Benjamin Robbins Curtis

THESE volumes¹ are the fitting monument of family love and admiration. A brother writes the memoir, and a son selects and edits the works. Both brother and son have achieved their respective duties better than is too apt to be the case where such near relatives undertake to deal with the memory of one deceased. But the malice of an enemy could hardly have dared to predict that Mr. George T. Curtis would allow his judgment to be over deeply tinged by his enthusiasm, and a certain coldness of mental temperament, which was a serious drawback in his Life of Webster, has secured a high degree of excellence in this less ambitious but better written biography. It is the sketch of an intellect strikingly grand and massive, yet of singular simplicity of structure. Mr. Curtis’s extraordinary power of intellectual insight was united with an equally admirable capacity for lucid exposition. What faculties he had outside of these were not remarkable. Thus, his literary tastes were not noteworthy ; he manifested no leaning towards poetry, philosophy, art, or science ; he never displayed either wit or humor; he had surprisingly little propensity for an active participation in politics, and on the rare occasions when he concerned himself with public affairs he was by no means successful ; he showed no fitness whatsoever for business, and lost much money in bad investments ; he was not an orator; for though his weighty manner and clear statement could convince dispassionate men, yet he was altogether devoid of the power to sway the general concourse to his will. But if there were so many regions which he wisely refrained from seeking to penetrate, there was at least one province in which, during his life-time, he reigned almost supreme and invincible, — the province of legal argument. To some persons this may seem a circumscription of his powers within the narrow limits of a technical profession; on the contrary, it is far from being so. He was one of the very few members of the profession, either in England or in this country, who have vindicated the real greatness of the law, and have justified its final supremacy over all the rights and all the affairs of civilized men. In his hands the science took its proper character, as that of perfect dearness and fundamental right. Subtlety and intricacy vanished like noxious vapors beneath the powerful sunlight which he sent over and through his subject, and into its every darkling corner. His language, alike in his arguments and his opinions, was concise, lucid, and forcible, a fitting vehicle for his thoughts, a model for judges to set before them, but which few judges have ever rivaled.

A striking difference between Judge Curtis and English lawyers of like distinction lies in his exclusive devotion to his profession. He was not a public character ; he was simply a lawyer and a judge, differing from the poorest lawyer and the most insignificant magistrate not in kind, but only in greatness. It is probable that his life will be read by few persons outside of his own profession, and by them but for two or three generations. Then his memory will soon sink into oblivion. In England, on the other hand, a man of his professional standing would, in the natural and almost unconquerable order of events, have been made a public man, and put more or less prominently into the history of his country, to be known through many coming ages. He could hardly have avoided being made lord chancellor ; he would have been obliged to go into a cabinet, and could not possibly have evaded Parliament. In short, he would have been compelled at least to dabble in statesmanship, in spite of his will or of his nature. Probably in Judge Curtis’s case it would have been in spite of both: for he showed singularly little predilection for political life, and less aptitude for it than might have been expected from his eminence as a constitutional lawyer. As an attorney-general, indeed (which he might have been, had he so chosen, under President Johnson), he could have advised a government as few governments ever have been advised in any country. But a statesman is seldom fortunate or successful who steers by the unvarying compass of rigid law and perfect logic in times as stirring as those in which Judge Curtis’s life was passed. Upon pretty much every one of the few occasions when he gives us the opportunity to estimate his fitness for public life, we find him wanting in the most essential of all traits, — a comprehension of his fellow-men. Matters of feeling and belief with others were with him matters of law and reason. He was prone to set his irrefutable argument against the people’s invincible sentiment, and in this unequal clashing the argument always had to go to the wall, while its advocate lost very much of his personal influence. He could never appreciate by how much popular conviction is more powerful than professional logic, and certainly could never believe that this superiority might often be right and fortunate.

In 1851 he was conducting a large and excellent practice in Boston, when the death of Mr. Justice Woodbury created a vacancy upon the bench of the supreme court of the United States. At once President Fillmore thought of Mr. Curtis as the best successor whom he could name; and the letter in which he suggested this nomination to Mr. Webster crossed one in which Mr. Webster made the same suggestion to him. The appointment promptly followed, and was greeted with a wide-spread satisfaction which must have been as gratifying as it probably was unexpected to the lawyer, only forty-two years old, who had been content sedulously to follow his profession, chiefly in his native State, and never to show himself in public life, He was immediately placed in the then very trying position of presiding at a fugitive-slave trial. A negro, alleged to be a fugitive slave, had lately been rescued from the United States marshal by a body of men who had burst into the court-room during an adjournment of the court. A negro lawyer, indicted for complicity in this seditious enterprise, was to be tried at once before the new judge. John P. Hale appeared for the defendant, and haranguing the jury in his vehement way showed plainly that he meant to take the case altogether out of the control, not only of the court, but if need should be of the law also, and to secure an acquittal by an appeal to the passions and feelings of the panel. He actually ventured to tell the jurors that they were judges of the law, and need not and ought not to be trammeled by the rulings which should emanate from the bench. Judge Curtis stopped him short, and on the following day delivered a ruling or opinion, one of the strongest and clearest which he ever uttered, in which he disposed conclusively and forever of this preposterous claim, that the jury might make the law without regard to the bench. It should be remembered that at this time Judge Curtis sat only by virtue of an appointment made in a recess of Congress, and that the question of confirmation was yet to come before a senate composed of members who were certainly not beyond the reach of the popular excitement then surrounding all fugitive-slave questions. But he was never lacking in a perfect and serene courage.

Two or three years later, at the time of the famous Burns riot in Boston, when one of the defenders of the courthouse was slain by some unknown person among the assailants, Wendell Phillips, Theodore Parker, and others were indicted. Popular feeling was intense. The established law of the land and the supreme law of humanity were seen to be at variance. Each found abundant zealous supporters, and each inevitably numbered among its supporters some few who were neither wise nor temperate. These extremists of the abolitionist section dreaded that the predilections of Judge Curtis would be hostile to the prisoners, and they assailed him, before the trial, in a manner which was not only unbecoming, but subversive of the independence of the judiciary. The temper of his mind and character was shown in the notice which he took of these manifestations ; he wrote to Mr. Ticknor, “ This is no affair of mine. My duty is to administer the law. This will be done.” Such was the composed courage of the man. It so happened that the issue of the trial — favorable, as is well known, to the accused — was due to the unjustly abused judge, who detected and pointed out a fatal flaw in the pleadings which had escaped the eye of the over-excited counsel. The affair shows at once the strength and the weakness of Judge Curtis as a public man. It can hardly be doubted that he would have been well pleased to see offenders against a constitutional statute receive condign punishment, though they had only fulfilled the nobler laws of man’s nature. On the other hand, he could not permit them to be condemned upon a bad indictment, though he alone was aware of the error. The sentiments of mankind meant little to him, but the law was holy.

His dissenting opinion in the famous Dred Scott case, delivered in 1857, was a monument which should long endure to his ability as a lawyer and his courage as a judge. The opinions in that cause had been before the country but a very brief time, when not only every lawyer but every clear-headed and unbiased man in the United States knew that the court had been obviously, grossly, and unpardonably wrong, and that the true law of the case had been pronounced by Judge Curtis in dissent. He made it perfectly plain that the negro might be a citizen of the United States, in spite of his race and of the serfdom of his parents. But even if it be admitted that a different view of this question could have been honestly taken by an able lawyer, at least there was not a nursling in any law office in the land who did not know that, after the majority of the court had denied Scott’s citizenship and had thrown out his bill on the ground that, since he was not a citizen, the lower tribunal had had no jurisdiction, the court thereupon became functus officio in the cause, had no further duty or power in respect of it, and committed an utterly improper and unprofessional act in proceeding to discuss and determine the further and subsequent questions which might have arisen on the merits. This course was adopted from a mistaken hope that the voluntary and irregular dictum of the court might put at rest forever the vexed matter of the power of Congress to prohibit slavery in the Territories; but it had the result which usually attends upon doing wrong in the hope that good may come of it. The good was not accomplished, and the dignity and authority of the court before the country suffered very serious and unfortunate diminution. But Judge Curtis individually, standing out in strong relief against the background of blundering furnished by his associates, received a great accession of reputation and influence with the people at large.

A further deplorable result of this illadvised conduct on the part of the majority of the court lay in the misunderstanding to which the proceedings gave rise between Chief-Justice Taney and Judge Curtis, the full history of which is given for the first time in this biography by the reproduction, without mutilation, of the entire correspondence between the two. Judge Curtis appears preserving his temper, though under extreme provocation, throughout; but the chief-justice presents the sad and humiliating spectacle of a distinguished magistrate conscious of having done an inexcusable wrong, the vast consequences of which cannot be forecast, yet which from its peculiar nature can be neither avowed nor repaired. It is a painful spectacle that is exhibited in these letters, which nevertheless history must faithfully preserve, if for no other purpose, then for the sake of the moral lesson and the warnings which it conveys. A brief synopsis of a narrative which, however, ought to be read at length, is as follows: After the cause had been twice argued, the chief-justice prepared an opinion which was read at a conference of the judges and adopted as the opinion of the court, Curtis and McLean, JJ., dissenting. Judge Curtis prepared, as he was entitled to do, his dissenting opinion. On March 6, 1857, the opinion of the chief-justice was publicly read from the bench as the opinion of the court in the cause. On the following day the dissenting opinion of Judge Curtis was read. A rule of the court required that forthwith after such reading the opinions should be filed in the clerk’s office, whereby they became, by universal custom, if not by actual law, substantially public property, open to inspection by any person. Immediately after Judge Curtis had read his opinion he handed it to the clerk to be filed ; the term of the court was adjourned and the judges separated. Judge Curtis was at once applied to, on behalf of a Boston newspaper, for a copy of his opinion, which he readily furnished. It was at once printed, and was soon distributed far and wide over the country, vastly to the discomfiture of the chief-justice whose errors it so clearly exposed. That magistrate, meanwhile, had not complied with the rule of the court concerning the filing of opinions, but had kept back that which he had read for the apparent purpose of trying, by addition and amendment, to strengthen it so far as possible against the destructive assault of Judge Curtis. When he had achieved this object so far as he was able, he filed the opinion, but at the same time notified the clerk to let no person obtain a copy of it until it should be published in its place in Howard’s Reports. The authority for this instruction was found in a rule of court hastily made to meet this especial emergency at a meeting of some of the judges held in vacation, and of which Judge Curtis was not even notified. The country was greatly vexed at this unusual secrecy, and almost any means would have been resorted to for obtaining the mysterious opinion. Judge Curtis, meantime, was passing his leisure days at Pittsfield, when the rumor reached him of what had been going forward. It is the privilege, founded in obvious necessity, of every dissenting judge to see the opinion from which he is obliged to dissent. Judge Curtis accordingly wrote to the clerk to obtain the amended document filed by the chief-justice. The clerk refused to send a copy, by reason of the orders of the chief-justice. Judge Curtis then wrote to the chief-justice, requesting that the clerk might be instructed to give him the copy which he wished, and to which he regarded himself as entitled from the very character and necessity of his office. The chiefjustice replied, sustaining the action of the clerk; and in addition to this most extraordinary refusal to allow an opinion of the bench, delivered and filed, to be seen by a member of that bench he actually went so far as to utter an insulting insinuation that Judge Curtis did not wish the opinion for any proper purpose, but in order to furnish it to a relative of his for publication. Judge Curtis rejoined with perfect dignity and temper that he wished the document for uses strictly proper and official, and utterly repudiating the unfounded notion of the chief-justice. But it was to no purpose. The chief-justice had fallen into one of those terrible errors which deprive the unhappy blunderer of all reason and judgment; beside himself with anger and suspicion, he floundered more deeply and hopelessly than ever into the wrong. He wrote to Judge Curtis a letter which cannot be read without sensations of indignation and disgust, still withholding the opinion, tacitly thereby questioning Judge Curtis’s good faith, and actually in terms accusing that gentleman of having, for the first time in history, begun an assault upon the very court and bench of which he was himself a member, and of having sought, as the avowed object of his dissenting opinion, to impair the authority of the opinion of the court and to discredit it as a judicial decision. To this inexcusable outburst of foolish wrath Judge Curtis replied with force and dignity, and still with perfect self-control. The controversy was not further prosecuted, as indeed it could not well have been. The chief-justice triumphed for the moment, but at the cost of a stain upon his judicial career which can never be obliterated.

When Mr. Curtis was appointed to the supreme court, it was hoped that his age and constitution would lead to a long term of service. Many persons, therefore, were seriously disappointed, and a few were inclined to condemn him, when he resigned in 1857, after only six years of incumbency. But he had passed the meridian of life, and had accumulated very little property as a provision for his own old age or for his family after his death, and his niggard salary enabled him to lay nothing by. The history of the Dred Scott case had shaken his confidence in the bench, and though a proper sense of decorum had prevented a quarrel, yet it is impossible to suppose that his personal relations with his associates had not been over-severely strained. He was the first judge of the supreme court who had ever come back to the bar to practice, and some persons warned him that he would find it disagreeable in some respects to do so. It does not seem, however, that he did. He confined himself to arguing questions of law to the judges, and his practice was largely in the supreme court at Washington and in the circuit courts of the United States, whence it came to pass that his reputation was more national than is often the case. We are told that in the seventeen years elapsing between his retirement from the bench and his death he received for opinions and law arguments, which were his exclusive business, $650,000. His opinion books are volumes of great value ; he did a large and important business of this kind, and such was the weight of his authority that he saved an immense amount of costly litigation by the settlement of cases made by the parties solely upon the strength of his opinion, without recourse to the courts.

His unwillingness to go before juries prevented his being engaged in any of the causes célèbres of the day, except, indeed, the impeachment of President Johnson. But in his conduct of this great cause he won a distinction which should survive to a remote date in the history of the United States. The burden of the defense has ever been acknowledged to have been borno wholly by him, and for the manner in which he bore it the nation owes him a large debt of gratitude. It has been long since admitted that, however President Johnson may be blamed, this impeachment was a grave political blunder, and that its success would have been a national misfortune, the magnitude and results of which we are fortunately left to imagine rather than to learn. That it so happily came to naught was chiefly, if not wholly, attributable to the fact that Judge Curtis delivered an argument so perfectly irrefutable that the republicans whose frame of mind enabled them to be convinced, or rendered them in any degree fit to assume the judicial function, were simply compelled by his clear statement of the law to vote, however reluctantly, for an acquittal.

J. T. M. Jr.

1. A Memoir of Benjamin Robbins Curtis. LL. D. By GEORGE TICKNOR CURTIS. With some of his Professional and Miscellaneous Writings. Edited by his son, BENJAMIN R. CURTIS. Two volumes. Boston: Little, Brown & Co. 1879.↩