The Book of Peppercorns

Editor’s Note: A generation of LSU law students has heard Professor Baier trumpeting the name of Frederick Bernays Wiener, “Colonel Wiener,” who visited the Law Center in October 1979 as guest of honor at a black-tie dinner in the LSU Union. Baier fully exposed his subject in a law library exhibit entitled, “The Lawyer’s Reason and the Soldier’s Faith.” Here is the only lawyer in the history of the Supreme Court to lose a case, with a published adverse opinion, only to turn the Court around on rehearing and win, Reid v. Covert, 354 U.S. 1 (1957). It had never happened before. It has never happened since. Professor Baier pencil-sketched his subject for the Yale Biographical Dictionary of American Law (2009). Now he is now completing his portrait, a memoir entitled Written in Water: An Experiment in Legal Biography. His co-author is Jacob A. Stein, a noted Washington, D.C. lawyer who knew Fritz Wiener personally. Their collaboration is exhilarating, as Baier plods ahead. Sabbatical leave has been approved for Spring Term 2014. Professor Baier is already underway—buried in Frederick Wiener’s personal papers retrieved from a Phoenix, Arizona, warehouse and stuffed into Professor Baier’s “Museum.” We are delighted to open the door to Baier/Stein by way of a few leaves of Frederick Bernays Wiener’s Book of Peppercorns. These sample pages are thrilling to those of us in our own generation who like to dirty our hands with original documents. We are grateful to Messrs. Baier and Stein for allowing us to post “a sample of Fritz Wiener’s fleece” on the Law Review’s online journal.

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By Paul R. Baier and Jacob A. Stein

Frederick Bernays Wiener’s bones rest at the foot of Thunder Mountain, at Fort Huachuca, a U.S. Army Post, in Sierra Vista, Arizona. He has a smile on his face. One finds other fragments of his fleece buried in his personal papers. His Book of Peppercorns—“Collected, Compiled, and Thrown Together by Frederick Bernays Wiener, 1931,”—gives us a glimpse of young Frederick Wiener in his earliest professional days. Law students know the lowly peppercorn as consideration at Common Law. Fritz Wiener took Contracts at the Harvard Law School with Professor Samuel Williston, “a master of the Socratic method.” Classes are still taught at Cambridge, Massachusetts using what Oliver Wendell Holmes, Jr. called “Mr. Langdell’s method.” Law students know the drill. But, looking back over fifty years, Fritz Wiener would tell you that things have gone downhill at Harvard Law School—this, a perturbing moment of nostalgic reflection. But never mind. Fritz’s Book of Peppercorns is a lively scrapbook unearthed from one of many cardboard boxes. At the time of this scrapbook Fritz Wiener is in Providence, Rhode Island working at a leading law firm. He is engaged in the practice of law and after-hours tinkering, the latter much more pleasurable. He appears on the Providence stage in a one-act play entitled “To Die with a Smile.”

The Book of Peppercorns shows young Fritz Wiener writing a slashing review of Silas Bent’s biography of Holmes. “This book is distinctly disappointing.” He listens with great excitement to Mr. Justice Holmes’s ninetieth birthday radio address, March 8, 1931, broadcast to millions. Holmes was a giant. “In order properly to do justice to a man of Holmes’s stature there must be largeness in the biographer.” Silas Bent did not measure up.

The first page of The Book of Peppercorns is clipped from the Providence Journal, Saturday, March 7, 1931: “Judge Holmes Gives First Talk Over Radio Tomorrow/Supreme Court Justice Surprises Camera Men by Agreeing to Pose.

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Frederick Bernays Wiener was a student and admirer of Mr. Justice Holmes from his Harvard Law School days, through his Providence practice, the New Deal, World War II, the Solicitor General’s Office, his appellate practice in Washington, D. C., his sunny retirement in Phoenix, Arizona with Doris Merchant Wiener at his side. The Book of Peppercorns contains a typescript of the Rhode Island Legislature’s “RESOLUTION of congratulations to Mr. Justice Holmes of the Supreme Court of the United States on the occasion of his ninetieth birthday.” Undoubtedly Fritz wrote it. Here is the opening clause:

WHEREAS, the judgments of the Honorable Oliver Wendell Holmes in every field of the law, combine in unique and masterful fashion a learning profound as it is rare and a literary charm and grace of unforgettable strength, with a statesmanlike wisdom and insight of the highest order; and constitute a contribution to our jurisprudence so vast, so rich, and so unprecedented, that we in our generation are hardly competent to evaluate it;

Elsewhere in Fritz’s Peppercorns one finds a typescript of Justice Holmes’s letter addressed to “Editors of the Harvard Law Review”—June 28, 1931—thanking them for their volume of the Review (Vol. 44, 1930-31, p. 677), with a magnificent photograph of the Magnificent Yankee himself as a frontispiece. The number was dedicated to Justice Holmes on the occasion of his ninetieth birthday. It contains an opening tribute by Chief Justice Charles Evans Hughes and one by Justice Benjamin Cardozo.

What was Justice Holmes’s reply to the Editors? Here is what he wrote: “Let me say that I regard the number as one of the great honors of my life and that in spite of all I know to the disadvantage of the subject, it makes me proud.”

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Curiously, the small envelope that bears the address, “Editors of the Harvard Law Review Cambridge Massachusetts,” and the return address, “Justice Holmes Beverly Farms, Mass.,” in Holmes’s tiny, elegant handwriting, is tucked away at this point between the fading pages of Fritz Wiener’s Book of Peppercorns. How it came to be there is a mystery.

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Fritz had friends at the Harvard Law Review, Gannett House, Cambridge, Massachusetts. He was Note Editor of the Law Review 1929-30. Perhaps it was a gift. Perhaps he clipped it while on a junket to Cambridge. To those of us who like to dirty their hands with original documents it is a treasure.

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