Justice Holmes and the Year Books

MILTON HANDLER and MICHAEL RUBY

Editor's Note: Milton Handler is Professor Emeritus of Law, Columbia University. Michael Ruby, his grandnephew, has adapted this article from an oral history with Professor Handler.

One of the less controversial cases handled during the 1926 term of the Supreme Court was Hudson v. United States. The issue was whether a court could impose a prison sentence, and not only a fine, after accepting a plea of nolo contendere. In a case of first impression that laid the foundation for the widespread use of the plea in the criminal law, the Court agreed unanimously that a defendant who pleaded nolo could be sentenced to prison. Chief Justice Taft assigned Justice Stone to write the opinion of the Court. As Stone's law clerk, I helped research the nolo plea at the Library of Congress, where I spent many hours supplementing the Justice Department's brief in the case. Among other things, the government had traced the plea back to the 15th century Year Books and had arranged for Professor Beale of the Harvard Law School to translate one of the rulings from Norman French to English. Stone quoted the Beale translation in the draft opinion that he sent to the other Justices during the November recess.

When the Court was back in session, Stone returned to his chambers one day after hearing arguments and recounted a brief conversation that he had had with Justice Holmes. "Why did you use the Beale translation in the footnote to the Hudson opinion?" Holmes had asked Stone. "Surely, we can translate the Year Books ourselves." "Perhaps you can, but you must exclude me and my law clerk," Stone responded. "I'll translate it then," Holmes said. Stone directed me to provide Holmes with the Year Book in question. That's where the fun began.

I returned to the Library of Congress and asked to take out the volume containing the extract from 9 H. VI. I was informed that the rare edition was under lock and key and could only be examined on the premises. I explained that the book was being taken out by Justice Stone for Justice Holmes. "I'm sorry," the bureaucrat said, "but I must abide by the rules. Whoever wants to consult the Year Books must come to the Library." I told him that the 85-year-old Holmes, a distinguished member of the Supreme Court and a revered figure in public life, should not be required to come to the Library to examine a book. He was unimpressed. I thereupon decided to try my luck with the Librarian of Congress, who agreed to release the book on two conditions. I would have to sign a document taking full responsibility, and a security guard would have to deliver the book to Holmes.

When the guard brought the book to Stone's chambers the next day, it was wrapped in paper and tied with the proverbial governmental red tape and a wax seal. He set off for Holmes' house on Eye Street with the Judges' messenger, Edward Joice, who with his father and grandfather had served the Court in an unbroken line since its inception. When they returned, I noticed that the seal on the package was unbroken, the red tape still in place. I asked Joice for an explanation. "Well," he said, "we were ushered to the top floor of Holmes' home, where he has his chambers overlooking the garden. The Justice met us and said, 'Gentlemen, please wait here in the anteroom.' Through the open door, we could see him walk over to a bookshelf, pick out a book, open it, take a piece of paper and translate the passage. He then handed me the paper, which I now give to you." As I looked at Holmes' remarkably legible handwriting, I had to shake my head. Here I had gone to all this trouble to withdraw the volume and Holmes had a complete set on his library shelves.

It was Holmes' translation, and not Beale's, that appeared in a footnote on the fifth page of Stone's opinion. The passage read as follows:

WESTON. If one is indicted for Trespass, and he surrenders and pays a fine, will he be permitted afterwards to plead Not Guilty?

PASTON. (J.) Yes; certainly.

Which was agreed by all the Court.

WESTON. It is of record that he admitted it.

BABBINGTON. If the entry be so, he will be estopped; but the entry is not so, but is thus, that he put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admitti per finem). Therefore, if one be indicted for felony, and has a charter of pardon, and pleads it, and prays that it be allowed, this does not prove that he is guilty; but the King has excluded himself (from claiming guilty) by his charter. And I and all the Court are against you on this point."

The folio reads admittit, obviously a mistake. In his opinion, Stone summarized this somewhat obscure exchange from the dawn of the common law: "Its effect is that if one, indicted for trespass, has 'put himself on the grace of our Lord, the King, and asked that he might be allowed to pay a fine (petit se admitti per finem),' his plea, if accepted, does not estop him from afterwards pleading not guilty." Relating the precedent to the chief issue in Hudson, Stone observed that "there is no suggestion that would warrant the conclusion that a court, by the mere acceptance of the plea of nob contendere, would be limited to a fine in fixing sentence."

Six months later, Stone graciously set up an appointment for me to meet the great Olympian before the end of my clerkship. We walked over to Holmes' spacious home, which had an elevator that took us to the fourth floor. Although the Court was in recess, Holmes was formally attired in a cutaway, striped trousers and a stiff-bosom shirt with a winged collar. He invited us into the study where he had translated the passage from the Year Books. I sat on a couch with Stone and Holmes' law clerk, Thomas "Tommy the Cork" Corcoran; Holmes sat at his desk, which overlooked the garden. The two Justices did most of the talking, as both Corcoran and I were awed in their presence.

At one point, Holmes observed that in the course of writing the opinion in the recent trademark case, Beech-Nut Packing Co., v. P. Lorillard Co., he had occasion to read a fascinating book on the history of law and usage of trademarks. Stone asked whether Holmes was referring to a doctoral dissertation by Frank Schechter. The senior Justice nodded. Stone told him that he had persuaded Schechter, who was a trademark counsel for BVD Co., to take a year off from practice to stand as the first candidate for a doctorate in law at Columbia. Learning that Stone had inspired the writing of this book, Holmes rose, walked across the room and shook Stone's hand. "I congratulate you on one of the great acts of your life," he said.[5]

When the two Justices moved on to other topics, Corcoran and I dutifully retired to his office for a chat. The conversation drifted to the subject of Holmes' writing habits. I knew from experience and from previous discussions that Holmes was by far the fastest writer on the Court. When Taft handed out assignments at the end of a Saturday conference, Holmes would set right to work. He would write his opinion on Sunday and have his law clerk check the references on Monday morning. By Monday afternoon, when most of the other Justices had hardly begun writing, Holmes would circulate in page proofs a beautifully crafted opinion. After Stone had looked at the proofs, he would pass them along to me, and I noticed that Holmes' opinions had an uncanny tendency to fill exactly two printed pages. Corcoran explained this conundrum easily enough. Holmes penned each paragraph on a separate sheet of paper and counted the words. That way, if possible, the opinion would end on the last line of the printed page.

Corcoran told a little story to illustrate this predilection. One Monday morning, after studying a new opinion by Holmes, "Tommy the Cork" went into the Judge's chambers and suggested the inclusion of an additional point. Holmes listened and shook his head sadly. "Is the idea no good?" Corcoran asked. "No, it's a very good idea," Holmes said. "But I can't use it. It would take another paragraph."

When I rejoined the Justices a little later, I asked Holmes if he would sign the authorized etching of himself that I had recently purchased. "I autographed the plate," he pointed out. "I know, but I was wondering if you might add a special inscription." "Send it over," he said. When he sent it back, the brown ink read:

I was thrilled with the special inscription. In my ignorance, I thought it had been composed especially for me. Subsequently, when I read Holmes' collected papers, I discovered that it was a sentence from an address delivered at Brown University many years before. Happily, I was not the only one inspired by this thought.

Endnotes

1. 272 U.S. 451 (1926).
2. Id. 456.
3. Ibid.
4. 273 U.S. 629 (1927).
5. This paragraph is adapted from Milton Handler, "Are the State Antidilution Law Compatible with the National Protection of Trademarks?", 75 TMR-270-1 (1985).