Human Being

MR. JUSTICE HOLMES--Francis Biddle --Scribner ($2.50).

One day in 1911 Mr. Justice Holmes of the U.S. Supreme Court welcomed a new secretary just out of Harvard Law School. "My son," said Holmes, "my philosophy is divided into two parts, each equally important: the first--keep your bowels open; and the second--well, the second is somewhat more complex and a part of your duties is to hear it during the next nine months."

The secretary so humanly addressed was young Francis Biddle of the Philadelphia Biddies, now U.S. Attorney General. He has made an offering in the form of a biography to the memory of the man he thinks may come to rank with Washington, Franklin, Jefferson, Lincoln. Biddle's vivid sketching reinforces a central impression of Holmes also to be had from the monumental Holmes-Pollock Letters (TIME, April 14, 1941)--that this giant of U.S. law will ultimately be valued as a phenomenally warm, wise, skeptical, humble human being.

The man who went to dinner with Emerson, Lowell, Dana and others at the Saturday Club in Boston sat down one evening with a new novel The Sun Also Rises, by a new author, Ernest Hemingway. Wrote he to the friend who had sent the book, Owen Wister:

"It is singular. An account of eating and drinking with a lot of fornication accompanied by conversations on the lowest level, with some slight intelligence but no ideas, and nothing else--and yet it seems a slice of life, and you are not bored with details of an ordinary day. It reminds me of a reflection that I often make on how large a part of the time and thoughts of even the best of us are taken up by animal wants. ... But then this lad could write this book, which must be a work of art. It can't be accident and naivete. So let him survive. ..."

To a nation at war, Holmes has eloquent things to say. He was no stranger to war. Walking down Boston's staid Beacon Street one afternoon in 1861, with his eyes glued to the pages of Hobbes's Leviathan which he had just borrowed from the Athenaeum, he felt a touch on his shoulder. "Holmes," a friend said, "you've got your first lieutenant's commission in the Twentieth." Holmes returned the copy of Leviathan, went off to war and a wound in the throat at Antietam. "As he grew older," writes Biddle, "the thought of war came to mean ... a selfless surrender of individual comfort and ambition to some mystic faith that drew brave men together." Said Holmes in a Memorial Day address:

"In this snug, over-safe corner of the world we need it [war], that we may realize that our comfortable routine is no eternal necessity of things, but merely a little space of calm in the midst of the tempestuous untamed streaming of the world. . . . High and dangerous action teaches us to believe as right beyond dispute things for which our doubting minds are slow to find words of proof. Out of heroism grows faith in the worth of heroism."

Home from the war, Holmes went to spend an evening with Emerson. The young soldier still had a trace of the old longing to be a philosopher. "It had burned in his mind as an undergraduate, and he felt himself seduced again by the wonderful talk. But when at the end he closed the door he knew that ... he wanted to put his teeth into something hard and exact; to work like anyone else for a living. Law might be worthy of the interest of an intelligent man, for one could look out of the window of law when one had the facts, and then begin to speculate on life and destiny."

Maverick Justice. Thenceforward he was to look from one window of the law after the other, finally arriving in 1902 at the high, broad casement of the U.S. Supreme Court. Sixty-one, he counted on about ten more years of active service. Twenty-nine years later he was still on the bench.

Having been a maverick philosopher who strayed into law, Holmes increasingly became a maverick justice who strayed into philosophy. His skepticism ("The skeptic cannot be a pessimist") brought him into conflict with the uncritical optimism of those liberals and progressives who claimed him for their own. Said he: "I believe that the wholesale social regeneration which so many now seem to expect . . . cannot be affected appreciably by tinkering with the institution of property, but only by taking in hand life. . . . The notion that with socialized property we should have women free and a piano for everybody seems to me an empty humbug." He added: "It is a pleasure to see more faith and enthusiasm in the young men, and I thought that one of them made a good answer to some of my skeptical talk when he said, 'You would base legislation upon regrets rather than upon hopes.' "

No System. Holmes never got around to formulating a philosophical system. The current of his thought must be sought in letters, speeches, opinions, and between the lines of his classic volume The Common Law. Biddle suggests "there was but one end, life itself; and life was the getting of all there was out of it, physically, mentally, and in that deeper loneliness of the spirit." "On the whole," Holmes himself wrote, "I am on the side of the unregenerate who affirm the worth of life as an end in itself as against the saints who deny it."

To his end at 93, Holmes preserved the unregenerate spirit he confessed, at 27, to William James: "There are not infrequent times when a bottle of wine, a good dinner, a girl of some trivial sort can fill the hour for me." But that was not the whole of it. On the night of his 70th birthday he picked up his pen: "One learns from time an amiable latitude with regard to beliefs and tastes. Life is painting a picture, not doing a sum. . . . Man is born a predestined idealist, for he is born to act. To act is to affirm the worth of an end, and to persist in affirming the worth of an end is to make an ideal. . . . There rises a mystic spiritual tone that gives meaning to the whole...."

"Justice Holmes's greatest service as a lawyer," wrote Boston Lawyer Arthur D. Hill, "was that he showed to all men that the law need not be a dreary competition of sordid interests and that man may live greatly in the law as well as elsewhere.''.' Future generations of U.S. citizens will probably concur.

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