holmes and occasional speeches and mark dewolfe howe and 1962 and fraternity of arms

Mark DeWolfe Howe performed a valuable service when he edited (in 1962) about 25 of Holmes' speeches delvered over a 50-year span to various audiences. The first is a speech to a group of Harvard alumns when he had not yet been graduated for two decades from that school while the last is a one-paragraph "address to the nation" upon his turning 90 in 1931. In between are a variety of remarks which give us the measure of the man. Of the themes that call for comment are his deep pleasure in human association, his ability to turn a phrase and his humility and gratitude for the gifts others have brought into his life. I am beginning to see the root of Holmes' later popularity in his twofold commitment deeply to develop his own legal skills and express his genuine appreciation for the contributions that others brought to his life.

The Pleasures of Association

There is no message so poignantly personal as his remarks entitled "The Fraternity of Arms," delivered to a meeting of the 20th Regimental Association (his Civil War unit) in December 1897. Earlier in the year he had written his famous law review article "The Path of the Law," had given the Commencement Address at Brown University and had spoken at the memorial service of his mentor in law practice, George Shattuck. We see Holmes in the flower of middle age, with a senior position on the Supreme Judicial Court of MA and seemingly in a good flow of life. Three brief comments are in order.

First is his recognition that the intimate relationships cultivated in war humanize the person.

"We have heard each other cursing as we stumbled through the long night marches--we have worked together in dreadful silence through the summer dust when we could only see the bayonet of the man ahead--we have stood side by side in line--we have charged and swept the enemy--and we have run away like rabbits--all together."

With this reality Holmes recognizes that it is "too late for one of [us] to stand up and make orations to the rest." You can't fool your brother, who knows you through and through. Yet he is honored to speak with them. Rather than war reducing men to bare desperation, a la Thucydides, war teaches that we are common clay who are, nevertheless, very special for that reason.

Second, he interprets the current meaning of the War to the dwindling number of "20th Regimenters," now 35 years after they embarked on their work. Instead of its simply being a lesson in human cruelty or the extreme straits to which we can all be reduced on occasion, the War is now a great teacher. What is its lesson?

"As I look into your eyes I feel as I always do that a great trial in your youth made you different--made all of us different from what we could have been without it. It made us feel the brotherhood of man...And best of all it made us believe in something else besides doing the best for ourselves and getting all the loaves and fishes we could."

Ah, here are two lessons on which we should pause--War as removing parochialism and War as teaching us that life is about something more than material possessions. What is it like to learn in your youth, to really learn, that life is about ideas and human connectedness and not about the longing for possessions and material comfort? If I took a survey of America in 2005, I think I would find that one of the primary drivers of human motivation seems to be to attain or maintain financial "security." What would life be like for us as a nation if a cosmopolitan ideal was paramount in our minds?

And then Holmes concludes with the obverse of his last point. Rather than life's being a search for "loaves and fishes," it is essentially doing one's duty. "Doing one's duty is better than loaves and fishes and..honor is better than a whole skin." When you realize this it "puts a kind of fire into a man's heart." We know his famous line from an 1884 speech, that "in our youth, our hearts were touched with fire," and he returns to that metaphor thirteen years later. The men of 1861 responded to a higher call, the heavenly music of duty that so touched their hearts that it made them forever cognizant of the fact that life does not consist in possessions or even in stories of past heroism but in the honor of doing one's duty and thereby learning the lessons that only War would teach.

Conclusion

It is not too much of a stretch, as biographer Edward White has shown, that Holmes' strong sense of duty and the way that the War taught that lesson, was instrumental in his early understanding of tort law--where he stressed the primacy of duty over "rights" that were vested in a person. In addition, in a point not made by White, his emphasis on honor in 1897 is also reflected in other speeches (such as when he received an honorary doctorate from Yale in 1886--pp. 32-33), where he said, most strikingly, that the honor of the scholarly life is such that "he (the scholar) cannot afford to be rich." Honor and duty, close association and fraternity, the primacy of ideas over material possessions--this is what Holmes' spirit bequeathes to us. Would that we had ears to hear.

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