vrfS'fs.-V /■ /i'-' , i MR. JUSTICE HOLMES HARVARD LAW ASSOCIATION OF NEW YORK, ON FEBRUARY 15, lbi3 L161— H41 SPEECH OF MR. JUSTICE HOLMES. Mr. Chairman and gentlemen, vanity is the most philosophical of those feelings that we are taught to despise. For vanity recognizes that if a man is in a minority of one we lock him up, and therefore longs for an assurance from others that one’s work has not been in vain. If a man’s ambition is the thirst for a power that comes not from office but from within, he never can be sure that any happiness is not a fool’s paradise — he never can be sure that he sits on that other bench reserved for the masters of those who know. Then, too, at least until one draws near to 70 one is less likely to hear the trum- pets than the rolling fire of the front. I have passed that age, but I still am on the firing line, and it is only in rare moments like this that there comes a pause, and for half an hour one feels a trembling hope. They are the rewards of a lifetime’s work. But let me turn to more palpable realities — to that other visible court to which for 10 now accomplished years it has been my oppor- tunity to belong. We are very quiet there, but it is the quiet of a storm center, as we all know. Science has taught the world skepti- cism, and has made it legitimate to put everything to the test of proof. Many beautiful and noble reverences are impaired, but in these days no one can complain if any institution, system, or belief is called on to justify its continuance in life. Of course we are not excepted, and have not escaped. Doubts are expressed that go to our very being. Not only are we told that when Marshall pronounced an act of Congress unconstitutional he usurped a power that the Con- stitution did not give, but we are told that we are the representatives of a class — a tom of the money power. I get letters, not always anonymous, intimating that we are corrupt. Well, gentlemen, I admit that it makes my heart ache. It is very painful, when one spends all the energies of one’s soul in tr 3 dng to do good work, with no thought but that of solving a problem according to the rules by y^hich one is bound, to know that many see sinister motives and would be glad of evidence that one was consciously bad. But we must take such things philosophically and try to see what we can learn from hatred and distrust, and whether behind them there may not be some germ of inarticulate truth. The attacks upon the court are merely an expression of the unrest that seems to wonder vaguely whether law and order pay. When the ignorant are taught to doubt they do not know what they safely may believe. And it seems to me that at this time we need educa- tion in the obvious more than investigation of the obscure. I do not see so much immediate use in committees on the high cost of living and inquiries how far it is due to the increased production of gold, how far to the narrowing of cattle ranges and the growth of popula- tion, how far to the bugaboo, as I do in bringing home to people a few 3 1 4 SPEECH OF ME. JUSTICE HOLMES. social and economic truths. Most men think dramatically, not quan- titatively, a fact that the rich would be wise to remember 'more than they do. We are apt to contrast the palace with the hovel, the dinner at Sherry’s with the workingman’s pail, and never ask how much or realize how little is withdrawn to make the prizes of success. (Subordinate prizes — since the only prize much cared for by the pow- erful is power. The prize of the general is not a bigger tent, but command.) We are apt to think of ownership as a terminus, not as a gateway— and not to realize that except the tax levied for personal consumption large ownership means investment, and investment means the direction of labor toward the production of the greatest returns, returns that so far as they are great show by that very fact that they are consumed by the many, not alone by the few. If I might ride a hobby for an instant, I should say we need to think things instead of words — to drop ownership, money, etc., and to think of the stream of products; of wheat and cloth andf railway travel. When we do, it is obvious that the many consume them; that they now as truly have substantially all there is, as if the title were in the United States; that the great body of property is socially admin- istered now, and that the function of private ownership is to divine in advance the equilibrium of social desires — which socialism equally would have to divine, but which, under the illusion of self-seeking, is more poignantly and shrewdly foreseen. I should like to see it brought home to the public that the question of fair prices is due to the fact that none of us can have as much as we want of all the things we want; that as less will be produced than the public wants, the question is how much of each product it will have and how much go without; that thus the final competition is between the objects of desire, and therefore between the producers of those objects; that when we oppose labor and capital, labor means the group that is selling its product and capital all the other groups that are buying it. The hated capitalist is simply the mediator, the prophet, the adjuster according to his divination of the future desire. If you could get that believed, the body of the people would have no doubt as to the worth of law. That is my outside thought on the present discontents. As to the truth embodied in them, in part it can not be helped. It can not be helped, it is as it should be, that the law is behind the times. I told a labor leader once that what they asked was favor, and if a decision was against them they called it wicked. The same might be said of their opponents. It means that the law is growing. As law em- bodies beliefs that have triumphed in the battle of ideas and then have translated themselves into action; while there still is doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field. It is a misfortune if a judge reads his con- scious or unconscious sympathy with one side or the other prema- turely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong. I think that we have suffered from this misfortune, in State courts at least, and that this is another and very important truth to be extracted from the popular discontent. When 20 years ago a vague terror went over the earth and the word socialism began to be heard, I thought and still think that fear was translated into doctrines that ! SPEECH OF MR. JUSTICE HOLMES. 5 had no proper place in the Constitution or the common law. Judges are apt to be naif^imple-minded men, and they need something of Mephistopheles. We, too, need education in the obvious — to learn to transcend our own convictions and to leave room for much that we hold dear to be done away with short of revolution by the orderlv change of law. ^ I have no belief in panaceas and almost none in sudden ruin I believe with Montesquieu that if the chance of a battle— I may add the passage of a law— has ruined a State, there was a general cause at work ^at made the State ready to perish by a single battle or law. Hence I am not much interested one way or the other in the nostrums now so strenuously urged. I do not think the United States would come to an end if we lost our power to declare an act of Congress void I do think the Union would be imperiled if we could not make that declaration as to the laws of the several States tor one in my place sees how often a local policy prevails with those who are not trained to national views and how often action is taken that embodies what the commerce clause was meant to end. But i am not aware that there is any serious desire to limit the court’s power in this regard. For most of the things that properly can be called evils m the present state of the law I think the main remedy as lor the evils of public opinion, is for us to grow more civilized. ' n 1 am right, it will be a slow business for our people to reach rational views, assuming that we are allowed to work peaceably to that end. But as I grow older I grow calm. If I feel what are per- haps an old mans apprehensions, that competition from new races will cut deeper than workmgmen’s disputes and will test whether we can ang together and can fight; if I fear that we are running through the world s resources at a pace that we can not keep, I do not lose my hopes, i do not pm iny dreams for the future to my country or even to my race;. I think it probable that civilization somehow will last as long as I care to look ahead — perhaps with smaller numbers, but perhaps also bred to greatness and splendor by science. I think it not irnprobable that man,- like the grub that prepares a chamber for the winged thing It never has seen but is to be, that man may have cosmic destinies that he does not understand. And so bevond the vision of battling races and an unpoverished earth I catch a dreaming glimpse ol peace. ^ The other day my dream was pictured to my mind. It was evening. I was walking homeward on Pennsylvania Avenue near the Treasury, and as I looked beyond Sherman’s statue to the west the sky was crimson from the setting sun. But, like the ftnm m Wagner S opera, below the sky line there came from little globes the i^llid discord of the electric lights. And I m .^dtterdammerung will end, and from those globes clustered like evil eggs will come the new masters of the sky. It is like the time m which we live. But then I remembered the fai4 that i partly have expressed, faith in a universe not measured by our fears, a universe that has thought and more than thought inside of it. ^h ^\h sunset and above the electric lights, there o Digitized by the Internet Archive in 2017 with funding from University of Illinois Urbana-Champaign Alternates https://archive.org/details/speechofmrjusticOOholm