Oliver Wendell Holmes, Jr., is the subject of the concluding chapter to Edmund Wilson's Patriotic Gore, subtitled Studies in the Literature of the American Civil War. Quick, name a book by Holmes! Well, take your time, as much as you want, actually. If you come up with The Common Law, I'm going to guess that you are a law professor, and if that's wrong my next guess is that you're some other kind of professor. We regulars might recognize snippets of Holmes's writing, but they are not from a book, nor would it be normal to regard them as contributions to American literature. He was a justice on our Supreme Court for three decades, from 1902 until 1932 (the year he turned 92), and his opinions are the source for at least two pretty well known limitations, memorably expressed, on the right to free speech: you can't shout "Fire!" in a crowded theater (unless there really is a fire), and you can't urge people to break the law if there is "a clear and present danger" that you'll succeed. Low level rabble-rousers, carry on! The First Amendment protects you until people stop laughing and begin weighing what you have to say.
Holmes also, in an opinion declining to deem unconstitutional a state statute requiring the sterilization of institutionalized persons, deployed the sentence: "Three generations of imbeciles are enough."
Wilson's choices for his subjects in this supposed study of "Civil War literature" are unusual but his expositions are invariably so absorbing that I anyway am not inclined to complain. I suspect there is a biographical link explaining the selection of Holmes. Wilson was born in 1895 and served in World War I. He did not feel he could participate in the killing, so he volunteered for a medical unit, with the result that he ended up dressing wounds, assisting in the treatment of mustard gas victims, and patrolling the floors of a military hospital to prevent crazed and damaged soldiers from jumping out of windows or otherwise harming themselves further. Up to that point, his biography was mainly prep school and the Ivy League—Princeton, from which he was graduated in 1916. Holmes, born into Boston Brahminhood in 1840, fought in the Civil War. He went in a moral crusader and came out the other side chastened and disillusioned. His letters home, from which Wilson quotes extensively, inform his father that his (Senior's) moral enthusiasm for the war to end slavery and save the Union would be slaughtered by . . . a close-up view of the slaughter, the stupidity of it, the butchery. This roughly speaking matches the Civil War experience of a non-Brahmin, Ambrose Bierce, who also gets a chapter in Patriotic Gore. And it is a match for Wilson's experience in the next big war, known at the time by its defenders as "the war to end all wars." He's interested in people who faced the question of how to live—what to do next—when at around age 22 you come to the conclusion that most of the fine things you've been taught to believe aren't compatible with what you've experienced yourself participating in a war.
When the Civil War was over, Holmes went to Harvard Law School and, after a clerkship, became what Wilson calls a "jobbist." The word isn't in the dictionary but it seems a version of what is called today "career-oriented." He took a job in a small Boston law firm and worked long hours. He married but had no children. In the evenings, he worked at writing his treatise on the common law, which was published in 1881. The next year he became a professor at Harvard Law School and then, in December, when there was a vacancy on the Massachusetts State Supreme Court, he was appointed to fill it. In 1899 he was elevated to Chief Justice of the State Supreme Court. Three years after that, President Roosevelt appointed him to the Supreme Court. According to Wilson, Holmes had some of the unattractive traits that one stereotypically associates with this type of person:
[His] ambition and . . . relentless pursuit of it were dismaying to some of his friends. A man who knew him well, James Bradley Thayer, a partner in the law firm for which Holmes first worked, said of him that, in spite of his "attractive qualities and solid merits," he was "wanting sadly in the noblest region of human character—"selfish, vain, thoughtless of others;" and one of his ex-secretaries, not himself a New Englander, once said to me that Holmes had a streak of "the mean Yankee."
This brief for the prosecution is filled in with the testimony, also quoted by Wilson and tending toward the corroborative, of the James brothers, William and Henry, fellow elites and friends of Holmes—or perhaps one should say acquaintances. It's evident, however, that Wilson finds such a portrait one-sided. He admires Holmes's industry and brisk rationalism, his intellectual skepticism and suspicion of all movements and fashions. In the famously bitter Introduction to Patriotic Gore, Wilson had advanced the thesis that the sea slug, implacably sucking in and devouring everything in its environment, is the perfect emblem of all wars, and that, with respect to our Civil War, the moral crusade against slavery provided a cover for the North's wish to impose its superior power on the South. Now in the last chapter he enlists, somewhat obliquely, a distinguished jurist in support of this view. I think this is probably the way to account for a chapter on Holmes in a study of Civil War literature, to which Holmes did not even try to make a contribution. It also seems to me that Holmes's disenchantment was of a somewhat different flavor than Wilson's: with the former, the empty space formerly occupied by a moral crusade remained empty, whereas Wilson filled it with an alternative history featuring unalloyed savagery. There is though one respect in which Wilson's apparent identification of himself with Holmes seems apt, and this relates to "jobbist" not necessarily being a pejorative. A man has to fill the emptiness with something. Wilson suggests that the dogged industry that looked to some like distasteful careerism might have been something more like a defense mechanism: while some disillusioned soldiers give in to despair, Holmes, determined to make his contribution, immersed himself in work. There does not appear to have been much or any pecuniary basis for Holmes's industry, although there was plenty of that going on during the unusually protracted period of his active adulthood. Wilson ends his chapter (and the book) by noting that Holmes, who had no children and survived his wife, bequeathed the largest share of a modest estate to the government of the United States.
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