting scholastic dialectics*”
This is a
living, growIna expanding constitution, Intended to
meet the unforeseen problems and circumstances as they
arise*
The constitution as interpreted today is not
the same instrument as originally adopted by the thirteen
colonies*
Each generation has produced a new const!*
tutlon of government with fundamental changes in spirit
and in form*
Each generation has encountered new
economic and social forces that had to be brought within
constitutional protection*
The first generation ©aw
the adoption of the party system which was not contemplated
by the constitution at all and which nullified the pre*
visions of the founders for the choice of President of
the United states through the electoral college; and
noted the rise of executive authority undreamed of by
the founders*
The next generation saw the upset of the
balance between state and nation, first by judicial
decision and then by Civil War; and made basic changes
~240»
regarding slavery and Negro suffrage*
Th© next period
further developed a new executive pov>or in the 'resident*
fur trier disturbed the balance of pomr between states and
the United states* revolutionised the elecioraie threugi
the granting of women''a suffrage and In tr e Eighteenth
amendment undertook a complicated experiment in the
regulation of human behavior*
The last step has baen
the aeauaptl n of the government as an agency responsible
for thfc welfare of It© eltlsens and taking step© to pl*o e
toman right© before property rights*
All these are fundamental and far reaching
changes in th© baste low of the land, and they w*&re
accompanied by many other alternations, some affected ty
Interpretation* some by statute and some by common custom*
Further mere sections of the constitution have been
Ignored in what practically amounts to nullification
In various areas of th© nation*
The electoral
ol i.ege
as a means of electing the President has been ever»rt&dm
by the political parties* the Fifteenth feendment has
failed to give suffrage to the Negro In large sections
of the country* the eighteenth Amendment e;-a ineffective
In territories occupied b,;> millions of our popul&ii. n*
In these Instance® the text of the document remains
the numoy but ltd apfcrlt is gone*
you may find the
letter of the words but not* the life, the shell but not
the substance*
Furposedly our constitution consists
Of broad generalisations based upon experience*
"The provisions of the Constitution are not
mathematical formulas having their essence in
their form; they are organic living institutions
transplanted from English soil*
Their signifi­
cance is vital not formal, it is to b© gathered
not simply by talcing the words and a dictionary,
but by considering their origin and the line of
their growth** 3 8 5
This growth has been made possible by adjust­
ing the means to the end*
In attempting to meet a
practical situation a solution must be had*
As Lin­
coln remarked after going to war in 1861 to save the
constitution* "If necessary he would break the consti­
tution to save the national life."
The task at hand,
even though it is a constitution that is being inter­
preted, isto make adjustments to meet practical demands.
"To get a little nearer to the practical, our
eurrent ethics and our current satisfaction with
conventional legal rules, it seems to me can be
purged to a certain extent without reference to
what our final ideal may be.
To rest upon a
formula is a slumber that prolonged means death*
Our system of morality is a body of imperfect
serial generalizations expressed in terms of emo­
tion*
To get at its truth, it is useful to omit
the emotion and ask ourselves what those generali­
zations are and how far they are confirmed by fact
accurately ascertained*
80 in regard to the formu­
la of law, 1 have found it very instructive to con­
sider what ©ay be. the postulates implied*
They
are generally twos that such and such a condition
or result la desirable and that such ana such a
mean® la appropriate to bring it about*
In all
debatable matters there are conflicting desires to
be accomplished by inconsistent means and the further
question arises, which is entitled to prevail in
-242the specific case?
Upon such logic we do not go
far, and the praoite&l solution sometimes may
assume a somewhat cynical shape*
But X have found
It a help to clear thinking to try and get behind
my conventional assumptions as a Judge whose first
business is to see that the gam® la played accord­
ing to the rules jWhether X like them or not*
To
have doubted one9® own first principle la the mark
of a civilized man*
To know what you want and
why you think that such a measure will help It Is
the first but by no mean© the last step toward
Intelligent legal reform.
The other and more
difficult on© is to realize what you must give up
to get it, and consider whether you are ready to
pay the price*M 386
The problem of getting thing© done is the life blood of
the Constitution.
Roseoe Found expressed the problem
thus:
"The function of legal history come© to be one
of illustrating how rule© and principle© have met
concrete situations in the past and of enabling us
W judge how we may deal with such situations In
the present rather than one of furnishing self
sufficient premises from*which rules are to be ob­
tained by rigid deductions." 387
T© make the Constitution work, ae Man experiment since
all life 1© an experiment" great caution must be exer­
cised by Judges in being tolerant in realizing and then
respecting the validity of the experience and beliefs
of other© in decisions of concrete cases.
"While the dourt© must exercise a judgment of
their own It by ho mean© is true that every law is
void which may seem to the Judges who pass upon it,
excessive, unsulted to its ostensible end, or
based upon conceptions of morality with which they
disagree* Considerable lattltud© must be allowed for
—243r
difference of view
well *e for possible peouiier
conditions* which this court can know but 1 ^perfect­
ly * If ‘at alii
Otherwise a, oorotltutlon lb ©teed
of embodying on;-,y fundamental ruleo of right a® gen­
erally understood by’ell logllafo ©peaking eommunltie®, would beeem* the partisan f a particular e*t
of ethleal or economic opinions, what by no moan©
are held semper ubdque ©t ab omnibus." 388
Mr, Justice
® realized that the position
and power of the Supreme Court does not depend upon the
text of i|p>e constitution but upon the general attitude
of the people and their wllllngneas to acquiesce in It®
decision.
This knowledge deaande vision and
thought
on the part of Judge© to keep the eo restitution loose and
elastic,
wOreat oo; etltutlonal provisions mu®t fee ad­
ministered with caution*
Bom© play
foe allow*
od for the Joints of th* me*nine* and it must i>e
remembered that legislature® are ultimate guardians
of the liberties and welfare of the> oeople In quite
as
great
a
degree-
a©
the
court."
3®?
fit* eeurt.-eltould ''eM^aeie.eavier eceest* of
Qon-.$r*sejait :ouish eomeilees the wiedOttt of the statute
1©
questionable* inte idea i@ expressed in rmployer® Liafoil399
Ity Cases.
tf the Constitution is to serve the forty
eight states then It become® the duty of the court if
neoeaea^y
•Matters with which Congress le empowered to
deal to make different arrangements for widely di|£©rami
localities with perhaps widely different needs."
Court can do this by r*oe$r*ialng what he ©alia the
The
392
"inarticulate major premise,"
if the Judge® are not
entitled to m % limit® to possible ard reasonable eoneeptlona of social welfare,
Er* Justies holm#-' wares
the Judges to take eare'ibet to import into the consti­
tution their own personal views of what would foe wise*
just and fitting rule ©.; gov rfusent to bn adopted by a
free people confounding them with oonstltutl nal
11 m
to*
iions by Interpretation,
"ft a a misfortune if a Judge r©ad hie
conscious or uneottaeio./a sympathy With one ©Id#
or the other prematurely into the law, and for­
get that what seems to him ‘to foe the first prinprinciples are believed by half hi a fellow men
to be wrong*
1 think that we n&ve suffered from
this misfortune In state eourt at least* and this
la another and very Important truth to foe extracted
from the popular ftiHOontent*
When twenty years
ego a vague terror went over the earth and theword socialism began to be fo-ard, f thought# and
still think that fear was tranepier ted. into doe**
trines that had no proper place in the .compila­
tion or the common law*
Judges are apt to be
naif, simple minded men* end they need so&etb? ng
of Mephistophelean
we too need education In
the Ubvloua to learn to transcend our own convict**
Itnnand to leave room for much that we old dear
to h© done away without revolted on by the orderly
change af law#'* 393
In construction of stale legislation a® well
as Congressional Hr« Justice Koine* ha© given freedom
to ^xpanelofi of power in both social and economic
legislation*
The only limit being on obvious demand
of constitution principles*
The American eonf tltuIon
was W
hi® federal In that special. ©enee that- would not
.
■*394
©bjeet to experiment :f the constituent part®. ' The
395
.
autAtarding dissent®
”
the Los hue r vs, New York
and
•■396
thf Adair vs * Uni tedState &
are the out standi eg exam­
1n
ples of the right of social oxporinomt who never such a
view dam be justifiably haId by
£ reasonable
man*
A-a
with the power of the stales# so, ..alee with the author­
ity of Congress#
Mf suppose Shat we all agree that to
do so la the gravest and- most delloat# duty that this
397
court, is called upon to- perform*
In upholding a
treaty
which It was' claimed destroyed the op? etltuttnal
powers
>f the state Mr* Just ice Holmes cald*
"When we are dealing with wards trv t are alee
a eoniliiuist act, like the constitution of the
United state©# we- must realize that they (the fer»~
era) have sailed Into life a being the developer nt
of wnleh could not, -have been f -reseen completely
by the most gifted of its begetters*
It was
en ugh for them to realize or to hope that they
rcad created an organism It to# taken a osrtelnty
and has cost th^lr aueoeasor® much sweat and blood
to prove they si*- ated a nation." ^98
Mr,
Just lee Holmes -M&e of approach
toconsti­
tutional problems was early set forth while he was on
the Maseashuestta auoreme court bench*
The ajo-rity
3J9
of the c urt In Commonwealth vs, Ferry held that a
statute Shiah provided that no employer ©hall impose a
fine upon an employee engaged at wearing or with hold
hi# way® In whole or part, for taperfeettrue that M y
-246arise during ■the pro©#®# of wearing In conflict with
the Const itui-ion of
setts*
Mr* Justice Holies
believing that the legislature had good reason to enact
the statute -to protect employee© from- exploitation by
employe re. arguedt
*Tn the f ipt place If tho statute is uneonetltutianal as 0 0 s trued by the majority, I think it
should be oonetrued snore narrowly and 11ter&ally
t a wave it.
Taking it literally, It is not infri nged# and there is mo with holding wages# when
the *®pi|jf*er only promis© a to pay a reasonable
price less than the price paid for perfect work#
and does not pay that, price In fact*
But T agree
that the act should be construed mere broadly and
should be taken to prohibit palpable ovaei^ b foeev.
cause I aa a t the opinion that even ©o e^s- rued
It is "constitutional# .so far as any argument goes
which I have heard*
The prohibition of any must
be found in the words of the con. tl tut ion either
expressed or lieoiled upon a fair hie tor leal comet
©traction*** :4®3
Indicating that if harm- is to be done by
correct construction of the constitution It to better
that co structl'‘tt give way rather
than o w r turn the
set of legl la tyre*
From 1902# when Ur* Justice Holmes was appoint­
ed to the Supreme Court by President Roosevelt# to end
M s Judicial career# Mr* Justice Holmes sought consistent­
ly to suppress tyranny# whether that tyranny came from
Judges who construed the word® "liberty" and "property"
so literally a- to imperil public welfare or whether it
came from legislatures who interfered with the Itoda&emtal guarantees of in® "bill of rights"
He nae sought'
to s«(j^re the ultimate happiness of mankind by g&vlng
24?
free scope to legislatures in making needful regulations
for the general h e a l t h and security of their citizens
and not going out of his way to find some mythical con­
stitutional limitation to prevent them
He has shown
an u n usu al attitude toward legislative experiments#
His
whole attitude was one of aggressiveness yet always
tempered with tolerance,
Mr* Justice Holmes was primarily a scholar and
legal philosopher;
he clothed his opinions in pure and
striking English, he wrote on fundamentals of the law
in words which the legal profession cherishes.
He
was
a man of fair play, possessing a great deal of tolerance
to all points of view, as well as new an
Ideas*
He bequeathed to his country men,
startling
not a body
of opinions and decisions,for only the lawyers will con
tlnue to read these, but an attitude and a
Ing*
of
thlnte*
The attitude is one of stern and heroic acceptance
of the facts of human life on earth;
in an attempt to
reconcile those inescapable facts with the undying h u m m
craving for Justice, order,
and significance*
In
this
Mr* Justice Holmes made a vital c o n t rib uti on.
The address delivered by him almost on his
n i n eti eth birthday, near the end of a long and rich c a m r
seems
appropriate
to end this particular study:
w 8 ut I may m a n t i o n one thought that comes to
m e a s % 1 1 1?ton or in#
The 'rider© in a race do n ot
©top short when they reach the goal*
There is
little flntahing ca n t o r before coming to a stand
©till.
The r e is lime to hear the kind voice of
f riends and to ©ay to one*© eelfi The work io done,.
But Just as one naya that, the answer comesi
The race is over, but the work n e v e r lo done while
the power to work remains.
The canter that bri ngs ou to n standstill
need not be only com ing to rest.
Tt can be while
you still live.
For to b v e U
to function.
That
1© ail there Is to living.
And so I end w it h a line from a Latin poet who
uttered the mes sag e more than fifteen hundred yea rs
ago. D e ath plucks my ear an ©aye Live, I am coming.
•S49<*
FOOTNOTES
CHAPTER I
Holmes, Oliver Wendellt Oollooted Leaal Popora,
Hew York, Haroourt, flwioe ffilTllowe, V. 181, I8 S0
Prooeea* H w JHaven,^^lefiSnI‘veroilySPrei.s, 1921,
P« SI
2UMk««p* xa
s s m s & m b Saxlsa. v®i. 34. p. 4*9
Leary, Daniel B., Hodern gayobgloaar — Normal and
Ahaoieal. Philadelphia and London, J* B. Llppln*
SSWOompany# p# 40* 1928
Woodworth, Robert 3.. Payebolo^ , Nee York, Henry
Holt and Company, p. 191* 1926
Ibid.. pp. £91,892
Holtaea, Oliver Wendell 3r., lisle XSGBSJC# P* 6»
1891
worse, John T., The Life M
Loiters o£ Oliver
Wendell Holtaea. Bo aton audHe e x orlt•, Hou/hton,
tfifriln end Company, p. 227, 1897
"The Autobiographical Notea," In Korae, J . L*
Vol. 1, pp. 38*51
Holtaea, Oliver Wendell Sr., The Autocrat £t ^he
Breakfast Table. Boston and He* York, Houston,
sTlffllri and Sonpany, p. 3 n ., 1893
Morton, O. S, letter® of iagSB ^ a a a U l8**U
New York, Harper and Brothers Publisher, 11, pp.
£93*893, 1894
Hopop, Jobn T., }&£& gQd l y m s o Si £ U U C ISCSSU
P* 204
..
j ®42**
“ “
v<>i- “ -1*
Ibid..
X&£
guide. v o l. 5, p. 776. f.’uy, 1905
Brooks, van wyek, J&t; FJUwgfl»« of Hew n^land,
B. p. Dutton and Cot? pp. $4}-4 .Ta'IKT
V"t®
™ t yer’ Saw fork, Hareourt,
m t e
pcae
12 Whitman.
Braee
a
i Com*
and
peny/pTtoi, 1932.
Hyaenla. vol. 6, p. 308, 1926
Reworks. Bade Before the Bedloal Society of Johns
Hopkins University, Ootobor 1 5 , 1694, quotod fay
Boras & p. 186
»orse, John
Holtaea. 1 p. 147
4BflJdttSiri &£ fflHMT HBflttt.
|g» Morth American jgHlSS* vol. 47, pp. 160-77
Uorse, John T.. i|£ft £gd fcgitore o£ Cllvgr IfpfsU
Holmes 1, p. Ip4
tbs Reader. vol. 5 , f>. 780 isay, 1900
Morse, John T., U f « SB* m \ « B » o£ 0,1,1yer «gsga*i
Holmoa 1. p. 183
Ibid.. p.
298
Ootrne, slillamj A MSStSSJL °L sm£.Zl°m
Haw York. Oxford unlvoralty Proas, American branch,
p. 269. 1921
Holmes, Oliver sonde11 Or., The Professor at the
Breakfast Table, p., 4, 1906
Ibid.. p. 100-1
Holmes, Oliver Wendell sr., SSSPj>g$S. £ga£i£§i £ S T M »
Boston ana Ken York, Houghton, U iffXln end Composty *
p* .8®^ 1908
f e i i j b? t t>it * i¥ F & *** ^ * tJgr” ~ &&£££. a fn a tja
$SSg^, p. 147
-851
33.
Oliver wand* 11 Sr., Radical Essaya.
Boston and New xork, Houghton, Mifflin, and
Company, p. 110, 1911
34.
The Header Magaaln*. May, 1905, Vol. 5, p. 778
35.
John T. iltife and Le|t.g.rg q L 011ve£ Wefidall Holmes. 1, p. 80
36*.
Dictionary of American Biography, vol. 9, p.
534.,; 1938
37.
Jackson, Honorable Charles, A Treatise on the
■Etfafljtoui
aa».Hai- in m&X IcUon. —
36.
Bylngten, Kara H*, The Eunltan As a Colonist and
He former». Bo ston * Little, Brown, anaCompeny,
p. 310, 1899
39.
The Hew En«landor. Vol. 9, p. 533
40.
IMft*. p. 535
41a.
Holmee* Oliver Wendell; Speeches, p, 19-20
*W».
Bent, Silas, festloe Oliver Wendell, ggljSga.
Hew Xork, Garden City Publishing Company, Inc.
p. 25. 1932
48*
Ibid.. p, 8 6
CHAPTER II
43.
The Hew Republlo. vol. 49, p. 59, December 6 , 1926
44.
The Hew Horte lyaes. March 10, Part XV, p. 10, 1935
45.
£2te fiSS
46.
Bent, Silas —
47.
The Hew Republic. vol. 49, p. 61, Deoember 8 , 1926
#8*
Bent, Sllooj Justloe Oliver mnde.ll Aplme^ p. 44
vol. 49, p. 59, Deoember 8 , 1926
&jg&l£2.
8USSS.
BSM£i- P* 47
•a58
49.
Baerson, t . w. The ^arlv Years of jy » SfilMBftMr.
Kwoina Club. lo55 - 1870, Boston and H w x o r k #
Rougliton, Mifflin, and Company p. 21
50*
Brooks* Van wyok, Tbs Flo*erln>- of Wow England
P* 175
51*
£ U & * § p « 160
oai Soaiety voX* 5$ P* 52
53*
Bent, Silas| £wjMSt. 21I2SE SMflMU i&Jafi&t P*
54.
|ga Atlantlo Monthly. Vol. 156, p. 293, aepfceeber
55.
!&& KMmgf} at
56.
Bent, Silas, flaaUSS SUZSZ. H B W M SSMiSfi# P*
57.
Ibid.. p. 3?
®8
jMJ* mi tod by his son,
Htnfy J a » 9 0 t B o s to n , The A t la n t i c M onthly P ress*
pp* 124-125
56
56• ssffi.nsgfcamiee mbs,*
59*
Ibid*
60.
Ibid** p. 281
61*
Holmes* O liv e r w ersdell* The Common hew* B oston*
L i t t l e * Brown, end Company* p * 3o
62*
The Cathollo world* vol. 145 p* 609* A ugust 1937
63*
Shaoklston. Robert, £h£ Hook of fiMMPa P* 4
Philadelphia, The Penn Publishins Company p. 54,1916
64.
SS£ Motion, vol. 140, p.
65*
Bent, Silas, Jnatlee Oliver Wendell fe.fcr»e_aA p. 45
323
March
20,
1935
•25366*
67*
Charles F., Three Episodes of Massachusetts
History, vol. 2,p. 949
Comrooneehlth History of iaasaohusetta. -sdlted by
Albert B* Hart,, vol. v, p. 429
Adana,
60.
Ibid.. v. 2, p. 75
6*•
70*
lltitiUe vol. 5, P. 546
Ibid.. p. 71
71.
72*
Ibid., p. 553
M»oegehua»tta general Court* Commiaslon ofEconomy
frFloiinby^
nation andAdministration of
Executive Branch of the state Government* 194
pp* 14-30
—? 54“$.
CHAPTER III
73.
Leary, Daniel B* M o d e m Peychology. Ho ratal and
^feBgaai. p-
47
74.
Woodworth, Robert S., Psychology p. 101
75.
Hinkle, Beatrloe, The Rooreatlng of the Individual
Hew York, Haroourt,Braoe, and company p. 434,
1993
76*
Ibid.. p* 339
77*
||te|a|9Msiasa awarterly. vol. 6. pp. 4-5
78a.
The^Atlantla Monthly. vol. 162, p. 488, October
70*
Cardoso, Benjamin; ffhe Nature o£ Judicial Process
p. 163
79.
.
80
■fffrrft/Stlan. Century vol# 52, p* 324, March 13
81.
££s. & s mateas -aMiEttEto vS1* 6* p p * 11*12
Holmes, Oliver Wendell; Speeches* Boston, Little,
Brown, and Company p# 11
82.
^he^Ohr 1stlan Century, vol« 52, p* 324, March 13»
83.
Holmes, Oliver Wendell; Speeches, p. 62*63
34.
85*
86.
V* Flsner; 245 u.
8
. 418, 425 (1013)
Holmes, Oliver Wendell; Speeches. p*
Holmes, Oliver Wendell; Speeches, pp.17, 18, 4
Holm.0 , Olly.r Wondollj SaU.agtfid
p* lol, p. 132
8788
.
Holmes, Oliver Wendell; Speeches, p. 20
jjBld&M- P* 1,2#
J&sarit
*855**
89*
Loohner vs. Hew York, 198 U. 8. 45, -74-75
90.
The How Republic. vol. 49. p. 6?, December 8, 1926
91.
Holmes, Oliver Send* 11; Speeoher,
98*
jSkiSU,*' 9*- 39
93*
W & k *
94.
Holmes, Oliver Wendell; Collected Legal Papers,
95.
i M O . . p. 39
96.
Bailee. Oliver Wendell; 8aeeefaee^p.ol7i
97.
Holmes, Oliver Wendell; .CollePtsd Legal ?JiSfS&
p.,
33
(1905)
73
■
—
— ... ...........
p*. 126
98.
Ibid.. 131
99.
Ibid.. 234
100.
Holmes, Oliver
Wendell;Speeches p . 82
101.
Holmes, Oliver
P.. 291
Wendell; Celleoted Legal Papers
100.
Holmes, Oliver Wendell; Coeeohea . p. 7
103.
The Wee York Times. Part IX, p. 3, January 17* 1932
104.
Holmes, Oliver Wendell, Speeches p. 64
105.
Ibid.. p. 71-72
106.
Ibid.. p. 70
107*
Ibid.. p. 17
100.
Holmes, Oliver
wendell; Collected Legal Papers p. 31
109.
Holmes, Oliver
Wendell; Speeches; p. 4-5
110.
I&2&.* p. 47
-256W *
!££&&»
P« 69
118.
Ml*,
p. 63-64
116•
Ibid..
p. 20
114.
Ibid,,
p. 64
A
115*
M*4*P#.®f William James, edited by Henry James
p. 108 '
116,
Holmes, Oliver Wendell; Speeches, p. 63
lit.
sent, Silas; Justice Oliver leadeli Holmes
116.
Ibid..
119*
SKBSfflSS*
p.
p.
303
197
v°l*
6 # P* 302, J u n e 1928
amwtm tv
Olivas* Wendelli Colleoted Legal Paper®, p*
120*
Holm**,
121m
sicAuliffe vse New Bedford 155# lE&esachueeit** p*220
122*
Patterson vs. Colorado 205 &* 3* 461
123#
&&&**
124*
Cofsisoiiwealth vs*
125*
Plant vs* Wooed, 176 tfe&»aQhasett« 492
126.
Fox vs# Washington, 236 U# S* 277
127*
Xtftd*n
123*
Moyer vs# Peabody 2 1 .., u. 3. 0 5
129.
Riohardaen, J. D., ed., A Compilation
130.
Seheaok vs, United States, 249, u. s. 58
131.
Fretmerk vs. united states, 204, u . s . 208
132.
Ibid.. p. 209
u* s*, 463
■tavi* 162, Massachusetts p* 511
£t
Uffl.
MmtfHMii am £s2SE£ a1 3mt EPttSttS» ** »• 23
306
*857133.
m
134.
oebe vs. unitedStates,
133*
loehner vs. Hew York, 1 9 6 , u. 3. 76
136*
Noble vs. state Sank, 819, U. 3. 104
137*
Frobeerfc vs. ualdman, I6 3 U. s. 875
138*
Abram va. United states, 250 U. &• 687
«»*
Im
140.
Ibid.. p. 68 3
1*1*
*3*16—
148 .
Milwaukee Publishing Company va. Burlenon, 255 U.3. 407
143.
Leaoh va. carllie, 138 u. 3. p. 141
144.
(511low vs* New York, 868 U. 3. 673
145*
Silver Throne Lumber Co. vs. United States, 251, U>S. 385
146.
14?.
148.
aia BesikUa. »®y
i x *
i©37,
p.
13
849u.S. 211
P. 62 1
P» 628
Olnstead vs. United States, 277 U • 3. 470
Ibid..
Nerslone vs. United States (Supreme Court Reports
vol. 6 0 , no. 4, p. 86 8
140.
More,vs. Dempsey, 261 U. S. 91
150.
Roalka Sohwlmmer case
151.
The flew York Tinea. Bay 10, 1936, Part Tv, p. 9
152.
Bartels vs. State of Iowa, 268 U . S . 404
133.
64 Congress senate report, p. @98
154.
Matters of Morgan, 20 3 li. 3. 103
135.
m & f
156.
P* 104
-2C)8<*
197«
158.
Hughes vs. Oault 871 U. S. 149
Ibid.
159.
Ibid.
180.
United States vs. Sullivan 274 U.S. 263
*«*• I2&U
162.
Horning vs. Dlstrlot ofColumbia,£34 u. s. 139
163*
164.
Hyde vs. United States, 225 U. S*389
Ibid.. 0.390
1 6 5 Ibid.. p. 391
UK. United States vs. storrs et al. £72, u. S. 654
167.
168.
Holt vs. United states, 218, 0. S. 24E5
Johnson vs. United States, £28 U . S . 658
169.
Helke vs. Unite States, £27 U. s. 142
171*
178.
173.
143
Hatter of Harris 221 u. s. 279
Hester vs. United States £65 0. S.
Biddle vs. Perowiolt,276 u. s. 486
174.
m & t *
vro?
m & a *
V
59
487
CHAPTER V
175*
176.
177.
178.
Holmes, Oliver Wendelli Colleeted Legal Papers.p. 293
ybld.
Illinois Lav Review, vol. lO,'p . 2, 1915
Heines, Oliver wendellj Colleotsd Legal capers,
179.
Ibid.
180.
181.
Ife&a* P« 882
Ibid. p. 120
p.
280
*259*
*®2 *
183 *
m&ii
Bewail. and Day va# Boston, 147 Massachusetts, p. 64
184#
Middlesex Countjsgpa# Me Cue, 149» Masaa pp# 104*105
185#
Cfaelaea Dye House Company vs* Commonwealth,
186#
Bant vs* Emory, 173 Massafchusetts 496
187#
Lincoln vs* Street Commissioners, 176 Mass* p* 213
188#
Rideout vs# Knox 148, Massachusetts 373
189*
Traux vs# Corrigan, 257* U# 8# 343
190*
164,353
Carroll vs* Greenwich Insurance Company, 199 U* 3*410
191*
Ibid#* p* 411
192*
Maxwell vs* Bugbee, 250 U* 3. 531
193*
m*#,
194.
IJjld.
195*
Sohle&inger vs* Wi soon sin, 270 U* S# 241
196*
The Federalist no* 10 (Besquicentennial ed* Washington )
1937 p# 56
197#
American Lae Review vol# 7# p# 583
19@*
Muhlker vs* Hew York and Barite R* R* 197 0* 3# 544
199*
Springer vs* Government of Philippines Island, 277*
U, S* 189
200*
Mew State Ice Company vs* Liebmann, 285 U. S*
201,
Mt* Vernon Cotton Company vs. Alabama Power Cosipany,
3840, U. S. 32
202#
Hudson Water Company vs* MeCarter, 209 0* S*
p*
544
356 *7
203*^ Striekley vs* Highland Bay Mining Company, £00, 0*S* 531
204#
Cassidy vs* Old Colony Railroad, 141 Massachusett s 177
205*
Me 0* Govern vs. Hew York 229, U*
8 * 370
•£60»
0HAWW* VX
206.
Annual Addreea,
207.
KoIm*, Olvler tundtllt Collected Loral
p. 825
.
J & r Aeaog|t»tign. Chatt-
206
Jeffersons Works (Wuahln.jton Edltton> VIX !'-. 15
209.
Holmes, Oliver Wendell | Collected Legal Papers
p. 184
(.
2 0
fold. p.. 2 2 5
.
211
222
.
• 1.^ p * 3$
Louisville irs* B&f%er Asphalt Co.* 197 u*$* 434
213*
P & 3fcat,ur^ay geyle* 8l Literature. vol. 6, p. 562,
Oeaeraber 2 1 , 1929
214.
(feroe Oil Corporation va. City of Hope, 248 U.S.
301
215.
James, williamj & Plurallatlo Un&veraal, p. 96
216
.
Vegelabn va. Ountner, 167 Maoaaohu«etta, 108
817.
Ibid.. p. 107
210*
Holmes, Oliver. Wendell t .Collected Jsfifili. ggBgTff*
p. 164
819*
Vegelahn va. Ountner, 167 Massachusetts, 108
220*
Ibid.. 107*8
221
Continental wall $>apmr Company v©* Lawl® volght
and Son® Oompnay 212 U* s* 227
.
228.
2* 271
823.
AM-Floasi Column Company va* United state a> 257 U*S*
412
824.
HoliMia# Oliver Wanda11j 3iaaaehea« p* 58
-»2SX-»
825*
■implex ■Company vs* Peering 254 u* 8 * 488
226.
-mot- V « V
227*
X76Mass* 505,
223 *
176 Maao* 492
220,
176 Maas* p* gGg
230.
May vs* wood, 172 Mass* 11
231.
172
232 ,.,
Moran va* Duxiphy ITT Maas*„ 485
,233*
Northern Securlty Cases,
234.
Vegelahn va* Guniner 167* Maas* 106
235.
167 Massachusetts 106
23#*
United States Steel Combine
,®?7.
Loohner va.New York, 198 U* S* 75
238*
198
23 $*
Holmes* Oliver Wendelli pollect©d Le.^al paper©
p*, 184
240*
241 #
m & M p* w
Ifctd*. p* 2 5 9
242 «
More head vs. New York* 298 U* 8* 507
243*
Holden vs. Hardy, 169 U# 3* #66
244*
Muller vs* Oregon 80® U* 8* 418
245*
Holmes. Oliver Wendells Go12® cted Xe^al papers
p* 310
248 *
A&Mihs vs* Children*© Hospital 261 U* S#
247*
248*
Wood, 176 Mass*
505
Mass* 15
193
u* S. 197
U • S* p.*, 76
■'Quong 'Wing vs* Kirken&all, 223 u * 3*
568
63
Dominion Hotel vs* Arizona, 249, U* 3. 267
—2<5®—
249.
249, u. S. 267
250*
,'dalr va. United States 208, u. 3. 161
251.
208 U. 3. 161
252.
Coppuge va. ^ansaa, 236 U. 3. £6*27
253.
Missouri, Kansas and Texas R y . Oo. vs. Say
194 U. S. 267
254.
Rippay va. Texas, 193 u . s. 509
255.
193 U. 3. 509-510
256.
Hebe Go. vs. Shaw 248 U. 3. 303
257.
248 0 . 8 . 303
258.
Blodgett vs. Holden, 275 U. 3. 142
259.
275. 0. S. 148
260.
Arlaona Ooppor Co. vs. Hammer, 250 U. 3. 432-433
261.
Holmes, Oliver Wendell; Collected Legal Papers
p. 246
-SB,.PT1BR tf l
262
263.
263.
aoKeohnie .rwilliam at a MaayObaffta , aiasgo* .
J. Maolehbse and s o n s , p. 3 7 5 , 1903
264.
O u t.brie, 'Mama C arta and o th e r Sddreajteg. N*w Y ork,
Columbia
Dartmouth C o lle g e v s . woodward
265.
Colum bia v s . O kley 4 w h e a t. 235
266.
S la u g h te r House C ases 16 sai. u. s. 36
267«
A llg e g e r v s . L o u is ia n a
268.
H olm es, O liv e r W en d ell, S oeeoh ea
269*
Loohner v s . New Y ork , 19-8 u . S . 7 5
270.
B lln n v s . N elso n 222 U . 3. 1
271.
N o b le S t a t e Bank v s . fta sk e l 2 9 1 U.
s . 1 0 4 -1 1 8
®72*
Otl® Co# ve* Ludlow Company 201, 0# 3# 140, 154
273*
fateene va# Penneylv&nla, 232 u# S* 138, 144
274*
Interstate By* Co* va* M&aa&ahuseti®, 207 U* w* 79,87
275#
Oe la Bama vo* 0« U
27®*
United State® va# Ju Joy 198 u* 3# 253
277*
ftmiin ve# Georgia 201, U* 3* 638 , 640
»?8 *
IfeM** p* 639
279*
Chin tom v®• United State® 208
280.
XSM#, p# 12
281*
282*
Ba»a 241 u* 3* 154, 159
International harveeter Co* va* Kentucky 234 0*3# 216
lbId#* 223
a83. jjSECKft las a s a c vol‘. *3, p. 764
28*.
285
.
Munn va. Illinois, 804 U . S . 311 , 318
wolf Packing Co. v«. Court of Industrial Relation*
262 u. a. 5 2 8 , 534
286.
Baoon va. v.«iker, 204 u. a. 311, 318
287*
Holmes, Oliver Wendell} Colleotod Legal Papers
p. 126-27
288.
Interstate Hallway Company va. ^asea'husettn,
207 U. S. 79
289*
IMd..
p. 86
290.
291*
m & f
Ibid..
P« ®?
p. 87,88
292 .
Noble State Bank vs. Haskell 219 u. s. 104, 110
293.
ISISa # H I
294
.
295.
*M<SU. 112
-264**
@96*
Assart. State Bank va. Doley, 219 U. S. 112, 127
297*
Engel va. O'Riley 219 U. S. 128, 136
293.
Otis va. Parker 187, 606, 608
299.
Abilene National Bank vs. Dolley 228 U. 2. 1
300.
Ibid., 4
301.
Martin vs. District of Columbia, 205 U. 0. 135
302 .
Louisville and Nashville Ry. Co. vs. Barber Asphalt Co
303.
Willoughby vs. City of Chicago, 235 B» 3. h45» 49
304*
O'Neil va. North Colorado Irrigation Company
242 U. S. 20, 26
305.
Bllnn vs. Nelson 222 u. 3. 1, 7
306.
Fire Insurance Co. vs. Cold Issue Mining Co. 243
u. S. 93, 95
307.
Brooks Scanlon Go* vs* RiR* Commissioner 251
u* s* 369, 411
^
308.
Erie H* ft* Co* vs* Public Utility Commissioner 254
U. 3* 3941 411
309.
Prenits VS. Atlantic Coast Lin®, 211 U* 3* 21®f 224
319*
Ibid., p* 22?
3U.
northern ’
faetf&e Ry* vs. Korth Dakota, 216, u*S*
579» 5B0
312.
Prentls vs* Atlantic Coast line 211 u. 3* 210, 231
313.
western Union Telegraph Co. vs. Richmond
314.
Block vs* Hirsh 256 U. S. 135, 155
315.
Ibid*, p* 157
316.
Ibid.. p. 156
317.
Ibid,. p. 155
-265318*
Mareus Brown Company va* Sinclair 264 u* S* 543$547
319*
Noble State Bank vs* Haekel, 219 U * S. 104, 111
320*
Chaatleton Corp. va. Sinclair 264 U. S. 543, 547
3*i-
m
322*
Missouri, Kansas and Texas Ry.Oo. vs. May 194 U*
267, 269
323.
Ibid*
32&*
Standard Oil va* Temease© 217 U*
325-
Ibid*, p. 421
326*
Ibid*, p* 420
327*
Dominion Hotel vs* Arlsona 249
328.
Ibid*, p* 269
>»
8.
S.
413
U* 3. 265, 268
CHAFTEH VIII
329*
Pensacola Telegraph Go# vs. Western Union Telegraph
96 U* 3* 1, 9
330*
Holraes, Oliver Wendell, Collected Legal Papers.295-96
331#
Swift va. united States 196 U.
S# 375, 398
332*
Adair va. United State® 208 U*
S. 161, 191(Dissent)
333*
Copper vs. Kansas, 236 U*
334*
Traux vs* Corrigan, 257 U. S. 312
335*
Hammer va* Dagenhart 247 U*
336.
Champion vs. Ames, 188 U* 3* 321
337*
^ipollte Egg Co* vs* United States, 220 U* S* 45
3?8#
Hoke va. United^States,
339*
Hammer vs. Dagenhart 247 U* S.2 5 1 ,
8*
1 (Dissent)
8.
227,
251
u. 3* 308
276
**866«*
340*
noble state Bank vs* Haskell# 219 U# 8* 104
341.
the Commodity Cmnm 213 tf» S* 366
342*
Tli© Pip© Line Oases# 234 u* S* 561
343*
Diamond Glue Co* vs* Uni tad 3lata a Glue Co* 187 u* «*•
611# 616
344*
Galveston Glue Co* vs* Texas 210 U* 8* 225
349*
Knicker Booker loa Co* vs* Stewart# 293 u# S* 149# 169
346*
Diamond Glue Co. vs* United State® Clue Co* 187# U*S*
611# 615
347*
Kansas Bout h a m By* vs. Kansas Valley District#
233 U* S* 75# 79
348*
Com on wealth of Pennsylvania vs* Th© State of
Virginia 262 u. S. 553# 602 (Dissent)
f
ast
349*
Engel vs* Q'malley* 219 U* 3* 128# 138
350*
Power Co* vs* Saunders# 274 u* 8* 490#
497 (Dissent)
351*
western Union Telegraph Co* vs* ftansas
216 u.s*
352.
northern Pacific ft* ft# vs* Worth uakota# 579
355*
Engel vs. oHsallpy# 219 u. e* 128#
354*
Tbld*. 411
356*
naehvllle By* vs* white 278 u* 3 *
357*
IMd*
*
35®*
138
Erie ft* ft* Co* vs* Public Utility Commission 254 U« S*
394# 410
355*
:
h-
153
456
OHAPTEft XX
Holmes* Oliver WendellsaBtieSSSfi Mffil £HE£®* P* 2*72-3
359*
Hash vs* United States* 229 U* 8* 373# 377
360*
international Harvester Co# vs* Kentucky* 234 0* 3*
216* 823
361#
American Banana Co, vs* United States Fruit Co*
213 0* S. 347, 336
362.
Holmes* Oliver Wendell; Collected Legal Papers
pp. 27-28
363.
Holmes, Oliver Wendell,the Common Lae
364.
Holmes, Oliver Wendell; Collected Legal Papers
pp. 194-93
363*
Holmes, Oliver
366.
Holmes, Oliver Wendell; Collected Legal Papers p* 49
367.
67*68
Ibid.,:, p. 5«, 59, 87, 89, 93
3®8.
Ibid... 167
369.
Ibid.. p. 239
370.
Ibid.
371*
Wendell;Speeches, p*
p* 1
American Lae Review vol. 3* P* 1
372*
Holmes, Oliver
Wendell; CollectedEeg^alCrapera
373*
Holmes, Oliver
Wendell; Speeches p. 17
374.
200
Ibid.. p. 22,23
375*
Xfea M E Hepubllo. vol. 82, P.
376*
Holmes, Oliver Wendell; Collected LegalPapers p» 169
377.
IMli, 171
378.
Otis V. Parker, 187 U. 3. 607, 608
379.
Holmes, Oliver Wendell; Collected LegalPapers, p. 310
380.
Ibid.. 313
381.
dray, John C.tThe Mature and 3ouroe of ^aw
New York, The Macmillan Company, 2nd“ed« p.
382#
Holmes, Oliver
9&3*
ZJ3M&. 180
384.
Ibid., 225
29 B,
April 3, 1935
77
(1921)
Aendell; Collected Legal Papers p. 195
*
268-
CHAPTER X
385,
Gompers vs. United States 233 U, S. 604, 610
Illinois LAW Review
vol.*
10
p, 3
387*
Pound, Kosco©; The Spirit of the Common Law* Boson
M arshall Jon© s Company, p*^05Tl925)
388*
Otis vs. Parker, 187 U. S*
389%
Missouri, Texas and Kansas Ry. vs. May 194 u* 3*
267, 220
390*
Employer Liability Cases 207 U. 3.463
3#1*
Knickerbocker Ic© Co. vs* Stewart 253 U. S* 149, 109
(Dissent)
392*
Loehner vs. New York, 198 u, S, 45, 75
393*
Holmes, Oliver Wendell; Collooted Legal Papers
394.'
Noble State Bank vs. »Haskell 219 U. «*S* 104
395*
Loehner vs, New York 198 U, S* 45
396.
Adair vs, United States, 208 U, S* 161
397.
Blodgett vs,
Holden, 275 U, 8,
142, 147, 48
398.
Missouri
Holland 252 U. 3,
410, 433
399*
Commonwealth vs* Perry 155 Massachusetts 117
400,
Ibid ** p. 125
401,
Bent, Silas; Oliver Wendell Holmes
vb
,
608r609
P3[?
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