Evening Star Newspaper, January 5, 1930, Page 81

Fictionfi ;[’:\RT SEVEN. - The Swnthyg Star Magasine WASHINGTON, D. C, SUNDAY, JANUARY 5, 1930. Features - 24 PAGES. GRAND OLD MAN of the LAW That Is Oliver Wendell Holmes, Justice of the Supreme Court, Who Will Soon Observe His Eig'/zty-Ninth' Birthday Anniversary—OId in Years and Accomplishments, He Still Glows With the Energy of Youth, Both in Body and in the Quick Humor and Deep Reasoning of His Mind. HEN the man who for half a century has ®een the most dis- tinguished figure in - the intellectual life of our country was a youth in Cam- bridge, he wrote an essay on Plato which he showed to Emerson. . Emerson read it through and banded it back to the young man. Then the great philosopher said to him: - “When you shoot at a king you sust kill!” It is subject to the memory of this utterance that I undertake a paper, necessarily. brief and all too inade- quate, upon the personality of Mr, Justice Holmes. Singly among living he is prophet, priest and king—prophet in mantic sentences; priest in skeptical philosophy; king in the pride of in- tellect. Adopted for their own as all three by hundreds of young men who adore him, would fellow him if they had his wit to do it with, likewise adopted by other thousands who call themselves “liberals,” Justice Holmes in recent years has been in some danger of being drowned in his own Treputation. ° In the interests of history it is well to state the fact that Olympian though he is, he belongs to the hu- man race. Or, rather, he belongs to the hu- man race as one might dream it could be—creatures vital, courageous, proud, grandly humorcus and de- bonair. : If he is the professing “Liberals’” prophet, priest and king, he is often sometimes their despair. - Nothing could be more different from asses’ milk-cum-water than the Gargan- tuan hauteur of Holmes, or the Ra- belaisian humor of Holmes, or his uncompromising realism. A study of his dissenting opinions gives ample warrant for these as- sertions. PPORTUNELY, at this moment, a collection of those opinions has been published, under the edi- torship of Alfred Lief, and I com- mend the volume to all lovers of good reading. Very largely from -thcm (bracket- ing his name with that of “my brother Brandeis,” as in them he al- most always affectionately refers to his old friend and fellow justice) is Justice Holmes’ reputation as a “liberal” acquired. - Yet they seem to me clearly to show the conclusions of a mind en- tirely free of preconceptions derived from current social discussions, ut- terly unhampered by the meticulous study of current economic and social data. His seem to me to be concepts purely legal in their terms, operating from a mentality purely classically philosophical. Holmes is never obsessed by to- & day's “facts.” He knows that the world has existed for a very long | PREENEN " . A S o 4 b e time and he is familiar with much . <t R ’ that Las been thought by that world 5 in whose parabola this time in which he lives is but a dot. Made proud by that consciousness, rather than enhumbled, he surveys the whole, and by a sort of intel- lectual hauteur arrives at mercy. ‘Take, for example, one of those opinions by which he endeared himself to “liberal” opinion for his advocacy of “free speech.” Certain “defendant alien anarchists” had distributed “red leaflets” and four men and a girl were sent to prison for it. Mr. Holmes referred to the leaflets as “tall talk.” Together with the opinions of Mr. Justice Brandeis, they give eternal witness to the Anglo-Saxon tradition of freedom of speech, of freedom of thought. “When men have sealized,” he says, “that time has upset many fighting faiths they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good de- sired is better reached by free trade in ideas— that the best test of truth is the power of thought to get itself accepted in the competi. tion of the market and that truth is the only ground upon which their wishes safely can be carried out.”—(250 U. 8. 617.) “Even if I am technically wrong,” he re- Oliver Wendell Holmes, justice of the Supreme Court. By Anne Hard. marked, “and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper . . . the most nom- inal punishment seems to me that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indict- ment alleges, but for the creed that they avow —a creed that I believe to be the creed of ig- norance and immaturity when honestly held « + « but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the court.”—(250 U. S. 620.) Not “class-conscious heroes” in a “world revolution” these, but “poor and puny anony- mities!” “The laws.” he says on another occasion, “know nothing but legal rights.”—(246 U. 8. 178, 195.) Again he says: “There is nothing I more deprecate than the use of the fourteenth amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an im- portant part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose Judgment I most respect.”—(257 U. 8. 312, 343.) Many other passages might be adduced in the. same direction. Looking at such dissents as the wire-tapping case or the Rosika Schwimmer case or the Frank case people are likely to forget that Mr. Justice Holmes not only, earlier, handed down the majority opinion in many cases involving so-called “social rights,” but that he also more recently gave the same majority opinion in the Debs case, the “Missouri Staats Zeitung” case and the Schenck case under the espionage act. Hoimes is not a crusader. He is not hothered by the fact that some people have much and others have little. It is when some actual fact of legally removable oppression of the weak by the strong arises that he is angry. When it sc arises he observes it solely in the light of the Constitution and the law. _ “. . . If there is any principle of the Constitution,” he says, in course of his dissent in the Schwimmer case, “that more imperatively calls for attachment than any other it is the principle of free thought—not free for those who agree with us, but freedom for the thought that we hate.” (279 U. 8. 647.) I should like to continue to ana- lyze his dissents in this way to prove my point. But I will, instead, re- count some remarks of his which are told of him in Washington, Listening to some of his young admirers who had been discussing their theories of social justice in his presence, he said: “You young men seem to think that if you sit on the world long enough you will hatch something out. But you're wrong!” | Then there is the tale of an oc- casion when certain ladies called upon him to engage his interest in some reform they were passionate about. He listened to them with that alively ardent look which charms every one who sees him, and they were charmed. He was impressed, they thought. He was theirs, they thought. : When they left he is said to have followed them to the door and, smil- ing after them as they went down his front steps, he called out: “But remember, ladies, there ain't no onward and upward!” Your average “liberal” would as soon deny his own thought as to ad- mit the incompetence of the ma- jority. Not so Holmes. Driving through Potomac Park one day, he said: “Just look at all these people come to see the cherry blossoms! Why do they come? Is it because they really like them? Or is it because they think it's the thing to do?” Nor is his view on war like theirs. The moment was upon us wherein every one knew we must enter the World War, Some of those young thinkers who were afterward to cre- ate, in Washington, that residential club known as ‘“The House of Truth” used to gather about Mr. Holmes seeking—and seeking in vain—some consolation from him upon the sub- ject of war, One of these (now well known) high thinkers looked at him solemne ly and said: “But it just can’t happen!” “Young feller,” said Mr. Holmes with his characteristic drawl, “young men in college know only what has happened-during four years. ‘It can't happen,’ they say, because they have never seen it happen. I have lived through four wars and I will live through- another if I live long enough.” A decade later he was to remark from the bench: “I do not share that optimism nor do I think that a philosophical view of the world would regard war as absurd.” (279 U. S. 645.) Now I am not trying to prove that Mr. Justice Holmes is not a “Iiberal.” I only deprecate the ef- fort of those who try to prove that he is. Nor is he reactionary, radical, Tory nor anything else to be described in political terms. You have to leave that terminology behind when you think of Mr. Justice Holmes and seek your nomenclature (though you will never adequately find one for him) in philosophy. Perhaps calling him a twentieth century realist will come as close to it as anything—though far away. It is (as I have already suggest:d) a com- monplace to bracket him with Mr. Justice Brandeis. Two utterly different methods of work could scarcely be found than theirs. I was told a tale in point. It was said that Mr, Brandeis felt somewhat concerned about his brother Holmes' way of removing himself from tue dust of today’s conflict into the pure ether