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(WashPage)
By DAVID MARGOLICK
c. 1983 N.Y. Times News Service
    WASHINGTON - When Oliver Wendell Holmes died in 1935, he left the
bulk of htyu 0,000, to the U.S. government. It
was the largest unrestricted gift ever made to the American people,
and, shortly thereafter, President Roosevelt called on Congress to
devote Holmes's ''noble bequest'' to ''some purpose worthy of the
great man who gave it.''
    After nearly half a century, there is little to show as a result of
the great jurist's bequest.
    For 20 years his money lay idle, not even collecting interest. Since
then, it has financed what was to have been the definitive history of
the U.S. Supreme Court, on which Holmes served from 1902 to 1932. But
the history has been plagued from the outset. Though more than
$400,000, including additional money from charitable foundations, has
already been spent on it, no oneis
certain when, or even if, the project will be finished.
    ''Frankly, I can't give any explanation for why the authors have
been so dilatory, and that's the word for it - dilatory,'' said Dr.
Daniel J. Boorstin, the librarian of Congress, a Pulitzer Prize-
winning historian and an Oxford- and Yale-trained lawyer. ''It should
have been concluded long before now. It's not a happy story.''
    Originally, the project was to have been completed by 1965. Now, 18
years later, only four of the 11 proposed volumes have been
published. Recently, the deadline has been pushed back from the50th
anniversary of Holmes's death, in 1985, to the bicentennial of the
Constitution in 1987. Boorstin suggested, only half- facetiously,
that the tricentennial of the Constitution might be a more realistic
target.
    ''As a historian, I must learn something from the past,'' he said.
''And judging from past events, it would be imprudent and unjustified
for me to say this set will ever be finished.''
    Professor Paul A. Freund, of Harvard Law School, who has edited the
project since 1956, attributed the delays to underfinancing, bad
luck, and the conscientiousness of the authors. He defended his
administration of the enterprise and stressed the merits of the work
produced so far.
    ''I don't think you can raise scholarly plants by pulling them up by
the roots,'' he said. ''I wish people would talk about the quality of
the work rather than the time it's taken to write. There's not been
anything like it in the field of Supreme Court history or American
legal history.''
    Holmes died at the age of 93 on March 6, 1935, leaving $263,000 to
''the United States of America.'' A special committee was formed,
including Justices Harlan Fiske Stone and Felix Frankfurter, and with
Alger Hiss, once Holmes's law clerk, as its secretary. It recommended
that the bequest, known as the ''Holmes Devise,'' be used to publish
a volume of Holmes's writings and to build a Holmes Memorial Garden
near the Supreme Court.
    The recommendations were quickly forgotten. Only in 1955 did
Congress authorize the history project and create a committee of
scholars, under the librarian of Congress, to administer it. Freund,
named editor, recruited several leading constitutional scholars of
the day, including Alexander M. Bickel, of Yale, Julius Goebel Jr.,
of Columbia, Gerald Gunther, now of Stanford, and Phil C. Neal, now
of the University of Chicago, to contribute volumes. Each was to
receive $12,000 for his work.
    More than merely a ''rehash of great cases,'' Freund wrote in 1956,
the study would be ''history in the broad sense - dealing with the
impact of the world upon the Supreme Court and the impact of the
Court upon the world.'' Originally, the project was to take four
years to complete. The contracts the authors signed with Macmillan &
Co. bound them to finish by 1965.
    Not one of the books was done by then, nor by 1969, when the
columnist Drew Pearson called the Holmes Devise ''the majestic
boondoggle.'' The four volumes that have been completed since then
are by Goebel, Carl Swisher, of Johns Hopkins University, Charles
Fairman, of Harvard, and jointly by George Haskins of the University
of Pennsylvania and Herbert Johnson of the University of Southern
California. The volumes, which have sold about 4,000 copies each,
have met with mixed reviews in the scholarly community.
    Boorstin, shortly after becoming librarian of Congress in1975,
called the situation ''deplorable'' and ''a scandal.'' He compared
the Holmes Devise to the long-running effort by the Academie
Francaise to write a French dictionary. In 1977, he ordered the
authors to turn over what they had written, in whatever form.
    The demand prompted two authors, Gunther and Neal, to resign from
the project. ''There are several years of laborious effort ahead,''
Gunther wrote Freund. ''Given my age, and the other writing I want to
do, in what is for all of us a limited time span, I cannot go on.''
    (MORE)
    
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NYT WASHINGTON: go on.''
    With his resignation he forwarded 4,500 pages of manuscript - the
product of 20 years of research into the Supreme Court under Chief
Justice John Marshall - to G. Edward White, of the University of
Virginia, who is to complete the book.
    Neal submitted nothing, however, either to the committee or to his
designated successor, Owen M. Fiss, of Yale Law School. He did refund
$13,362 in advances he had received from the committee, disclosing in
a letter to Boorstin that the general counsel to the Devise had
threatened him with a lawsuit if he failed to do so.
    Legal action temporarily threatened the volume left incomplete by
Bickel upon his death in 1974 and taken over by his former student,
Professor Benno C. Schmidt Jr., of Columbia Law School. Schmidt wrote
to the committee in 1975 that he was eager ''to follow in the
footsteps of my revered teacher and friend'' and ''to participate in
this great collective enterprise.'' But more than seven years passed
before he completed the Bickel manuscript, a task that Bickel himself
said would require barely a year to do.
    The situation, Bickel's widow, Joanne, complained in a1981 letter to
Freund, was ''outrageous'' and for a time she considered filing a
lawsuit. That book is now at the printer's. But in light of the long
delay, committee minutes reveal, a second volume Bickel was to have
written was taken from Schmidt and reassigned to Robert Cover, of
Yale.
    The most problematical volume of all, however, could be Freund's,
covering the New Deal period. Twenty-two years ago, according to
Victor Navasky's book, ''Kennedy Justice,'' Freund turned down
President Kennedy's offer of the post of solicitor general in part so
that he could complete the book. ''I thought you would rather make
history than write it,'' Kennedy is said to have told him at the time.
    Freund, now 75, says he has worked on it ever since, and hopes to
finish it by 1985 or 1986. But members of the Holmes Devise committee
have seen only one small excerpt from his book. According to Dr.
James H. Hutson, secretary to the committee, some of the $60,000
remaining in the bequest may have to be called on in case another
author must be enlisted.
    In explaining the delays, some say the project was unrealistically
ambitious from the outset - a problem compounded by the overly
scrupulous approach of some of the authors. Bickel, for instance,
felt obliged to mention every case decided by the Court in the
10-year span he covered. Fairman originally devoted some 400 pages
solely to the Court's role in resolving the disputed 1876
Hayes-Tilden presidential election.
    Others cite the authors' competing obligations. Neal, for instance,
became dean of the University of Chicago Law School; Gunther began a
biography of Judge Learned Hand and wrote a leading casebook on
constitutional law. Then, too, most of the authors have no historical
training.
    The principal problem, though, may lie in the difficulties lawyers
have in writing history. In fact, the only authors who have finished
their books are those with advanced degrees in other fields, like
history or political science.
    ''Lawyers are arrogant and think they can do anything, including
write history,'' said Professor Stanley N. Katz, a legal historian at
Princeton, who became co-editor of the project in 1978. The original
assignment, he said, was ''like getting seven of the smartest lawyers
together and asking them to write a novel.''
    Katz says the volumes in progress will be shorter - in his words,
''more like monographs than encylopedias.'' The new books, he said,
will not be ''judged by divine standards of omniscience.''
    The project's newest author, Cover, who began his volume in 1979,
says he hopes to finish by the 1987 target date. He conceded,
however, that the temptation to go beyond the reported decisions and
examine both their historic backdrop and their subsequent impact may
make that deadline unrealistic.
    ''You find yourself biting off more than sounds reasonable,'' he
said. ''It's very easy to understand how you become paralyzed.''
    In any case, the best histories, Boorstin said, are rarely the
product of collaboration, particularly collaborations over more than
three decades.
    ''One of the values of history, is that it expresses the attitude of
the period in which it was written,'' he said. ''When you drag it
out, it ceases to have that benefit, and it becomes more
kaleidoscopic than artistic or coherent.''
    
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