Justice Holmes: Law and the Search for Control

Michael H. Hoffheimer

For two or three months I debauched o' nights in philosophy. But now it is law--law--law.

Holmes to William James, 1867.[1]

Apology for Psychoanalytic Perspective on Holmes' Intellectual Biography

In one of the reading lists that Oliver Wendell Holmes, Jr., kept methodically as an adult lies the entry for June 17, 1872:

[June] 17 married. Sole editor of Law Rev. July no. et seq.[2]

Squeezed between two lines in a smaller hand, the entry conflated two contemporaneous events: his marriage to Miss Fanny Dixwell and his assumption of sole editorial responsibility for The American Law Review, which he had previously co-edited.[3]

I shall return to the diary entry, but I want to consider it first as emblematic of an odd problem in the Holmes literature.[4]As far as I know, this illuminating entry and other important evidence of the dynamics of Holmes' unconscious marital life have been ignored by scholars, despite the fact that much of the evidence exists in published sources. It is, of course, not odd in general that slips and jokes have been neglected they continue to occupy a lowly position in the hierarchy of accumulated historical sources. But the neglect of this evidence by intellectual and legal historians who have picked over Holmes is curious for several reasons.

First, both the historical genesis of Holmes' legal theory and its cultural assimilation have been described by some writers who have adopted the language of psychoanalysis. One of the most powerful and influential champions of Holmes' theory in the 1930s, Jerome Frank, described the history of law in psychoanalytic terms and treated Holmes as representing its highest achievement, the modern jurist who "has put away childish longings for a father-controlled world."[5] More recently, Justice Kaplan has explained the posthumous decline of Holmes' stature among lawyers as manifesting Kaplan's generation's "oedipal" reaction against Holmes.[6] Scholars have used the metaphor of psychoanalytic dynamics to describe the historical significance of Holmes' work, but they have avoided talking about Holmes' actual psychological development.

Second, scholars have widely recognized that there are important tensions or inconsistencies in both Holmes' legal opinions[7] and in his philosophy.[8] In 1869 William James observed of Holmes as a law student, "Wendell amuses me by being composed of at least two and a half different people rolled into one, and the way he keeps them together in one tight skin, without quarreling any more than they do, is remarkable."[9] Holmes' voracious scholarship, personal detachment, and concern with strife have been noted, but no scholars have undertaken a sustained effort to provide an account of Holmes' intellectual biography by employing methods of any recognized theory of psychological development There have been biographers sensitive to unconscious factors, but their explanations have seldom risen above descriptive, common-sense treatments. In attempting to illuminate Holmes' mind, they have resorted most often to discussion of his personality and lifestyle, not to careful consideration of the historical evidence of the actual dynamics. Ironically, the failure to analyze the psychological evidence with more theoretical rigor has led to unwarranted inferences from the facts; reluctance to employ psychoanalytic theory has resulted at times in the kind of a historical speculation of which historians often accuse psychoanalysis. I shall refer to particular problems below. They include unwarranted assumptions about Holmes' conscious antagonism with his father during childhood and assumptions about his relations with women before the Civil War. For example, some of the familiar parlor sketches of the domestic life of the Holmes family are supported by precious little evidence and appear to be poetic extrapolations of scenes from Dr. Holmes' literary essays.[10]

Third, neglect of evidence of Holmes' unconscious is odd, because Holmes himself in later years evinced a remarkable awareness of unconscious dynamics; he referred to possible unconscious intellectual influences and identified the effect of early family influences upon his adult intellectual attitudes. In avoiding psychoanalysis scholars have not only neglected evidence of Holmes' jokes or verbal slips--evidence that is commonly neglected and the relevance of which is made apparent only after the acceptance of the validity of psychoanalytic method--they have shunned insights that Holmes himself provided about his own psychological and intellectual development. I might also add that the failure to apply psychoanalytic theory to Holmes cannot be defended by two arguments commonly raised against the general historical application of the theory, for Holmes was a Victorian and male.

In this essay I shall examine some of the neglected historical evidence and reconsider the dynamics of Holmes' intellectual development from a psychoanalytic perspective. Although I believe that the perspective illuminates important aspects of Holmes' biography and may, perhaps, add richness to the interpretation of his mature thought, the perspective historical reconstruction. Holmes is a particularly poor subject for psychoanalytic study, because of the lack of surviving evidence of his infantile and adolescent relationship with his mother. The possibility of such historical reconstruction is further frustrated by the fact that Holmes himself deliberately censored the historical record by destroying revealing documents.[11]

The practice of self-censorship began with documents generated during the war. Holmes continued to destroy documents throughout his life. Writing to Lewis Einstein in 1932, he commented on a recent biography: "I have not read it, but I should think it was harmless. I had nothing to do with it. Perhaps when I die my executor...may do something with more materials, but I have done my best to destroy illuminating documents."

While a complete psychoanalytic account is thus impossible, a theoretically sound partial reconstruction is possible. Moreover, a psychoanalytically informed approach assists critical historical reconstruction by identifying the limits beyond which narration becomes speculative.

Holmes' Mustache

Surviving evidence of Holmes' childhood experiences does not provide a meaningful foundation for explaining his later development. Of his infantile relations to his mother, we know little directly.[12] When Holmes was twenty months, his mother or father recorded his vocabulary in a memorandum. At that age he knew names of one object (milk), one activity (walk), three directional adverbs (out, in, off), and an expression of approval (all well). He knew four personal names: "Auber" (Oliver), "[H]enny" (Wendy), "Aahma" (grandma), and "Mamy" (Mary).[13] Though he knew his nurse's name, he did not yet know his parents names. A second entry when Holmes was twenty-six months recorded that he could "say almost anything" and called his father and mother "faver and mover."[14]

Later behavioral evidence is consistent with an early and possibly traumatic separation from his mother. Holmes smoked as an adult and repeatedly depicted himself with a pipe. He attempted more than once to quit pipe-smoking and recorded the dates he attempted to stop in diaries.[15] Efforts to quit smoking apparently caused insomnia.[16] As a young boy Holmes reacted with terror to an older boy's jocular comment, "See you when your mother is hung," and related many years later how he had been convinced that his mother was to be killed.[17] Important early events that would further have shaped Holmes' relation to his parents were the birth of his sister when he was two and of his brother when he was five. In later years, after the war when Holmes returned to Boston, he apparently formed no intimate bonds with his sister or brother.[18]

One biographer of Holmes suggested that Holmes and his brother as children expressed hostility towards their father, for Alice James (invalid sister of William and Henry James) recorded in her diary in 1888 when she was forty:

I remember Father coming home one Saturday from the dinner [of the Saturday Club] and telling among other things, that Dr. Holmes had asked if he did not find that his sons despised him and seemed surprised when F[ather] said no, that he was not oppressed in that way.--'But after all, it is only natural they shoul4 for they stand upon our shoulders,' exclaimed the Doctor, a truly dizzy height for the accomplished and elongated Wendell! The figure immediately presents itself of the two a la church steeple.[19]

There is no reason to doubt the accuracy of the quote. Holmes' father became increasingly concerned with psychiatric problems from the late 1850s and developed theories of psychological processes in his novels (1858,1867,1885) and other writings, which anticipated Freud.[20] But it is unlikely that this incident later recorded by Alice James occurred before Holmes was in college and virtually impossible that it occurred earlier than Holmes' adolescent- years. Alice James was born in 1848, and it seems unlikely that a child under ten would have been present during or would have remembered the remarks of her father that she quoted years later. Moreover, if the additional remarks about Holmes' height and accomplishments related to Alice James' original associations upon hearing the statement, the remarks occurred probably later still, for Holmes' earliest accomplishment that Alice James would likely have recognized would have been his heroism during the war. It is thus most likely that the statement attributed to Holmes' father was made during the Civil War, when she was in her teens and the Saturday Club was still meeting. Such a date comports with the analysis I suggest for Holmes' relations with his father during and after college.

The scant and expurgated historical record indicates antecedents of later insubordinate behavior in Holmes' childhood. A surviving "Report of Recitations and Deportment for the week ending 19 June 1847" contains the entry for "conduct": "Talks too much."[21] But a formal reference from 1851 (when Holmes was nine) survives, describing him as "uniformly docile, thoughtful, amiable and affectionate. Young as he is, his habits of application are confirmed..."[22]

While the early records assume significance only to hindsight, later biographical evidence discloses the results of Holmes' early development. By his first year at Harvard College Holmes had closely followed his celebrated father's steps in choice of college (Harvard), philosophical perspective (transcendentalism), and political commitment (pro-Union and antislavery). He had the same name as his father. His handwriting looked like his father's. Lanky, with a long straight nose and deep-set eyes, he looked strikingly like a taller version of his father. At the end of his college days he, like his father, was to be class poet. Indeed, Holmes' youthful repetition of his father's experiences was so pervasive that it has attracted little critical attention; his biographers have written with the assumption that he was predestined to follow his father's steps; it was unthinkable for Holmes to go somewhere other than Harvard.[23]

Opportunities for following his father's steps--like reciting poems on class occasions"[24]--were doubtless available in greater measure to Holmes because of his father's fame. But it is nonetheless significant that Holmes took full advantage of such opportunities, and it is equally significant that he apparently did so without reflection or choice. The lack of choice which makes such events of little interest to traditional biography is all the more astonishing, because it is accepted as normal, requiring no further explanation on an intuitive level. Holmes' conformity to his father expressed itself also at the highest intellectual levels. And the manner in which Holmes struggled, both to achieve individuality and to resolve tensions that lay at the root of his identification with his father, critically affected the contours of his intellectual biography. Though Holmes' mature legal philosophy is widely characterized as an extreme form of positivism, he remained a tenacious partisan of the philosophy of transcendentalism in college just at the time when positivistic ideas of Comte were becoming hotly debated within Unitarian circles and gaining acceptance among the younger generation of intellectuals in New England.[25] Holmes' later adoption of the worldview associated with his legal theory was the result of a critical rejection of key ideas that derived from his father. The intellectual transformation that made possible his later theory required repudiation of the identification with his father.

Holmes' imitation of his father manifested a familiar psychological process. With adolescence there is normally a resurgence of the Oedipus conflict, and identification with an adult male plays a role in the positive resolution of the complex, signaling a displacement of erotic drives: the adolescent behaves like his father in order to reproduce (with another woman) the father's relation with his mother. Although the process is familiar, the theoretical explanations of it are complex.[26] The constellation of the earliest drives, and their relation to later adolescent and adult identifications, is relevant to understanding Holmes. It may be observed generally that Holmes' intense identification went considerably beyond the ordinary initiative and competitive posturing of adolescence, and it revealed, on the one hand, unresolved erotic drives for his mother, while, on the other hand, it manifested defense or reaction formation to aggressive drives towards his father. By changing the ego, however, the process of identification also turned the aggression inward. It has long been known that intensity of identification is related to loss of an object.[27] Where the identification is with a competitor, intensity would derive from loss of the loved object, and Holmes' intense identification with his father would be the ironic yet natural result of early separation from his mother and childhood fantasy of her death.

Behavioral evidence indicates, however, that despite its power, Holmes' identification did not succeed in resolving the Oedipus conflict. On the contrary, the identification began to show important signs of deterioration before the outbreak of the Civil War. Deterioration did not begin at the highest intellectual levels, for Holmes in college continued to identify strongly with his father's moral and intellectual views.[28] Holmes was familiar with the controversy generated by Comte's new positivist teaching and with the orthodox academy's antagonistic reaction; but though his college writings evidenced some interest in the new theory, he continued to support transcendentalism and sought to accommodate aspects of the new theory to a systematic transcendentalist philosophy that was heavily influenced by Emerson and Ruskin. Only at the end of college did Holmes announce his intention of going to law school, if he survived the war.[29] Only at the end of college was he interested in Hobbes and Austin.[30] And this evidence of intellectual interests may suggest a breakdown in the process of identification only in retrospect, since Holmes' father had studied law at Harvard after college before turning to medicine,[31] and Holmes' interest in mastering a subject in which his accomplished father had not excelled represents equivocally the natural culmination of intellectual identification.

Deterioration of the identification was rather first expressed nonintellectually by petty criminal and destructive acts. Holmes was fined one dollar for defacing the posts in a tutor's room; he was admonished for participating in a disturbance; he was admonished for "gross indecorum" during class; he was fined ten dollars for breaking windows of an underclassman.[32] With the exception of the one hazing incident, all of Holmes' acts reflected not only hostility towards authority generally in the sense that all criminal acts reveal contempt of authority; the acts reflected also aggressive urges that- were directed specifically against authority figures--the tutor, the professor, and the college. Common knowledge about social enforcement mechanisms supports an inference that he engaged in similar acts that were undetected. His destructive and rebellious behavior expressed his inability to contain the underlying hostility, which he redirected against school buildings, property, and personnel-substituted paternal authority. His writings in college reflected his ambivalent relation to authority, for while he ridiculed the conservative theology that he associated with the college, and while he defended, or at least tolerated, student rowdyism, his theoretical criticism relied heavily for authority on intellectuals of his father's generation, especially Emerson and Ruskin. The outbursts of physically aggressive behavior and the iconoclastic spirit of Holmes' college writings reveal that the mechanics of identification were not effective in containing underlying aggressive feelings towards his father. And the tentative career choice at the end of college as well as the intellectual interest in Hobbes and Austin reveal a more or less conscious concern with the problem of aggressiveness.[33]

Channelling hostility in college away from its paternal object to the substituted authority was reinforced by his father's support of his son in skirmishes with college authorities---reflecting, perhaps, the elder Holmes' fear of replicating his own traumatic adolescent college experience, when he had identified with liberal religious tendencies against which his minister father was crusading publicly.[34]

Holmes' father recorded in autobiographical notes the trauma caused by his early exposure to and subsequent rejection of Calvinist demonology.

No child can overcome these early impressions without doing violence to the whole mental and moral machinery of his being He may conquer them in later years, but the wrenches and strains which his victory has cost him leave him a cripple as compared with a child trained in sound and reasonable beliefs. I had long passed into middle age before I could analyze the effect of these conflicting agencies...[35]

And in his novels, Holmes' father traced adult neuroses and personality characteristics to infantile or prenatal traumas suffered by individuals who were motherless or orphaned.[36] Like Emerson, Holmes' was critical of the Harvard orthodoxy, and Holmes' rebellion was fostered at high intellectual levels by the object against which it was unconsciously directed. Holmes' physical appearance during the war years signals the end of the identification. Holmes looked remarkably like his clean-shaven father in early portraits. He first sported a thin mustache sometime between April 1862 and January 1864, and he retained the mustache, grooming it ever more luxuriantly, until his death.[37]

Study War No More

Holmes was committed to pro-Union antislavery politics in college, and at the outbreak of the Civil War in his senior year, he eagerly sought a commission in the Twentieth Regiment of Massachusetts Volunteer Infantry. His receipt of a commission and move to camp prior to graduation ended the last smoldering disciplinary dispute with the college authorities. The context within which Holmes moved immediately from Harvard to the war--and soon to actual combat--suggests that Holmes found in the war an outlet for powerful hostility that even at college had not been contained and had expressed itself in acts of vandalism and insubordination directed against authority.[38] His entry into the war thus indicates a further deterioration of the identification; yet at the same time his father was again encouraging the direction in which the aggression was directed, for Holmes shared Unionist abolitionist convictions with his father and was unquestionably fulfilling his father's expectations by going to war. To be sure, Holmes' motives for joining the war were complex, overdetermined; but to the extent that he sought military experience as an outlet for hostility originating in aggressive feelings towards his father, the emergence of such aggressive impulses reflected the ultimate failure of the process of identification to channel and restrain the hostility.

Acknowledging the complexity of Holmes' motives for joining the war and seeking combat detracts neither from his conscious quest for valor nor from his honest belief in the rightness of the Union cause. Nor does the determination of one significant unconscious moving force--the deterioration of the identification--diminish the force of others, including other unconscious drives. Pre-war, pro-Union sentiment was itself laden with the mystical and erotic force that Whitman embraced and explored and was further to elaborate after the war.[39] As perhaps no other war in American experience, the Civil War manifested--and satisfied--dark drives for the death of self and others. God himself was celebrated in popular song as Juggernaut.

Deterioration of the identification provides neither a full account of Holmes' entry into the war nor a complete explanation of the psychological context within which a meaningful assessment of the war experience may be made. The deterioration of the identification does, however, illuminate the critical problem of Holmes' subsequent disenchantment with the war effort and the problem of his decision to muster out before the end of the war. And it provides context for the source of open conflicts between Holmes and his father which broke out repeatedly during the war. The extreme hostility that Holmes manifested towards his father during the war is consistent with a theory that Holmes' relation to his father was shaped by a deep-seated infantile fantasy that his father wanted to kill him. Holmes' father both supported his son's entry into the war and questioned his decision to leave the war before its conclusion. Holmes expressed particular anger in a letter attacking the Boston news coverage of an encounter that had resulted in many unnecessary casualties: "..I was glad to see that cheerful sheet [Boston Daily Advertizer] didn't regard the late attempt in the light of a reverse--It was an infamous butchery in a ridiculous attempt--in wh[ich] I've no doubt our loss doubled or tripled that of the Rebs."[40]

Professor Howe first recognized that Holmes experienced a personal crisis during the war and

that the resolution of the crisis affected deeply the philosophical perspective of Holmes' mature work. Howe provided two different accounts of Holmes' intellectual development. He related Holmes' growing disenchantment with the war to "Copperhead" influences, and in both accounts Howe treated Holmes' profound disillusionment with the war as the stimulus for his move from transcendentalism to thoroughgoing skepticism.[41]

While Howe's account dealt with the conscious expressions of Holmes' attitudes, such a reconstruction is severely limited by the fact that Holmes and his mother in later years edited Holmes' correspondence and papers from the critical war years.[42] While we cannot know the content of what was destroyed, the process of later editing itself suggests strongly that Holmes had expressed views in a manner that later caused him some shame or embarrassment--conflicting with the image that he later cultivated consciously for the public and for posterity.

Surviving correspondence nevertheless illuminates the unconscious context of crisis. By 1862,

Holmes had become convinced that military victory was impossible.[43] He apparently first expressed his convictions in a letter to his sister at home, knowing surely that his views would be brought to the attention of his father.[44] His father's predictable reaction--negative and judgmental--was forthcoming, and Holmes' answer to his father dated December 20, 1862, survives. The letter resounds with anger and resentment. Addressing his father as "My Dear Governor," Holmes reasserts forcefully his conviction that victory was impossible, flaunts his greater knowledge and authority as a combatant, and accuses his father of ignorance:

It is in my disbelief in our success by arms in wh[ich] I differ from you.... I think in that matter I have better chances of judging than you-and I believe I represent the conviction of the army-& not the least of the most intelligent pan of it.... I think you are hopeful because (excuse me) you are ignorant.[45]

Abundant evidence survives of Holmes' tensions with his father during the war. One episode entered folklore. In 1861, after Holmes' first wound, his father traveled to Philadelphia to meet him.[46] After Holmes' near fatal wound in 1862, he specifically wrote en route home: "I neither wish to meet any affectionate parent half way nor any shiny demonstrations when I reach the desired haven."[47] Against his wishes his father traveled to meet him, recording the experience in a histrionic article published in Atlantic Monthly. Tension is reflected throughout the surviving letters, which he often addressed separately to his mother and father. In letters to his father about the military situation, confrontation and hostility were expressed openly and directly. Attacking what Holmes knew to be one of his father's deepest beliefs and hopes, the correspondence reveals the depth of hostility, the collapse of the identification, and the failure even of the bloodletting of the war experience to restrain and channel the hostility.

Holmes' conflict with his father during the war appears sudden and anomalous without the emotional context, but in context the hostility emerges as unconscious motive for, rather than consequence of, the views Holmes expressed to his father. In a letter to "Dear Old Dad," in 1863, he apologized for a "blow off' in his last letter and wrote of being "melancholy just now."[48] In a letter to his parents in 1864 he acknowledged receipt of their letters--"the latter [letter] fr[om] dad, stupid."[49] The conflict continued and smoldered for years after the war. In 1873, after visiting the Holmes home, Henry James wrote to his father: "no love is lost between W[endell]. pere and W. fils."[50] In 1889, Holmes and his wife moved to his father's house, and Holmes complained, "My winter has not been sprightly, what with not feeling very well, and the adjustment to a new situation--living in my father's house instead of in my own, etc."[51]

Funny Mother Law

Holmes came close to death four times during the war; he suffered three gunshot wounds and contracted dysentery. Only those who have been in combat can probably imagine what he experienced as his friends suffered and died. For all his later use of military imagery, Holmes never talked of his personal experience in killing others. Despite the selective destruction of documents from the war years, it is evident that Holmes' decision to leave his unit (when it was dissolved and merged into another) was a difficult one, and one fraught with conflict with his father.[52]

While Holmes engaged in continuous conflict with his father during the war and sought (literally) to prevent his father from coming to him, Holmes returned home after each wound to maternal care--care which by replicating the mother-infant relationship connected trauma and pleasure and concealed and legitimized pleasure-seeking erotic drives beneath Holmes' convalescent status. Of the letters from the war that survive, most were addressed to his mother. He wrote first to his mother with news of two of his three wounds and with news of his illnesses.[53]

We know little of Holmes' relation with his mother at critical points. He destroyed his mother's and father's letters to him during the war, and he was also vigilant in destroying correspondence and other records that evidenced his relation with his wife.[54] The surviving record seems to indicate that Holmes maintained a dispassionate intellectual relation with women. One Holmes biographer observed that "Holmes's friendships, whether with men or with women, were primarily intellectual."[55] Another wrote expansively of Holmes' self-imposed personal isolation.[56] But as Holmes destroyed much revealing documentation, appearances may be deceptive, and they conflict with important contemporary accounts.

Surviving letters reveal occasionally flirtatious relations with women. He addressed Lady Pollock "Beloved Lady" in responding to a letter and wrote, "I love seeing your dear handwriting again..."[57] In 1910 he wrote to Lady Scott about reading sexual literature.[58] His flirtatious conduct towards the young teenage daughter of Tom Hughes, during his first trip to England in 1866, led to some misunderstanding between him and the girl's father, which is alluded to in the few letters relating to the episode that have survived.[59] During the Holmeses' trip to England in 1874 his flirting continued, and he teased his wife by signing an entry in her diary, "I sat next to Mrs. Willoughby whom I love."[60] She recorded later that week, "Wendell off on the rampage."[61] From 1896 till 1926 Holmes engaged in an intimate correspondence with Lady Castletown in Ireland, whom he visited during trips to Europe in 1896, 1898, 1903, 1907, 1909, and 1913.[62] His wife's toleration for such flirting may have changed. According to contemporary rumors, Holmes' flirting deeply upset his wife, and she refused to read the letters he wrote from later trips to Europe until after his return for fear that he would describe his flirtatious conduct.[63] Holmes' flirtatious behavior was notorious to contemporaries. Alice James, living in seclusion, wrote in her diary when Holmes returned to England in 1889,

They say he [Holmes] has entirely broken loose and is flirting as desperately as ever.[64]

Later that year she reported,

Henry says that Wendell Holmes has had a most brilliant success in London and that he was as pleasant as possible, young-looking and handsomer than ever. Flirting as desperately too.-I suppose that his idea of 'Heaven is still flirting with pretty girls,' as he used to say.[65]

Anecdotes about Holmes' flirting might be multiplied.[66] He continued to engage in such behavior in his later years. The surviving evidence of flirting shows that it was especially carried on during trips away from home (with and without his wife), with married women and girls, with whom there was little risk of actual sexual affair, and in correspondence at a safe distance. Moreover, the flirting apparently never rose to the ardent poetic expression of feeling in his post-war correspondence to Wilham James: "Sing, sparrow--kissing with thy feet the topmost tassels of the pines." Rather the flirting appears to have corresponded to and received safety from a self-controlled distance from women.[68]

The distance evidently also characterized his relations with his mother. Writing of his mother's death to Pollock in 1888, Holmes communicated emotion but expressed distance by writing in the third person and adopting passive voice: "My mother's death was not to be regretted on her account but such an event whenever it happens must be a shock and give one a tug that goes far down to the roots."[69] His detachment and distance in personal relations, especially pronounced in his relations with women and reflected paradoxically in his urge to flirt, appears to have repeated his early relationship with his mother which he had sought to recreate during the Civil War. Holmes was himself aware of the defenses that were raised to provide such distance: "Every man sees something of Mrs. Nickleby in his own mother."[70]

The reference to Mrs. Nickleby is itself rich in unresolved conflicting feelings rooted in the oedipal complex. The character, based on Dickens' own mother, is enriched by the oedipal undercurrent of the plot which proceeds from the death of Nicholas' father, follow his mother's witless complicity in sending Nicholas off to be mistreated at a boarding school and her witless complicity in the attempted seduction of his sister. The conflicts are resolved at last by Nicholas' freeing his family, by his marriage, and by the eventual violent death of all the elder, evil male characters.[71]

The latent conflict behind Holmes' strong identification with his father in college and the hostility that Holmes expressed towards his father during the war were rooted, according to psychoanalytic theory, in infantile drives. Legal scholarship after the war provided Holmes with new means for displacing erotic drives, on the one hand, and for channeling and controlling aggression towards his father, on the other hand.

Legal scholarship and a legal career provided Holmes with methods for resolving deep conflicts, for creatively channeling powerful drives, for mastering the ego, and for constructing an identity for himself. Holmes himself associated the development of his mature legal philosophy with his independence from his father; he emphasized that important aspects of his adult world view derived from his mother:

My father was brought up scientifically...and I was not. Yet there was with him as with the rest of his generation a certain softness of attitude toward the interstitial miracle--the phenomenon without phenomenal antecedents, that I did not feel.... Probably a skeptical temperament that I got from my mother had something to do with my way of thinking.[72]

The biographical accuracy of Holmes' view of his own intellectual growth is problematic, but the view illuminates Holmes' desire to sever himself from his father's influence and to make real the fantasy--perhaps counterfactual--of his mother's influence.

Holmes devoted extraordinary labor and emotional energy to legal study after the war. His preoccupation attracted the attention and concern of contemporaries. Before his 1866 trip to England his mother had counseled him by letter not to feel obliged "as you did at home that you must accomplish so much each 24 hours."[73] By the early 1870s Holmes was working on an ambitious new edition of Kent's Commentaries on American Law,[74] a standard legal authority. Mrs. Henry James described in a letter his obsession with the project, which was manifested by physical attachment to the manuscript:

His whole life, soul and body, is utterly absorbed in his last work upon his Kent. He carries about his manuscript in his green bag and never loses sight of it for a moment. He started to go to Will's room to wash his hands, but came back for his bag and when we went to dinner, Will said "Don't you want to take your bag with you?" He said, 'Yes, I always do so at home." His pallid face, and this fearful grip upon his work makes him a melancholy sight.[75]

William James noted with sadness the narrowing of Holmes' interests as early as 1868: "the sympathies we have in common are growing very narrowed."[76] By 1872 James observed, "Wendell Holmes spent an evening here this week. He grows more and more concentrated upon his law. His mind resembles a stiff spring, which has to be abducted violently from it, and which every instant it is left to itself flies tight back..."[77]

Holmes carefully recorded the extraordinary range and intensity of his studies after the war.[78] He also left evidence in comments and unintentional references that reveal the power of his drive to attain scholarly achievement after the war. In the diary entry recording his marriage and assumption of sole editorial responsibility for a legal periodical, he amalgamated two events--achievements--that reflected the unconscious unity of the two in drives that stemmed from powerful, unfulfilled, and displaced drives for maternal love. The fact that both events were recorded at a later time--an afterthought--into a list of book readings reflects the operation of the unconscious in ranking priorities and resisting challenges to the pleasure of continued intensive book study.[79]

Intense scholarship, combining aesceticism and intellectualism, is itself a defense, an attempt to control urgent drives by denial and sublimation.[80] But scholarship, especially reading, was not just a denial of reality, it gave Holmes great pleasure. In reading and scholarship the ego sustains itself in pleasure and rebels against the adversity of external reality, simultaneously abandoning and reasserting itself in the reading process. Holmes himself toyed on a conscious level with the sexual drives manifested in the commitment to scholarship. His 1867 letter to William James recorded humorously how nocturnal debauchery with philosophy had given way to study of law. In later years, he alluded humorously to the law as a lady or mistress and described the process of sublimation by which the all-absorbing fascination of legal scholarship assumed attributes of romantic or erotic attraction.[81] In a short speech to the Suffolk Bar Association Holmes eulogized law by extensive and repeated analogy: "If we are to speak of the law as our mistress, we who are here know that she is a mistress only to be wooed with sustained and lonely passion--only to be won by straining all the faculties by which man is likest to a god."[82] On another occasion he referred expansively to enthusiastic students who serve "Truth, their only queen."[83] In comparing the lure of legal scholarship to romantic attraction, Holmes was deliberately playing upon a theme that was familiar to his audience. Justice Story in a famous speech taking the chair as Dane Professor of Law at Harvard in 1829 had referred to law: "It is a jealous mistress, and requires a long and constant courtship. It is not to be won by trifling favors, but by lavish homage."[84] By 1860, the phrase had become hackneyed.[85]

Attempting to identify the source of humor in the allusion and the allusion's appeal for Holmes poses analytic problems. The seeming simplicity of humorous allusion makes it hard to explain its effectiveness,[86] but because of the minimal role of technique, allusion provides the opportunity for more direct insight into the process of play or displacement that lies behind the humor.

According to psychoanalytic theory, the process of joking entails a playing with unconscious and infantile material.[87] The partially concealed nature of the allusion--to speak of law as mistress (itself euphemistic)--generated humor by disclosing an attractive idea at the same time that a taboo (broadly speaking) was threatened. Here the taboo was both personal (the early displacement of erotic by intellectual drives) and situational (the situational taboo against "dirty" jokes in the polite contexts in which Holmes made the allusions).

That Holmes' humorous allusions were not original does not diminish their value for illuminating unconscious dynamics of his intellectual biography. To be effective as social humor the displacement mechanism itself must have been shared by the audience. Yet reconstructing the process poses historical as well as analytic problems. Holmes, like others of his generation, was evidently concerned with the process of sublimation and projection--the attribution of sexuality to external objects. The humor behind the comparison of law and an object of sexual desire lay in the deliberate recognition of the act of sublimation and projection which Holmes shared with his audience.[88] It is easier to demonstrate from context the specific object with which Holmes associated the activity of projection than to untangle the irony operative behind the humor. For Holmes, the source of the allure lay in the intellectual demands of legal scholarship, not the time demands of a busy practice.

The irony behind the allusion emerges from a consideration of the classification of humor.[89] Although the displacement toyed situationally with a taboo, the humor for Holmes was obviously not obscene; rather the allusion fell into the class of "skeptical" humor--humor that attacked "not a person or an institution but the certainty of our knowledge itself, one of our speculative possessions."[90] The irony of the allusion operated by an implicit double negation: at one level the analogy was patently false (inappropriateness of law as romantic object), while at another it was true (recognition of the transfer behind sublimation). The recognition of sublimation in the allusion revealed both at conscious and unconscious levels that Holmes identified legal scholarship with females.

Explaining the mechanics of the humor does not, however, account fully for its pleasure-producing effect for Holmes. Holmes did not jest often, even during speeches where humor was socially accepted, if not expected. His repeated use of this particular humorous allusion corresponds, it seems, to the high degree of pleasure that he derived from this source. According to Freud's later elaboration of his theory, intellectual humor operated by simultaneous assertion (or rebellion) of the ego and the recognition of its control by the super-ego.[91] The pleasure that Holmes derived from this humor reflected the power of his ego, the vindication of the pleasure principle against adversity. The dynamics of the humor thus replicated in miniature the dynamics of the intense appeal of scholarship and reading--both operated by negating the reality of external adversity.

The assertion of the self in the midst of destructive forces was a theme to which Holmes returned many times in many contexts. He usually did not present it humorously but often invoked irony. His fascination with military images has been recognized by most students. He likened love and life generally to armed combat, and it is not hard to find in this preconception the continuing traumatic experience of the war years (when he probably believed he was dying--and with good reason--on three occasions). The reassertion of life, the self, and the pleasure principle in the face of reality naturally derived vital power from his own survival amidst despair. But the war was not the first source for such images, because Holmes actually first used combat imagery in his college writings prior to any experience in combat. His article "Plato" referred to Socrates as "a really great and humane spirit fighting the same fights with ourselves..."[92] And he delivered a poem in his senior year, which does not survive, but a contemporary wrote that it compared the graduating class to "a ship well-armed and equipped launched upon a wide sea."[93] The super-ego played a parental or disciplinary function[94] in the mechanics of the humorous allusion: the pleasure principle asserted itself, but there was no doubt that law was not like a mistress but something grander and more glorious. The humor deriving from the impropriety of mixing law and sex itself kept sex safely under control. The unconscious dynamics of the humor parallel very closely the unconscious dynamics of Holmes' flirting with girls and women.[95] Self-control tested and proved itself against temptation.

While the intensity of Holmes' legal scholarship derived energy from displaced erotic drives, the direction and shape of Holmes' scholarship were affected by the continuing hostile impulses towards his father. Holmes chose the law, a scholarly discipline which his father had failed to master, and Holmes approached legal scholarship with a furious specialization that was foreign to his father. Holmes' articles published in the American Law Review in 1870-1873 were anonymous, technical studies in which he subordinated his views (and identity) to the authority of judicial precedent and emerging objective legal standards. Likewise, the extraordinary effort of Holmes in editing Kent's Commentaries required a powerful subordination of originality. The editorial work manifested values of painstaking minute research and self-discipline in both effort and expression. Only the occasional footnote reveals the stunningly original views of Holmes on the evolution of liability.

Commitment to specialized study was reflected equally in Holmes' lectures and in The Common Law (1881). Extensive footnotes and discussion of cases purport to root all original generalizations in detailed study of legal developments. The preoccupation with specialization that is reflected in Holmes' scholarship was expressed also in general observations that he made repeatedly in later years to the effect that deep philosophical knowledge is approached by mastering the details of a narrow special area of study.[96] In turning to the specialized study of law with such energy and emphasizing generally the value of specialization in scholarship, Holmes reacted against the work and style of his father. He later criticized his father's liberal scholarship and characterized it as something of a failure: "If he had had the patience to concentrate all his energy on a single subject, which perhaps is saying if he had been a different man he would have been less popular, but he might have produced a great work."[97]

Identity and Originality

William James observed in 1869, "being ambitious of excellence he [Holmes] says the time is too short for the amount of work he is resolved to put into it, and it weighs heavy on his soul."[98] Holmes' biographers have noted Holmes' determination to achieve intellectual greatness. Nearly a half century after the publication of The Common Law, Holmes preserved the cork from the bottle with which he had celebrated the book's appearance and recollected how he had rushed to have it printed a few days before his birthday, "because then I should be 40 and it was said that if a man was to do anything he must do it before 40."[99] The quest for intellectual recognition emerges as an important, conscious motive in Holmes' biography and helps explain the broad contours of his intellectual biography after the war.[100]

But the quest for greatness was only the conscious elaboration of emotional attitudes towards his own theories that had deep roots. The emotional depth of his attitudes was revealed by his possessive attitude towards his work and his hostility towards individuals who failed to attribute to him ideas that he believed they had derived from his work. In 1872, Holmes sent a judge proofs of an article "The Theory of Torts." Holmes believed that a decision by the judge later in 1872 revealed the influence of his own article. The judge did not acknowledge Holmes' work, and for decades Holmes carried a grudge against the judge; he recalled the experience in 1910 with bitterness, and the experience affected his evaluation of the judge's work and character--"longwinded," "second rate discourses," "unfair," "not a great deal of brandy in his water."[101]

Holmes' resentment contrasts sharply with his own failure to attribute ideas. Holmes' failure has bemused both theorists and biographers. Howe claims that The Common Law "borrowed from Maine,"[102] but Touster points out that Holmes does not acknowledge Maine in The Common Law.[103] '"Indeed, Holmes identified virtually no one as a significant influence on his intellectual development after college. Despite the close scholarship and authoritative attribution that he engaged in while editing The American Law Review and Kent's Commentaries, one searches in vain for citations that reveal sources of general theory or that disclose Holmes' extensive contemporaneous readings in philosophy or literature. When Holmes was questioned directly about intellectual influence, he responded evasively. For example, he read Spinoza's writings repeatedly, but when Wu asked if Spinoza had influenced him, he denied that Spinoza had been a "conscious influence," conceding only that "the probability of an influence, even if indirect, is great."[104]

The caution as to direct and indirect influence reveals insight into the complexity of influence, but the failure to attribute important ideas manifests deep-seated drives behind the conscious quest for intellectual preeminence--drives of which Holmes was not entirely aware. Evidence of such forces is revealed by another trivial episode that biographers have neglected. In 1919, Cohen asked Holmes about the influence of Voltaire on Holmes' skepticism, and Holmes responded: "Oh no--it was not Voltaire--it was the influence of the scientific way of looking at the world... I never have read much of Voltaire...."[105] His denial of having read "much" Voltaire is curious, for his own meticulous records disclose that he had read Candide and other works of Voltaire in 1877, 1883, and 1899.[106]

The denial appears to be the result of faulty memory, which is especially difficult to explain in this case without the aid of psychoanalytic theory. Non-Freudian psychological models of memory generally stress that excited attention and repetition promote memory. But Holmes had read Voltaire repeatedly and had even read Candide and other works by Voltaire aloud in 1899, and Voltaire's works are generally engaging and not especially forgettable.[107]

Moreover, denial of having read "much" Voltaire conflicts with Holmes' predilection for displaying the breadth of his reading; the denial reveals rather the power of Holmes' need for originality and novelty. The underlying impulses of Holmes' oblivion are illuminated by a similar autobiographical episode that Freud recounted. In Freud's case, Freud proposed a certain explanation to a colleague; the colleague reminded Freud that the colleague had himself suggested the explanation two years earlier to Freud but that Freud had rejected the explanation at that time. Freud observed, "It is painful to be requested in this way to surrender one's originality. I could not recall any such [prior] conversation or this [prior] pronouncement of my friends."[108]

Reflecting on the dynamics of memory, Freud convinced himself that he was mistaken, and he subsequently recalled the original conversation. Both Holmes and Freud forgot precisely in contexts where questions of influence and originality were the subject of deliberate reflection. The pain of conceding nonoriginality for both thinkers effectively frustrated memory.

Denial of having read Voltaire is a clear and troubling example of Holmes' emphasis on novelty and his effort to free himself from the influence of earlier generations of thinkers. Denying the influence of Voltaire, he emphasized his youthful enthusiasm for Emerson and Ruskin, whose works were hardly skeptical. The relation of oblivion to continuing hostility originating in the oedipal complex is revealed by the context of Holmes' discussion of the origin of his skepticism, for he denied having read Voltaire in association with his emphasis of the gulf between his views and those of his father's generation.[109] And the pain-avoiding dynamics were bolstered by pleasure, for Holmes, in forgetting Voltaire, traced the origins of his own skeptical temperament to his mother.[110]

To the extent that Holmes' relationship to intellectual antecedents was affected by powerful

unresolved emotions originating in his antagonistic relation towards his father, a rational intellectual historical reconstruction of his intellectual biography faces difficulties. Holmes did not just obliterate parts of the record by deliberately destroying documents; his unconscious censored his own memory, limited his attribution of sources, and slanted his testimony. What he did remember and the sources he did identify must be approached with caution by the intellectual biographer.

Conflict in Legal Theory

Holmes' working out of his own identity was intimately bound up with his struggle to control and master the internal world of conflicting drives. Legal scholarship was itself a method of control. And his theory of law reflected the quest for control of conflict. The controlling role of the super-ego against assertions of the pleasure principle, which appears in the intense appeal of scholarship as well as in Holmes' characteristic flirting, is manifested also in many characteristic ironic expressions in which Holmes reduces the self to an actor, a self-pretentious "cosmic ganglion." Passages scattered throughout Holmes' speeches and writings many years after the war reflect his continuing struggle with intellectual and moral causes that had been substituted for the father through the deterioration of identification.

Holmes formed the philosophical perspective that supported his legal theory in opposition to the transcendentalism of his father. From an intellectual standpoint, "The clash between father and son may be regarded as symbolic of the impact on New England's transcendentalism of the positivism encouraged by the new theories of physics and biology."[111] But from a psychoanalytic perspective, Holmes' effort to elaborate a science of law resulted from the clash with his father and from his internal struggle with the transcendentalism that he had assimilated through the process of identification. The origins of the new theory help explain the emotional force with which it was expressed and illuminate Holmes' deep-seated hostility to the old theory that had once been his own. The legal philosophy associated with transcendentalism was natural law, and Holmes wrote in later years with sarcasm and scorn of the "fallacy and illusion" of Justice Story's theory of natural law.[112] He characterized the theory as "irreconcilable with primary juridical notions."[113]He ridiculed it and likened it to a child's bugaboo, "a brooding omnipresence."[114]

In later years, Holmes engaged in extensive correspondence with younger male intellectuals sparring partners, towards whom he frequently adopted antagonistic intellectual postures that continue to bewilder biographers.[115] In these relationships, Holmes replicated his relation with his father, avoiding confrontation with his chronological or social superiors and assuming an antagonistic paternal relation with his inferiors. The relationships also demonstrate the extraordinary plasticity of Holmes' super-ego, and the lengths to which he would go to cultivate polite pugilism.

Holmes rejected vehemently all utopian schemes premised on the elimination of tension. Though he expressed conviction infrequently after the 1860s, he expressed forcefully his rejection of utopian ideologies that assumed the eventual elimination of social conflict. He characterized socialist theories as "drool."[116] He reacted cynically to Franklin Ford's optimistic view of the future development of society on "the basis of science."[117] His frequent jibes at pacifism are well known, and he characterized egalitarian economic theories as "drivelling cant."[118

A central feature of Holmes' thought was recognition and acceptance of the tension. In his magnificent 1897 article, "The Path of the Law," Holmes wrote,

If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct...in the vaguer sanctions of conscience.[119]

This "bad man" construct excited extraordinary critical attention. Likewise, Holmes' theory of criminal law[120] was widely criticized, because his attempt to reduce criminal law principles to risk-reduction at the expense of inquiry into moral blame-worthiness resulted in questionable predictions about the development of criminal law.[121] Although the "bad man" construct has been misunderstood---it was a scientific thought-experiment–-the method that Holmes adopted reflected his recognition that most men were not motivated by a desire to conform to legal ideals. A theory of law, to be intellectually honest, had to recognize the reality that, as Freud put it, "as regards conscience God has done an uneven and careless piece of work, for a large majority of men have brought along with them only a modest amount of it or scarcely enough to be worth mentioning.[122] "In rejecting the transcendentalist dream of a lawless world of good men,[123] Holmes recognized implicitly the permanent conflict within the individual of those forces that were held in check only by the internal constabulary and which required its external counterpart.

The acceptance and control of conflict in-forms Holmes' mature political values and characterizes the legal and constitutional positions for which he is best known, from his toleration of labor organization to his defense of free speech and deference to social welfare legislation. Moreover, the internalization and reproduction of conflict provides the operative mechanism for his theory of legal history. Legal history for Holmes was a process of evolutionary growth, characterized both by external social conflict and the role of law in ordering society and by internal conflict of competing ideas and theories. Law developed through a constant process analogous to natural selection and adaptation.[124] The goal of law was not elimination of conflict, for law progressed as a result of constant tension between anachronistic and legislative in the present.[125] Holmes' goal in law and in legal theory was to make the process explicit to understanding: "Hitherto this process has been largely unconscious. It is important, on that account, to bring to mind what the actual course of events has been."[126] By making law and legal history self-aware, Holmes expanded the scope of freedom. But freedom resulted from the creative channeling of previously unconscious drives and conflicts not by abolishing them.[127]

A sympathetic reading of the evidence demonstrates the inadequacy of applying the Jerome Frank myth in detail, either as an explanation of the psychodynamics of Holmes' growth or as a coherent reading of Holmes' work. Law was obviously a self-authority. Yet the irreducible need for control indicates that Holmes neither destroyed the authoritative claims of law nor ultimately constructed a consistent view of the world in which law operated instrumentally as means to some end. In law reconstructed as historical process, authority resulted rather from pervasive and permanent tension, not resolution. Holmes' theories sought to elaborate the grounds of the tension and to explain legal historical change[128] as a complex system of progressive response to and repetition of the tension.[129]

Acknowledgements: During my study of Holmes; I have received criticism, advice, and ncouragement from: Peter Gay, Thomas A. Green, Philip P. Wiener, Andrew S. Watson, Daniel J. Hoffheimer, Larry S. Bush, Michael H. Cardozo, Robert I. Haws and James L. Robertson.

Dr. Watson's and Professor Gay’s expert help had the greatest effect on my reworking of the psychoanalytic treatment.

I am grateful to acknowledge permission to quote sources from The Houghton Library and Harvard Law School Library.

Endnotes

1. Letter to William James, December 15, 1867, l R. Perry, The Thought Character of William James, 505 (1936).
2. O. Holmes, Oliver Wendell Holmes, Jr., Papers, Harvard Law School Library; American Legal Manuscripts, The Oliver Wendell Holmes, Jr. Papers (University Publications of America, 1985) (Microfilm Project), reel 16. Cf. Little, "the Early Reading of Justice Oliver Wendell Holmes," 7 Harvard Library Bulletin 184 (1954).
3. In 1870 Holmes and Arthur G. Sedgwick assumed co-editorial responsibility, replacing the Review's founding editors. See M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 1841-1870, 273 (1957); Kellogg, "Bibliographical Essay," in O. Holmes, The Formative Essays of Justice Holmes, 277 (Kellogg ed. 1984). Holmes edited the American Law Review from volume V (October 1870) through volume VII (July 1873). The Review itself identified neither the editors nor the authors of individual contributions, through the identification of Holmes' articles has long been known. See Frankfurter, "The Early Writings of O. W. Holmes, Jr.," 44 Harv. L. Rev. 717, 718 (1931). I have been unable to determine whether Sedgwick in fact withdrew from editing the Review in 1872 or 1873. Howe writes (without citation to source) that Holmes and Sedgwick turned over responsibilities to the new editors. M. Howe, Justice Oliver Wendell Holmes: The Proving Years 1870-1882, 93-94 (1963).
4. Holmes is one of the most studied writers in American legal history, and the literature is vast. For a valuable but dated bibliography, see H. Shriver, What Justice Holmes Wrote, and What has been Written about Him (1978). More recent bibliographies do not purport to be complete. Holmes' changing reputation is discussed insightfully by White, "The Rise and Fall of Justice Holmes," 39 U. Chi. L. Rev. 51, 51-77 (1971); White, "Looking at Holmes in the Mirror," 4 Law and History Rev. 439, 439-65 (1986). Over a dozen new publications have appeared in the last several years, spurred in part by the centennial of the publication of O. Holmes, The Common Law (1881). The most ambitious recent study is H. Pohlman, Justice Oliver Wendell Holmes and Utilitarian Jurisprudence (1984).
5. Law and the Modern Mind 253 (1931). Frank's work remains a classic. I may state my differences from his psychoanalytic treatment dogmatically. First, as a matter of theory, the superego contains internalized functions of both father and mother. Second, as a matter of bibliography, the evidence suggests that Holmes did not overcome oedipal conflicts.
6. Kaplan, "Encounters with O. w. Holmes, Jr.," in B. Kaplan, P. Atiyah, and J. Vetter, Holmes and The Common Law: A Century Later: The Holmes Lectures, 1981 12-14 (1983).
7. For example, inconsistency and change in Holmes' treatment of First Amendment rights are discussed in recent articles: Hunter, "Problems in Search of Principles: The First Amendment in the Supreme Court from 1791-1930," 35 Emory L. J. 59, 107 (1986); D. Rabban, "The Emergency of Modern First Amendment Doctrine," 50 U. Chi, L. Rev. 1205, 1303-20 (1983).
8. Daniel J. Boorstin notes, "Although his legal philosophy continually lends itself to characterizations as Legal Pragmatism, Mr. Justice Holmes in his personal Legal Pragmatism, Mr. Justice Holmes in his personal philosophy was often inclined to take refuge in a kind of mysticism." "The Elusiveness of Mr. Justice Holmes," 14 The New England Q. 485 (1941). D. Burton writes, "It must be clear that, when he moved away from the Law, Holmes was a curious mix of the old truths and the new scientific mentality." Oliver Wendell Holmes, Jr., 89 (1980).
9. Letter to Henry P. Bowditch, May 22, 1869, 1 R. Perry, The Thought and Character of William James 297.
10. See, e.g., C. Bowen, Yankee from Olympus: Justice Holmes and his Family 109-10 (1944), F. Biddle, Mr. Justice Holmes 29-30 (1946).
11. 1 O. Holmes, The Holmes-Einstein Letters 349 (J. Peabody ed. 1964).
12. I have been unable to locate Holmes' mother's letters or any diary or other material that might illuminate her relationship with Holmes.
13. Manuscript note, "20 Months--Wendy," Oliver Wendell Holmes, Sr., Papers, The Houghton Library, Harvard University. The manuscript note is included in a scrapbook which includes material from the 1860s. Howe discusses attribution of the manuscript. M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 289 n. 4.
14. Manuscript note, "26 Months," Oliver Wendell Holmes, Sr., Papers, Houghton Library, Harvard University.
15. Cf. Diary entries for January 17, 1871, and July 21-22, 1891, in Little, "The Early Reading of Oliver Wendell Holmes," supra note 2, at 182, and the so-called "Black Book," Oliver Wendell Holmes, Jr., Papers, Harvard Law School Library, at 151, col. 2.
16. Henry James wrote in his Autobiography 532 (1956); "How does Mr. Holmes persevere about smoking? I pity him if he can't sleep, and I wish I had a vicious [sic] habit so that I might give it up."
17. Holmes related the story to Charles P. Curtis, Jr., who related it to Bowen. C. Bowen, Yankee from Olympus 93-94, 436, 439.
18. Though few records survive, Howe writes: "[T]here are no indications that Holmes and his sister were close to one another, or that Holmes followed with any special sympathy the misfortunes of his younger brother, Edward, whose ill health . . . ended with his death in 1884 at the age of thirty-eight." M. Howe, Justice Oliver Wendell Holmes: The Proving Years 255. Howe is writing, however, about the period in the late 1870s and early 1880s when Holmes was intensely withdrawn and compulsively preoccupied with his work.
19. A. James, The Diary of Alice James 69 (L. Edel ed. 1964). The diary entry is discussed by M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 11-12, in the context of Holmes' childhood.
20. See generally C. Oberndorf, The Psychiatric Novels of Oliver Wendell Holmes, pp. 6-19 (2^nd ed. 1943) (reprint 1971).
21. Oliver Wendell Holmes, Jr., Papers, Harvard Law School Library, Manuscript Box 69, Folder 1.
22. Letter of J. R. Sullivan to E. S. Dixwell (Holmes' instructor and future father-in-law) of September 29, 1851, Oliver Wendell Holmes, Jr., Papers, Harvard Law School Library, Manuscript Box 69, Folder 2, (mounted with border decorated by Holmes' wife and the addressee's daughter).
23. E.g., C. Bowen, Yankee from Olympus 93, 115.
24. [O. Holmes], "Alma Mater," 7 The Harvard Magazine 48 (1860). Senior poem 1861 (lost), discussed in M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 75-76.
25. Richard Laurin Hawkins discusses the spread of positivism and the negative reaction of Holmes' college teacher Professor Bowen, Positivism in the United States (1853-1861) 23-26, 36-39 (1938). Holmes' college essays reveal that he had read work by the positivist-influenced writer Lewes. [O. Holmes], "Notes on Albert Durer," The Harvard Magazine 41-47 (1860). But his college writings do not advocate positivism and continue to reveal the influence of transcendentalism. Goldsmith, arguing for direct influence of Holmes' father's theory on Holmes' mature thought neglects the shift in Holmes' views and mistakenly associates his father's transcendental novels with positivist psychology. See Goldsmith, "Oliver Wendell Holmes: Father and Son," 48 J. Crim. L. & Criminal 394 (1957).
26. Freud's own explanation of identification evolved over time, and he may have accepted the existence of two different types of identification. See generally Compton, "The Concept of Identification in the Works of Freud, Frenczi, and Abraham," 54 Psychoanalytic Q. 200, 200-33 (1985). Some psychoanalysts have classed it as a defense mechanism. E.g., W. Toman, An Introduction to Psychoanalytic Theory of Motivation 40-44 (1960).
27. See Compton, "The Concept of Identification in the Works of Freud, Ferenczi, and Abraham," supra note 26, at 220.
28. In a study of Holmes' college writings, I have elsewhere suggested that while Holmes was developing critical attitudes toward aspects of transcendentalism, his last college writings reveal defense of transcendentalism with renewed vigor. See The Early Writings of Justice Holmes, 30 Boston College L. Rev. (1989).
29. See O. Holmes, "Autobiographical Sketch," in Mind and Faith of Justice Holmes 8 (M. Lerner ed. 1946): "If I survive the war I expect to study law as my profession or at least for a starting point."
30. M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 76-66.
31. 1 O. Holmes [Sr.], Life and Letters of Oliver Wendell Holmes, 78-79 (J. Morse ed. 1896). E. Hoyt, The Improper Bostonian: Dr. Oliver Wendell Holmes 38-39 (1979).
32. See M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 38, 45, 62, 69.
33. Holmes' experience seems to support Dr. Watson's contemporary observation about attributes of persons selecting a legal career, which include "an increased concern over the expression and nonexpression of aggressiveness." Watson, "The Quest for Professional Competence: Psychological Aspects of Legal Education," 37 U. of Cincinnati L. Rev. 101 (1968). See also Watson, "Some Psychological Aspects of the Trial Judge's Decision-Making" 39 Mercer L. Rev. 939 (1988).
34. See E. Hoyt, The Improper Bostonian: Dr. Oliver Wendell Holmes 32-36.
35. "The Autobiographical Notes," in 1 O. Holmes [Sr.], Life and Letters of Oliver Wendell Holmes 39-40. See also id. at 43.
36. See C. Oberndorf, The Psychiatric Novels Oliver Wendell Holmes, 22, 200-02.
37. Compare M. Howe, Justice Oliver Wendell Holmes: The Shaping Years plates 6, 7, 13 and 1 O. Holmes, Holmes-Pollock Letters 10 plate opposite (M. Howe ed. 1941). Holmes' self-portrait sketch in his May 1, 1861 letter to his mother depicts a stubble on his lip and a cleanshaven chin. The sketch has a note "moustache cut like hair." See O. Holmes, Touched with Fire: Civil War Letters and Diary 3 (1946). His self-portrait sketch in his letter of April 28, 1862, depicts him as cleanshaven. See id. at 45. Both self-portraits depict Holmes smoking a pipe.
38. Holmes' letter from the front convey unmistakably his eagerness to engage in combat and his disappointment in delays. See O. Holmes, Touched with Fire: Civil War Letters and Diary 8, 9-10, 43.
39. Even before the war, in the first edition of Leaves of Grass, Walt Whitman (1819-92) endowed the Union with sexual allure. The poem that commences "Come closer to me, /Push close my loves and take the best I possess, /Yield closer and closer and yield the best you possess. . . ." continues freely and later proclaims, "We thought our Union grand and our Constitution grand; /I do not say they are not grand and good--for they are, /I am this day just as much in love with them as you . . ." [W. Whitman,] Leaves of Grass 57, 60 (q1966) (facsimile of 1^st ed., 1855).
40. Letter of December 20, 1862, O. Holmes Touched with Fire: Civil War Letters and Diaries 79. Later in the letter Holmes reminded his father that he remained "as ready as ever to do my duty . . ." (id. at 80), but Holmes' destruction of correspondence makes it impossible conclusively to establish the existence or effect of such a fantasy.
41. M. Howe, "The Positivism of Mr. Justice Holmes," 64 Harv. L. Rev. 536-37 (1951); M. Howe, Justice Oliver Wendell Holmes: The Shaping Years, 84, 109, 133, 136-38, 171-72. There are problems with the details of Howe's biographical account of Holmes' transformation, and Howe's biography was informed by his own interpretation of Holmes' later writings as evidencing an extreme form of legal positivism and skepticism. Nevertheless, Howe's fundamental insight into the role of his Civil War experience in provoking a crisis that resulted in an intellectual transformation remains firmly established.
42. Howe states that Holmes and his mother went through his letters and destroyed "an appreciable number of his letters to his family." M. Howe, Introduction to O. Holmes, Touched with Fire: Civil War Letters and Dairy ix. Holmes probably also destroyed a diary that he kept during the war. A few loose pages were saved, which he inserted in a second diary, which survives. Id.
43. The view was widespread at the time and was supported by the apparent military impasse.
44. Letter to his father, December 20, 1862, in O. Holmes, Touched with Fire: Civil War Letters and Diary 79-80.
45. Id. at 79-80; M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 138.
46. Id. at 101.
47. Letter of September 22, 1862, O. Holmes, Touched with Fire: Civil War Letters and Diary 67.
48. Letter of March 29, 1863, id. 86, 91. He evidently destroyed the previous letter to which he referred.
49. Letter of May 30, 1864, id. at 135.
50. Letter of March 18, 1873, quoted in M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 18.
51. Letter of February 3, 1890, 1 Holmes-Pollock Letters 33. From the elder Holmes' letters, we know that Holmes' wife did much to brighten his father's last years and that Holmes was often out of the house. See 2 O. Holmes [Sr.], Life and Letters of Oliver Wendell Holmes 86, 87, 263-64.
52. The severity of Holmes' trauma, the compulsive intensity with which he withdrew into his work after the war, and the repeated use of military imagery in his later writings--all indicate the force of the trauma and are consistent with trauma-induced neurosis. Such a possibility raises limits to a theoretical explanation grounded on mental forces deriving from the oedipal complex. See generally S. Freud, "Beyond the Pleasure Principle," 18 The Standard Edition of the Complete Psychological Works of Sigmund Freud 7-64 (J. Strachey trans. 1955). Freud noted that the concurrence of physical injury with psychic trauma reduced the likelihood of development of traumatic neurosis. Id. at 10.
53. See O. Holmes, Touched with Fire: Civil War Letters and Diary 11, 13, 55, 56, 74, 92.
54. He asked one writer to remove a reference to his wife in a published article. See letter to Elizabeth Shepley Sergeant, December 5, 1926. The Oliver Wendell Holmes, Jr. Papers, reel 37. Holmes explained that his wife wanted no public attention.
55. M. Howe, Justice Oliver Wendell Holmes: The Shaping Years 254. See also M. Howe, Justice Oliver Wendell Holmes: The Proving Years 256.
56. Rogat, "The Judge as Spectator," 31 U. Chi, L. Rev. 227-28 (1964).
57. Letter of January 10, 1904, l Holmes-Pollock Letters 115; letter of April 11, 1897, id. at 73.
58. ". . . I took up Casanova . . . That was just what I wanted . . . I don't like dirty books or care for indecent ones, but there sometimes goes with the freedom they imply, a temperament--a smack--a gusto, as I said, that puts life into one." Letter of May 27, 1910. Quoted in M. Howe, Justice Oliver Wendell Holmes: The Proving Years 259.
59. See M. Howe, Justice Oliver Wendell Holmes: The Sha